Simmons v. CPI Apartment Fund 2012, LLC et al
Filing
44
OPINION and ORDER Granting Defendants' 35 Motion for Summary Judgment and 36 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEE SIMMONS,
Plaintiff,
v.
Civil Case No. 14-11855
Honorable Linda V. Parker
CPI APARTMENT FUND
2012, LLC, THE HAYMAN
COMPANY, SUBURBAN
BUILDING SERVICES, INC.,
DANA M. BENAC, and
KRISTEN FIORE,
Defendants.
__________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT [ECF NOS. 35 & 36]
Plaintiff Lee Simmons (“Simmons”) initiated this lawsuit against
Defendants on May 8, 2014, alleging a failure to accommodate Simmons’
disability, retaliation, and disability discrimination in violation of the federal Fair
Housing Act (“FHA”) and the Michigan Persons with Disabilities Civil Rights Act
(“PWDCRA”). On February 23, 2015, Defendants filed motions for summary
judgment pursuant to Federal Rule of Civil Procedure 56. The motions have been
fully briefed. Finding the facts and legal arguments sufficiently presented in the
parties’ pleadings, the Court dispensed with oral argument pursuant to Eastern
District of Michigan Local Rule 7.1(f) on May 18, 2015. For the reasons that
follow, the Court grants Defendants’ motions.
I.
Factual and Procedural Background
Simmons is paralyzed from the waist down as a result of a spinal cord injury
on December 1, 2002. (Defs.’ Mot., Ex. A at 22.)1 He was hired by a prior
management company in 2009 to work at Carnegie Park Apartments as a pool
attendant for the complex’s indoor pool. (Id. at 29; Defs.’ Mot., Ex. B at 1, 2, &
6.) Simmons moved into an apartment, unit 722, within the complex at the same
time and was given an employee discount where he paid $432 per month on a twobedroom unit that normally rented for $1,009 per month. (Defs.’ Mot., Ex. B at
22.)
Carnegie Park was built originally as condominiums and a number of units
are owned by individuals who pay homeowner association dues. (Id., Ex. A at 57.)
When the recession hit, a company bought up the unsold units and turned them into
rental apartments. (Id.)
Beginning in 2012, Simmons began working in Carnegie Park’s leasing
office on an occasional basis. (Id. at 32.) He would occasionally lease properties
to prospective tenants while also answering phones. (Defs.’ Mot., Ex. C at 73-74.)
Except where indicated, citations to Defendants’ motion refer to the motion filed
by Defendants Hayman Company, U.S. Suburban Services, Kristen Fiore, and
Dana Benac. (See ECF No. 35.)
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Defendant Dana Benac (“Benac”) worked at Carnegie Park as well and became the
property manager shortly before January 2013. (Id. at 14.)
In January 2013, Defendant Hayman Company (“Hayman”) took over the
management contract for Carnegie Park following the purchase of the property by
Defendant CPI Apartment Fund, 2012, LLC (“CPI”). (Id., Ex. C at 13.) Hayman
continued the employment of the Carnegie Park employees who worked for the
previous management company, including Simmons and Benac.2
In October 2013, Defendant Kristen Fiore (“Fiore”) became the Hayman
Regional Director and her territory included Carnegie Park. (Id., Ex. D ¶ 2.) Fiore
did not work on-site at Carnegie Park until around November or December 2013.
(Id.) At about that time and until approximately January 2014, Fiore undertook a
budget review to “improve efficiencies and operations at Carnegie Park and
maximize resident safety and satisfaction.” (Id. ¶ 4.) Based on her review, Fiore
determined that Carnegie Park did not have sufficient maintenance staff. (Id. ¶ 5.)
Fiore felt that the existing two maintenance technicians could not handle all
maintenance tasks, keep the common areas safe and secure, and handle snow and
ice removal during the winter. (Id. ¶ 6.) Fiore therefore decided that Carnegie
According to Defendants, Defendant U.S. Suburban Building Services, Inc.
actually employed Simmons (and presumably the other Carnegie Park employees),
although his employment was directed by a Hyman regional director. (See Defs.’
Mot. at Pg ID 266 n.1.)
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Park needed a third maintenance technician. (Id. ¶ 7.) To pay for this new
position, Fiore identified three existing positions she believed could be eliminated.
Fiore determined that there was no need for a full-time painter and decided
to eliminate that position which was held by Travis Hammond. (Id. ¶ 7b.) Fiore
also decided to install a security camera and key fob system at the pool-- at a cost
of approximately $2,500-- which eliminated the need for a pool attendant and
provided the added benefit of allowing twenty-four hour indoor pool access. (Id.
¶ 7a.) Finally, Fiore determined that there was no need for an Assistant Manager
and the employee in that position, Carole Brown, was demoted to Leasing Agent
with a $4.50 reduction in pay. (Id. ¶¶ 7c, 10.) Defendants indicate that neither
Hammond nor Brown is disabled.
Once the positions were eliminated, a third maintenance technician was
hired. At this time, a part-time leasing agent also was hired to work weekends.
Benac and Fiore testified that Simmons was not considered for the latter position in
part because he previously had requested to not work weekends after he acquired
custody of his daughter. (Defs.’ Mot., Ex. C at 174-75; Ex. G at 58.) Simmons
also was not considered for the position based on information Defendants received
regarding his activities as a real estate agent.
In December 2013, around the time Fiore was making restructuring
decisions, Thomas Doyle, a member of the board of Carnegie Park’s condominium
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association, complained that Simmons was working in the leasing office when he
also was a real estate agent. (Defs.’ Mot., Ex. C at 62-65.) Apparently Simmons
had acquired his real estate license in April 2013. (Id., Ex. B at 10.) Fiore was
initially unaware that Simmons was working in the office at all and thought he
only worked as the pool attendant. (Id., Ex. G at 126.) Although Benac was aware
that Simmons had his real estate license, she did not know he was actively selling
real estate. (Id., Ex. C at 67.) Doyle, Fiore, and Benac felt that Simmons’
activities created a conflict of interest, as he had access to inside information
working in the leasing office that benefitted him as a real estate agent. (Id., Ex. C
at 65-66, 68-69; Ex. G at 16-17.) Simmons in fact sold several condominiums to
would-be-renters at Carnegie Park. (Id., Ex. A at 60-61.) Benac testified that if
she had known Simmons was selling condominiums in Carnegie Park while
working in the rental office, she would have contacted the corporate office and
recommended that he be terminated. (Id., Ex. C at 174.)
The key fob system and security cameras were installed at Carnegie Park’s
indoor pool on or about February 19, 2014, and Simmons’ employment was
terminated effective March 8, 2014. (Defs.’ Mot., Ex. D ¶ 8.) Fiore agreed,
however, to continue a rental discount for Simmons even though he was no longer
an employee. (Id. ¶ 9.) On March 4, 2014, Simmons signed a new month-tomonth lease at Carnegie Park pursuant to which he received a $50 per month
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discount and a waiver of the $150 fee charged for a month-to-month lease. (Id.,
Ex. A at 79; Ex. 9 ¶ 11.)
Prior to that date, on February 22, 2014, some water had entered Simmons’
apartment due to melting snow and ice. Defendants hired OneWay Restoration to
extract the water and treat the area with Bio Kill to ensure that there was no mold
growth. (Defs.’ Mot., Ex. H at Pg ID 427.) On March 17, 2014, melting snow and
ice from a large ice dam that had formed behind the apartment row caused
additional water to leak into Simmons’ apartment, as well as two other units on his
row. (Id. at Pg ID 428-33.) OneWay Restoration again was called in to extract the
water and treat the affected area to prevent mold. (Id., Ex. H at Pg ID 428-30; Ex.
A at 82.) Simmons’ furniture was moved up on blocks to stay dry. (Id., Ex. H at
Pg ID 428; Ex. A at 80.)
Two of Simmons’ neighbors also had flooding issues related to the ice dam.
(Id., Ex. A at 83; Ex. C at 106.) Those tenants moved out of their apartments, with
one being allowed to cancel their lease with no penalty. (Id., Ex. C at 106-07.)
Defendants did not otherwise assist those tenants in any way when they moved out
of the complex. (Id., Ex. C at 106-07.) Simmons spoke with Fiore around March
19, at which time he was offered three options: (1) temporarily move to a fully
furnished penthouse model unit while his unit was being repaired, (2) permanently
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move to an unfurnished penthouse at market rate, or (3) be released him from his
lease with no penalty. (Id., Ex. G at 21-22.)
On March 20, Simmons sent a letter addressed to “Management” at
Carnegie Park, complaining that “[r]egional management has stated that since the
property has no standard 2 bedroom apartments, I must pay an extra $200.00
monthly to transfer to a comparable 2 bedroom apartment to maintain the habitable
conditions that are lawfully due to me in the current lease agreement.” (Id., Ex. I
at Pg ID 435.) In his letter, Simmons refers to Carnegie Park’s obligations “under
State and Federal laws to provide safe and habitable conditions” and asserts that
flooding has made his apartment “uninhabitable” and an “immediate health and
safety risk[] for [his] family.” (Id.) Nowhere in the letter does Simmons refer to
his disability or claim that he needs an accommodation.
Around the same time, Simmons also contacted Gerald Witkowski, head of
Code Enforcement for the City of Southfield (where Carnegie Park is located).
(Id., Ex. J ¶ 2.) According to Witkowski, Simmons called the city regarding the
flooding situation at this apartment, indicating that he wanted to move to a
different apartment within the Carnegie Park complex. (Id. ¶¶ 3, 4.) Witkowski
then contacted Carnegie Park and was told that Simmons had been offered a bigger
apartment at the same rental rate that he had been paying. (Id. ¶ 4.)
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On March 21, 2014, Fiore wrote Simmons, confirming the three options she
previously had offered him. (Defs.’ Mot., Ex. I at Pg ID 436.) Simmons indicated
that he was going to accept the offer to move into the furnished penthouse model.
Simmons apparently then contacted Witkowski from the City of Southfield about
having the apartment complex move his belongings. (Id. Ex. J ¶ 5.) Witkowski
offered to gather volunteers from Southfield to help Simmons move. (Id. ¶ 6.)
Witkowski then spoke with Fiore, who, according to Witkowski, indicated that the
complex would move Simmons’ belongings. (Id. ¶ 7.)
Thereafter, but still on March 21, 2014, Simmons signed an agreement to
move into the penthouse model, “to live temporarily while [his] current apartment
is being repaired and is returned to normal living status.” (Id., Ex. I at Pg ID 437.)
The penthouse model has more square footage than Simmons’ unit, with vaulted
ceilings and a fireplace. (Id., Ex. A at 85-86.) The March 21 agreement provided
that Carnegie Park maintenance staff would move Simmons’ and his daughter’s
beds to the penthouse model and that no other belongings would be moved by the
staff. (Id., Ex. I at Pg ID 437.)
Benac instructed Joe Alverson, a member of Carnegie Park’s maintenance
staff, to move Simmons’ furniture. (Id., Ex. L at 25, 52.) When Alverson went to
Simmons’ existing unit, however, Simmons said that he did not want to keep any
of the furniture and instructed Alverson to move none of it. (Id. at 25; Ex. A at 948
95.) Simmons claimed the furniture was ruined by the water. (Id., Ex. A at 95.)
Alverson did move Simmons’ other belongings that Simmons wanted moved to the
new apartment. (Id., Ex. A at 96.; Ex. L at 26.)
As reflected in the agreement signed by Simmons on March 21, the move to
the penthouse model was intended to be temporary. Simmons and Benac discussed
a permanent move to a new first floor two-bedroom apartment that would have
been identical to Simmons’ old unit. (Id., Ex. I at 153; see also Ex. A at 107-111.)
On April 8, 2014, after trying to communicate with Simmons via text about a unit
that had become available and receiving no response from Simmons, Benac posted
a note on the door of the penthouse model, informing Simmons of the available
unit and inquiring whether he was still interested in this transfer or had changed his
mind and found different accommodations. (Id., Ex. I at Pg ID 439-442.)
The following day, Benac received a call from Kiesha Speech, District
Director for Michigan’s 35th District Representative Rudy Hobbs. (Defs.’ Mot.,
Ex. M at Pg ID 470.) Speech followed up the call with an email to Benac, in
which Speech indicated that she was contacting Carnegie Park regarding Simmons,
who had reached out to Hobbs’ “office for assistance after experiencing flooding in
his apartment.” (Id.) Speech also wrote:
Mr. Simmons explained that he was moved to a temporary living
arrangement and that accommodations have been made for him . . . At
this point, Mr. Simmons does want to transfer to another apartment
within in [sic] your complex, per your offer, and to continue in the
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[m]onth-to-[m]onth agreement with your property. However, due to
his situation (current limited finances, physical impairments, and
family responsibilities) and the unexpected inconveniences that the
flooding caused to his family, I’d like to ask if the property would
consider assisting Mr. Simmons with 1) moving his family and
belongings fully into the new location and, 2) disposing of any
unusable items in the previous unit.
(Id.) Benac forwarded the inquiry to Fiore, who, in an email to Speech on April
10, 2014, responded in part:
At this time I feel that we have made every accommodation necessary.
To date we still have not heard from Mr. Simmons that he wants to
move forward with the transfer. The additional items that you are
requesting should be referred to his rental insurance company, as they
would be outlined in his policy coverage.
(Id. at Pg ID 472.) As Fiore explains in an affidavit submitted in support of
Defendants’ summary judgment motion, she was concerned that Simmons had a
renters’ insurance claim regarding the furniture he claimed was ruined and that if
Carnegie Park personnel disposed of the furniture in Simmons’ flooded unit,
Carnegie Park might be liable for some sort of destruction of evidence. (Defs.’
Mot., Ex. D ¶¶ 14, 15.) Fiore indicates that she explained this concern to Speech
and Speech never mentioned the issue again or indicated whether or not Simmons’
had a renters’ insurance claim pending. (Id. ¶ 16.)
On April 14, 2014, after hearing nothing further regarding Simmons’
intentions, Benac sent an email to Speech in which she wrote:
I would like to follow up with you regarding the status of Mr.
Simmons [sic] transfer. My Regional Manager, Kristen Fiore,
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responded to your requests last week, and we have not received a
response back from you regarding our next steps. I spoke with Mr.
Simmons towards the end of last week, and he stated that everything
should be discussed with you as you are dealing with this on his
behalf. I would like to know if Mr. Simmons will be transfering [sic]
to the new unit that we offered him, or if he is making other
arrangements. Please advise.
(Defs.’ Mot., Ex. M at Pg ID 473.) Speech responded the next day, indicating that
she “was under the impression that Mr. Simmons would be speaking with you
[Benac] and finalizing the details of his move . . ..” (Id. at Pg ID 474.) Speech
wrote that she believed Simmons wanted to move into the unit Carnegie Park had
prepared for him, but that he wanted about three additional weeks in the model unit
to obtain furniture for the new, unfurnished unit.3 (Id.) Fiore agreed to give
Simmons ten days (i.e., until April 25, 2014) to return the keys to the model unit.
(Id. at Pg ID 475.) In her affidavit submitted in support of Defendants’ motion,
Fiore indicates that on March 15, 2014, when she sent the email to Speech, she
anticipated that Carnegie Park would have to file eviction documents if Simmons
did not move out by the deadline conveyed to Speech. (Defs.’ Mot., Ex. D ¶ 17.)
Simmons and Benac spoke on April 16, 2014, however, and Simmons indicated
Although Defendants do not mention it in their factual recitation, Benac wrote a
letter to Simmons on April 8, 2014, in which she informed Simmons that if he
wanted the two bedroom unit, he needed to sign a lease for the unit on April 12,
2014 and turn in the keys to the penthouse model by April 15, 2014. (Defs.’ Mot.,
Ex. I at Pg ID 444.) Defendants do not indicate whether this letter was delivered to
Simmons; however communications between Defendants and Speaks reflect that
these deadlines were somehow conveyed.
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that he would be able to move by April 21 and was fine with the situation. (Id.,
Ex. M at Pg ID 476-77.)
Nevertheless, as of April 23, 2014, Simmons had neither signed his new
lease nor picked up the keys for the new unit. (Id. at 477.) Benac therefore sent an
email to Speech, asking if she could inform Carnegie Park of Simmons’ intentions.
(Id.) Speech emailed Simmons the following day, reminding him of the next days’
deadline to turn in the keys to the penthouse model and encouraging him to
communicate his intentions to Carnegie Park about moving into the new unit. (Id.,
Ex. N at Pg ID 489.) In her email, Speech also informed Simmons that St. Vincent
de Paul could help with his furniture needs. (Id.) Simmons did not respond to
Speech or contact Carnegie Park about his plans.
Instead, on April 25, 2014, Simmons’ current attorney, Paul Christensen,
sent a letter to Fiore and Benac. (Defs.’ Mot., Ex. P.) Christensen indicated that
he had been retained by Simmons “to pursue his legal remedies arising out of the
water damage to his apartment, furniture and other personal property.” (Id.)
Christensen instructed that all communications should be directed to him. (Id.) He
also charged Carnegie Park with threatening to force Simmons out of the
penthouse model and into a different apartment “[i]n violation of the [March 21,
2014] agreement [between Carnegie Park and Simmons].” (Id.) Christensen stated
that Simmons did not agree to change the terms of the agreement which allowed
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him to stay in the penthouse model at his then current rental rate until his flooded
apartment is repaired and returned to normal living status. (Id.) He further
asserted that Carnegie Park had refused to move Simmons’ furniture out of the
water damaged apartment and was refusing to compensate him for his losses. (Id.)
In his letter, Christensen demanded that Carnegie Park reimburse Simmons
in the amount of $15,000 for the loss of his property, moving expense, and the
expenses associated with removing and discarding his old furniture. (Id.)
Christensen concluded by indicating that Simmons would remain in the penthouse
unit until then and that if Carnegie Park “take[s] any further action in violation of
the agreement, then Mr. Simmons will avail himself of all legal remedies,
including for your violation of his Civil Rights and for any retaliatory conduct.”
(Id.)
Carnegie Park’s landlord-tenant attorney, I. Matthew Miller, responded to
the letter on April 25, 2014. (Id., Ex. Q.) Miller indicated that, based on his
review of the correspondence between Carnegie Park and Simmons (or those
people speaking on his behalf), the last agreement between the parties was that
Simmons would move into a new two-bedroom unit, which had been made ready
and available for him two weeks earlier. (Id.) Miller wrote that Simmons was
occupying the model without paying the appropriate rent for it, that his refusal to
remove his belongings from the original flooded apartment was preventing
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Carnegie Park from repairing and refurbishing it, and that Carnegie Park was
holding the new apartment for him which prevented it from leasing it to another
resident. (Id.) Miller asserted that Carnegie Park has no legal obligation to move
Simmons’ belongings for him, but had agreed to move two beds for Simmons,
even though he subsequently changed his mind. (Id.) Miller further pointed out
that pursuant to the March 1, 2014 lease signed by Simmons , Carnegie Park was
not responsible for any damage to Simmons’ personal property caused by the
flooding. (Id.; see also Defs.’ Mot., Ex. R ¶ 8, Pg ID 502.)
In the letter to Christensen, Miller enclosed two notices to quit that were
being sent to Simmons that day. (Id.) One was a notice to quit to terminate
Simmons’ tenancy in the model; the other was a 7-day notice for health hazard and
damage to the premises demanding that Simmons remove his belongings from the
original flooded unit to allow Carnegie Park to remediate and refurbish the unit.
Miller conveyed that if Simmons did not do both, Carnegie Park may exercise its
rights to pursue his evictions. (Id.) Miller closed the letter by offering to allow
Simmons to remain at Carnegie Park by moving into the new unit. (Id.) He
indicated that the apartment would be held for Simmons until noon on April 29,
2014, and that the offer would be rescinded unless, by that date and time, he: (1)
signed a new lease for the new apartment; (2) vacates the model; (3) removed his
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belongings from the original apartment; and (4) signed a full and complete release.
(Id.)
Simmons did not take any of these actions by the deadline. Instead, on May
8, 2014, he filed this lawsuit alleging the following counts: (I) refusal to make
reasonable accommodations in violation of the FHA by Hayman, Suburban
Building Services, Inc. (“SBS”), and CPI; (II) retaliation in violation of the FHA
by Hayman, SBS, and CPI; (III) refusal to permit accommodations in violation of
the PWDCRA by all Defendants; (IV) retaliation in violation of the PWDCRA by
all Defendants; and (V) employment discrimination based on disability in violation
of the PWDCRA by all Defendants.4 (ECF No. 1.)
On May 12, 2014, Defendants filed and served Simmons with a complaint
for eviction from the flooded unit. (Pl.’s Resp., Ex. L.) At a May 30, 2014 hearing
with respect to that complaint, a state court district judge entered a judgment for
possession concluding that the plain and unambiguous terms of the lease
agreement for the unit allowed the landlord to terminate the lease with thirty days’
In his brief in response to Defendants’ summary judgment motions, Simmons
includes a section titled “Rental laws are also broadly construed” under which he
alleges various violations by Defendants of their duties under Michigan landlordtenant law. (Pl.’s Resp. Br. at 19-20.) As indicated, Simmons does not allege
violations of these laws in his Complaint. A plaintiff may not expand his claims to
assert new theories for the first time in response to a summary judgment motion.
Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007)
(citing cases).
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4
notice, which had expired, and that two grounds for summary of recovery of
possession existed under Michigan law. (Id., Ex. N.) Simmons filed an appeal.
On June 9, 2014, Defendants filed a complaint to evict Simmons from the
penthouse unit. That action and the previous action were subsequently voluntarily
dismissed, however.
On February 23, 2015, Hayman, SBS, Benac, and Fiore filed a motion for
summary judgment in the present action, in which they argue that Simmons cannot
establish the elements of his claims. (ECF No. 35.) On the same date, CPI filed a
summary judgment motion asserting the same arguments but also claiming that
Simmons’ employment discrimination claim does not apply to CPI because it does
not have employees, did not have the control or authority to affect Simmons’
employment, and did not take any adverse employment action against Simmons.
(ECF No. 36.) As indicated earlier, the motions have been fully briefed.
II.
Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255.
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III.
Applicable Law and Analysis
A.
Disability Discrimination
Simmons claims that his termination constituted disability discrimination in
violation of the PWDCRA.5 Absent direct evidence of disability discrimination, as
is the case here, a court must evaluate a plaintiff’s claims under the PWDCRA by
applying the familiar burden-shifting test established by the United States Supreme
Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hazle v.
Ford Motor Co., 628 N.W.2d 515, 520-21 (Mich. 2001). First, the plaintiff must
establish a prima facie case of discrimination by presenting evidence that: (1) he is
disabled as defined by the act or that the defendant regarded him as disabled; (2)
the alleged disability is unrelated to his ability to perform the job; and (3) he was
In his Complaint, Simmons lists the following as examples of disability
discrimination he experienced during the course of his employment: the failure
and/or refusal to promote him, reductions of his hours, failure to provide pay
raises, and his termination. (Compl. ¶ 114.) Defendants identify reasons why none
of these alleged actions or inactions constitutes disability discrimination in their
summary judgment motion. For example, at his deposition, Simmons indicated
that his failure to promote claim is based on the failure to promote him rather than
Carole Browne to the assistant manager position. (Defs.’ Mot., Ex. A at 68.)
Brown was hired for the assistant manager position, however, before CPI
purchased Carnegie Park and Hayman began managing the property. (Id., Ex. F;
Ex. T ¶¶ 2, 3.) As Defendants point out, the reduction in Simmons’ work hours
resulted in part from Hayman’s need to cut back office hours and Simmons’ desire
for fewer hours after receiving full custody of his daughter in 2013. (Id., Ex. C at
90; Ex. A at 42.) In response to Defendants’ motion, Simmons addresses only his
termination. Thus the Court assumes that he is abandoning his disability
discrimination claim based on any other alleged employment decision listed in his
Complaint. In any event, the claim fails based on those actions for the reasons
stated by Defendants.
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discriminated against in one of the ways described by the statute, such as being
discharged because of a disability.6 Lown v. JJ Eaton Place, 598 N.W.2d 633, 636
(Mich. Ct. App. 1999); Chiles v. Machine Shop, Inc., 606 N.W.2d 398, 405-06
(Mich. Ct. App. 1999). With respect to the third prong-- which appears to be the
only element at issue-- “[t]he plaintiff’s disability must be a ‘but for’ cause of the
adverse employment action.” Demyanovich v. Cadon Plating & Coatings, LLC,
747 F.3d 419, 433 (6th Cir. 2014) (citing Lewis v. Humboldt Acquisition Corp.,
681 F.3d 312, 321 (6th Cir. 2012) (en banc)). Under that standard, it is not enough
that the disability was a “motivating factor.” Lewis, 681 F.3d at 321. There is no
evidence here that Simmons’ disability was a cause, much less a “but for” cause, of
his termination.
In order to budget for what Defendants’ determined was a much needed
maintenance technician, Fiore concluded that three positions needed to be
eliminated: the pool attendant, the painter, and the assistant manager. 7 Simmons
was hired to work at Carnegie Park as the pool attendant. (Defs.’ Mot., Ex. B at Pg
ID 376.) Even if he also did some work as a leasing agent, at least as far as Fiore
knew when she made the termination decisions, his job duties related to the pool,
Michigan Compiled Laws Section 37.1202 sets forth the conduct prohibited by an
employer based on an individual’s disability, including discharge.
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As the Sixth Circuit has often stated: “ ‘[I]t is inappropriate for the judiciary to
substitute its judgment for that of management.’ ” Hedrick v. W. Reserve Care
Sys., 355 F.3d 444, 462 (6th Cir. 2004) (quoting Smith v. Leggett Wire Co., 220
F.3d 752, 763 (6th Cir. 2000)).
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6
only.8 (Defs.’ Mot., Ex. C at 73; Pl.’s Resp. Ex. B at 126.) The employees holding
the other terminated positions were not disabled. Simmons fails to present any
evidence to suggest that his disability was a factor in the decision to terminate him.
For these reasons, Defendants are entitled to summary judgment with respect
to Simmons’ disability discrimination claim.
B.
Failure to Accommodate
Simmons alleges that Defendants failed to accommodate him in violation of
the FHA, 42 U.S.C. § 3604(f)(3)(B), and the PWDCRA, Michigan Compiled Laws
§ 37.1506.
Under the FHA, it is unlawful to discriminate against “any person in the
terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling,” on the basis of that
person’s disability. 42 U.S.C. § 3604(f)(2)(A). Discrimination prohibited by the
FHA includes the refusal to make reasonable accommodations in “rules, policies,
practices, or services, when such accommodations may be necessary to afford [the
disabled individual] equal opportunity to use and enjoy a dwelling.” 42 U.S.C.
Even if Simmons was a leasing agent, Defendants present evidence to show that
he would not have been retained in that position either. First, Brown was demoted
from Assistant Manager to full-time leasing agent and, according to Defendants,
she had more experience and was senior to Simmons. While Defendants also hired
a part-time leasing agent to work weekends, it is undisputed that Simmons told
Benac he did not want to work weekends in order to spend time with his daughter.
(Id., Ex. C at 175.)
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§ 3604(f)(3)(B). The operative elements of a failure-to-accommodate claim are
“reasonable”, “necessary”, and “equal opportunity.” Howard v. City of
Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002).
As the Sixth Circuit Court of Appeals explained in Groner v. Golden Gate
Gardens Apartments, 250 F.3d 1039 (6th Cir. 2001):
Accommodations required under the Act must be both
reasonable and necessary to afford the handicapped individual an
equal opportunity to use and enjoy a dwelling. See Smith & Lee
Assocs., Inc. v. City of Taylor, 102 F.3d 781, 795-96 (6th Cir. 1996)
(holding that the city had violated the Fair Housing Act by failing to
allow adult foster care homes to operate in areas zoned for singlefamily neighborhoods). An accommodation is reasonable when it
imposes no “fundamental alteration in the nature of a program” or
“undue financial and administrative burdens.” Id. at 795.
Whether a requested accommodation is required by law is
“highly fact-specific, requiring case-by-case determination.” [United
States v.] California Mobile Home Park, 29 F.3d [1413], 1418 [(9th
Cir. 1994)]; Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1104
(3d Cir. 1996). Courts generally balance the burdens imposed on the
defendant by the contemplated accommodation against the benefits to
the plaintiff. See Smith & Lee Assocs., 102 F.3d at 795. In
determining whether the reasonableness requirement has been met, a
court may consider the accommodation’s functional and
administrative aspects, as well as its costs. See Bryant Woods Inn,
Inc. v. Howard County, 124 F.3d 597, 604 (4th Cir. 1997).
Groner, 250 F.3d at 1043-1044. The Michigan courts have similarly construed a
landlord’s duty to accommodate a disabled tenant under the PWDCRA. See, e.g.,
Bachman v. Swan Harbour Ass’n, 653 N.W.2d 415, 414-15 (Mich. Ct. App. 2002)
(concluding that “a landlord is not required to accommodate a disabled tenant’s
21
every request unless it imposes an undue hardship. Instead, the landlord’s duty to
accommodate requires those reasonable accommodations necessary for the
disabled tenant’s enjoyment of the premises as they relate to ‘rules, policies,
practices, or services’ and then only when the accommodations will not result in an
undue hardship on the landlord.”).
Therefore, to establish a failure-to-accommodate claim, the plaintiff must
prove that:
(1) []he suffers from a disability within the meaning of [the] FHA; (2)
the defendant knew or reasonably should have known of the
disability; (3) the requested accommodation may be necessary to
afford “an equal opportunity to use and enjoy the dwelling;” (4) the
accommodation is reasonable; and (5) the defendant refused to make
the accommodation.
Overlook Mut. Homes, Inc. v. Spencer, 415 F. App’x 617, 621 (6th Cir. 2001); see
also Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 541 (6th Cir.
2014). Discussing the third requirement, the Sixth Circuit has explained that
“ ‘[e]qual opportunity’ means that disabled individuals are entitled to live in the
same residences and communities as non-disabled individuals, insofar as that can
be accomplished through a reasonable accommodation or modification.” Hollis,
760 F.3d at 541 (citing Smith & Lee Assoc., 102 F.3d at 795). “Thus, an FHA
reasonable-modification . . . plaintiff must show that, but for the requested
accommodation . . . , he ‘likely will be denied an equal opportunity to enjoy the
housing of [his] choice.” Id. (citing Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.
22
1995)). Stated differently, the plaintiff must show that the requested modification
“would redress injuries that otherwise would prevent a disable resident from
receiving the same enjoyment from the property as a non-disabled person would
receive.” Id. (citing Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737,
749 (7th Cir. 2006)).
Simmons asserts that Defendants violated the FHA and PWDCRA by failing
to provide him moving services when his apartment flooded. Carnegie Park does
not offer moving services to any tenant, however. As indicated, the complex also
provided no assistance to the tenants of the two other units whose apartments
flooded. As such, Simmons’ request for assistance moving would require a
fundamental alteration in the nature of Carnegie Park’s operations.9 Moreover,
9
This conclusion is supported by an example provided in a Joint Statement from
the United States Department of Justice and United States Department of Housing
and Urban Development, attached to Defendants’ motion:
A tenant has a severe mobility impairment that substantially limits his
ability to walk. He asks his housing provider to transport him to the
grocery store and assist him with his grocery shopping as a reasonable
accommodation to his disability. The provider does not provide any
transportation or shopping services for its tenants, so granting this
request would require a fundamental alteration in the nature of the
provider’s operations. The request can be denied, but the provider
should discuss with the requester whether there is any alternative
accommodation that would effectively meet the requester’s disabilityrelated needs without fundamentally altering the nature of its
operations, such as reducing the tenant’s need to walk long distances
by altering its parking policy to allow a volunteer from a local
community service organization to park her car close to the tenant’s
23
Simmons was not requesting an accommodation that was necessary to afford him
“an equal opportunity to use and enjoy [Carnegie Park].” Notably, as Defendants
point out, Simmons did not require moving assistance from Carnegie Park or its
maintenance staff when he first moved into Carnegie Park apartments. (See Defs.’
Mot., Ex. W ¶ 3.) “[A]n accommodation should not extend a preference to
disabled tenants relative to other tenants, as opposed to affording them equal
opportunity, and accommodations that go beyond affording a tenant with a
disability an [equal] opportunity to use and enjoy a dwelling are not required by
the [FHA].” Bachman, 653 N.W.2d at 429 (citing Sporn v. Ocean Colony
Condominium Ass’n, 173 F. Supp. 2d 244, 250 (D.N.J. 2001)).
In any event, the evidence establishes that Defendants in fact offered to help
Simmons move out of the flooded unit and sent a maintenance employee to move
his belongings. Simmons, however, instructed the employee to not move any
furniture because he claimed it was too damaged by the water. He did get
assistance from Carnegie Park’s maintenance staff to move his other belongings,
however.
For these reasons, the Court finds that Defendants are entitled to summary
judgment with respect to Simmons’ failure to accommodate claims.
unit so she can transport the tenant to the grocery store and assist him
with his shopping.
(Defs.’ Mot., Ex. V at Pg ID 514.)
24
C.
Retaliation
Simmons claims that Defendants retaliated against him for engaging in his
rights under the FHA and PWDCRA. The McDonnell-Douglas burden shifting
rules apply to these claims as well. Walker v. City of Lakewood, 272 F.3d 1114,
1128 (9th Cir. 2001); Aho v. Dep’t of Corrections, 688 N.W.2d 104, 108-09 (Mich.
Ct. App. 2004); Robbins v. Am. Preferred Mgmt., No. 5:05-cv-182, 2007 WL
2728746, at *11 (W.D. Mich. Sept. 17, 2007).
To establish a prima facie case of unlawful retaliation under the PWDCRA,
a plaintiff must show:
(1) that he engaged in a protected activity; (2) that this was known by
the defendant; (3) that the defendant took an . . . action adverse to the
plaintiff; and (4) that there was a causal connection between the
protected activity and the adverse . . . action.
Bachman, 653 N.W.2d at 437 (internal quotation marks and citations omitted). A
prima facie case of retaliation under the FHA requires essentially similar proof: (1)
that the plaintiff exercised or enjoyed a right guaranteed by the FHA; (2) that the
defendant’s intentional conduct constituted coercion, intimidation, threat, or
interference; and (3) a causal connection existed between the plaintiff’s exercise or
enjoyment of a right and the defendant’s conduct. Hood v. Midwest Sav. Bank, 95
F. App’x 768, 779 (6th Cir. 2004). To constitute retaliation, the defendant must
have had actual knowledge of the plaintiff’s protected activity when the defendant
25
engaged in the coercion, intimidation, threat, or interference. See Burns v. City of
Columbus, 91 F.3d 836, 844 (6th Cir. 1996).
In his Complaint, Simmons identifies several acts allegedly committed by
Defendants in retaliation for his engagement in protected activity. (See Compl.
¶ 72.) Almost all of those acts allegedly occurred, however, before Simmons
engaged in any protected activity or exercised or enjoyed a right guaranteed by the
FHA. Under the PWDCRA, a person is said to have engaged in protected activity
if the person opposed a violation of the act or makes a charge, files a complaint, or
testifies, assists, or participates in an investigation, proceeding, or hearing under
the act. Bachman, 653 N.W.2d at 437 (citing Mich. Comp. Laws § 37.1602(a)). A
request for an accommodation does not constitute protected activity under the
PWDCRA. Id. at 438. Nothing indicated to Defendants that Simmons was
exercising his fair housing rights before his lawyer sent a letter to Benac and Fiore
on April 25, 2014, and even then there was only a vague reference to violations of
Simmons’ “civil rights.” Even if that letter put Defendants on notice that Simmons
was exercising his rights under the FHA, Simmons cannot establish a causal
connection between that conduct and anything Defendants did thereafter.
The evidence reflects that Simmons had until April 15, 2014 to turn in the
keys to the penthouse unit. (Defs.’ Mot., Ex. I at Pg ID 444; see also Ex. M at Pg
ID 474.) Simmons did not do so. Instead, he requested through Speaks another
26
three weeks to move. On April 15, Fiore communicated to Speaks that Simmons
could have ten extra days or until April 25. (Id., Ex. M at Pg ID 475.) According
to Fiore, when she extended the deadline, she anticipated that Defendants would
have to file eviction documents to get Simmons out of the penthouse unit if he still
had not moved by the new deadline. (Defs.’ Mot., Ex. D.)
Simmons did not move out of the penthouse unit by April 25, 2014, despite
the fact that he entered an agreement to temporarily move into that unit, then
agreed to move to a two-bedroom unit comparable to his flooded unit, and had
been granted additional time to move. Defendants, through their counsel, extended
the deadline for Simmons to vacate the model unit once more to April 29, 2014.
Still he did not move. Thus Defendants had a legitimate, non-discriminatory
reason for pursuing eviction proceedings. Simmons fails to demonstrate that the
legitimate reason was not the true reason, but was only a pretext for retaliation.
As such, the Court concludes that Defendants also are entitled to summary
judgment with respect to Simmons’ retaliation claims.
IV.
Conclusion
For the reasons stated, the Court holds that Simmons fails to demonstrate the
elements of his reasonable accommodation or retaliation claims under the FHA or
PWDCRA or his disability discrimination claim under the PWDCRA. As such,
27
the Court finds it unnecessary to address CPI’s alternative argument for dismissal
of Simmons’ discrimination claim (i.e., that it is not an employer under the statute).
Accordingly,
IT IS ORDERED, that Defendants’ motions for summary judgment (ECF
Nos. 35 and 36) are GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 22, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 22, 2015, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager
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