Lath v. Vallee et al
///ORDER granting 155 Motion for Summary Judgment. Both Count 1 and Warren Mills are dismissed from this case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-463-LM
Opinion No. 2017 DNH 150
Oak Brook Condominium Owners’
Association, Gerard Dufresne,
Betty Mullen, and Warren Mills
O R D E R
This case now consists of eight claims against four
defendants,1 including a claim against Warren Mills and the Oak
Brook Condominium Owners’ Association (“Association”) for
violating 42 U.S.C. § 3604(b) by creating a hostile housing
environment for Sanjeev Lath because of his sexual orientation,
race, or national origin.
Before the court is a motion for
summary judgment filed by Mills and the Association.
For the reasons that follow, defendants’ motion for
summary judgment is granted.
I. Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact and the
Lath has been granted leave to file a motion to amend the
operative complaint in this case to add five new claims.
Currently pending before the court is a motion to amend that
addresses two of those five potential claims. See doc. no. 198.
movant is entitled to judgment as a matter of law.’”
President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777,
782 (1st Cir. 2011); citing Fed. R. Civ. P. 56(a)).
court considers a motion for summary judgment, “[t]he evidence
. . . must be viewed in the light most favorable to the
nonmoving party . . . and all reasonable inferences must be
taken in that party’s favor.”
Harris v. Scarcelli (In re Oak
Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.
Lath owns a unit at Oak Brook.
As of June 8, 2014, Mills
also owned a unit at Oak Brook, and was the president of the
Association’s board of directors.
Lath’s hostile housing
environment claim is based upon the following allegations
concerning an incident that took place on June 8, 2014:
Plaintiff is informed and believes, and on that
basis alleges, that Defendant Warren Mills assaulted
Lath, by forcing his way into Lath’s residence, and
shouting obscenities at Lath, calling him a “faggot”
and “sand nigger”. Such actions of Mills were
motivated because of Lath’s sexual orientation as a
bisexual man, and Lath’s national origin and race.
Second Am. Compl. (doc. no. 48-1) ¶ 31.
Lath claims that the
conduct described above violated 42 U.S.C. § 3604(b).
3604(b) claim has been designated as Count 1.
Mills and the Association move for summary judgment on
Count 1, arguing that Lath’s hostile housing environment claim
is barred by the applicable statute of limitations.
Count 1 asserts a claim under the federal Fair Housing Act
(“FHA”), 42 U.S.C. §§ 3601-3631.
Under the FHA,
[a]n aggrieved person may commence a civil action
in an appropriate United States district court or
State court not later than 2 years after the
occurrence or the termination of an alleged
discriminatory housing practice . . . to obtain
appropriate relief with respect to such discriminatory
42 U.S.C. § 3613(a)(1)(A) (emphasis added).
It is undisputed that the confrontation between Mills and
Lath that is alleged in Count 1 took place on June 8, 2014.
Lath initially asserted a hostile housing environment claim in
his First Amended Complaint, document no. 19, which he filed on
November 13, 2016.2
Because Lath filed that claim more than two
Lath’s original complaint in this case, which he filed on
October 18, 2016, mentions a June 2014 “altercation with Warren
Mills,” Compl. (doc. no. 1) ¶ 22, but does not: (1) name Mills
as a defendant; (2) assert a claim based upon the June 2014
altercation; or (3) assert a claim of any sort under the FHA.
years after his confrontation with Mills, that claim is barred
by 42 U.S.C. § 3631(a)(1)(A) as untimely.
Lath attempts to evade the operation of the FHA statute of
limitations by invoking the continuing violation doctrine.
the United States Supreme Court has explained when construing an
earlier version of the FHA statute of limitations:
[A] “continuing violation” of the Fair Housing Act
should be treated differently from one discrete act of
discrimination. Statutes of limitations such as that
contained in § 812(a) are intended to keep stale
claims out of the courts. See Chase Securities Corp.
v. Donaldson, 325 U.S. 304, 314 (1945). Where the
challenged violation is a continuing one, the
staleness concern disappears. . . . Like the Court
of Appeals, we therefore conclude that where a
plaintiff, pursuant to the Fair Housing Act,
challenges not just one incident of conduct violative
of the Act, but an unlawful practice that continues
into the limitations period, the complaint is timely
when it is filed within 180 days of the last asserted
occurrence of that practice.
Havens Realty Corp. v. Coleman, 455 U.S. 363, 380–81 (1982)
(parallel citations and footnote omitted).
And, indeed, the
wording of the current FHA statute of limitations is a
codification of the continuing violation principles articulated
by the Court in Havens Realty.
See Chao-Cheng Teng v. Shore
Club Hotel Condos., No. 11-CV-281-JL, 2012 WL 1231955, at *3
(D.N.H. Apr. 12, 2012) (citing Garcia v. Brockway, 526 F.3d 456,
461-62 (9th Cir. 2008)).
The problem with Lath’s invocation of the continuing
violation doctrine is that his SAC alleges only “one discrete
act of discrimination,” Havens, 455 U.S. at 380, i.e., the
confrontation with Mills on June 8, 2014.
In his objection, he
identifies various instances of alleged harassment that have
taken place recently, some during the course of litigating this
See Pl.’s Mem. of Law (doc. no. 156) 14-15.
But none of
that conduct is alleged in Lath’s complaint, and none of it
covered by any of the motions to amend that Lath has been given
leave to file.
Necessarily, that conduct is not part of Lath’s
hostile housing environment claim.
Therefore, the allegations
in Lath’s objection are insufficient to transform Count 1 into a
continuing violation claim.
In addition to invoking the continuing violation doctrine,
Lath also contends that the claim he assert in Count 1 was
timely filed because the running of the limitations period was
tolled for some unspecified amount of time.
The FHA statute of
limitations is subject to a tolling provision which provides:
The computation of such 2-year period shall not
include any time during which an administrative
proceeding under this subchapter was pending with
respect to a complaint or charge under this subchapter
based upon such discriminatory housing practice.
42 U.S.C. § 3613(a)(1)(B).
The administrative proceedings
“under this subchapter” to which the FHA tolling provision
refers are those authorized by 42 U.S.C. § 3610, which are
initiated by filing a complaint with the Secretary of Housing
and Urban Development (“HUD”).
See Allen v. Housing Auth., No.
3:14-CV-706-WKW, 2015 WL 874316, at *5 (M.D. Ala. Feb. 27, 2015)
(“‘This subchapter,’ as referenced in § 3631(a)(1)(B), is
Subchapter I to Chapter 45 of the FHA and encompasses §§ 360119.”); Smithrud v. City of St. Paul, 746 F.3d 391, 395-96 (8th
Cir. 2014) (“An administrative proceeding begins when an
aggrieved person files a complaint with the Secretary of the
Department of Housing and Urban Development.”) (citing 42 U.S.C.
§§ 3602 & 3610).
In his objection, Lath states that he “filed his first
complaint against Mills in June 2014 with the NH Human Rights
Commission [hereinafter ‘Commission’ or ‘HRC’].”
(doc. no. 156) 22.
Mem. of Law
In his surreply, he states that he “filed a
complaint of discrimination with the [HRC] shortly after the
June 8 2014 incident to which both Mills and Oak Brook
Condominium Owners’ Association responded.”
169) ¶ 4.
Surreply (doc. no.
He goes on to describe two other complaints he filed
with the HRC, and then asserts:
All the complaints were timely filed with the
Commission who has a work sharing agreement with EEOC.
A timely filing of a charge with the appropriate
administrative agency tolls the statute of
limitations. Shortly after the unprejudicial
dismissal of Lath’s claim by the Superior Court, Lath
immediately filed the suit with the Federal Court in
Surreply ¶¶ 7-8.
However, Lath does not cite 42 U.S.C. § 3613(a)(1)(b), much
less explain how filing a complaint with the HRC would satisfy
the FHA tolling provision.3
Moreover, it seems clear that filing
a complaint with a state agency such as the HRC does not toll
the running of the FHA statute of limitations.
See Kennedy v.
City of Zanesville, 505 F. Supp. 2d 456, 488 n.17 (S.D. Ohio
2007) (rejecting plaintiffs’ assumption that FHA “limitations
period was tolled once their administrative complaints were
filed with [a state agency],” and ruling that “[b]ecause there
is no evidence that Plaintiffs filed a section 3610 proceeding
with HUD, tolling [was] not available”).
Like the plaintiffs in
Kennedy, Lath has produced no evidence that he ever filed a §
3610 proceeding with HUD, and as a result, the court cannot
agree that the FHA limitations period was tolled by Lath’s
filing a complaint with the HRC.
That said, the FHA includes a mechanism for the involvement
of state agencies in the investigation of housing complaints
that does result in tolling the statutory limitations period.
Specifically, after stating that “[a]n aggrieved person may . .
. file a complaint with the Secretary [of HUD] alleging such
Lath states that “the Commission . . . has a work sharing
agreement with EEOC [i.e., the Equal Employment Opportunity
Commission],” Pl.’s Surreply (doc. no. 169) ¶ 7, but Lath is not
claiming employment discrimination; he is claiming housing
discrimination. Thus, a work sharing agreement between the HRC
and the EEOC has no bearing on this case.
discriminatory housing practice,” 42 U.S.C. § 3610(a)(1)(A)(i),
the FHA enforcement provision goes on to provide:
(1) Whenever a complaint alleges a discriminatory
(A) within the jurisdiction of a State or local
public agency; and
(B) as to which such agency has been certified
by the Secretary under this subsection;
the Secretary shall refer such complaint to that certified
agency before taking any action with respect to such
42 U.S.C. § 3610(f).
A case from the Southern District of Ohio
illustrates the referral process:
On June 23, 2010, Plaintiff filed a State of Ohio
Housing Discrimination Charge against RLJ and
Greenwood Homes. This complaint was sent to the
United States Department of Housing and Urban
Development (“HUD”), which referred the matter to the
Ohio Civil Rights Commission (“OCRC”).
Dickinson v. Zanesville Metro. Hous. Auth., 975 F. Supp. 2d 863,
869 (S.D. Ohio 2013) (citations to the record omitted).
the circumstances described in Dickinson, it was undisputed
“that the pendency of the OCRC proceedings tolled the
limitations period provided by § 3613.”
Id. at 876.
The problem for Lath is that he has produced no evidence
that that the statutory referral process, as described in
Dickinson, ever took place in this case.
He did not attach any
such evidence to his objection to defendants’ summary judgment
motion or to his surreply.
Moreover, the court has diligently
examined the attachments to many of Lath’s other pleadings (with
the notable exception of the 344 unlabeled exhibits attached to
document no. 48), and has found no evidence that the HRC was
handling Lath’s complaint on a referral from the Secretary of
Without such a showing, the pendency of the HRC’s
proceedings did not toll the running of the FHA statute of
Finally, Lath invokes the doctrine of equitable tolling, as
described in Burnett v. New York Central Railroad Co., 380 U.S.
In that case, the Supreme Court explained that
[t]he basic question to be answered in determining
whether, under a given set of facts, a statute of
limitations is to be tolled, is one of ‘legislative
intent whether the right shall be enforceable * * *
after the prescribed time.’ Mid-state Horticultural
Co. v. Pennsylvania R. Co., 320 U.S. 356, 360 [(1943)]
. . . . [and that] the basic inquiry is whether
congressional purpose is effectuated by tolling the
statute of limitations in given circumstances.
Burnett, 380 U.S. at 426-27.
Burnett does not counsel in favor of giving Lath the
benefit of equitable tolling.
As Burnett explains, the basic
inquiry is into congressional intent, and whether that intent
would be promoted by the application of equitable tolling.
Here, Congress’s intent is fairly clear.
It expressly provided
for tolling while a potential FHA plaintiff pursues an
administrative remedy through the Secretary of HUD.
other hand, it did not extend tolling to potential plaintiffs
who choose to pursue administrative remedies in other forums,
such as the HRC.
Plainly, Congress could have drafted a broader
tolling provision, but it did not.
Moreover, the decision to
limit tolling to claims pursued through the Secretary of HUD
makes sense as a way of encouraging the uniform adjudication of
FHA claims, especially in light of the statutory requirement
that before the Secretary of HUD may refer a complaint to a
state or local public agency, that agency must be certified by
the Secretary, see 42 U.S.C. § 3619(f)(1)(B).
Even if the court moves beyond Burnett to a more
contemporary iteration of the doctrine of equitable tolling,
that does not help Lath.
“To prevail on a theory of equitable
tolling, an individual must show ‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.”
Omar v. Lynch, 814 F.3d 565, 568–69 (1st Cir. 2016) (quoting
Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010)).
As for the
second showing, “equitable tolling [generally] attaches only
when ‘a claimant misses a filing deadline because of
circumstances effectively beyond [his] control.’”
v. Humana Ins. of P.R., Inc., 748 F.3d 387, 390 (1st Cir. 2014)
(quoting Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275,
279 (1st Cir. 1999)).
Here, Lath does not mention the legal standard set out in
Omar, and, like the plaintiff in Rivera-Díaz, who was denied the
benefit of equitable tolling, Lath “identifies no circumstances
beyond his control that might have prevented him from filing
suit in a timeous manner,” 748 F.3d at 390-91; see also Grimes
v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 291 (S.D.N.Y. 2011)
(denying FHA plaintiffs equitable tolling where they had “not
alleged that the Moving Defendants concealed [their] FHA claim
from them during the applicable statute of limitations” and in
that way created circumstances beyond their control that caused
them to miss filing deadline); Novak v. Levenfeld Pearlstein,
No. 13 C 08861, 2014 WL 4555581, at *7 (N.D. Ill. Sept. 15,
2014) (denying FHA plaintiffs equitable tolling where “there
[was] no basis in the allegations to find that [they] were
fraudulently dissuaded from going to federal court, or that
their disability kept them from doing so”).
To be sure, Lath
erred in believing that filing a housing claim with the HRC
tolled the running of the statute of limitations on a claim
brought pursuant to § 3613(a), but “equitable tolling does ‘not
extend to what is at best a garden variety claim of excusable
Rivera-Díaz, 748 F.3d at 391 (quoting Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96 (1990)); see also Terry v.
Inocencio, No. 3:11-CV-660-K-BK, 2013 WL 6120539, at *3 (N.D.
Texas Nov. 21, 2013) (explaining, in FHA case, “that ordinarily,
ignorance of the law does not justify equitable tolling”).
To sum up, Lath filed his hostile housing environment claim
outside the statutory limitation period.
He has not made
allegations sufficient to state a continuing violation claim.
He qualifies for neither statutory nor equitable tolling.
Accordingly, defendants are entitled to judgment as a matter of
law on the hostile housing environment claim stated in Count 1.
Because Mills and the Association are entitled to judgment
as a matter of law on Count 1, their motion for summary
judgment, document no. 155, is granted.
Mills are dismissed from this case.
Both Count 1 and Warren
Moreover, as a result of
this order, and the order on Perry Vallee’s motion for summary
judgment, document no. 202, this case now consists of seven
claims (Counts 2, 4, 9, 11(a), 12(a), 13, and 15) against three
defendants: the Association (Counts 2, 4, and 13), Gerard
Dufresne (Counts 11(a), 12(a), and 15), and Betty Mullen (Count
United States District Judge
August 8, 2017
Gary M. Burt, Esq.
Sanjeev Lath, pro se
Walter Maroney, Esq.
Sabin R. Maxwell, Esq.
Brendan D. O’Brien, Esq.
Gregory V. Sullivan, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
Gerard Dufresne, pro se
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