Hernandez v. Golf Course Estates Home Owners Association et al

Filing 32

OPINION AND ORDER: Plaintiffs' Motion for Partial Summary Judgment 20 on the issue of liability is DENIED. Defendants' motion for Summary Judgment as to individual defendants 23 is also DENIED. Signed on 4/10/2020 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

Erika Hernandez and Paulo Regalado, as
Guardians for their minor child, A.R.;
ERIKA HERNANDEZ, individually; and
PAULO REGALADO, individually,

Case No. 6:18-cv-00932-AA
OPINION AND ORDER

Plaintiffs,
v.
GOLF COURSE ESTATES HOME OWNERS
ASSOCIATION, an Oregon nonprofit corporation;
LEE EDWARDS, individually; LORI GIBSON,
individually; and JACKIE WINTERS, individually,
Defendants.
AIKEN, District Judge:
Plaintiffs Erika Hernandez and Paulo Regalado, individually and as guardians
for their minor child, A.R., bring this action against defendant Golf Course Estates
Homeowners Association ("HOA") and its board members, Lee Edwards, Lori Gibson,
and Jackie Winters, for violations of the federal Fair Housing Amendments Act
("FHAA") and the Oregon Fair Housing Act (“OHFA”), as well as a claim for
negligence. Now before the Court is plaintiffs' motion for partial summary judgment
Page 1 – OPINION AND ORDER

on liability (doc. 20) and defendants' motion for summary judgment as to the
individual board members (doc. 23). For the reasons set forth below, both motions
are denied.
BACKGROUND
Plaintiffs' daughter, A.R., has developmental disabilities and attends a special
needs elementary school. A.R.'s disability prevents her from assessing dangers, and
she is prone to running into the street. A.R.'s Individualized Education Program
("IEP") provides her with specialized transportation to school that includes pick-up
and drop-off directly in front of her house.
In February 2017, plaintiffs began renting a home in Golf Course Estates, a
housing development overseen by defendant HOA, located in Marion County, Oregon.
Individually named defendants Lee Edwards, Lori Gibson, and Jackie Winters serve
as the board of the HOA (“the Board”). At all times material to this suit, defendant
Edwards acted as the Chairman of the Board.
A.R.'s school bus picked her up and dropped her off in front of her home without
incident from February 2017 until October 2017, when Hernandez learned that bus
service would be discontinued. This policy change was instigated by Sharon Bowker,
the HOA Board's secretary and manager, who complained to the Salem-Keizer School
Transportation office that school buses were speeding on private streets. Ms. Bowker
claimed that she and the Board were concerned for the safety of residents: the
development has no sidewalks, so residents often walk in the narrow streets. The
Board claims that three to four bus ran each morning and afternoon, at the same

Page 2 – OPINION AND ORDER

times that other students were walking to the development’s designated bus stop,
presenting a safety risk and liability. The Board also noted the buses contributed to
“heavy wear and tear on the streets” that “are privately maintained and paid for by
homeowners.” Aldworth Decl. Ex. 24 at 1. Ms. Bowker requested that the buses use
the designated River Road stop unless they were picking up students with special
needs.
After Bowker requested a vote on the bus issue on September 30, 2017, the
Board voted to not allow school buses on the HOA roads. Bowker then sent e-mail to
the school district’s director of transportation, informing him that the roads were
private and instructing the district stop routing school buses on the HOA roads. The
district replied by noting that it would need to notify parents of students receiving
specialized services, would stop bus service later in the month. On October 24, 2017,
Hernandez learned from A.R.’s bus driver that the HOA had disallowed school buses
on HOA streets and that A.R. would need to begin using the designated bus stop the
following day.
On October 25, 2017, Hernandez wrote a letter to the Board explaining the
nature of A.R.'s disability and the provision in her IEP calling for special
transportation. Hernandez expressed concerns for A.R.’s safety if she had to use the
River Road bus stop, which was located on a busier public street. She requested that
the Board permit A.R.'s bus to continue door-to-door transportation as an
accommodation under the Fair Housing Act. She also asked that the Board provide
her a written explanation if they chose to deny her request.

Page 3 – OPINION AND ORDER

Later that day,

Hernandez received an email from Ms. Bowker stating that the Board voted to
reinstate bus service as long as bus drivers adhered to speed limits. Hernandez
requested written confirmation of the Board's decision from Ms. Bowker.
Ms. Bowker then emailed Salem-Keizer Public Schools’ Director of
Transportation Michael Shields, instructing him to temporarily continue bus service
in the community. She explained that the Board received complaints from three HOA
residents whose children were affected by the change and had elected to delay its
final decision pending review in January. Ms. Bowker’s email stated, “[i]t was not
the HOA's intention to change any pick-up/drop off schedules for special needs
children who were entitled to that service.” Aldworth Decl. Ex 12 at 2. Mr. Shields
responded, confirming that the only students receiving bus service in the community
were those “requiring special assistance.” Aldworth Decl. Ex. 12. He also explained
that while school personnel could provide general bus information to the board, he
could not provide any information about particular students and their needs due to
HIPAA rules.1
On November 2, 2017, Mr. Shields received a formal letter from the Board,
stating that the approval of bus services was temporary and that the Board was not
required to allow the buses on Golf Course Estates’ private streets. The letter stated

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”),
Pub. L. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 42
U.S.C.) includes a Privacy Rule that protects individuals’ health records and other
personal information by, among other requirements, limiting the use and disclosure
of such information without patient authorization. Joint Guidance on the Application
of HIPAA and FERPA to Student Health Records, 4-5 (December 2019 Update).
1

Page 4 – OPINION AND ORDER

that the Board would be reconsidering the issue in early January 2018 and requested
that Mr. Shields provide information about why door-to-door bus service was initiated
and whether special program students had mobility issues. The letter also requested
that Mr. Shield’s send the Board the latest relevant city and state transportation
regulations. Plaintiff Hernandez received a copy of this letter.
On January 26, 2018, the Board voted unanimously to disallow school buses
from entering Golf Coast Estates’ private streets. The Board sent a letter relaying
that information to Mr. Shields on February 1, 2018. The letter stated that the Board
had requested information about the HOA’s legal obligations in allowing bus service
and said that if Mr. Shields did not comply by February 23, 2018, the buses would
not be permitted to enter the private streets. On February 20, 2018, Mr. Shields
notified Plaintiff Hernandez that the Board directed him to stop bus service in the
community. Other than this notice from Mr. Shields, Plaintiff Hernandez did not
receive an explanation from the Board regarding its denial of her October 25 request.
After receiving Mr. Shields’ notice, Hernandez notified her landlord, Nancy
Buck, about the busing issue. Ms. Buck emailed Ms. Bowker on February 21, 2018,
stating that the HOA’s refusal to allow bus transportation for A.R. was unacceptable.
Ms. Buck noted that the school district provided a letter for A.R. and said that
transportation is “governmentally allowed.” Ex. 20 to Aldworth Decl. at 2. Ms. Buck
demanded “a reasonable explanation” as soon as possible. Id. Ms. Bowker forwarded
the email to the Board the next day. Ms. Buck never received a response from the
Board.

Page 5 – OPINION AND ORDER

On February 23, 2018, Defendant Winters emailed Defendants Edwards and
Gibson about a conversation she had with the District Superintendent where she
“expressed that if we make a special exception, we could be setting ourselves up to
discriminate against other students who reside here.” Aldworth Decl. Ex. 21 at 1.
Defendant Winters noted that the school district had a similar problem with another
HOA and opined that the district was “trying to implement a new State initiative
without doing all of their due diligence.” Id. Ms. Bowker also emailed the Board to
ask, “if the Association granted access to the 3 particular students… then would it
have to grant access to school buses for all of the kids in the community?” Aldworth
Decl. Ex. 22 at 2.
On February 26, A.R.'s door-to-door transportation was discontinued. The
nearest designated school bus stop was on River Road, which defendants allege is a
three-minute walk from plaintiffs’ residence.

Given A.R.’s disability, plaintiffs

Hernandez and Regalado elected to drive A.R. to and from school every day after
February 26.
In April 2018, Defendant Winters set up a meeting with the District
Superintendent and the Board.

The Board members had requested additional

information about the three children’s medical needs for door-to-door transportation.
The Superintendent said the District could not provide students’ medical information
and told the Board that such information must be requested directly from the
students’ parents. The Board did not contact plaintiffs for A.R.’s medical information,
and the ban remained in effect.

Page 6 – OPINION AND ORDER

On April 18, 2018, plaintiffs’ counsel sent a demand letter to defendants
explaining the Board's legal requirements to provide reasonable accommodation
under the FHA. The Board did not respond to plaintiffs’ demands. and this lawsuit
was filed on May 29, 2018. Two days later, on May 31, the Board reversed its policy
to allow buses back into the community. The school year was nearly over, so plaintiffs
determined it would not be worth changing A.R.'s routine for only a few days and
notified the District that plaintiffs would continue driving A.R. for the remainder of
the year. Plaintiffs resumed door-to-door pick up at the beginning of the following
school year.
LEGAL STANDARD
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.” FRCP 56(a).
As applied here, where the moving party bears the burden of proof at trial, that party
must produce evidence that would entitle the party to a directed verdict if the
evidence when uncontroverted at trial. C.A.R. Transp. Brokerage Co., Inc. v. Darden,
213 F.3d 474, 480 (9th Cir. 2000).
If the moving party shows the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings and identify facts which show a
genuine issue for trial. Id. at 324; Fed. R. Civ. P. 56(e). “Summary judgment is
inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party’s favor.” Diaz v. Eagle Produce
Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

Page 7 – OPINION AND ORDER

DISCUSSION
Before the Court are two summary judgment motions. Plaintiffs move for
partial summary judgment in their favor on the issue of defendants’ liability for
alleged violations of the FHAA. Defendants move for summary judgment requesting
dismissal the individually named defendants from this suit.
The FHAA prohibits discrimination in the provision of housing services
because of a handicap.2 42 U.S.C. § 3506(f)(2). “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." Id. § (f)(3)(B).

Oregon's fair housing statute is

substantially similar to the federal law, and the two are interpreted identically.
Fishing Rock Owner's Ass'n v. Roberts, 6 F. Supp. 3d 1132, 1138 n. 1 (D. Or. 2014).
To establish a prima facie case of discrimination for failing to provide a
reasonable accommodation, a plaintiff must show that (1) she suffers from a disability
under the FHAA; (2) defendants knew or reasonably should have known of the
disability; (3) the requested accommodation may be necessary to afford the plaintiff
an equal opportunity to use and enjoy her dwelling; and (4) defendants refused the
accommodation request. Kuhn v. McNary Estates Homeowners Ass’n, Inc., 228 F.
Supp. 3d 1142, 1147 (D. Or. 2017) (citing Giebeler v. M & B Assocs., 343 F.3d 1143,

This Court will use the preferred term “disability” despite the FHAA’s use of
the term “handicap.” Sanders v. SWS Hilltop, LLC, 309 F. Supp. 3d 877, 883 n. 6 (D.
Or. 2018) (noting that disabled individuals find the term ‘handicapped’ objectionable)
(citations and quotation marks omitted).
2

Page 8 – OPINION AND ORDER

1147 (9th Cir. 2003).3 “The reasonable accommodation inquiry is highly fact-specific,
requiring case-by-case determination.”

United States v. Cal. Mobile Home Park

Mgmt., Co., 107 F.3d 1374, 1380 (9th Cir. 1997). Plaintiffs bear the burden of proving
that the requested accommodation is reasonable and necessary on its face. Kuhn,
228 F. Supp. at 1147. “The threshold for pleading discrimination claims under the
FHAA is low.” McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir. 2004). If
plaintiffs meet their initial burden, the defendants may rebut the presumption of
reasonableness and necessity by showing that “the accommodation would cause
undue hardship in the particular circumstances." Kuhn, 228 F. Supp. at 1147 n. 3.
The Court addresses each parties’ motion in turn.
I.

Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs request summary judgment in their favor arguing that there is no

genuine issue of material fact as to whether they have satisfied the elements of their
FHAA claim. The Court will discuss each element below.
A.

Plaintiff Suffers from a Disability
The parties do not dispute that A.R. suffers from a disability protected by the

FHAA.

Ninth Circuit case law identifies four elements in FHAA claims, although
some courts have listed five. This nuance exists because the reasonableness of the
accommodation—a threshold inquiry—is incorporated into the analysis at different
stages by different courts. Compare Giebeler v. M & B Assocs., 343 F.3d 1143, 1147
(9th Cir. 2003) (listing four elements of a reasonable accommodation claim), and
United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir.
1997) (same), with Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d
1175, 1179 (9th Cir. 2006) (listing five elements of a reasonable accommodation,
including reasonableness of accommodation).
3

Page 9 – OPINION AND ORDER

B.

Defendants’ Knowledge of the Disability
Plaintiffs assert that Hernandez’s October 25 letter requesting accommodation

properly notified the Board and the individual defendants of A.R.’s handicap,
satisfying the second element of their reasonable accommodation claim. Plaintiffs
argue that Ms. Bowker corresponded with them about Hernandez’s letter and notified
her when the Board voted to reinstate the door-to-door pickup on October 25, 2017.
Further, defendant Winters sent emails to board members and set up meetings with
the School District about the busing issue leading up to and after the Board’s final
decision to disallow A.R.’s door-to-door transportation.
Defendants respond that the Board did not know of A.R.’s handicap until it
received Hernandez’s October 2017 letter. Defendants argue that they never received
the requested verification from A.R.’s doctor or School District confirming A.R.’s
medical need for door-to-door pickup, asserting, “[k]nowledge that someone is
claiming to have a handicap is not the same as independent verification thereof.”
Defs.’ Resp. to Pls.’ Mot. Partial Summ. J. at 4. The Court finds this argument
unpersuasive. When board members grant or deny a requested accommodation, they
know of the disability. See Sanzaro v. Ardiente Homeowners Ass’n, LLC, 364 F. Supp.
3d 1158, 1177 (D. Nev. 2019) (finding that defendants “knew of Mrs. Sanzaro’s
handicap due to their service on the Board and involvement in the decisions to
exclude [her] . . . These Defendants thus knew that Mrs. Sanzaro had a qualifying
impairment”). The Board and its three individual members knew of A.R.’s handicap:
from October 2017 until April 2018, Ms. Bowker forwarded the Board emails from

Page 10 – OPINION AND ORDER

affected homeowners, including plaintiffs, which prompted the Board to hold
meetings, deliberate, and ultimately prohibit special needs buses from using HOA
streets. Plaintiffs have sufficiently shown that defendants knew A.R.’s handicap;
therefore, they satisfy this element.
C.

Necessity of Accommodation
To prove necessity, a plaintiff must show that “but for the requested

accommodation, they will likely be denied an equal opportunity to enjoy the housing
of their choice.” Kuhn, 228 F. Supp. 3d at 1147 (quoting Giebeler, 343 F.3d at 1155).
The necessity inquiry is essentially one of causation. See Giebeler, 343 F.3d at 1155.
As such, plaintiffs must establish “an identifiable relationship, or nexus, between the
requested accommodation and the individual’s disability.” Joint Statement of the
Department of Housing and Urban Development and the Department of Justice on
Reasonable Accommodation (May 17, 2004) in 1 Housing Discrim. Pr. Man. App’x 2C.
“Without a causal link between defendants’ policy and plaintiff’s injury, there can be
no obligation on the part of defendants to make a reasonable accommodation.” United
States v. Cal. Mobile Home, 107 F.3d 1374, 1381 (9th Cir. 1997).
Plaintiffs argue that when the Board discontinued door-to-door bus
transportation, plaintiffs were denied equal use and enjoyment of their dwelling.
Without the requested accommodation, plaintiffs had to choose between using the
regular bus stop—not an appropriate option for A.R. because of her tendency to run
into the street—and altering their schedules so they could drive A.R. to and from
school every day.

There is a clear nexus between the requested transportation

Page 11 – OPINION AND ORDER

accommodation and A.R.’s disability in that the symptoms of A.R.’s disability require
specialized transportation and make A.R.’s use of the regular public school bus stop
unsafe. Plaintiffs “need not prove that the requested accommodation is the best or
only way to solve a disability-related problem; the plain text of the statute requires a
housing provider to make a reasonable accommodation that ‘may be necessary’ to
permit use and enjoyment of the home.” Kuhn, 228 F. Supp. 3d at 1139 (emphasis in
original).
Defendants acknowledge that this Court has recently found that the necessity
element may be met by only a probability of necessity, Kuhn, 228 F. Supp. 3d at 1199,
yet they still assert that ‘may be necessary’ means that the “accommodation is
essential, not just preferable.” Defs.’ Resp. to Pls.’ Mot. Partial Summ. J. at 5 (citing
Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100, 107 (3d. Cir. 2018)).
Defendants dispute that A.R.’s door-to-door transportation was essential or even
probably essential, arguing that the service was provided to all special needs students
without evidence of need. Defendants infer “that the accommodation was more for
streamlined supervision onto the bus for teachers of students with disabilities . . .
Rather than for accommodation of any one student’s particular needs in enjoying his
or her dwelling.” Defs.’ Resp. to Pls.’ Mot. Partial Summ. J. at 6. Defendants also
argue that A.R.’s doctor said she needed supervision at the bus stop, and only later
(when prompted) did A.R.’s doctor amend his letter to say that A.R. needed door-todoor service. Finally, defendants point to the fact that plaintiffs declined to resume

Page 12 – OPINION AND ORDER

bus service for the remaining days of the school year after the prohibition was
reversed.
As noted above, plaintiffs’ request need not be the best or only way to solve a
disability-related problem to satisfy the necessity element. Plaintiffs have shown
that their request was at least probably necessary, and Hernandez’s decision to
continue driving A.R. to school for the remaining days of the year does not prove that
door-to-door transportation is unnecessary.

However, at this stage in the

proceedings, the Court must view the evidence in the light most favorable to the nonmovants. Defendants have pointed to enough facts in the record to create a genuine
issue of material fact regarding whether the accommodation was necessary, and
therefore summary judgment is not appropriate.
D.

Reasonableness of the Accommodation
Even if plaintiffs’ requested accommodation is necessary, defendants need only

provide it if it is also reasonable. Kuhn, 228 F. Supp. 3d at 1150; see U.S. Airways,
Inc. v. Barnett, 535 U.S. 391, 401 (2002) (plaintiffs must show that the requested
accommodation “seems reasonable on its face.”). An accommodation is reasonable
under the FHAA “when it imposes no fundamental alterations in the nature of the
program or undue financial or administrative burdens.” Giebeler, 343 F.3d at 1157
(citations and quotation marks omitted).

This inquiry examines whether the

accommodation “is both efficacious and proportional to the costs to implement it.”
Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1289 (11th
Cir. 2014) (quoting Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d

Page 13 – OPINION AND ORDER

775, 784 (7th Cir. 2002). The FHAA does not require that an accommodation be made
if it “would constitute a direct threat to the health or safety of other individuals or . .
. would result in substantial physical damage to the property of others.” 42 U.S.C. §
3604(f)(9).4
Plaintiffs argue that their request for special transportation was reasonable,
and that defendants did not dispute the reasonableness until this litigation
commenced. However, the Court is unpersuaded by defendants’ argument that the
requested accommodation was unreasonable. Defendants have not demonstrated
how allowing buses to pick up special-needs children on HOA roads constitutes an
undue financial or administrative burden. While the HOA’s roads are privately
maintained, there is no evidence that specific areas of the roads were damaged by
school buses. Rather, Defendant Edwards stated that the HOA had an obligation to
take care of the streets, and when homeowners “see these vehicles coming through
six times a day they question our – what we are doing about it.” Aldworth Decl. Ex.
3 at 4 (Dep. of Lee Edwards).

That homeowners questioned the HOA about bus

traffic does not prove, on its own, that the buses amount to an undue financial or
administrative burden.

The direct threat determination relies on objective evidence, considering “(1)
the nature, duration, and severity of the risk of injury; (2) the probability that
injury will actually occur; and (3) whether there are any reasonable
accommodations that will eliminate the direct threat.” Kuhn, 228 F. Supp. 3d at
1151 (citing Joint Statement of the Department of Housing and Urban Development
and the Department of Justice on Reasonable Accommodation (May 17, 2004) in 1
Housing Discrim. Pr. Man. App’x 2C).
4

Page 14 – OPINION AND ORDER

Further, defendants provide little evidence that A.R.’s bus constitutes a direct
threat to the health or safety of residents. In her deposition, Ms. Bowker testified
that an elderly resident “felt threatened” but conceded that she did not recall any
incidents where someone was harmed or threatened with harm by a school bus.
Aldworth Decl. Ex. 2 at 12 (Dep. of Sharon Bowker). When asked whether school
buses were more dangerous than other vehicles, Ms. Bowker said “I don’t know.” Id.
at 13. She also acknowledged that she did not suggest any alternative to Hernandez’s
request that A.R.’s bus continue door-to-door service. However, viewing the evidence
in the light most favorable to defendants, this Court finds that there is a genuine
issue of material fact as to whether plaintiffs’ request was reasonable.
E.

Refusal of Accommodation Request
The parties do not dispute that the HOA denied plaintiffs’ accommodation

request when they prohibited bus service on HOA streets.
For the reasons above, the Court denies plaintiffs’ motion for partial summary
judgment based on alleged violations of the FHAA pending further development of
the record at trial.
II.

Defendants’ Motion for Summary Judgment
Defendants move for summary judgment as to individual Defendants

Edwards, Winters, and Gibson. Defendants argue that, as a matter of law, they
cannot be held personally liable for alleged FHAA violations of the Board. 5 In other

Defendants’ motion asserts several other tangential arguments regarding individual
liability. First, they argue that none of the individual defendants had the authority to grant or deny
plaintiffs request. There is a genuine issue of material fact as to whether each of the individual
defendants received and read Plaintiff Hernandez’s October 2017 letter which described A.R.’s
5

Page 15 – OPINION AND ORDER

words, defendants assert that this action should proceed against the HOA only.
While the Ninth Circuit has not squarely addressed this issue, I disagree with
defendants’ blanket statement that individuals cannot be liable for violations of the
FHAA. And, because there are genuine issues of material fact as to defendants’
personal involvement in this matter, summary judgment is not appropriate.6
Defendants rely on Rosenfield v. Hackett, 2010 WL 5067960 (D. Or. Dec. 10,
2010) to support their proposition that an individual cannot be held liable for any
discriminatory act of a housing authority board. There, the plaintiff did not request
accommodation from the defendant, but rather from an entirely different government
entity (the U.S. Department of Housing and Development) after the plaintiff no
longer received benefits from the program administered by the defendant. Id. at *2.
That court there applied rules from disability discrimination to relieve the defendant
from individual liability. Id. But Rosenfield is not binding on this Court, and it is
inapposite to the instant case. Here, plaintiffs communicated (through Ms. Bowker)
to the three individual defendants who comprised the Board. Defendants
unanimously voted to disallow busing after reviewing emails and letters from affected
residents including Hernandez.

disability. Second, defendants argue that individually named defendants were unable to grant or
deny plaintiffs’ request due to HOA bylaws. This argument implicates the question of whether
individuals can be held liable for their actions as members of the HOA.
6
Defendants’ reply in support of their motion for summary judgment cites Or. Rev. Stat.
65.369, which limits civil liability of “qualified directors” to acts that constitute gross negligence
or intentional misconduct. The Court agrees that the individual defendants are qualified directors
but declines to grant their motion until the parties’ factual disputes as to each defendant’s level of
involvement and knowledge are resolved.
Page 16 – OPINION AND ORDER

As mentioned above, the Ninth Circuit has not yet ruled on whether an
individual defendant can be held liable for violating the FHAA. However, several
district courts within our circuit have imposed individual liability. See, e.g., Sanzaro
v. Ardiente Homeowners Ass’n, 364 F. Supp. 3d 1158, 1177-80 (D. Nev. 2019) (finding
board members individually liable for denying reasonable accommodation); Fielder v.
Sterling Park Homeowners Ass’n, 914 F. Supp. 2d 1222, 1229 (W.D. Wash. 2012)
(holding that president and board members may be held individually liable for their
personal involvement in FHAA violations); United States v. Tropic Seas, Inc., 887 F.
Supp. 1347, 1365 (D. Haw. 1995) (denying HOA board member’s summary judgment
motion because there was a genuine issue of material fact as to whether defendant
participated or acquiesced in FHAA violations). Moreover, district courts across the
country have held that individuals can be liable for FHAA violations. See, e.g., Sabal
Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer, 6 F. Supp. 3d 1272,
1294 (S.D. Fla. 2014) (holding president of HOA’s board of directors liable for
personally contributing to HOA’s refusal to accommodate); Housing Opportunities
Project for Excellence, Inc. v. Key Colony No. 4 Condominium Ass’n, Inc., 510 F. Supp.
2d 1003, (S.D. Fla. 2007) (holding that HOA board members may be individually
liable for personal involvement in alleged discriminatory acts during their tenure);
Chavez v. Aber, 122 F. Supp. 3d 581 (W.D. Tex. 2015) (holding property owner,
manager, and director liable for violations of the FHAA and compiling cases); Miller
v. 270 Empire Realty LLC, 2012 WL 1933798 (E.D.N.Y. 2012) (holding premises
superintendent individually liable for violating the FHAA). While the law is not

Page 17 – OPINION AND ORDER

settled, defendants’ blanket statement absolving them of individual liability as a
matter of law is rejected. There is a genuine issue of material fact as to each
individual defendant’s involvement in the denial of plaintiffs’ request. Accordingly,
the Court denies their motion for summary judgment pending further development
of the record.
CONCLUSION
In sum, genuine issues of material fact exist as to several elements of plaintiffs’
reasonable accommodation claim and the personal involvement of individual
defendants in the Boards denial of plaintiffs’ request. Accordingly, plaintiffs’ Motion
for Partial Summary Judgment (doc. 20) on the issue of liability is DENIED.
Defendants’ motion for Summary Judgment as to individual defendants (doc. 23) is
also DENIED.
IT IS SO ORDERED.
April
Dated this 10th day of _________, 2020.
____
/s/Ann Aiken
______________________________
Ann Aiken
United States District Judge

Page 18 – OPINION AND ORDER