Painter-Payne et al v. Vesta West Bay, LLC

Filing 108

OPINION AND ORDER. Plaintiffs' Motion to Strike, ECF 94 , is GRANTED. West Bays MSJ-Painter, ECF 50 , is GRANTED, West Bay's MSJ-Painter-Payne, ECF 51 , is GRANTED, and Plaintiffs' MSJ, ECF 60 , is DENIED. Plaintiffs' claims u nder the Fair Housing Act are DISMISSED with prejudice; plaintiff Painter's state law claim for defamation is DISMISSED without prejudice. The Court declines to address the merits of Plaintiffs' Motion in Limine. Signed by Magistrate Judge Norah McCann King on 9/16/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LENA M. PAINTER-PAYNE,
et al.,
Plaintiff,
vs.

Civil Action 2:12-cv-912
Magistrate Judge King

VESTA WEST BAY, LLC,
Defendant.
OPINION AND ORDER
This is an action under the Fair Housing Act (“FHA”), 42 U.S.C. §
3601 et seq., in which plaintiffs, a person with disabilities and her
son, allege that defendant, the landlord of the Section 8 apartment in
which plaintiffs resided, improperly evicted them based on plaintiff
Christopher Painter’s residency in the apartment.

This matter is now

before the Court, with the consent of the parties pursuant to 28
U.S.C. § 636(c), for consideration of three motions for summary
judgment.

Defendant Vesta West Bay, LLC, (“West Bay”) has separately

moved for summary judgment against plaintiff Christopher Painter,
Defendant’s Motion for Summary Judgment with Respect to Plaintiff
Christopher Painter, ECF 50 (“West Bay’s MSJ-Painter”), and against
plaintiff Lena Painter-Payne, Defendant’s Motion for Summary Judgment
with Respect to Plaintiff Lena Painter-Payne, ECF 51 (“West Bay’s MSJPainter-Payne”).

Plaintiffs have filed a cross-motion for partial

summary judgment as to liability on their FHA claims, Plaintiffs Lena
Painter Payne and Christopher Painter’s Motion for Partial Summary

1

Judgment, ECF 60 (“Plaintiffs’ MSJ”).

This matter is also before the

Court for consideration of Plaintiffs’ Motion In Limine to Exclude the
Expert Report of Donald L. Beebout (“Plaintiffs’ Motion in Limine”),
ECF 97, and Plaintiffs’ Motion to Strike Statements From the Affidavit
of Jennifer Moran That Are Not Based on Personal Knowledge
(“Plaintiffs’ Motion to Strike”), Doc. No. 94.

After several

extensions and the filing of supplemental memoranda, the pending
motions are now ripe for consideration.
Plaintiffs’ Motion to Strike seeks to strike paragraphs seven
through 12 of the Affidavit of Jennifer Moran, Portfolio Director at
Vesta Corporation, ECF 51-3, on the basis that the affiant lacks
personal knowledge on the subject matter of the statements.
Plaintiffs’ Motion to Strike is unopposed and is for that reason
GRANTED.

See S.D. Ohio Civ. R. 7.2(a)(2) (“Failure to file a

memorandum in opposition may be cause for the Court to grant any
Motion . . . .”).
For the reasons that follow, West Bay’s MSJ-Painter, ECF 50, is
GRANTED, West Bay’s MSJ-Painter-Payne, ECF 51, is GRANTED, and
Plaintiffs’ MSJ, ECF 60, is DENIED.
The Court declines to consider Plaintiffs’ Motion in Limine.
I.

Background
Defendant West Bay is a limited liability company that owns and

operates the West Bay apartment complex in Columbus, Ohio.
Answer, ECF 13, ¶ 3; Affidavit of Jennifer Moran, ECF 51-3.

Amended
On August

1, 2009, plaintiff Lena M. Painter-Payne (“Painter-Payne”) entered

2

into a lease agreement (“2009 Lease Agreement”) with West Bay to rent
an apartment (the “Premises”) from West Bay for one year.
MSJ-Painter, Exhibit A (“2009 Lease Agreement”).

West Bay’s

Painter-Payne holds

a Section 8 voucher through the Columbus Metropolitan Housing
Authority (“CMHA”), which provides a federal subsidy for part of her
rent.

Amended Answer, ¶ 6.

Painter-Payne used the Section 8 voucher

to subsidize the rent owed to West Bay.

Id. at ¶¶ 7-8.

In addition

to accepting Section 8 vouchers, West Bay also receives tax credits
for low-income housing pursuant to I.R.C. § 42.
The 2009 Lease Agreement provides that Painter-Payne would use
the Premises as a private dwelling only for herself and Barbara Payne,
who was listed as a live-in care giver.

2009 Lease Agreement, p. 1.

Painter-Payne agreed to “permit other Individuals to reside in the
unit only after obtaining the prior written approval of the Landlord.”
Id.

On or before August 1, 2009, Painter-Payne signed a copy of West

Bay’s Rules and Regulations, Resident Selection Criteria, and Drug
Free Housing Contract.

West Bay’s MSJ-Painter, Exhibits B, C, D.

Painter-Payne renewed her lease for a one year term on August 1,
2010, and again on August 8, 2011.

Id. at Exhibits E, F.

Between

March and May 2012, Painter-Payne’s son, plaintiff Christopher Painter
(“Painter”), began living at the Premises as Painter-Payne’s live-in
aide; Painter did not apply to West Bay for permission to live at the
Premises or to serve as Painter-Payne’s live-in aide.

Christopher

Painter Deposition (“Painter Deposition”), ECF 55, pp. 17-19; Mollette
Affidavit, ECF 60-1, ¶ 7.

On June 1, 2012, Painter-Payne again

3

renewed her lease with West Bay for a period of one year.
MSJ-Painter, Exhibit G.

West Bay’s

Each of the three lease renewals specifies

that only Painter-Payne may reside in the Premises; no other resident
or live-in aide is listed on any renewal.
On August 16, 2012, Painter became upset with West Bay’s
groundskeeper, Dannie Maynard Deposition, ECF 54, p. 15, and argued
with West Bay’s maintenance technician Dannie Maynard. Id.; Gary
Weekley July 2, 2013 Deposition, ECF 56, p. 15.

Painter was waving a

hammer, although Maynard did not feel threatened.
Deposition, pp. 22-23.

Dannie Maynard

Gary Weekley, West Bay’s maintenance

supervisor, witnessed part of the argument, thought that Painter posed
a threat, and ordered the two men to leave the area.
July 2, 2013 Deposition, pp. 15-16.

Gary Weekley

Painter returned to the Premises.

Weekley and Sue Mollette, West Bay’s property manager, walked to the
Premises.

Id. at pp. 22-23.

Mollette told Painter-Payne that Painter was not permitted to
reside at the Premises and would have to leave.

Id. at p. 24.

Painter-Payne informed Mollette that Painter was her caregiver and
that she had no one else to provide care.

Id. at pp. 24-25; Gary

Weekley July 1, 2013 Deposition, ECF 52, pp. 29-31.

Mollette

responded that Painter did not meet West Bay’s criteria and must leave
immediately or West Bay would take legal action.
2013 Deposition, pp. 29-31.

Gary Weekley July 1,

Mollette also informed Painter-Payne that

she could remain in the Premises if Painter left.

Id.

After the August 16, 2012 incident, Mollette “reviewed the public

4

records of Mr. Painter and discovered he had a criminal record.”
Mollette Affidavit, ¶ 10.

On August 21, 2012, Mollette spoke with

Painter-Payne “and gave her the option of remaining a tenant at West
Bay and obtaining an approved live-in aide other than Mr. Painter as a
reasonable accommodation, or signing a mutual lease rescission to
terminate the Second Lease and agreeing to vacate the Premises by
September 30, 2012.”

Id. at ¶ 14.

Painter-Payne signed a mutual

lease rescission on August 21, 2012, and agreed to vacate the Premises
by September 30, 2012.

West Bay’s MSJ-Painter, Exhibit J.

signed the mutual lease rescission on September 6, 2012.

A notary
Id.

On September 6, 2012, Carol Ferris of the Columbus Urban League
contacted West Bay and requested mediation and a reasonable
accommodation “by voiding the ‘Mutual Rescission’ dated August 21,
2012.”

Id. at Exhibit K.

After receiving Carol Ferris’ request,

“West Bay determined that Mr. Painter posed an immediate threat to the
safety of West Bay’s community and that September 30, 2012 was
sufficient time for Ms. Painter-Payne and Mr. Painter to relocate.”
Mollette Affidavit, ¶ 18.

On September 26, 2012, Carol Ferris again

requested additional time for plaintiffs to relocate because the CMHA
transition process was not yet complete and because Painter-Payne’s
disability kept her from assisting in the effort to move.

West Bay’s

MSJ-Painter, Exhibit M.
Painter-Payne did not vacate the Premises by September 30, 2012,
and West Bay served a three day notice to vacate on October 1, 2012.
Id. at Exhibit N; Mollette Affidavit, ¶¶ 20-21.

5

On October 4, 2012, plaintiffs filed this action and a motion for
a preliminary injunction to enjoin the eviction.

The District Judge

then assigned as the trial judge ordered West Bay to refrain from any
effort to evict plaintiffs without prior notice to the Court and
plaintiffs.

Order, ECF 9.

Plaintiffs thereafter vacated the

Premises. Report on Status of Plaintiffs’ Motion for Temporary
Restraining Order, ECF 22.
II.

Motions for Summary Judgment
A.

Standard

The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “The court shall grant summary
judgment 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).

Pursuant to Rule 56(a), summary

judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”

Id.

In making this determination, the evidence “must be viewed

in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H.

Summary judgment will not lie

if the dispute about a material fact is genuine, “that is, if the
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

However, summary judgment is appropriate if the opposing

party “fails to make a showing sufficient to establish the existence

6

of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
477 U.S. 317, 322 (1986).

Celotex Corp. v. Catrett,

The “mere existence of a scintilla of

evidence in support of the [opposing party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].”

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
B.

Discussion

It is unlawful under the FHA
[t]o discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of—
(A) that buyer or renter,
(B) a person residing in or intending to reside in that
dwelling after it is so sold, rented, or made available; or
7

(C) any person associated with that buyer or renter.
42 U.S.C. § 3604(f)(1).

The discrimination prohibited by the FHA

includes “a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy a
dwelling[.]”

42 U.S.C. § 3604(f)(3)(B).

“A disabled individual alleging unlawful housing discrimination .
. . can rely on any of several different theories to establish an FHA
violation: disparate treatment, disparate impact, failure to make a
reasonable accommodation, or failure to permit a reasonable
modification.”

Hollis v. Chestnut Bend Homeowners Ass'n, --- F.3d ---

-, No. 13-6434, 2014 WL 3715088, at *6 (6th Cir. July 29, 2014).

See

also Smith & Lee Associates, Inc. v. City of Taylor, 102 F.3d 781, 790
(6th Cir. 1996).

“Plaintiffs assert there is evidence to support West

Bay’s liability under [the first] three theories.”

Plaintiffs’ MSJ,

p. 7.
Before addressing the three theories of liability, the Court must
address three issues raised in the parties’ memoranda: (1) whether
Painter can assert a cause of action under 42 U.S.C. § 3604(f)(1); (2)
whether the three-part burden-shifting test established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to plaintiffs’
FHA claims, and (3) whether plaintiffs pled, or should have pled, a
claim based on disparate impact.

8

The parties disagree whether Painter, who is not himself
disabled, can assert a claim under § 3604(f)(1).

As noted supra, §

3604(f) prohibits discrimination because of a handicap of
(A) [the dwelling] buyer or renter,
(B) a person residing in or intending to reside in that
dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
42 U.S.C. § 3604(f)(1).

West Bay argues that Painter cannot state a

claim under § 3604(f)(1) because he was not a “buyer or renter” of a
dwelling.

West Bay’s MSJ-Painter, p. 11 (“The FHA only offers

protection to a buyer or renter . . . .”) (emphasis in original).
According to Painter, West Bay’s argument “ignores 42 U.S.C. §
3604(f)(1)(C), which allows persons associated with disabled persons
to recover for injuries they suffer as a result of the association
with a disabled person.”

ECF 77, p. 7.

Neither argument is

meritorious.
Section 3604(f)(1) prohibits discrimination on account of the
handicap of a renter or a resident or of a person associated with the
renter.

Painter does not claim that he is handicapped. Painter does

not, therefore, fall within the express terms of Section 3604(f)(1).
However, the FHA also provides that a civil action may be brought
by any “aggrieved person.”

42 U.S.C. § 3613.

The FHA defines an

“aggrieved person” as any person who “(1) claims to have been injured
by a discriminatory housing practice; or (2) believes that such person
will be injured by a discriminatory housing practice that is about to

9

occur.”

42 U.S.C. § 3602.

Standing to sue under the FHA is broad; a

plaintiff “need only show that he or she (1) has suffered an injury in
fact (2) that is causally connected to the defendants' conduct and (3)
that is likely to be redressed by a favorable ruling.”

Hamad v.

Woodcrest Condo. Ass'n, 328 F.3d 224, 230-31 (6th Cir. 2003) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); DeBolt v.
Espy, 47 F.3d 777, 779–82 (6th Cir. 1995)).

Standing is therefore not

limited to those individuals who are directly and immediately subject
to discrimination.

Id.

Painter alleged in the Complaint that he lives with Painter-Payne
as her live-in aide and that both individuals were forced to move
because West Bay refused to grant Painter-Payne a reasonable
accommodation for her handicap.

Both plaintiffs allege injury by

reason of West Bay’s allegedly discriminatory housing practices.
Although Painter is not himself disabled or handicapped, he is
allegedly associated with an allegedly disabled person and he claims
an interest protected by the FHA.

See 42 U.S.C. § 3601 (“It is the

policy of the United States to provide, within constitutional
limitations, for fair housing throughout the United States.”); Hollis,
--- F.3d ----, 2014 WL 3715088 at *5 (“The Fair Housing Act, broadly
speaking, prohibits discrimination in the sale or rental of housing
and in the provision of housing services or facilities ‘because of
race, color, religion, sex, familial status, or national origin.’”)
(quoting 42 U.S.C. § 3604(a), (b)). In short, the Court concludes that
Painter has standing to assert a claim under 42 U.S.C. § 3604(f)(1)

10

against West Bay because he is associated with a person with
disabilities and alleges injury as a result of unlawful housing
discrimination on the basis of the associated person’s disabilities.
The parties also disagree whether the three-part burden-shifting
test established in McDonnell Douglas, 411 U.S. 792, applies to
plaintiffs’ claims under § 3604(f).

West Bay argues that McDonnell

Douglas applies; see West Bay’s MSJ-Painter, p. 10; West Bay’s MSJPainter-Payne, p. 11; ECF 66, p. 4; plaintiffs argue that McDonnell
Douglas does not apply.

See ECF 96, p. 3.

“In assessing and resolving an FHA claim, the appropriate
analytical framework depends on the theory of liability under which
the plaintiff proceeds.”
*7.

Hollis, --- F.3d ----, 2014 WL 3715088 at

The three-step McDonnell Douglas test is an “intent-divining

test” that “shifts the burden of production from the plaintiff to the
defendant and then back to the plaintiff in an effort to zero in on
the specific intent underlying the defendant's conduct.”
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).

Id. (citing
“Because a

disparate-treatment claim requires the plaintiff to establish
discriminatory animus, analysis of such a claim focuses on the
defendant's intent.”

Id. (citing HDC, LLC v. City of Ann Arbor, 675

F.3d 608, 612 (6th Cir. 2012)).

The McDonnell Douglas test therefore

applies to disparate treatment claims under the FHA.

Id.

FHA

reasonable accommodation claims and FHA disparate impact claims, by
contrast, do not require proof of discriminatory intent.

Id. at *7-8.

The McDonnell Douglas intent-divining test therefore does not apply to

11

FHA reasonable accommodation claims or FHA disparate impact claims.
Id.
The parties next disagree whether plaintiffs pled or should have
pled a § 3604(f) disparate impact claim.

West Bay argues that

plaintiffs’ “disparate impact theory cause of action should be
dismissed because it was not pled as part of Plaintiffs’ Complaint.”
ECF 66, p. 10.

Plaintiffs acknowledge that they “did not plead

disparate impact in the Complaint,”

ECF 71, p. 13, but argue that

they adequately pled a claim for denial of a reasonable accommodation
and that their claim may be proven by any theory of recovery
regardless of the particular theory of recovery identified in the
ECF 107, p. 2.

Complaint.

Plaintiffs’ argument is not well taken.

Rule 8 of the Federal Rules of Civil Procedure provides that a
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed. R. Civ. P.

Such a statement must “̔give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.’”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).

See also Swierkiewicz v. Sorema N.

A., 534 U.S. 506, 512 (2002).
“To prevail on a disparate treatment claim, a plaintiff must show
proof of intentional discrimination.”

HDC, LLC, 675 F.3d at 612-13

(citing Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1362 (6th
Cir. 1995)).

“This can be established either through direct evidence

of intentional discrimination or through circumstantial evidence using

12

the [McDonnell Douglas] burden-shifting framework . . . .”

Id.

“̔[T]o show disparate impact, a plaintiff must demonstrate that a
facially neutral policy or practice has the effect of discriminating
against a protected class of which the plaintiff is a member.’”

Id.

(alteration in original) (quoting Graoch Assocs. # 33, L.P. v.
Louisville/Jefferson Cnty. Metro Human Relations Comm'n, 508 F.3d 366,
371 (6th Cir. 2007)).

Reasonable accommodation cases focus on the

“operative elements” of § 3604(f)(3)(B): “whether the proposed
accommodation is reasonable and whether it is necessary to afford
disabled persons an equal opportunity for enjoyment.”

Hollis, ---

F.3d ----, 2014 WL 3715088 at *8 (quoting Smith & Lee Assocs., Inc.,
102 F.3d at 794).

Although a plaintiff alleging unlawful housing

discrimination can rely on any of these theories to establish an FHA
violation, see id. at *6, each theory requires proof of different
elements and, as discussed supra, the theories are not all subject to
the same analytical framework.

Specifically pleading the basis for

one theory therefore does not provide sufficient notice such that a
defendant should be prepared to defend on all theories.

By not

pleading a claim for disparate impact in the Complaint and, indeed,
not even raising the claim until filing Plaintiffs’ MSJ, plaintiffs
have deprived West Bay of the opportunity to defend against the claim.
The Court therefore concludes that the Complaint fails to state a
claim under the FHA for disparate impact.

See HDC, LLC, 675 F.3d at

612-14 (dismissing an FHA disparate impact claim because plaintiffs
had not alleged facts showing that a protected class was

13

disproportionately affected by a facially neutral policy). See also
Ayers v. Multiband Field Servs., Inc., No. 13-10765, 2013 WL 5244918,
at *1 (E.D. Mich. Sept. 18, 2013) (“[The] amended complaint asserts
two distinct claims — violations of Elliot–Larsen due to disparate
treatment and disparate impact.”); Johnson v. Metro. Gov't of
Nashville & Davidson Cnty., No. 3:07-0979, 2008 WL 3163531, at *5
(M.D. Tenn. Aug. 4, 2008) (“[Title VII] disparate treatment and
disparate impact are distinct claims . . . .

[P]lead[ing] a disparate

treatment claim does not ̔automatically entitle [a plaintiff] to also
proceed under a disparate impact theory . . . .”) (quoting Flatt v.
Elec. Research Mfg. Corp., 103 F.3d 129 (6th Cir. 1996) (“A plaintiff
seeking to establish a Title VII claim has available two distinct
theories of discrimination.”)).
(1) Plaintiffs’ Reasonable Accommodation Claims
The FHA prohibits discrimination “in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter
because of a handicap.”

42 U.S.C. § 3604(f)(1).

Such discrimination

includes “a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy a
dwelling[.]”

42 U.S.C. § 3604(f)(3)(B).

To prove a claim for failure

to reasonably accommodate a handicap, a plaintiff must prove that
(1) she suffers from a disability within the meaning of
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.
14

Overlook Mut. Homes, Inc. v. Spencer, 415 F. App'x 617, 621 (6th Cir.
2011) (quoting DuBois v. Ass'n. of Apartment Owners of 2987 Kalakaua,
453 F.3d 1175, 1179 (9th Cir. 2006)).
2014 WL 3715088 at *8-9.
each element.”

See also Hollis, --- F.3d ----,

“The burden is on the plaintiff to establish

Hollis, --- F.3d ----, 2014 WL 3715088 at *8 (citing

Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th
Cir. 2001)).

Nevertheless, reasonable-accommodation cases usually

turn on the “operative elements” of § 3604(f)(3)(B), i.e., “whether
the proposed accommodation is reasonable and whether it is necessary
to afford disabled persons an equal opportunity for enjoyment.”
Hollis, --- F.3d ----, 2014 WL 3715088 at *8.
The parties do not dispute that Painter-Payne suffers from a
disability within the meaning of the FHA, that West Bay knew of
Painter-Payne’s disability, or that West Bay denied Painter-Payne’s
request for an accommodation that would permit Painter to live with
her as a live-in aide.

The parties do dispute whether the requested

accommodation was reasonable and necessary.

To be clear, the dispute

is not premised on whether it was reasonable and necessary to permit
Painter-Payne to have a live-in aide, but whether it was reasonable
and necessary for Painter to be that live-in aide.
In order to prove that the requested accommodation is necessary,
plaintiffs “must show that, but for the accommodation, [Painter-Payne]
likely will be denied an equal opportunity to enjoy the housing of
[her] choice.”

Howard v. City of Beavercreek, 276 F.3d 802, 806 (6th

15

Cir. 2002) (internal quotations omitted) (quoting Smith & Lee
Associates, Inc., 102 F.3d at 795).
Plaintiffs argue that it was necessary for Painter to serve as
Painter-Payne’s live-in aide because Painter-Payne “required
assistance in day-to [sic] living; her doctors provided documentation
that she needed a live-in-aid [sic] and she told West Bay [that
Painter] was the only person available to serve in that capacity.”
Plaintiffs’ MSJ, p. 17.
Plaintiffs have provided evidence that Painter-Payne required a
live-in aide to help her with activities of daily living.

See

Affidavit of Carol Ferris, Doc. 5-3, Exhibit 2 (medical records
documenting Painter-Payne’s disability and need for a live-in aide).
Plaintiffs have also provided evidence that Painter was approved by
CMHA on June 1, 2012, to serve as Painter-Payne’s live-in aide.
at Exhibit 1.

Id.

Plaintiffs have not, however, offered any admissible

evidence that it was necessary that Painter serve as Painter-Payne’s
live-in aide.

Painter-Payne may, as plaintiffs contend, have “told

West Bay [that Painter] was the only person available to serve [as a
live-in aide],” but plaintiffs have offered no admissible evidence
that Painter was in fact the only person available to serve as
Painter-Payne’s live-in aide.

See Plaintiffs’ MSJ, p. 17.

See also

ECF 69, p. 5 (asserting, without citation to the record, “[PainterPayne] did not merely want [Painter] to live with her, he was
necessary.”); ECF 71, pp. 5 (same), 9-10 (arguing that West Bay has
offered no evidence that a different live-in aide would meet Painter-

16

Payne’s needs).

Indeed, a different person had, with West Bay’s

permission, previously served as Painter-Payne’s live-in aide. See
2009 Lease Agreement, p. 1. Absent evidence that Painter was the only
live-in aide available to Painter-Payne, plaintiffs cannot show that,
but for the requested accommodation, Painter-Payne would likely be
denied an equal opportunity to enjoy the housing of her choice.
Plaintiffs have therefore failed to offer evidence in support of
an essential element of their reasonable accommodations claims.
(2) Plaintiffs’ Disparate Treatment Claims
“To prevail on a disparate treatment claim, a plaintiff must show
proof of intentional discrimination.”
(citing Cisneros, 52 F.3d at 1362).

HDC, LLC, 675 F.3d at 612
“This can be established either

through direct evidence of intentional discrimination or though
circumstantial evidence using the [McDonnell Douglas analysis].”

Id.

(citing Lindsay v. Yates, 498 F.3d 434, 440 n. 7 (6th Cir. 2007)).
The McDonnell Douglas analysis in this context requires that “the
plaintiff . . . state a prima facie case by showing that [s]he is a
member of a protected class, that [s]he applied to and was qualified
to rent or purchase certain housing, that [s]he was rejected, and that
the housing remained available thereafter.”

Graoch, 508 F.3d at 371

(citing Maki v. Laakko, 88 F.3d 361, 364 (6th Cir. 1996)).

“Second,

the defendant may then articulate a legitimate non-discriminatory
basis for its challenged decision.”

Id. (citing Selden Apartments v.

U.S. Dep’t of Hous. & Urban Dev., 785 F.2d 152, 160 (6th Cir. 1986)).
“Third, if the defendant does proffer such a basis, the plaintiff must

17

establish that the articulated reason is pretextual.”
Selden Apartments, 785 F.2d at 160).
remains with the plaintiff.”

Id. (citing

“The burden of persuasion always

Id.

The facts of this case do not easily fit within the traditional
prima facie case because Painter-Payne was already a tenant of West
Bay before the alleged discrimination took place.

Nevertheless, West

Bay argues that plaintiff cannot state a traditional prima facie case
of intentional discrimination and that it has offered legitimate, nondiscriminatory, and non-pretextual reasons for refusing to allow
Painter to serve as Painter-Payne’s live-in aide.

West Bay further

argues that it reasonably accommodated Painter-Payne by permitting her
to utilize the services of a different live-in aide.

As noted supra,

plaintiffs argue that McDonnell Douglas does not apply and that they
should not be required to prove a prima facie case.
77, p. 6; ECF 96, p. 3.

See, e.g., ECF

Plaintiffs argue only that West Bay

intentionally discriminated against Painter-Payne because of her
disability by not permitting Painter to serve as Painter-Payne’s livein aide.

Plaintiffs advance five arguments in support of their claim

of intentional discrimination.
Plaintiffs first argue that West Bay refused to permit Painter to
serve as Painter-Payne’s live-in aide because it mistakenly believed
that Painter was a sex offender and it therefore wanted him removed
from the Premises.

See Plaintiffs’ MSJ, p. 8 (“From this history [of

West Bay employees discussing Painter’s record and arrest for a sexual
offense,] it is reasonable to infer that West Bay wanted [Painter]

18

gone and they were looking to find something that would allow them to
remove him as [Painter-Payne’s] live-in-aid [sic].”); Complaint, ¶¶
16-17 (alleging that, “[i]n August, 2012, Defendant West Bay demanded
that Ms. Painter-Payne either make her son leave the property or
relocate.

Under available information and belief, West Bay’s basis

for this demand was [the false belief] that Mr. Painter was a sex
offender.”).

This argument would suggest that West Bay wanted Painter

removed from the Premises – not because of any handicap of either
Painter or Painter-Payne - but because of Painter’s alleged or
perceived misconduct. Proof of such intent would, of course, undermine
plaintiffs’ claim of unlawful discriminatory intent in violation of
the FHA.
Plaintiffs next argue that, absent a policy of discrimination,
West Bay should have a higher percentage of disabled tenants.
Plaintiffs’ MSJ, p. 11 (“West Bay housed only low-income persons, so
absent discrimination against persons with disabilities, likely 18-28%
of the tenants would be disabled.
disabled tenants.”).

Actually West Bay has almost no

Plaintiffs assert that West Bay has a low

percentage of disabled tenants compared to the percentage of disabled
people in the United States and among low-income persons.

Id.

Plaintiffs attribute this assertedly low number to West Bay’s
“applying its ‘neutral’ policies [in a way to] remove[] disabled
tenants.”

Id.

In support of this assertion, plaintiffs rely on the

allegations in this case and in an unrelated case against West Bay
which was eventually voluntarily dismissed; plaintiffs ask this Court

19

to “take notice that in August of 2012 West Bay took action to remove
at least two disabled tenants, and that both claimed [that] their
removal from the complex was due to disabilities.”

ECF 71, p. 14.

Plaintiffs’ argument in this regard is based on a disparate
impact theory which, as the Court held supra, was not properly pleaded
in this case.

Moreover, plaintiffs have not identified any specific

policy or practice on the part of West Bay that has resulted in the
allegedly adverse effect.

See Graoch, 508 F.3d at 372 (“First, a

plaintiff must make a prima facie case of discrimination by
‘identifying and challenging a specific [housing] practice, and then
show[ing] an adverse effect by offering statistical evidence of a kind
or degree sufficient to show that the practice in question has caused
the adverse effect in question[.]’”) (alteration in original) (quoting
Kovacevich v. Kent State Univ., 224 F.3d 806, 830 (6th Cir. 2000)).
In any event, hearsay evidence that another West Bay tenant filed and
then voluntarily dismissed a complaint alleging discrimination on the
part of West Bay is simply inadmissible in this action as proof that
West Bay discriminated against either that other tenant or plaintiffs.
See, e.g., Fed. R. Evid. 802.
Plaintiffs next point to West Bay’s Resident Selection Criteria,
see West Bay’s MSJ-Painter, Exhibit C, and characterize as
discriminatory West Bay’s policy of rejecting as tenants persons with
a felony arrest within the prior fifteen years.

Plaintiffs

specifically argue that West Bay’s policy in this regard is
discriminatory on its face and as applied to plaintiffs because it “is

20

common knowledge that a policy excluding anyone with a felony arrest
would discriminate based on race.”

Plaintiffs’ MSJ, p. 12.

See also

id. at p. 13 (“Denying admission based solely on a felony arrest would
have a disparate impact on minorities . . . .”) (emphasis in
original).

This is not, however, a race discrimination case;

plaintiffs’ FHA claims are premised on alleged housing discrimination
based on handicap.
Plaintiffs next argue that West Bay’s failure to discuss
alternative accommodations supports an inference of intentional
discrimination.

Plaintiffs’ MSJ, p. 14.

Plaintiffs have not,

however, cited any controlling authority suggesting that West Bay was
required to engage in an “interactive process” to negotiate a
reasonable accommodation or that a failure to engage in such a process
supports an inference of intentional discrimination.

In any event,

the evidence also indicates that West Bay offered Painter-Payne an
alternative accommodation, i.e., someone other than Painter could
serve as her live-in aide.
Finally, plaintiffs argue that evidence of West Bay’s failure to
provide a reasonable accommodation supports an inference of
intentional discrimination.

However, as discussed supra, plaintiffs

have offered no admissible evidence that it was only Painter who could
serve as Painter-Payne’s live-in aide; plaintiffs have therefore
offered no evidence that a reasonable accommodation consisted only of
permitting Painter to serve as Painter-Payne’s live-in aide.

21

Based on the foregoing, the Court concludes that plaintiffs have
failed to create a genuine issue of material fact as to their
disparate treatment claim.

The evidence cited by plaintiffs is simply

insufficient to raise an inference of intentional discrimination
because of a handicap.
In sum, the Court concludes that plaintiffs have not raised a
genuine issue of material fact and West Bay is entitled to judgment as
a matter of law on all of plaintiffs’ FHA claims.
Painter, ECF 50, is therefore GRANTED.
ECF 51, is GRANTED.

West Bay’s MSJ-

West Bay’s MSJ-Painter-Payne,

Plaintiffs’ MSJ, ECF 60, is DENIED.

Painter has also asserted a state law claim of defamation against
West Bay.

Because West Bay is entitled to summary judgment on all of

plaintiffs’ federal claims, the Court declines to exercise
supplemental jurisdiction over Painter’s state law defamation claim.
See 28 U.S.C. § 1367(c)(3).

Painter’s state law defamation claim is

dismissed without prejudice.
Plaintiffs have also filed a motion in limine to exclude an
expert report attached to West Bay’s MSJ-Painter-Payne.
challenged

In the

report, West Bay’s expert offered an opinion on whether

West Bay reasonably accommodated Painter-Payne’s disability.

Because

the Court has not relied on that report or opinion, the Court declines
to address the merits of Plaintiffs’ Motion in Limine.
WHEREUPON plaintiffs’ Motion to Strike, ECF 94, is GRANTED. West
Bay’s MSJ-Painter, ECF 50, is GRANTED, West Bay’s MSJ-Painter-Payne,
ECF 51, is GRANTED, and Plaintiffs’ MSJ, ECF 60, is DENIED.

22

Plaintiffs’ claims under the Fair Housing Act are DISMISSED with
prejudice; plaintiff Painter’s state law claim for defamation is
DISMISSED without prejudice.
The Clerk is DIRECTED to enter FINAL JUDGMENT accordingly.

September 16, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

23