UNITED STATES OF AMERICA v. LUND

Filing 35

OPINION & ORDER re 18 MOTION for Partial Summary Judgment filed by SALLY LUND indicating that the Motion is DENIED as more fully stated in Opinion.Signed by Judge Maurice B. Cohill on 8/7/14. (rtw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHARON DUNFEE
Plaintiff,

v.

SALLY LUND,
Defendant.

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Civ . No. 13-165 Erie

OPINION

Plaintiff Sharon Dunfee commenced this civil rights housing discrimination action
against Defendant Sally Lund by way of a Complaint in Intervention on July 23, 2013. Her
Intervenor Complaint followed the June 19, 2013 filing of a Complaint on Ms. Dunfee's behalf
by the United States Housing and Civil Enforcement Section of the Civil Rights Division. Both
Complaints are substantially similar and allege that Ms. Lund discriminated against Ms. Dunfee
based on her disability by refusing to rent to her in violation of the Fair Housing Act of 1968 and
the Fair Housing Amendments Act of 1988 ("FHAA").
Ms. Lund filed her Answers to the Complaints on August 26,2013, and an Initial Case
Management Conference was set for November 12,2013. Prior to the conference the United
States entered into a Settlement Agreement with Ms. Lund and thus the case proceeds only on
Ms. Dunfee's Complaint in Intervention. The day before the case management conference Ms.
Lund filed a Motion for Partial Summary Judgment (ECF No. 18) seeking dismissal of two of
Ms. Dunfee's three counts. For the reasons set forth below, we will deny Defendant's Motion.

I. Relevant Factual Background
From September 22, 1983 to September 17,2009, Defendant Sally Lund and her husband
David Lund (Mr. Lund passed away in 2011) owned a residence at 423 West Front Street, Erie,
Pennsylvania, which they rented to tenants from time-to-time. Affidavit of Sally A. Lund, Sept.
23, 2013,

~4.

According to Ms. Lund, in the summer of2009, she and her husband decided to

sell the property and initially tried to sell the property by word of mouth. rd.

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6. When the

property did not sell right away, the Lunds placed the property back on the market for rental on
August 7, 2009, while also still trying to sell the property. Id.

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7-8. The Lunds placed a

classified advertisement in the Erie Times-News on Friday, August 7, 2009, which was to run
until August 16,2009, advertising as a House for Rent their "Bayfront Cottage, 423 West Front
St," for $500 per month. Id.

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7-8; Ex. A, to Lund Aff.

Plaintiff Sharon Dunfee telephoned the Lunds at the telephone number indicated in the
advertisement on August 7, 2009, the first day the advertisement was in the paper. Ms. Dunfee
spoke with Ms. Lund. Ms. Dunfee told Ms. Lund that she could afford the required rent of $500
per month with the assistance of a Section 8 Housing Voucher. During the relevant time period,
Ms. Dunfee was a participant in the Section 8 Housing Choice Voucher program, 42 U.S.C. §
1437F. Ms. Dunfee maintains that Ms. Lund communicated to her that she would accept her as a
tenant with the Section 8 Voucher. Ms. Dunfee then told Ms. Lund that she had two emotional
support cats, to which Ms. Lund responded by telling Ms. Dunfee that they would not accept her
as a tenant because of their "no pets" policy.
As a result of Ms. Lund's refusal to rent to her because she had support animals, Ms.
Dunfee sought assistance from the Director of Housing Services, Constance L. Burnett, of a
disability service organization called Voices for Independence. Ms. Burnett telephoned the
2

Lunds on or about Tuesday August 11,2009, to discuss the situation Ms. Dunfee brought to her
attention. Ms. Burnett explained to either Mr. Or Ms. Lund that Ms. Dunfee has certain rights
under the Fair Housing Act and that it would be a violation of the Act to deny housing to a
person with a disability based on their need for a service animal. The Lunds, however,
maintained their right to uphold their no pets policy and thus refused to rent the property to Ms.
Dunfee.
In addition to Ms. Dunfee seeking to rent the Lunds' property, Ms. Lund indicates that
she received telephone calls from several prospective tenants and that she arranged for seven or
eight people to view the property on the same day. Lund Aff.

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9. Ms. Lund does not indicate

when she received the telephone calls or what day she scheduled the appointments with the
prospective tenants, but she further indicates that on whatever day it was that she showed the
property to several prospective tenants she also entered in a verbal agreement to sell the property
to the neighboring property owner. Id.

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10. Later that same evening that the Lunds agreed to

sell the property, Ms. Lund telephoned all the people who had viewed the property that day (for
whom she had a telephone number) to let them know that the property was no longer for rent as
the Lunds were selling it. Id. ~ 11. The next day, Ms. Lund telephoned the Erie Times-News to
cancel the remaining days of the classified advertisement offering the property for rent. Id. The
Lunds in fact did not rent the property and instead entered into a written agreement for sale of the
property on August 31,2009, and closed on the sale of the property on September 17,2009. Id.
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13-14.

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Ms. Lund avers that the West Front Street Property was never a part of the Section 8
Housing Choice Voucher Program, that she and her husband had never rented the property to a
person who had a Section 8 voucher, and that she would not have agreed to include the property
in the Section 8 program.

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15-18.

On June 24, 2010, Ms. Dunfee filed a complaint with the Department of Housing and
Urban Development alleging that the Lunds violated the FHA and the FHAA and discriminated
against her because of her disability. As noted, the United States subsequently filed a Complaint
on behalf of Ms. Dunfee followed by Ms. Dunfee's Complaint in Intervention, and the case
against Ms. Lund is proceeding solely on Ms. Dunfee's Complaint in Intervention.
Ms. Dunfee sets forth three causes of action against Ms. Lund as a result of her allegedly
discriminating against Ms. Dunfee based on her disability by refusing to rent to her in violation
of the FHAA. Count One sets forth a claim of discrimination in refusing to rent to Ms. Dunfee
based on her disability in violation of 42 U.S.C. § 3604(f)(1)(A). Count Two sets forth a claim
of discrimination based on the failure to grant Ms. Dunfee the reasonable accommodation of
permitting her to reside in the property with her support cats to afford her an equal opportunity to
use and enjoy the property in violation of 42 U.S.C. § 3604 (f)(3)(B). Finally, Count Three sets
forth a claim of disability discrimination based on Ms. Lund's discriminatory statement that she
should not be so emotionally dependent upon her cats in violation of 42 U.S.c. § 3604(c).
Ms. Lund argues that summary judgment as a matter of law is appropriate on Count One
and Count Two primarily based on her assertion that the West Front Street Property was never
enrolled in the Section 8 voucher program and that she and her husband would never have
enrolled the property in the program in order to rent to Ms. Dunfee. Accordingly, Ms. Lund
argues as a matter of law that Ms. Dunfee was not qualified to rent the property. Ms. Lund also
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argues that Ms. Dunfee cannot establish that the property remained available to rent after the
Lunds rejected her. Finally, Ms. Lund argues that to require the Lund's to have enrolled the
property in the Section 8 program as an accommodation for Ms. Dunfee is unreasonable as a
matter of law.
II. Standard of Review.
Summary judgment is appropriate only if "the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
Rule Civ. Proc. 56(a). "In making that determination, a court must view the evidence 'in the
light most favorable to the opposing party.'" Tolan v. Cotton, -- U.S. --, --, 134 S.Ct. 1861, 1866
(2014), quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,90 S.Ct. 1598,26 L.Ed.2d 142

(1970); and citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). A
'''judge's function' at summary judgment is not 'to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial. ,,, Tolan, -- U.S. --, --,
134 S.Ct. at 1866, quoting Anderson, 477 U.S., at 249,106 S.Ct. 2505.
III. Discussion
As noted, Ms. Lund seeks summary judgment on Count One and Count Two. Initially
we agree with Ms. Dunfee that Ms. Lund's argument as to Count Two should be rejected out of
hand. In Count Two Ms. Dunfee alleges that Ms. Lund failed to provide her with the reasonable
accommodation of permitting her two support cats to live with her in the rental property even
though she had a "no pets" policy. Ms. Lund, in contrast, seeks summary judgment against a
claim that Ms. Dunfee does not make: that Ms. Lund failed to accommodate Ms. Dunfee by
failing to enroll the property in the Section 8 voucher program. As Ms. Lund's argument is not
addressed to the actual claim made by Ms. Dunfee we will deny summary judgment as to Count
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Two. Accordingly, the remainder of our discussion will focus on Ms. Lund's motion with
respect to Count One.
Congress enacted the Fair Housing Act in 1968, making it illegal to discriminate, in
housing practices, on the basis of race or national origin. See 42 U.S.C. § 3601 et seq. In 1988,
Congress amended the Act so as to extend protection of the FHA to include people with
disabilities. 42 U.S.c. § 3604(f).
In Count One, Ms. Dunfee sets forth a discrimination claim based on Ms. Lund's refusal
to rent to her because she is disabled. Section 3604(f)(1 )(A) provides as follows:
§ 3604. Discrimination on the sale or rental of housing and other prohibited
practices

. .. it shall be unlawful
(f)( 1) To 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.
42 U.S.C. § 3604(f)(1)(A). The United States Court of Appeals for the Third Circuit has
stated that a prima facie case of discrimination under the FHAA "consists of proof that (1)
plaintiffs are in a protected class, (2) they applied for and were qualified to rent or purchase
housing, (3) they were rejected, and (4) the housing opportunity remained available."

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Lacey Township, 78 Fed. Appx. 199,207 (3d Cir.2003), citing Robinson v. 12 Lofts Realty, Inc.,
610 F.2d 1032 (2d Cir.l979);

also Pondexter v. Allegheny County Housing Authority, 2012

WL 3611225, *6 (W.D.Pa. Aug. 21, 2012) & Keeney v. Kemper National Insurance Companies,
960 F.Supp. 617, 620 (E.D.N. Y. 1997).

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Ms. Lund argues that Ms. Dunfee fails to set forth a prima facie case of housing
discrimination because she cannot establish that she was qualified to rent the property since it
was never enrolled in the Section 8 program. In addition, Ms. Lund argues that Ms. Dunfee also
cannot show that the property remained available for rental after she was rejected.

Whether Plaintiff was "Qualified to Rent"
Ms. Lund's first argument is a straightforward logical argument that since the property
was not part of the Section 8 voucher program and since Ms. Dunfee sought to rent the property
by using a Section 8 voucher, then Ms. Dunfee was not "qualified" to rent the property.
Although the issue has not been addressed by the Third Circuit Court, other circuits and
district courts have interpreted the "qualification" prong of the prima facie case to mean that the
renter must meet the objective criteria the landlord has communicated to potential renters. See
Mancuso v. Douglas Elliman LLC, 808 F. Supp. 2d 606,619 (S.D.N.Y 2011) ("courts have used
as a starting point the applicable criteria that the owner has established regarding who is
'''qualified'''); Robinson, 610 F. 2d at 1038 (plaintiff had established that he "could afford to
purchase the space sought" and therefore was "qualified").
The only objective criteria set forth by Ms. Lund was the requirement of $500 per month
in rent. Ms. Dunfee applied to rent the property and stated to Ms. Lund that she would be using
a Section 8 voucher to satisfy the rental requirement. Ms. Dunfee further maintains that Ms.
Lund stated that she would accept the Section 8 Voucher as payment and therefore Ms. Dunfee
has met the qualification requirement.
Ms. Lund provides evidence to show that the property was not part of the Section 8
housing program, but this is not the point. Had Ms. Lund advertised her property for rent with
the caveat that she would not accept Section 8 vouchers, or had otherwise indicated that the
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property was not part of the Section 8 program then it would be relevant that her property was
not in fact in the Section 8 program. Alternatively, had Ms. Lund told Ms. Dunfee that she
would not accept her Section 8 voucher to satisfy the rental payment then Ms. Lund would be
able to establish that Ms. Dunfee was not qualified to rent the property.
Instead, the sequence of events, albeit disputed, show that Ms. Lund stated that she would accept
the Section 8 voucher, but upon learning that Ms. Dunfee had emotional support cats reversed
her position and refused to rent to Ms. Dunfee. As noted, Ms. Lund disputes Ms. Dunfee's
contention that she told Ms. Dunfee that she would accept her Section 8 voucher as rental
payment. Actually, Ms. Lund denies having a specific memory of the telephone conversation
with Ms. Dunfee on August 7, 2009. With two differing versions of what occurred we have a
classic credibility determination that a court is not permitted to make on a motion for summary
judgment. If a fact-finder believes Ms. Lund, then Ms. Dunfee would be unable to establish that
she was qualified to rent the property. However, if a fact-finder believes Ms. Dunfee, then she
would be able to establish that she was qualified. Therefore, a genuine dispute of material fact
exists, and we must deny summary judgment at this stage.
In her Reply Brief Ms. Lund spends a great deal of space arguing against the
documentary evidence provided by Ms. Dunfee in the apparent hopes of winning her motion by
excluding any evidence that there is a dispute about whether Ms. Lund agreed to accept a Section
8 voucher as payment, only to change her mind after hearing that Ms. Dunfee required support
cats. If Ms. Lund is to win this argument "as a matter of law" however, then she must show that
there is no genuine issue as to any material fact, which she is unable to show.
Moreover, in protecting against housing discrimination the FHA, FHAA, and case law
support the proposition that a defendant cannot defeat a prima facie case by showing, after the
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fact, that a potential applicant was not qualified. In Robinson, the Court noted that the "specific
sequence of events leading up to the challenged decision also may shed some light on the
decisionmaker's purposes" and that "[d]epartures from the normal procedural sequence also
might afford evidence that improper purposes are playing a role. Robinson, 610 F.2d at 1038.
Although Robinson, who was black, initially met the objective qualifications, when his purchase
was being reviewed "the previous informal procedure was changed and a screening committee
was created," which ultimately led to a rejection of his purchase of property. Id.
Likewise, in Mancuso, the Court distinguished between "post-hoc rationales concocted to
cover intentional discrimination" and "objective requirements, often long-standing ones, clearly
communicated to potential renters or purchasers of property that relate to that person's ability,
financial or otherwise, to purchase or rent the property in question." Mancuso, 808 F. Supp. 2d
619.
We have previously denied a defendant's attempt to show that no FHAA violation
occurred with post-hoc evidence that a disabled plaintiff was not qualified to rent because he
failed to prove his credit worthiness. Milan v. Pyros, Civ. No. 08-320, 2008 WL 1994863, *24
(W.D.Pa. May 5, 2008). In Milan, the defendants relied on Alexander v. Riga, 208 F.3d 419 (3d
CiT. 2000),

denied, 531 U.S. 1069 (2001). The District Court in Alexander excluded

evidence as to the plaintiffs' creditworthiness as not relevant, and the United States Court of
Appeals for the Third Circuit affirmed. rd. 208 F.3d at 435. The defendants argued that the
plaintiffs "had to show that they were fully qualified to rent the apartment ultimately." Id. But
the Third Circuit Court disagreed and found that the plaintiffs were not required "to show that
they were fully qualified to rent the apartment ultimately;" they "only needed to show that they
were qualified to be applicants, to view the apartment, and be treated no differently from other
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applicants." Id. We also took into account the "sequence of events" in Milan, noting that after
defendants were presented with written notice that plaintiff had a service animal they tried to
establish a record that would allow them to claim that plaintiff was not creditworthy. Milan,
2008 WL 1994863, *24. We concluded by noting that "[b]y that time it was too late as the case
was then about Defendants' desire to unlawfully evict [plaintiff] because he had a service
animal." Citation. Id.
This case is somewhat similar in that long after Ms. Lund was told that Ms. Dunfee was
disabled and needed to live with her two support cats, she turned her attention to the fact that her
property is not a participant in the Section 8 program as a post-hoc rationale to allow her to claim
that Ms. Dunfee was not qualified to rent the property. We cannot enter judgment as a matter of
law because if Ms. Dunfee's version of events is believed, a fact- finder could conclude that Ms.
Lund's reliance on her nonparticipation in the Section 8 housing program is "too late" and that
she in fact unlawfully refused to rent to Ms. Dunfee because of her service animals.
Based on the above discussion we find that it is premature at this stage of the pleadings to
determine as a matter of law whether Ms. Dunfee was qualified to rent the property.
Whether the Housing Opportunity Remained Available
Next, Ms. Lund argues that Ms. Dunfee fails to satisfy the fourth prong of the prima facie
case because the Lund's sold the property after their contact with Ms. Dunfee and never rented
the property to any other tenant in the interim, and therefore the property did not remain
available. There is no definite amount of time that a property must stay on the market in order to
satisfy the fourth prong of a prima facie case for housing discrimination. However, some courts
have concluded that if the plaintiff met the objective criteria to rent while the property was
available, then the plaintiff has satisfied the fourth prong. See Phiffer v. Proud Parrot Motor
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Hotel, Inc., 648 F.2d 548 (C.A. CaL 1980); See also Shaw v. Cassar, 558 F.Supp. 303 (D.C.
Mich. 1983).
Ms. Lund relies upon cases where the plaintiff was never objectively qualified while the
property was still available and therefore did not satisfy the fourth prong. See Mitchell v.
Century 21 Rustic Realty. 233 F.Supp.2d 548 (C.A. Cal. 1980); See also Bell v. Mike Ford
Realty Co .. 857 F.Supp. 1550 (S.D. Ala. 1994). However, if it is ultimately determined that Ms.
Dunfee was "qualified" then she was qualified while the property was still available. Thus, we
will deny summary judgment as to Count Two.

IV. Conclusion.
Depending on the testimony and evidence a fact-finder mayor may not find that Ms.
Lund discriminated against Ms. Dunfee on the basis of her disability. Congress has made it clear
that a landlord who discriminates on the basis of disability is in violation of the law. However,
here we have an elderly owner of a single rental property with a "no pets" policy, as opposed to a
sophisticated corporate landlord handling multiple units and multiple properties. In addition, it is
undisputed that the property at issue was sold not long after Ms. Lund rejected Ms. Dunfee, and
the property was not rented to anyone else in the interim. A fact-finder will take into account
that the property in fact was not a participant in Section 8, and depending on the testimony, may
believe that Ms. Lund had no intention of enrolling the program in Section 8 housing and
perhaps misspoke when she said she would accept Ms. Dunfee's voucher. Thus, any monetary
damages suffered by Ms. Dunfee would likely be minimal.
We also note that Ms. Lund has formally agreed in her Settlement Agreement with the
United States that she shall comply with the provisions of the FHA and shall not discriminate on
the basis of disability as prohibited by the FHA. ECF No. 15, at ~1. Moreover, she does not
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intend to purchase or rent any dwellings, and if she changes her mind within the next two years
she is required to notify the United States and thereafter undergo training on the provisions of the
FHA. Id.

~2.

If she fails to comply with the terms of the Settlement Agreement the United

States may reopen the case against her.

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5. We note these terms as they appear to indicate

that any further injunctive relief sought by Ms. Dunfee would be complementary to the
restrictions under which Ms. Lund is already operating. However, at this early stage of the
proceedings, and due to the lack of documentary and testimonial evidence, there are genuine
issues as to material facts. Accordingly, Defendant's Motion for Partial Summary Judgment as a
matter of law will be denied.
An appropriate Order follows.

M~6.~~¥-

Maunce B. Cohill, Jr.,
Senior District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHARON DUNFEE
PlaintifflIntervenor,

v.
SALLY LUND,

Defendant.

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Civ. No. 13-165 Erie
Judge Maurice B. Cohill

ORDER

AND NOW, this

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_1__ day of August, 2014, it is hereby ORDERED, ADJUDGED, and

DECREED that Defendant Sally Lund's Motion for Partial Summary Judgment (ECF No. 18) be
and hereby is DENIED.

~"1"it

g, Co.~~.

Maunce B. Cohill, Jr.
Senior District Court Judge