Dickinson et al v. Zanesville Metropolitan Housing Authority et al

Filing 30

OPINION AND ORDER denying 21 Motion to Dismiss for Failure to State a Claim; denying 22 Motion for Judgment on the Pleadings. Signed by Judge Algenon L. Marbley on 9/30/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KAYLA M. DICKINSON, et al.
Plaintiffs,
v.
ZANESVILLE METROPOLITAN
HOUSING AUTHORITY, et al.
Defendants.

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Case No. 2:12-CV-01024
JUDGE ALGENON L. MARBLEY

Magistrate Judge Terence P. Kemp

OPINION & ORDER

I.

INTRODUCTION

This matter is before the Court on Defendants Zanesville Metropolitan Housing Authority and
Steven Randles’ (collectively, “ZMHA”) Motion for Judgment on the Pleadings (Doc. 22). Pursuant to
Fed. R. Civ. P. 12(c), ZMHA moves to dismiss Plaintiffs’ Amended Complaint (Doc. 17), on the grounds
that it fails to state a claim, it is barred by the doctrine of res judicata, and is barred by the statute of
limitations. Also before the court is Defendants R.L.J. Management Company, Greenwood Homes,
L.L.C., and Rita Paul’s (collectively, “RLJ”) Motion to Dismiss for failure to state a claim, under Fed. R.
Civ. P. 12(b)(6) (Doc. 21). For the reasons stated below, both motions are hereby DENIED.

II.

PROCEDURAL POSTURE

Plaintiff Dickinson filed her Complaint on behalf of herself and her minor children on November
6, 2012 (Doc. 1), against both ZMHA and its Executive Director, Steven Randles (“Randles”), as well as
against R.L.J. Management Company, a property manager, its subsidiary, Greenwood Homes, L.L.C.
(“Greenwood”), and its employee, Rita Paul (“Paul”). Plaintiffs alleged race and sex discrimination
under the Fair Housing Act, 42 U.S.C. § 3604 et seq. (“FHA”) against all Defendants, as well as breach of
contract claims against ZMHA. Plaintiffs filed an Amended Complaint on January 23, 2013 (Doc. 17).
Defendants ZMHA and Randles answered (Doc. 19), and filed the instant Motion for Judgment on the

Pleadings on February 15, 2013 (Doc. 22). The RLJ Defendants filed their Motion to Dismiss on
February 6, 2013 (Doc. 21). These motions have been fully briefed, and are ripe for review.

III.

STATEMENT OF FACTS

Plaintiff Kayla M. Dickinson is a disabled African-American mother of five children. (Amended
Complaint, Doc. 17, ¶ 17). Together with her minor children, Plaintiff was a resident at Coopermill
Manor, a public housing complex operated by ZMHA, from November 23, 2005, until December 13,
2006. (Id., ¶ 16). Plaintiff lived at Coopermill Manor under the terms of a written lease agreement signed
on November 23, with a term of one year; a renewal agreement, also for a term of one year, was signed on
September 29, 2006. (Id., ¶ 17).
During her tenancy, Plaintiff suffered extensively from abusive conduct by the father of two of
her children, Brandon Somers, who was not a resident at Coopermill Manor. (Id., ¶¶ 18-20). At various
times throughout 2005 and 2006, Somers would trespass at Plaintiff’s home, physically abuse her,
damage her property, threaten her, and disturb other residents. (Id., ¶ 18). In particular, Somers appeared
uninvited at Plaintiff’s home and threatened her in December 2005 (id., ¶ 21), physically abused her and
demanded money from her in January 2006 (id., ¶ 32), physically abused her and destroyed her property
on October 17, 2006 (id., ¶ 36), and assaulted and threatened her with a handgun on November 11, 2006
(id., ¶ 45). On several of these instances, the Zanesville Police Department was notified (see id., ¶¶ 36,
46-47), and ultimately Somers was arrested, convicted, and sentenced to one year in prison (id., ¶ 48).
In response to each of these instances of violence, Plaintiff had various interactions with ZMHA
security and management personnel. ZMHA security were slow to respond to Plaintiff’s calls for help,
with the result that she often had no protection against Somers’ abuse, other than to call the police. (Id.,
¶¶ 24-25). Moreover, despite her attempts to explain the danger posed to her and her children by Somers,
ZMHA employees attributed blame for the incidents to Plaintiff and merely advised her to “fix th[e]
problem.” (See e.g., id., ¶¶ 22, 34-35). ZMHA staff failed to investigate thoroughly the accuracy of

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complaints against Plaintiff lodged by other tenants, and created electronic records of the incidents in
which they noted Plaintiff’s culpability for the disturbances. (Id., ¶ 28-31, 35).
As Somers’ violence against Plaintiff escalated, ZMHA staff insisted that Plaintiff was at fault.
After the October 17 incident, security personnel ordered Plaintiff to “settle down and stop being a
bother,” and also issued her a warning. (Id., ¶ 37). The same was noted in her electronic record. (Id., ¶
38). Plaintiff took whatever steps were available to her to prevent continued abuse by Somers, and also
met with ZMHA’s Housing Manager, Jerry Farson, to explain the situation, sometime in October 2006.
(Id., ¶¶ 39-40). Farson informed her that ZMHA would not protect her, and instead asked Plaintiff to
move out of ZMHA housing. (Id., ¶¶ 40-41). Farson threatened that ZMHA would evict Plaintiff if she
did not elect to leave voluntarily. (Id., ¶ 42). Fearful of losing all access to public housing, Plaintiff
agreed to move out, in return for preferential placement on ZMHA’s waitlist for Section 8 Housing
vouchers. (Id., ¶¶ 41, 44). Because such housing was not immediately available, however, Plaintiff
continued to reside at Coopermill Manor. (Id., ¶ 44).
As a result of the November 2006 incident, which ended in Somers’ arrest, ZMHA staff ordered
Plaintiff to keep Somers out of her unit, and accused her of letting Somers use the unit as a “party house.”
(Id., ¶ 49). In vain, Plaintiff attempted to explain that Somers was uninvited, and on each occasion had
demanded entry and used violence to force his way inside. (Id., ¶¶ 50-51). On November 11, 2006,
ZMHA staff noted in Plaintiff’s electronic record that Plaintiff responded to warnings by “cuss[ing] . . .
out” security staff “every time” they warned her. (Id., ¶ 51). After these events, ZMHA rejected
Plaintiff’s next rent payment, and gave her a Notice of Termination of Lease, effective December 14,
2006. (Id., ¶¶ 52-53). Plaintiff attempted to pay her rent three times in December 2006, but ZMHA
rejected payment on each occasion. (Id., ¶¶ 54-55).
Under threat of eviction, Plaintiff moved out of ZMHA housing on December 13, 2006. (Id., ¶
56). Unable to find Section 8 housing, Plaintiff resided with her parents for six weeks. (Id., ¶¶ 57-58).

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After her departure, ZMHA staff inspected her unit, and reported the property to be in good condition,
making no mention of any damage caused by Somers; nevertheless, ZMHA later informed Plaintiff that
she would have to pay for repairs for damages by Somers, including specifically a broken window and
damaged door, before they would issue her a Section 8 Housing Choice Voucher. (Id., ¶¶ 59-60). Under
protest, Plaintiff complied. (Id., ¶ 60).
In summer 2009, while Plaintiff was a participant in the Section 8 Housing Voucher Program,
Plaintiff sought to live at certain properties managed by Defendants RLJ, Greenwood, and Paul, including
Zanesville Homes II and Greenwood Homes. Plaintiff applied to live at both complexes, and was denied.
(Id., ¶¶ 73-75). When Plaintiff first applied, she received no response for several months regarding her
application; when she called to inquire, Paul told her that her application had been lost, and invited her to
reapply. (Id., ¶ 78). Again receiving no response after one month, Plaintiff called again, and Paul
informed her that the application was denied. (Id., ¶ 79). Plaintiff received no notice of the denial, and
Paul again told her to reapply. (Id.).
On November 17, 2009, Plaintiff applied once more. (Id., ¶ 80). This time, Plaintiff was
accompanied by Zanesville City Council Member Connie Norman. (Id., ¶ 82). In late November, when
Plaintiff inquired as to the status of this application, with Councilmember Norman on the phone, Paul
denied that any application was pending. (Id., ¶¶ 83-84). When Norman stated that she witnessed the
application, Paul announced that the application had been denied, despite the fact that, once again,
Plaintiff never received notice. (Id., ¶ 85). Paul assured Plaintiff that she would investigate further, and
contact Plaintiff, but never did so. (Id., ¶¶ 85-86).
In early 2010, Plaintiff again inquired about her application for Greenwood Homes, and, in midApril 2010, Paul stated the application was approved. (Id., ¶¶ 88-89). But on April 27, 2010, Greenwood
sent a notice to Plaintiff that the application was in fact denied, due to a “poor landlord reference.” (Id., ¶
90). At this time, Plaintiff was qualified to live at Greenwood, and units were available at that location.

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(Id., ¶¶ 91-92). Plaintiff’s attorney requested a copy of the reference on May 4, 2010. (Id., ¶ 93). On
May 7, 2010, Paul faxed a Landlord Reference Inquiry completed by ZMHA, dated May 7, in which
ZMHA stated that Plaintiff had damaged her unit, created physical hazards to the property, menaced her
neighbors, possessed weapons and drugs on the property, interfered with her neighbors’ rights, and was
thus evicted. (Id., ¶¶ 94-96). ZMHA stated it would not rent to Plaintiff again. (Id., ¶ 94). ZMHA also
produced a summary of its electronic notes kept during Plaintiff’s tenancy, which formed the basis for the
negative reference letter. (Id., ¶¶ 99-100).
In an attempt to clear her name, Plaintiff faxed Greenwood a letter and Certification of Domestic
Violence (Form HUD-50066) on May 7, 2010, which advised Greenwood that Plaintiff was a victim of
long-term domestic violence, including during her tenancy with ZMHA, and that Plaintiff had no control
over Somers’ actions. (Id., ¶¶ 102-104). The letter included attachments to support her explanation, such
as police reports and criminal records regarding Somers, and made clear that the negative activities
discussed in the landlord reference letter were attributable to him. (Id., ¶¶ 104-105, 107). When Plaintiff
called Paul to discuss the letter, Paul would not listen. Instead, she stated that “[i]t doesn’t matter. The
fact of the matter is that I know how you people are. You can be loud and obnoxious. You’re family.
You people stick together.” (Id., ¶ 108). Defendants refused to meet in person with Plaintiff to discuss
the letter. (Id., ¶ 109).
Subsequently, and because of the negative reference letter, Plaintiff was denied housing by other
landlords. (Id., ¶ 111). When she attempted to resolve the issue with the assistance of the Fair Housing
Coordinator for the City of Zanesville, Defendant Randles stated that he would look into the matter, but
never returned her call, and ZMHA ultimately refused to change any part of the letter or the electronic
file. (Id., ¶¶ 112-116). ZMHA continues today to circulate the letter to prospective housing providers, to
Plaintiff’s detriment. (Id., ¶¶ 116-117).

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On June 23, 2010, Plaintiff filed a State of Ohio Housing Discrimination Charge against RLJ and
Greenwood Homes. (Id., ¶ 120). 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”). (Id., ¶ 121). The OCRC conducted a confidential, ex parte preliminary investigation, and, on
January 13, 2011, issued a decision dismissing the complaint for lack of probable cause. (Id., ¶¶ 122125). Plaintiff requested reconsideration, and the OCRC affirmed, on June 13, 2011. (Id., ¶ 125).
Plaintiff filed a petition for review in the Muskingum County Court of Common Pleas on July 13, 2011;
she voluntarily dismissed her petition on April 9, 2012, prior to adjudication on the merits. (Id.).
Plaintiff also filed an administrative complaint against ZMHA on June 23, 2010. When OCRC
took no action, Plaintiff refiled. (Id., ¶ 126). Again, OCRC undertook an ex parte preliminary
investigation, and again, on February 23, 2012, the OCRC dismissed the case for lack of probable cause.
(Id., ¶ 127-128, 133). On November 5, 2012, Plaintiff withdrew her request for reconsideration and
dismissed the administrative action. (Id., ¶ 133). During the pendency of the administrative petition,
Jerry Farson, ZMHA’s housing manager, and Tom Davis, ZMHA’s head of security, confronted one of
Plaintiff’s potential witnesses, and accused her of defamation of character. (Id., ¶ 130). Davis also
insinuated that the witness was enabling Plaintiff to use ZMHA housing as a place for drug-related
activity. (Id., ¶¶ 130-131).
Plaintiff filed the current action in federal court on November 6, 2012. (Id., ¶ 134).

IV.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for “failure to state a
claim upon which relief can be granted.” Such a motion “is a test of the plaintiff’s cause of action as
stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus,
404 F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court must construe the complaint in the light most
favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 434 (6th Cir. 2008). The Court is not required, however, to accept as true mere
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legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
Although liberal, Rule 12(b)(6) requires more. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)
(citation omitted). The complaint must “‘give the defendant fair notice of what the claim is, and the
grounds upon which it rests.’” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson
v. Pardus, 551 U.S. 89, 93 (2007)). In short, a complaint’s factual allegations “must be enough to raise a
right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they
apply to motions to dismiss under Fed. R. Civ. P. 12(b)(6). McGath v. Hamilton Local Sch. Dist., 848 F.
Supp. 2d 831, 836 (S.D. Ohio 2012) (citing Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass'n, 623
F.3d 281, 284 (6th Cir.2010)). For purposes of a motion for judgment on the pleadings, “all well-pleaded
material allegations of the pleadings of the opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank,
N.A. v. Winget, 510 F.3d 577, 582 (6th Cir.2007) (internal citation and quotation omitted). At the same
time, the court need not accept as true legal conclusions or unwarranted factual inferences. Id. (citing
Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.1999)).

V.

ANALYSIS

Defendants raise three objections to Plaintiffs’ claims. First, ZMHA insists that Plaintiffs have
failed to state a claim upon which relief may be granted, because the alleged actions by ZMHA do not
constitute discrimination under the FHA. Similarly, the RLJ Defendants assert that Plaintiffs’ claim
under the FHA is too ambiguous and too speculative to state a claim. Second, ZMHA argues that
Plaintiffs’ claims are barred by the doctrine of res judicata, on the grounds that the claims were already
litigated, and found lacking, before the OCRC. Finally, ZMHA argues that the claims are further barred
by the two-year statute of limitations governing claims under the FHA.

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A. Failure to State a Claim
Plaintiffs bring their claims against the ZMHA Defendants under 42 U.S.C. § 3604(b), which
prohibits discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith,” because of race, color, religion, sex, familial
status, or national origin. Against the RLJ Defendants, Plaintiffs assert violations of § 3604(a). This
subsection proscribes refusal to rent, or refusal to negotiate to rent, or “otherwise make unavailable or
deny,” a dwelling, on any of the above bases.1
Plaintiffs allege “disparate treatment” under the FHA (Plaintiffs’ Response, Doc. 23, at 8), which
requires proof of intentional acts by defendants, done with a discriminatory purpose. Int'l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Plaintiffs offer indirect evidence as proof of
discrimination, implicating the four-factor test and burden-shifting framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under McDonnell Douglas, an
FHA plaintiff must show: (1) that she is a member of a racial minority; (2) that she applied for and was
qualified to rent housing; (3) that she was rejected; and (4) that the housing remained available thereafter.
Mencer v. Princeton Square Apartments, 228 F.3d 631, 634-35 (6th Cir. 2000). Once the prima facie
case is established, the burden shifts to the defendant to offer legitimate, non-discriminatory reasons for
their action; if successful, the burden returns to the plaintiff to identify evidence of pretext masking
unlawful discrimination. Id. at 634.
The McDonnell Douglas framework, however, sets out “an evidentiary standard, not a pleading
requirement.” Lindsay v. Yates, 498 F.3d 434, 439 (6th Cir. 2007) (“Lindsay I”). Thus, a plaintiff is not
required to allege every element of the prima facie case. Rather, she may survive a Rule 12(b)(6)
challenge with merely “a short and plain statement of the claim,” consistent with Fed. R. Civ. P. 8(a),
provided that it “gives the defendant fair notice of what the plaintiff’s claim is and the grounds upon

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 Plaintiffs also allege violations under 42 U.S.C. § 3604(c) against the RLJ Defendants. This provision is irrelevant
to Plaintiffs’ case. Subsection (c) was intended to prevent “discriminatory advertisements” both by “newspapers as
well as any other publishing medium.” United States v. Hunter, 459 F.2d 205, 211 (4th Cir. 1972), cert. denied, 409
U.S. 934 (1972). The Amended Complaint contains no allegations against RLJ suggesting anything of the sort. 

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which it rests.” Id. (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002)). Under Lindsay I, a
plaintiff in this Circuit need allege only (a) the statutory basis for her claims, and (b) the factual predicate
of those claims, such that the defendants are “apprise[d] . . . of the [] claims and the grounds upon which
they rest.” Id. at 440.2 Moreover, the Court of Appeals has emphasized “the well established principle
that in interpreting the Fair Housing Act, courts are to give effect to the ‘broad remedial intent of
Congress embodied in the Act.’” Fair Hous. Council, Inc. v. Vill. of Olde St. Andrews, Inc., 210 F. App'x
469, 480 (6th Cir. 2006) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982)).
In this case, Plaintiffs have satisfied the threshold requirements set by Lindsay I. Plaintiffs have
set forth the statutory bases for their claims, and described in detail the factual predicates supporting
them. The Defendants cannot say that they have not been apprised of the claims against them and the
grounds on which they rest.
1. ZMHA Defendants
With regard to ZMHA, Plaintiffs have described a pattern of discrimination spanning several
years. Over the two years she lived at Coopermill Manor, Plaintiff was regularly tormented by Somers,
who terrorized her, threatened her and her children, (Amended Complaint, Doc. 17, ¶¶ 18-20, 32),
physically assaulted her (id., ¶ 21, 45), forced himself into her home (id., ¶ 21), and destroyed her
property (id., ¶ 36). In response to these incidents, and the threats against her, ZMHA blamed and
reprimanded her after each event, (see id., ¶¶ 22, 24-25, 34-35, 37, 39-40, 51), in contravention of the
language and intent of VAWA. Compare 42 U.S.C. § 1437f(o), n. 3, infra. ZMHA did not investigate
the accuracy of complaints against Plaintiff, but instead created permanent electronic records
memorializing the inaccurate accusations against Plaintiff. (Id., ¶ 28-31, 35, 38). ZMHA ordered

2

 In Lindsay I, the Court of Appeals considered the impact of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), on
the continuing validity of Swierkiewicz, and found the rationale still to be valid. 498 F.3d at 440 n.6. In the time
since Lindsay I, the Supreme Court has decided Ashcroft v. Iqbal, 556 U.S. 662 (2009), which substantially
reevaluated the pleading requirements under the Federal Rules. However, Lindsay I remains a valid statement of the
law governing FHA pleadings even after Iqbal. Williams v. Richland Cnty. Children Servs., 489 F. App'x 848, 852
(6th Cir. 2012).

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Plaintiff to leave Coopermill Manor (id., ¶¶ 40-42), and in the end attempted to evict her (id., ¶¶ 52-56).
Several years later, ZMHA continued its discriminatory actions by sending multiple negative reference
letters to other landlords, ensuring that Plaintiffs would be unable to obtain adequate new housing. (Id.,
¶¶ 90-100, 111, 116-117).
These allegations state a claim under Lindsay I. ZMHA consistently and regularly interfered, or
allowed Somers to interfere, with Plaintiffs’ ability to live at Coopermill Manor. ZMHA assigned blame
to Plaintiff for actions beyond her control, and used its mounting, but inaccurate, evidence to attempt to
force her to leave her apartment. Ultimately, ZMHA began procedures to evict Plaintiffs from their
apartment, the very essence of intrusion into the “privileges of . . . rental of a dwelling,” as well as the
“provision of services or facilities” in connection with a rental, under § 3604(b). See, e.g., Bloch v.
Frischholz, 587 F.3d 771, 779 (7th Cir. 2009) (the “right to inhabit the premises is a ‘privilege of sale’”
and thus “actual or constructive eviction” violates § 3604(b)); Cox v. City of Dallas, Tex., 430 F.3d 734,
747 (5th Cir. 2005) (“constructive conviction [is] a clear discriminatory condition of ‘sale or rental of the
dwelling,’” and is therefore proscribed by § 3604(b)); Woodard v. Fanboy, L.L.C., 298 F.3d 1261, 1265
(11th Cir. 2002) (§ 3604(b) prohibits discriminatory eviction).
Moreover, ZMHA was aware, or should have been aware, that Plaintiff was the victim of longstanding and continuing domestic violence. Accordingly, dereliction of its obligations under the Violence
Against Women Act (“VAWA”), see 42 U.S.C. § 1437f(o),3 and apportionment of blame for the results

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 Section 1437f(o) requires that a landlord receiving low-income housing assistance: must not refuse prospective
tenants merely on the basis that she “is or has been a victim of domestic violence, dating violence, or stalking,” §
1437f(o)(6)(B); and must “not terminate any tenancy except for serious or repeated violations of the terms and
conditions of the lease,” § 1437f(o)(7)(C). Moreover under the version of § 1437f(o) in force at the time of these
events, VAWA provided that
an incident or incidents of actual or threatened domestic violence, dating
violence, or stalking shall not be construed as a serious or repeated violation of
the lease by the victim or threatened victim of that violence and shall not be
good cause for terminating the tenancy or occupancy rights of the victim of such
violence.
§ 1437f(o)(7)(C) (2011).

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of the domestic violence (see Doc. 17, ¶ 118), could give rise to an inference that ZMHA acted with
intent to discriminate on the basis of gender. Bouley v. Young-Sabourin, 394 F. Supp. 2d 675, 678 (D. Vt.
2005) (attempt by landlord to evict plaintiff 72 hours after domestic dispute could give rise to inference of
discrimination on the basis of gender); Meister v. Kansas City, No. 09-2544-EFM, 2011 WL 765887, at
*6 (D. Kan. Feb. 25, 2011) (“evidence that defendant knew that domestic violence caused damage to
plaintiff's housing unit would help support a claim that she was evicted under circumstances giving rise to
an inference of sex discrimination.”).
Plaintiffs have successfully described the statutory basis for their claim, and the factual predicate
of those claims. At this stage of the litigation, nothing further is required.
2. RLJ Defendants
Plaintiffs similarly succeed in apprising RLJ of the basis and predicate for their claims against it.
Plaintiffs allege that they were consistently misdirected, misinformed, lied to, and ultimately denied in
their requests for housing with RLJ. Plaintiff applied at least four times to live at Greenwood (Doc. 17,
¶¶, 73-74, 80, 88, 102-107); despite the fact that Plaintiff was qualified to live there (id., ¶ 91), and that
housing was available for rent at Greenwood (id., ¶ 92), she was denied three times (id., ¶¶ 79, 85, 90).
Greenwood and Paul engaged in a pattern of delay and obfuscation over the course of nine months, (id.,
¶¶ 78, 83-86, 97-98, 108-109), refused to inform Plaintiff as to her application status (id., ¶¶ 79, 84, 8687, 109) and lied about losing Plaintiff’s application, (id., ¶ 78, 83-85). When Paul denied Plaintiff’s
application for the final time, she concealed her discriminatory motives by citing to the negative landlord
reference sent by ZMHA (id. ¶¶ 90, 94), even though that letter was not created until over a week after
Plaintiff’s rejection (id., ¶ 96-97). In the end, she announced directly to Plaintiff that she had no intention
of allowing Plaintiff, or any of “[her] people,” to rent at Greenwood, invoking distasteful racial
stereotypes to justify her bigotry. (Id., ¶¶ 107-109).

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These allegations state a claim for relief. The FHA “prohibit[s] all forms of discrimination,
sophisticated as well as simpleminded, and thus disparity of treatment between whites and blacks,
burdensome application procedures, and tactics of delay, hindrance, and special treatment” all are
forbidden. McDonald v. Verble, 622 F.2d 1227, 1234 (6th Cir. 1980) (quoting Williams v. Matthews Co.,
499 F.2d 819, 826 (8th Cir. 1974)). With regard to burdensome and dilatory application processes, the
FHA
recognizes that decisionmakers can discriminate against applicants long
before they reach the point of deciding whether to accept an application.
They may discriminate in how they solicit and encourage applications.
They may discriminate in how they treat applicants who ask questions
about the dwelling, and in the process by which they inform applicants
about a residency opening. They may also discriminate in the terms of
residency which they offer to an otherwise successful applicant. . . .
[T]hese actions might be just as effective in limiting housing
opportunities for members of a protected group as any policy which
ultimately turns them away on the basis of their group membership
United States v. Lorantffy Care Ctr., 999 F. Supp. 1037, 1045 (N.D. Ohio 1998).
In this case, Plaintiffs have demonstrated not only burdensome application processes, undue
delay, withholding of information, and false statements, but also ultimate denial on pretextual grounds.
Paul’s insistence that she would not rent to Plaintiffs because she “kn[e]w” that Plaintiff’s “people”
would be “loud and obnoxious,” and would “stick together” only buttresses the inference of pretext
behind Paul’s efforts to prevent Plaintiffs from renting at Greenwood. A prima facie case for
discrimination is established “whenever the actions taken by the property owner lead one to reasonably
‘infer, if such actions remain unexplained, that it is more likely than not that such actions were based on
discriminatory criterion’ such as race.” Lindsay v. Yates, 578 F.3d 407, 417-18 (6th Cir. 2009) (“Lindsay
II”) (quoting Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978)). As long as such evidence exists,
when viewed “in light of common experience,” the required “inference of discrimination” has been
satisfied. Id. at 418. Cf. Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 269-70 (3d Cir. 2010) (use

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of the phrase “you people,” without any other evidence of discriminatory animus, is not enough to
establish direct evidence of discrimination).
Moreover, the conduct and statements of an employee may be probative of whether an ultimate
adverse action directed at a plaintiff was racially motivated. See Bartlett v. Gates, 421 Fed.Appx. 485,
491 (6th Cir. 2010) (“[D]iscriminatory remarks can . . . also serve as probative evidence of pretext . . .
even when remarks are made by a nondecisionmaker.”); see also United States v. Youritan Const. Co.,
370 F. Supp. 643, 651 (N.D. Cal. 1973) aff'd in part, remanded in part, 509 F.2d 623 (9th Cir. 1975)
(“Principals who provide an atmosphere in which agents may and do, easily and without supervision or
control, make housing unavailable because of race, engage in a pattern or practice of discrimination even
though no specific instructions were given to agents to do so.”).
In light of common experience, and considering in total the burdensome practices, delays, and
misstatements made by RLJ, together with its pretextual denial of Plaintiffs’ application, and colored by
the comments made by Paul, Plaintiffs have made the required showing to establish a prima facie case
under the FHA.

B. Res Judicata
The doctrine of res judicata, also called “claim preclusion,” provides that “a final judgment on
the merits of an action precludes the parties or their privies from relitigating issues that were or could
have been raised in a prior action.” In re Alfes, 709 F.3d 631, 638 (6th Cir. 2013). This doctrine is
applicable as much to the decisions of state administrative agencies as it to those of state courts, provided
certain conditions are met. Univ. of Tennessee v. Elliott, 478 U.S. 788 (1986). In short, federal courts
must “give the agency’s fact-finding the same preclusive effect to which it would be entitled in the State’s
courts.” Id. at 799. Accordingly, this Court must look to the preclusive effect Ohio state courts give to
administrative decisions similar to the one at issue here. A review of Ohio law, however, reveals that
Plaintiffs’ claims are not barred.

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Under Ohio law, administrative agency decisions can be given preclusive effect so long as “the
administrative body acted in a judicial capacity” when it considered the claims of the parties. Lupo v.
Voinovich, 858 F. Supp. 699, 702 (S.D. Ohio 1994) (citing Superior's Brand Meats v. Lindley, 403 N.E.2d
996 (Ohio 1980)). In addition, it is necessary that “the factual disputes resolved [by the agency] were
clearly relevant to issues properly before it,” and that the parties “had a full and fair opportunity to argue
their version of the facts and an opportunity to seek out review of any adverse findings.” Pullar v.
Upjohn Health Care Serv., 488 N.E.2d 486, 490 (Ohio Ct. App. 1984).
Ohio law is clear that formal proceedings before the OCRC can satisfy the “threshold due process
requirements” necessary to give an administrative ruling preclusive effect. See, e.g., State ex rel.
Republic Steel Corp. v. Ohio Civil Rights Comm., 339 N.E.2d 658, 662-63 (Ohio 1975) (Formal hearings
before the OCRC are generally held to be of a judicial nature and to provide sufficient opportunity to
litigate the issues.). When the OCRC finds “no probable cause,” however, the proceedings before it never
reach the level of formality sufficient to satisfy the requirements of due process. This is because
[p]rior to the filing of a complaint, the procedure set out in the statute is
informal and in the nature of an ex parte proceeding. Although the
commission investigates the charge, it does not seek to receive formal
evidence. Unlike the procedure set forth for a post-complaint formal
hearing, [O.R.C. § 4112.05] does not provide for the swearing of
witnesses, the taking of testimony, or the keeping of a record during the
preliminary investigation.
McCrea v. Ohio Civil Rights Comm'n, 486 N.E.2d 143, 146 (Ohio Ct. App. 1984).
Thus, in cases where the OCRC does not issue a complaint, and accordingly where a plaintiff is
“not permitted to commence an investigation, to direct or participate in directing an investigation, or to
determine the existence of probable cause,” and is “not allowed to examine or cross-examine witnesses,
lodge objections, or otherwise directly participate,” the OCRC decision is not preclusive. Doan v. S. Ohio
Adm. Dist. Council, Internat’l Union of Bricklayers & Allied Craftworkers, 763 N.E.2d 639, 643 (Ohio
Ct. App. 2001). Cf. Smith v. Friendship Vill. of Dublin, Ohio, Inc., 751 N.E.2d 1010, 1014 (Ohio 2001)
(finding that the filing of a discrimination complaint with the OCRC under O.R.C. § 4112.05 does not
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preclude the filing of an “independent civil action,” where the OCRC declined to proceed); Ramudit v.
Fifth Third Bank, No. C-030941, 2005-Ohio-374 (Ohio Ct. App. Feb. 4, 2005) opinion amended on
reconsideration, 2005-Ohio-978 (Ohio Ct. App. Mar. 4, 2005) (Res judicata “do[es] not apply to a
finding of ‘no probable cause’ by the civil rights commission and do[es] not preclude a civil action for
discrimination or retaliatory discharge,” because the plaintiff “did not have the opportunity to fully and
fairly litigate the issues raised in the civil suits in the proceedings before the civil rights commission
because of the nature of those proceedings.”).
In those cases where an OCRC finding of no probable cause has been given preclusive effect, full
review by a state court has been deemed to be “critical” in establishing preclusion. See, e.g., Stallings v.
Goshen Dairy Stores, Inc., No. 95-3228, 89 F.3d 835, at *3-4 (6th Cir. June 27, 1996) (OCRC
proceedings “meet the threshold due process requirements,” so that “the state court proceeding [reviewing
the OCRC determination] merits preclusion.”).4 Compare Astoria Fed'l Savings & Loan Ass'n v.
Solimino, 501 U.S. 104, 106 (1991) (administrative determinations made with respect to an ADEA claim
are not entitled to preclusive effect in federal proceedings, when not reviewed by a court).
In this case, the OCRC’s finding of no probable cause has gone unreviewed. Plaintiffs have
alleged, and Defendants do not dispute, that on January 13, 2011, the OCRC dismissed Plaintiff’s
complaint against the RLJ defendants for lack of probable cause (Amended Complaint, Doc. 17, at ¶ 125).
After reconsideration, the complaint was against dismissed, on July 13, 2011. (Id.). Plaintiffs filed an
appeal with the Muskingum County Court of Common Pleas, but voluntarily dismissed her petition on
April 19, 2012, prior to adjudication on the merits. (Id.). Similarly, on February 23, 2012, the OCRC
dismissed the complaint against the ZMHA Defendants for lack of probable cause. (Id. at ¶ 133).
Plaintiffs requested reconsideration, but withdrew their request and voluntarily dismissed her complaint

4

ZMHA’s representation of the holding in Stallings reflects a misreading of the case. (See Doc. 22 at 6-7). While
the Court is hesitant to impute improper motive to the parties’ briefs, which of necessity must attempt to persuade,
ZMHA’s reading strains credulity, ignores the opinion’s clear language, and calls into question the candor with
which it addresses this Court. 

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on November 5, 2012. (Id.). Res judicata does not apply where plaintiffs voluntarily dismiss their
complaint prior to final adjudication on the merits. Ganley v. Mazda Motor of America, Inc., 367 F.
App’x 616, 622 (6th Cir. 2010) (citing In re Lima Mem’l Hosp., 675 N.E.2d 1320, 1323 (Ohio Ct. App.
1996). Accordingly, Plaintiffs’ claims are not barred on this ground.

C. Statute of Limitations
Finally, ZMHA challenges Plaintiffs’ ability to recover on the grounds that their claims are barred
by the limitations period imposed by 42 U.S.C. § 3613. Section 3613(a)(1)(A) provides, in pertinent part,
that an aggrieved person “may commence a civil action in an appropriate [court] not later than 2 years
after the occurrence or the termination of an alleged discriminatory housing practice . . . to obtain
appropriate relief.” This period does not include “any time during which an administrative proceeding
under [Title 42, Chapter 45, Subchapter I] was pending with respect to a complaint or charge under this
subchapter based upon such discriminatory practice.” Id. § 3613(a)(1)(B).
The parties do not dispute that the pendency of the OCRC proceedings tolled the limitations
period provided by § 3613. Thus, beginning on June 23, 2010, (Amended Complaint, Doc. 17, at ¶ 120),
and lasting until Plaintiffs withdrew their request for reconsideration, on November 5, 2012 (Id., at ¶
133), the limitations period did not run. Plaintiffs filed the present action one day later, on November 6,
2012. The relevant inquiry, then, is whether Plaintiffs’ claims are barred by the passage of time from the
events in 2005 and 2006, and Plaintiffs’ termination of tenancy in December 2006, until the filing of the
administrative action in 2010. The Court finds that they are not. Because the last act of discrimination is
alleged to have taken place in early May 2010, Plaintiffs’ filing of their administrative complaint, less
than two months later, is well within the limitations period.
Plaintiffs allege not just one discrete act of discrimination, but rather a “continuing violation.”
The “continuing violation doctrine” has the effect “of preserving discrimination claims based on incidents
that occurred outside of the limitations period, if those incidents were part of a larger discriminatory
‘practice’ that continued into the limitations period.” Kennedy v. City of Zanesville, OH, 505 F. Supp. 2d
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456, 490 (S.D. Ohio 2007) (citing Havens, 455 U.S. at 379). When a plaintiff challenges such an
“unlawful practice,” rather than merely one incident of improper conduct, the complaint is considered
timely as long as the “last asserted occurrence of that practice” takes place within the limitations period.
Havens, 455 U.S. at 380-81 (footnote omitted). The purpose of this doctrine is to protect victims of
discrimination, who may not recognize violations as legally actionable “until future incidents demonstrate
a pattern.” Kennedy, 505 F. Supp. 2d at 490. In applying the “continuing violation” theory of injury,
moreover, courts “are to give effect to the broad remedial intent of Congress embodied in the [FHA],”
and ensure “a less restrictive interpretation of the [FHA’s] tolling provisions.” Fair Housing Council,
210 F. App’x at 480 (quotation omitted).
The Sixth Circuit has set out a three-part test to determine whether a continuing violation exists:
(1) a “defendant's wrongful conduct must continue after the precipitating event that began the pattern”;
(2) “injury to the plaintiff must continue to accrue” after that event; and (3) “further injury to the plaintiffs
must have been avoidable if the defendants had at any time ceased their wrongful conduct.” Tolbert v.
State of Ohio Dep’t of Transp., 172 F.3d 934, 940 (6th Cir. 1999). Importantly, “a continuing violation is
occasioned by continual unlawful acts, not continual ill effects from an original violation.” Id. (quotation
omitted). Moreover, “[p]assive inaction . . . does not support a continuing violation theory.” Id.
In this case, Plaintiffs allege that ZMHA engaged in a pattern of discriminatory conduct against
her, from the date of the beginning of her tenancy in November 2005. She asserts that ZMHA held her
responsible for the acts of her abuser (Doc. 17, ¶¶ 18-56), and filed reports of violations against her on
account of his actions (id., ¶¶ 29-31, 35, 38, 51), attempted to terminate Plaintiff’s lease (id., ¶¶ 54-55),
and ultimately evicted her on December 13, 2006 (id., ¶ 56). Moreover, in reliance on the inaccurate
statements entered into its electronic records, and in furtherance of its discriminatory practices, ZMHA
issued a negative landlord/tenant reference letter on May 7, 2010. (Id., ¶ 95-97). ZMHA has refused to
correct the inaccuracies in the letter, despite Plaintiff’s requests (id., ¶¶ 112-116), and has allegedly issued
the same letter to other prospective landlords (id., ¶ 111).
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Plaintiffs have succeeded in stating a continuing violation. First, Defendants’ conduct began with
its discriminatory actions, which interfered with Plaintiffs’ ability to procure housing, as early as late
2005 or early 2006. The conduct continued throughout 2006, when ZMHA attempted to evict Plaintiffs
(id., ¶¶ 42, 52-56), and even into 2010, which falls well within the limitations period. The fact that the
incidents occurred several years apart does not extinguish a continuing violation; rather “[s]o long as the
later incidents are related to the earlier ones, a gap in time between the incidents does not defeat the
claim.” Everson v. City of Madison, 672 F. Supp. 2d 881, 887 (W.D. Wis. 2009) (finding a continuing
violation, over a period of 14 years, in Title VII sexual harassment case). Moreover, the various acts
alleged by Plaintiffs continued to injury Plaintiffs throughout this time. Plaintiff was sanctioned for the
actions of her abuser, evicted from her housing, and her ability to find new housing was impaired by the
negative reference. Finally, further injury to the Plaintiffs could have been avoided, had Defendants
ceased their discriminatory conduct – either while Plaintiffs still resided at Defendants’ properties, or
after – had Defendants amended their records as requested, and sent accurate reference letters to
prospective landlords. These allegations satisfy the requirements of Tolbert.
This case bears a strong similarity to SternJohn v. Kreisler, 238 F. Supp. 2d 1104, 1110 (D.
Minn. 2003), where the District of Minnesota found that the refusal by the defendants to issue a positive
landlord reference letter constituted another incident in a pattern of discriminatory conduct, thus
preserving the claim and rendering it timely. In SternJohn, the plaintiffs had alleged a number of
discriminatory acts occurring outside the limitations period for filing of an administrative action. The
court found that the claim was not time-barred, however, because “the allegation of a discriminatory
refusal to give a housing reference would mark yet another incident in . . . ‘a continuing violation
manifested in a number of incidents.’” Id. (quoting Havens, 455 U.S. at 381). The court reasoned that
both the plain language of the FHA, its legislative history, and the policy behind it indicated that a
“discriminatory housing practice” could include even those actions undertaken while not in privity with
the plaintiffs (such as refusal to write a letter even after the end of a lease). Id. at 1110-11.

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Accordingly, Plaintiffs have stated a claim for a continuing violation, the last act of which
occurred within the limitations period set by § 3613. Plaintiffs’ claims are not time-barred.

VI.

CONCLUSION

For the foregoing reasons, ZMHA’s Motion for Judgment on the Pleadings (Doc. 22) is hereby
DENIED. RLJ’s Motion to Dismiss (Doc. 21) is similarly DENIED.

IT IS SO ORDERED.

/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 30, 2013

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