Istre et al v. Hensley Partnership et al (TV1)

Filing 61

MEMORANDUM OPINION and ORDER: the Court hereby DENIES plaintiffs' Motion for Partial Summary Judgment [Doc. 41], and GRANTS in part and DENIES in part defendants' Motion for Summary Judgment [Doc. 37] in that the Court hereby DISMISSES plaintiffs' civil conspiracy claim, as well as the claim alleging a violation of Tenn. Code Ann. § 66-28-505(a)(2). Signed by Chief District Judge Thomas A Varlan on February 23, 2017. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
PHILIP ISTRE and
WILLIAM CHRETIEN,
Plaintiffs,
v.
HENSLEY PARTNERSHIP and
MARION FRANKLIN,
Defendants.

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No.:

3:15-CV-127-TAV-HBG

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on defendants’ Motion for Summary
Judgment [Doc. 37], to which plaintiffs responded [Doc. 44] and defendants replied
[Doc. 50]. Also before the Court is plaintiffs’ Motion for Partial Summary Judgment
[Doc. 41], to which defendants responded [Doc. 48] and plaintiffs replied [Doc. 42]. For
the reasons contained herein, the Court will grant in part and deny in part defendants’
motion for summary judgment, and deny plaintiffs’ motion for partial summary
judgment.
I.

Background1
Plaintiff Philip Istre is a resident of Sevier County who was diagnosed with

multiple sclerosis (“MS”) in or around 2007 or 2008 [Doc. 43 p. 2; Doc. 49 p. 2].
1

Defendants and plaintiffs filed statements of material facts in support of their motions
[Docs. 39, 43], and the parties filed responses to such statements [Docs. 45, 49]. To the extent
the parties agree on the existence of a fact, the Court cites to those documents [Docs. 39, 43, 45,
49]. In cases where the parties do not agree, or where facts were not included in the parties’
statement of material facts, the Court cites to the factual documents in the record.

Plaintiff William Chretien is also a resident of Sevier County and was diagnosed with
prostate cancer in 2011 [Doc. 43 p. 2; Doc. 49 p. 3]. On or about March 4, 2005,
Chretien entered into a residential lease with defendant Hensley Partnership for real
property located at Willa View, 428 Keegan Drive, Apartment #28, Pigeon Forge,
Tennessee 37863, for a term of four months [Doc. 43 p. 2; Doc. 49 p. 2]. The term of the
lease automatically renewed for four-month terms unless otherwise specified by the
lessor or lessee [Doc. 43 p. 2; Doc. 49 p. 2]. Istre has resided with Chretien since 2005
[Doc. 43 p. 2; Doc. 49 p. 2]. Defendant Marion Franklin has served as property manager
at Willa View since August 3, 2010 [Doc. 43 p. 2; Doc. 49 p. 2].
On or about July 9, 2013, plaintiffs requested accommodations for Istre’s MS.
Specifically, plaintiffs asked defendants to designate plaintiffs’ assigned parking spot as a
handicapped spot, and also to construct a wheelchair ramp permitting ingress and egress
from the leased premises [Doc. 43 p. 3–4; Doc. 49 p. 5–6]. Plaintiffs assert that they
offered to pay for the construction of the ramp [Doc. 43 p. 4; Doc. 49 p. 6]. Although
defendants denied these specific requests, defendants offered to allow for the placement
of a portable ramp permitting ingress and egress [Doc. 39 p. 7; Doc. 45 p. 12].
Defendants had also previously offered plaintiffs the use of a handicap-accessible
apartment unit, but plaintiffs declined this offer [Doc. 43 p. 3; Doc. 49 p. 5]. Plaintiffs
contend that they declined the offer of a handicap-accessible unit in part because Istre
was not able to stand on the wooden floors featured in the handicapped-accessible
apartment [Doc. 43-11 p. 2; Doc. 43-12 p. 1].
2

Also on July 9, 2013, Franklin sent plaintiffs a letter, which stated that defendants
had received numerous telephone calls from several tenants with complaints of racial
harassment by plaintiffs [Doc. 43-39 p. 20; Doc. 43-15; Doc. 49 p. 9]. The next day, on
July 10, 2013, defendants further advised plaintiffs by letter that they had five days to
vacate the unit due to late/non-payment of rent [Doc. 43 pp. 5–6; Doc. 49 p. 9]. Plaintiffs
do not dispute that rent was unpaid at this time [Doc. 45 p. 5]. Plaintiffs subsequently
paid the back rent, and defendants allowed them to remain in the unit [Doc. 43 pp. 5–6;
Doc. 49 p. 10].
About three months later, in October 2013, plaintiffs renewed their requests for a
designated handicapped parking spot and that they be permitted to install a permanent
ramp [Doc. 43-17 pp. 2–3]. Defendants again denied these specific requests [Doc. 43 p.
6; Doc. 49 p. 10]. Defendants did, however, move plaintiffs’ parking spot and place
yellow stripes outlining the parking spot and an area next to the spot [Doc. 43 p. 6; Doc.
49 p. 11].
Subsequently, in May 2014, defendants allegedly accused plaintiffs of having an
inoperable vehicle and demanded its removal, threatening to tow the vehicle if it were not
removed [Doc. 43-37 pp. 15–16]. According to plaintiffs, defendants treated plaintiffs
differently in this situation from other tenants [Id. at 17]. The next month, in June 2014,
plaintiffs again requested a permanent ramp and a designated handicapped parking space
[Doc. 43-23 pp. 2–3]. Defendants again denied the specific requests, but offered, in
addition to a portable ramp, to provide a concrete bucket handicapped sign that plaintiffs
3

could move in and out of their parking space in lieu of a designated handicapped parking
spot [Id.].
The issue of untimely rent payments arose again in December, 2014. Defendants
assert that Istre promised to pay the December rent by December 12, 2014, which he
failed to do [Doc. 38-14 p. 49]. Istre states that he only promised to try and pay rent by
December 12, 2014, as opposed to promising to actually pay it [Doc. 45 p. 6].
On December 22, 2014, Franklin provided plaintiffs with an eviction notice.
[Doc. 38-5]. As grounds, the final eviction notice provided: (1) “[l]ate/non-payment of
rent;” (2) “[n]on-payment of rent promised to pay by 12/12/14 per Philip [Istre] $600 w/
late [fee];” (3) “[d]isorderly conduct;” (4) “[h]arassment of multiple tenants who have in
the past occupied WV34, WV35, WV 29, or still do;” (5) “[r]epeated rule violations;” (6)
“[v]andalism – damage to ceiling in kitchen + living area from broom/mop;” and (7)
“refusing pest control + A/C filter change” [Id.].

Plaintiffs submit that when they

contacted Franklin regarding the eviction, Franklin told them that they were being evicted
because “[Istre] had pushed her and the tenants for the last time,” and that she was “tired
of all the phone calls from [Istre] in general” [Doc. 47-33 p. 34].
Plaintiffs subsequently initiated the instant action, asserting claims for violations
of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq.; Tennessee common law
breach of contract; violations of the Landlord Tenant Act, Tenn. Code. Ann. § 66-28-101,
et seq.; and Tennessee common law conspiracy [Doc. 1].

4

Defendants moved for

summary judgment as to all claims [Doc. 37]. Plaintiffs then moved for partial summary
judgment [Doc. 41].
II.

Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is

proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris
Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom
must be viewed in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d
937, 942 (6th Cir. 2002).
“Once the moving party presents evidence sufficient to support a motion under
Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.”
Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn.
1991) (citing Celotex, 477 U.S. at 317). The plaintiff must offer “concrete evidence from
which a reasonable juror could return a verdict in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). “[M]ere conclusory and unsupported allegations, rooted
in speculation, do not meet that burden.” Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th
Cir. 2003) (citation omitted). Summary judgment may not be defeated “based on rumors,
conclusory allegations, or subjective beliefs.” Hein v. All Am. Plywood Co., 232 F.3d
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482, 488 (6th Cir. 2000). To establish a genuine issue as to the existence of a particular
element, the non-moving party must point to evidence in the record upon which a
reasonable finder of fact could find in its favor. Anderson, 477 U.S. at 248. The genuine
issue must also be material; that is, it must involve facts that might affect the outcome of
the suit under the governing law. Hein, 232 F.3d at 488.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed
is the threshold inquiry of determining whether there is a need for a trial—whether, in
other words, there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
Because there are cross-motions for summary judgment before the Court, for the
claims where both parties have moved for summary judgment, the Court must look at the
evidence in the light most favorable to plaintiffs, and also look at the evidence in the light
most favorable to defendant, to determine whether either party is entitled to summary
judgment. Matsushita Elec. Indus., 475 U.S. at 587; Burchett, 301 F.3d at 942.

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III.

Analysis
Plaintiffs and defendants each moved for summary judgment on the FHA claim

based on failure to reasonably accommodate/ permit modification.

Defendants also

moved for summary judgment on all additional claims. The Court will discuss each
claim in turn.2
A.

Failure to Provide Reasonable Accommodation/Modification

The parties each moved for summary judgment on the failure to reasonably
accommodate/permit modification claim. Plaintiffs argue that by refusing to construct a
permanent ramp at plaintiffs’ expense, and by refusing to designate plaintiffs’ parking
spot as a handicapped spot, defendants failed as a matter of law to follow the mandates of
the FHA. Defendants counter by arguing that plaintiffs’ claims fail as a matter of law
because the requests were not reasonable, and that defendants offered to make other
reasonable accommodations, specifically the portable ramp, new designated parking
space, cement handicapped sign, and the use of a handicapped apartment unit.
The FHA prohibits discrimination in the sale or rental of housing based on race,
color, religion, sex, familial status, national origin, or handicap. See 42 U.S.C. § 3604.
The FHA defines “handicap” with respect to a person as “(1) a physical or mental
impairment which substantially limits one or more of such person’s major life activities;

2

The Court notes that the parties dispute whether evidence involving defendants’
experience with the Fair Housing Act is relevant in this case. Because the Court need not
consider this evidence in order to reach its summary judgment determinations, the Court will not
resolve the issue at this stage in the litigation.
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(2) a record of having such an impairment, or (3) being regarded as having such an
impairment.” Id. § 3602(h).
Pursuant to 42 U.S.C. § 3604(f)(3)(A), discrimination includes:
a refusal to permit, at the expense of the handicapped person, reasonable
modifications of existing premises occupied or to be occupied by such
person if such modifications may be necessary to afford such person full
enjoyment of the premises except that, in the case of a rental, the landlord
may where it is reasonable to do so condition permission for a modification
on the renter agreeing to restore the interior of the premises to the condition
that existed before the modification, reasonable wear and tear excepted.
Id. § 3604(f)(3)(A).
includes:

Furthermore, pursuant to § 3604(f)(3)(B), discrimination also

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. § 3604(f)(3)(B). Therefore, defendants are liable if either their refusal to permit the
plaintiffs to construct a permanent ramp or their refusal to designate a handicapped
parking space constitutes either a refusal to accommodate or a refusal to permit
modification pursuant to §§ 3604(f)(3)(A) or 3604(f)(3)(B).
While a “modification” and an “accommodation” are distinct under the FHA, with
modifications governed by § 3604(f)(3)(A) and accommodations by § 3604(f)(3)(B), “the
same essential elements” apply to failure to modify and failure to accommodate claims.
See Hollis v. Chestnut Bend Homeowners Ass’n, No. 3:12-cv-0137, 2014 WL 4446834,
at *5 (M.D. Tenn. Sept. 10, 2014). The essential elements that plaintiffs must establish in
order to prevail on a failure to accommodate or permit modification claim are that: 1)
plaintiffs suffered from a disability; 2) plaintiffs requested an accommodation or
8

modification; 3) defendants refused to make the accommodation or permit the
modification; and 4) defendants knew or should have known of the disability at the time
of refusal.3

See id.

Furthermore, plaintiffs must also show that the requested

accommodation or modification was both reasonable and necessary to afford them an
equal opportunity to enjoy their residence. See id.
Notably, “a qualified individual with a disability is not entitled to an
accommodation of his or her choice but only to a reasonable accommodation.” Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 111 F.3d 1278, 1285–86 (11th Cir. 1997). In
order to determine whether an accommodation or modification is reasonable the Court
must weigh the burden that the proposed accommodation or modification would cause to
defendants against the benefits to plaintiff. See Hollis, 2014 WL 4446834, at *6. This
inquiry is “highly fact-specific.” Id. “Put simply, a modification should be deemed
reasonable if it imposes no fundamental alteration in the nature of a program or undue
financial and administrative burdens.” Id.
As plaintiffs have alleged two failures by defendants to accommodate or permit
modification, the Court will address each separately. The parties do not appear to dispute
in their motions for summary judgment that plaintiffs were disabled, that defendants were
aware of plaintiffs’ disabilities, that plaintiffs requested accommodations/modifications,
and that defendants denied the specific accommodations/modifications that plaintiffs

3

The Sixth Circuit has indicated that the McDonnell Douglas framework is inapplicable
to accommodation and modification claims under the FHA. See Hollis v. Chestnut Bend
Homeowners Ass’n, 760 F.3d 531, 540 (6th Cir. 2014).
9

requested. Therefore, the relevant issues in the parties’ cross motions for summary
judgment are whether each requested accommodation/modification was reasonable, as
well as necessary to allow plaintiffs equal opportunity to enjoy their residence. The
Court will first address the construction of a permanent ramp, and will then turn to the
handicapped parking space, and determine whether either party is entitled to summary
judgment as to each accommodation/modification.
1.

Construction of a Permanent Ramp

Plaintiffs argue that as a matter of law the construction of a permanent ramp at
plaintiffs’ expense to permit Istre to more easily enter his apartment was reasonable and
necessary due to Istre’s reliance upon a wheelchair. Defendants argue that as a matter of
law the construction of a permanent ramp was not reasonable because it would create
safety issues by permanently blocking the sidewalk. Furthermore, defendants argue that
they offered to permit plaintiffs to use a portable ramp. Finally, defendants argue that the
construction of a permanent ramp does not constitute a proper accommodation under 42
U.S.C. § 3604(f)(3)(B), because it constitutes a structural change to an existing facility.
As an initial point, the Court notes that there is some case law which supports
defendants’ contention that the construction of a permanent ramp would not constitute an
accommodation under § 3604(f)(3)(B). See e.g., Rodriguez v. 551 W. 157th St. Owners
Corp., 992 F. Supp. 385, 387 (S.D.N.Y. 1998) (finding that the construction of a structure
to make a building wheelchair accessible did not fall within the definition of
“accommodation” under § 3604(f)(3)(B)). The Court need not reach this issue, however,
10

because it finds that the construction of a permanent ramp could constitute a modification
under § 3604(f)(3)(A).4

Although § 3604(f)(3)(A) does not define “modification,”

regulations promulgated by the Department of Housing and Urban Development
(“HUD”) define modification as “any change to the public or common use areas of a
building or any change to a dwelling unit.” See Hollis, 2014 WL 4446834, at *5 (citing
24 C.F.R. § 100.201). Considering the HUD regulation, as well as that courts should
give the FHA a broad interpretation, the Court finds that the construction of a ramp on
the sidewalk leading to plaintiffs’ apartment constitutes a modification under §
3604(f)(3)(A). See Epicenter of Steubenville, Inc. v. City of Steubenville, 924 F. Supp.
845, 849 (S.D. Ohio 1996) (“Thus, to fully effectuate Congress’ remedial purpose, courts
must give the [FHA] a broad interpretation.”).
Furthermore, plaintiffs submit that they offered to pay for the construction of the
ramp, satisfying the requirement of § 3604(f)(3)(A) that the modification be done at the
expense of the handicapped person.

See 42 U.S.C. § 3604(f)(3)(A).

Therefore,

considering that the permanent ramp constitutes a modification within § 3604(f)(3)(A),
the Court must look to whether the modification was reasonable and necessary.

4

The Court notes that the complaint, as well as much of the briefing in this case,
discusses the permanent ramp in the context of a failure to accommodate claim. The Court does
note, however, that plaintiffs indicate in their briefing that they intend to use the terms
“accommodation” and “modification” interchangeably, and that the complaint uses both terms
[Doc. 47 p. 1]. In light of this, and considering that the “same essential elements” apply to both
failure to accommodate and failure to modify claims, the Court finds that it is appropriate to
consider the failure to construct the permanent ramp as a failure to permit modification. See
Hollis, 2014 WL 4446834, at *5
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The Court has considered the arguments of both plaintiffs and defendants, and
finds that there is a material question of fact as to whether the permanent ramp was a
reasonable, necessary modification. Plaintiffs have offered evidence that due to Istre’s
dependence on a wheelchair, as well as Christein’s limitations following his diagnosis
with prostate cancer, plaintiffs required installation of a permanent ramp to allow Istre to
enter his apartment without assistance [See e.g., Doc. 43-36 p. 21]. Plaintiffs further
argue that defendants proposed accommodation, a portable ramp, was not sufficient
because a wheelchair bound Istre would not be able to place and remove a portable ramp
each time he wished to enter and exit his apartment [Doc. 43-36 pp. 16–17].
Additionally, plaintiffs argue that they would have removed the ramp when they moved
out of that apartment, lessening the burden on defendants [Id. at 20].
In contrast, defendants have offered evidence that the construction of a permanent
ramp was not reasonable because it would have permanently blocked the sidewalk, which
would have resulted in safety issues for other tenants [Doc. 38-15 p. 9]. Furthermore,
defendants argue that contrary to plaintiffs’ contentions, the temporary ramp constituted a
reasonable modification, as evidenced by the fact that a tenant in another complex had a
portable handicap ramp built [Doc. 38-14 p. 26].
Based on the evidence presented at this time, particularly with regard to the
permanent ramp being necessary to permit Istre to enter and exit his apartment, as well as
the permanent ramp constituting a safety hazard for other tenants, a reasonable finder of
fact could find in favor of either party with respect to whether the permanent ramp was a
12

reasonable and necessary modification. See Anderson, 447 U.S. at 250. The Court notes
as well that because the reasonableness inquiry is highly fact-intensive, it is particularly
well suited for resolution by the factfinder. See Hollis, 2014 WL 4446834, at * 6 (noting
that the reasonableness inquiry is “highly fact-specific”). Consequently, the Court finds
that there is a material question of fact as to whether defendants’ refusal to allow
plaintiffs to construct a permanent ramp constituted a failure to permit reasonable
modification as required by the FHA, and thus, neither party is entitled to summary
judgment on this issue.
2.

Designated Handicapped Parking Space

The Court next turns to plaintiffs’ request for a handicapped designated parking
space. Plaintiffs argue that the designated parking space was a reasonable, necessary
accommodation. Specifically, plaintiffs submit that order to utilize the handicapped
features of their van, they needed unobstructed access to the van. Plaintiffs further
submit that their assigned parking space was unsuited for this purpose due to other
tenants or guest either frequently parking in plaintiffs’ parking space, or parking in such a
manner that prohibited plaintiffs from having unobstructed access to the van. Plaintiff
argues that these problems would be resolved by having the parking space designated as
handicapped by painting the “familiar, universal handicap emblem” on the space [Doc.
47 p. 13].

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Defendants argue that while they did not designate plaintiffs space as handicapped
in the manner that plaintiffs would have preferred, they made a reasonable
accommodation because they moved plaintiffs’ assigned parking space for their unit to an
area which would provide an open, unobstructed area to allow for plaintiffs to utilize
their van. Defendants further note that they offered plaintiffs the use of the concrete
bucket handicapped sign, and also that plaintiffs’ van was inoperable for much of the
relevant time at issue.
The Court has considered the parties arguments, as well as the record in this case,
and finds that there is a material question of fact as to whether defendants’ failure to
designate plaintiffs’ parking space as a handicapped space constitutes a failure to
reasonably accommodate under the FHA. The Court notes that the parties do not dispute
that defendants offered to accommodate plaintiffs by means of a less obstructed,
designated parking spot, as well as a concrete bucket handicapped sign. See Stewart, 111
F.3d at 1285 (“a qualified individual with a disability is not entitled to an accommodation
of his or her choice but only to a reasonable accommodation.”). The Court also notes that
plaintiffs admit that they rarely used the van to transport Istre because of mechanical
issues. The Court also notes, however, that some of plaintiffs’ reasoning for requesting
accommodation may not have been redressed by these defendants’ proposed
accommodations, specifically the issue of others parking in plaintiffs’ parking spot and
plaintiffs’ inability to lift the concrete sign [See e.g., Doc. 43-36 p. 22–26].

14

Considering this, the Court finds that a reasonable finder of fact could find in
favor of either party with respect to whether the accommodations offered by defendants
would have permitted plaintiffs “full enjoyment of the premises,” as required by the
FHA, or whether defendants should have granted plaintiffs their requested
accommodation of a handicapped designated parking spot.

See Hollis, 2014 WL

4446834, at *5–6 (noting that the necessity element looks to whether the accommodation
would allow disabled resident to “receive the same enjoyment from the property as a nondisabled person would receive”). Because the Court believes that a reasonable factfinder
could find either that defendants’ offered accommodations constituted reasonable,
necessary accommodations, or that defendants should have designated the handicapped
parking spot as plaintiffs wished, the Court may not resolve this dispute for purposes of
summary judgment. See Anderson, 477 U.S. at 250.
Defendants cite several cases from outside of this circuit, as well as a federal
regulation promulgated under the FHA, to support their contention that granting plaintiffs
an assigned parking space constituted a reasonable accommodation as a matter of law.
See, e.g., 24 C.F.R. § 100.204; Astralis Condo. Ass’n v. Secretary, U.S. Dept of HUD,
620 F.3d 62 (1st Cir. 2010); Sturm v. Davlyn Invs. Inc., No. 12-07305 DMG, 2013 WL
8604662 (C.D. Cal. Sept. 30, 2013). The Court has reviewed these sources, and finds
that they do not require that the Court grant summary judgment in favor of defendants.
While the cases cited by defendants, as well as the HUD regulation, demonstrate that in
certain situations a designated parking spot can constitute a reasonable accommodation,
15

they do not encompass a situation involving a wheelchair bound tenant for whom a
designated spot alone is arguably not sufficient, and where the designated parking spot
arguably did not resolve all of the tenant’s parking issues. See e.g., 24 C.F.R. § 100.204
(stating that a reserved parking spot near an individual’s apartment unit was a reasonable
accommodation when the individual was “mobility impaired and unable to walk more
than a short distance”); Sturm v. Davlyn Investments, Inc., 2013 WL 8604662, at *8
(granting summary judgment for defendant on failure to reasonably accommodate where
defendant did not designate handicapped parking space, but where plaintiff did not have a
car).5 Considering the fact-intensive nature of the reasonableness inquiry, it would be
inappropriate for Court to find that a designated parking spot is a reasonable, necessary
accommodation as a matter of law, regardless of the specific circumstances of the
tenant’s disabilities. See Hollis, 2014 WL 4446834, at *5.
In sum, the Court finds that there are material issues of fact as to whether
defendants refusal to permit plaintiffs to build a permanent ramp and their refusal to
designate plaintiffs’ parking spot as handicapped constitute failures to reasonably
accommodate/permit modification. As such, the Court will deny each parties’ motion for
summary judgment as to the failure to accommodate/permit modification claims.
5

The Court notes that defendants state, and plaintiffs do not dispute, that the
handicapped van lift was inoperable for a period of time, and that plaintiffs seldom used the lift
due to its unreliability [Doc. 45 p. 10]. The Court also notes however, that plaintiffs submit that
it was not permanently inoperable, and that the record indicates that plaintiffs continued to use
the van, and used the lift on at least a few occasions. [See, e.g., Doc. 43-36 p. 26 (“One photo
actually clearly shows the van return and he can’t get in his handicapped parking space, our
designated space.”); Doc. 47-32 p. 8 (indicating that plaintiffs used the van together on a few
occasions)]. Therefore, this case is distinguishable from Sturm, where the tenant did not have a
car.
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B.

Retaliation Claim

Defendants also moved for summary judgment on plaintiffs’ FHA retaliation
claim.

Under 42 U.S.C. § 3617, “it is unlawful to coerce, intimidate, threaten, or

interfere with any person in the exercise or enjoyment of, or on account of his having
exercised or enjoyed his or her rights under the [FHA].” Hamad v. Woodcrest Condo.
Ass’n, 328 F.3d 224, 236 (6th Cir. 2003). When a plaintiff asserts a claim under § 3617,
in the absence of direct evidence, a district court applies the McDonnell Douglas burden
shifting analysis. See Robbins v. Am. Preferred Mgmt. Co., No. 5:05-cv-182, 2007 WL
2728746, at *11 (W.D. Mich. Sept. 17, 2007); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, a plaintiff must
first show a prima facie case of retaliation. Robbins, 2007 WL 2728746, at *11. If the
plaintiff demonstrates a prima facie case, the burden shifts to the defendant to offer a
“legitimate, non-discriminatory or non-retaliatory reason for its adverse action.” Id.
Once the defendant has offered a legitimate reason, the burden then shifts back to the
plaintiff to show that the reason offered is pretextual. Id. The Court will address each
step of the McDonnell Douglas framework in turn.
1.

Prima Facie Case of Retaliation

Under the McDonnell Douglas framework, plaintiffs are first required to
demonstrate a prima facie case of retaliation. See Lindsay v. Yates, 578 F.3d 407, 415
(6th Cir. 2009) (“On summary judgment, this burden-shifting scheme first requires that
the plaintiff present evidence from which a reasonable jury could conclude that there
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exists a prima facie case of housing discrimination.”). In order to establish a prima facie
case of retaliation, plaintiffs must establish: 1) that they exercised a right guaranteed by
the FHA; 2) that defendants’ intentional conduct constituted coercion, intimidation,
threat, or interference; and 3) that there was a causal connection between plaintiffs’
exercise of their FHA rights and the defendants’ conduct.

See Robbins, 2007 WL

2728746, at *11 (citing Hood v. Midwest Sav. Bank, 95 F. App’x 768, 779 (6th Cir.
2004)). “In order to demonstrate the causal connection, [p]laintiff[s] must show that
[d]efendants had actual knowledge of the protected activity.” Id. (citing Thaddeus-X v.
Blatter, 175 F.3d 378, 387 n.3 (6th Cir. 1999)). In addition, “a plaintiff is required to
demonstrate a discriminatory animus” to prevail on an interference claim under the Act.”
See Wells v. Rhodes, 928 F. Supp. 2d 920, 931 (S.D. Ohio 2013).
With respect to the first element, the requirement that plaintiffs exercised a right
protected under the FHA, the Court notes that it is undisputed that plaintiffs requested
two accommodations/modifications, the permanent ramp and the designated handicapped
parking spot. As the Court has already discussed, there is a triable issue of material fact
with respect to whether each of these requests constitutes a reasonable and necessary
accommodation/modification. In the event that the trier of fact determines that plaintiffs’
requests were for reasonable, necessary accommodations/modifications, then by
requesting these accommodations/modifications plaintiffs were exercising rights
protected under the FHA. See 42 U.S.C. §§ 3604(f)(3)(A), 3604(f)(3)(B). As such, the

18

Court finds that plaintiffs have established that there is a material question of fact as to
the first element of their prima facie case.
The Court next turns to the second element, which requires plaintiffs to
demonstrate that defendants’ intentional conduct constituted coercion, intimidation,
threat, or interference, and that this intentional conduct was casually connected to
plaintiffs’ request for reasonable accommodation/modification. See Robbins, 2007 WL
2728746, at *11. Plaintiffs cite to a number of instances in which they allege defendants’
conduct rose to the level required in order to satisfy this element. Specifically, plaintiffs
argue that defendants retaliated against them by sending a letter accusing plaintiffs of
making racial comments to other tenants on July 9, 2013, sending a written notice
threatening to evict plaintiffs for nonpayment of rent on July 10, 2013, placing a note on
plaintiffs’ vehicle threatening to tow it, and by ultimately terminating the lease. The
Court finds that this conduct satisfies the second element of plaintiffs’ prima facie case.
See Chavez v. Aber, 122 F. Supp.3d 581, 600 (W.D. Tex. 2015) (finding that the
plaintiffs stated a claim for retaliation under the FHA where landlord had delivered
notices to vacate and filed suits for eviction).
The Court now turns to the third element, which requires that plaintiffs
demonstrate

a

causal

connection

between

accommodation/modification, and defendants’ conduct.

plaintiffs’

requests

for

See Robbins, 2007 WL

2728746, at *11. As an initial point, the Court notes that it is not disputed that defendants
were aware of plaintiffs’ requests. See id. Additionally, with respect to defendants’
19

termination of plaintiffs’ lease, plaintiffs have introduced evidence, specifically in the
form of Franklin’s deposition testimony, that provides some indication that the reason
behind the termination was that Franklin was “tired of all the phone calls from [Istre].”
[See Doc. 47-33 p. 34]. A reasonable jury could conclude that these calls referenced by
Franklin included Istre’s requests for accommodation/modification. Furthermore, the
fact that that defendants had, on several other occasions, permitted plaintiffs to pay rent
late, further supports plaintiffs’ argument that defendants terminated plaintiffs’ lease not
because of their failure to pay rent, but because of Franklin’s frustration with their
repeated requests for accommodation/modification.
In addition, although it is not contested either that defendants received complaints
from other tenants regarding harassment by plaintiffs, or that plaintiffs were in arrears in
rent in July 2013, the fact that defendants sent notices to plaintiffs regarding these issues
nearly

contemporaneously

to

plaintiffs’

July

9,

2013,

request

for

accommodation/modification supports the inference that the notices are casually related
to the requests. See Lindsay v. Yates, 578 F.3d 407, 419 (6th Cir. 2009) (noting that “a
reasonable juror may infer a plaintiff’s undertaking of a protected activity was the likely
reason for the defendant’s adverse action when the temporal proximity is ‘very close’ in
retaliation cases”).
In addition, the Court notes that this conduct also establishes the discriminatory
animus required to establish a claim under 42 U.S.C. § 3617. See Wells v. Rhodes, 928 F.
Supp. 2d at 931. Considering that the FHA includes a failure to accommodate/permit
20

modification within the statutory definition of discrimination, the evidence introduced by
plaintiffs

that

defendants

retaliated

in

response

to

plaintiffs’

requests

for

accommodation/modification is evidence of discriminatory animus.
The Court does note, however, that plaintiffs cannot demonstrate a causal
connection between defendants’ threat to tow plaintiffs’ then inoperable van, and
plaintiffs’ requests for accommodation/modification. Although plaintiffs alleged that
they were treated differently from other tenants with inoperable vehicles, there is no close
temporal link between the placement of the note and plaintiffs’ requests for
accommodation and modification. As such, the Court finds that while plaintiffs have
established a prima facie case of retaliation with respect to the eviction and the July 9,
2013, and July 10, 2013, notices, plaintiffs have not established a prima facie case with
respect to the note threatening to tow their van.
Defendants argue that plaintiffs cannot establish a prima facie case with respect to
the termination of their lease, because they cannot show a causal connection between
activity protected by the FHA and defendants’ termination of the lease. Defendants base
their argument on the fact that plaintiffs received their notice of eviction for failure to pay
rent prior to plaintiffs filing a complaint with HUD or the Tennessee Human Rights
Commission (“THRC”). This argument is not well taken. Although plaintiffs may not
have filed complaints with HUD and the THRC until after receiving a notice of eviction,
plaintiffs had requested accommodation/modification on numerous occasions, well
before receiving notice of eviction. These requests, should the fact-finder determine that
21

they were reasonable and necessary, would constitute protected activity under the FHA.
See 42 U.S.C. §§ 3604(f)(3)(A), 3604(f)(3)(B). See Wilson v. Wilder Balter Partners,
Inc., No. 13-cv-2595, 2015 WL685194, at *12 (S.D.N.Y. Feb. 17, 2015) (“[A] request for
a reasonable accommodation is [a] protected activity under the FHA.”). Therefore, a
reasonable jury could determine that plaintiffs engaged in conduct protected by the FHA
prior to defendants terminating their lease, and thus that there is a causal connection
between the protected activity and defendants’ alleged retaliatory conduct.
In sum, the Court finds that plaintiffs have established a prima facie case of
retaliation under 42 U.S.C. § 3617 sufficient to survive summary judgment.
2.

Legitimate, Non-Retaliatory Reason for Adverse Action

The burden now shifts to defendants to articulate a non-retaliatory, nondiscriminatory reason for having terminated plaintiffs’ lease, as well as for sending the
July 9, 2013, and July 10, 2013, notices. See Robbins, 2007 WL 2728746, at *11.
With respect to terminating the lease, defendants have offered the following nonretaliatory, non-discriminatory reasons for their action: 1) nonpayment of rent; 2)
harassment of multiple tenants; 3) vandalism; and 4) refusing pest control + A/C/ filter
change [Doc. 38-5]. Although plaintiffs dispute the factual veracity of a number of these
reasons, the Court notes that it is undisputed that plaintiffs were in arrears on their rent
payments at the time of termination. A number of district courts, including at least one in
this circuit, have found that a tenant’s failure to pay rent constitutes a legitimate, nonretaliatory, non-discriminatory reason for terminating a tenant’s lease. See e.g., Ward v.
22

Dickens, No. 3:11-cv-362, 2012 WL 1038184, at *3 (W.D. Ky. Mar. 27, 2012)
(“Plaintiff’s failure to pay rent provides Defendants with a legitimate, nondiscriminatory
reason for denying Plaintiff his request for accommodations of his disability and for any
allegedly retaliatory conduct.”). The Court agrees with these district courts, and finds
that defendants' proffered reasons for terminating plaintiffs’ lease, particularly plaintiffs’
failure to timely pay rent, constitute legitimate, non-discriminatory, non-retaliatory
reasons for terminating the lease.
With respect to the July 9, 2013, and July 10, 2013 notices, the Court notes that
defendants have asserted that they received complaints from other tenants regarding
alleged harassment by Istre. [Doc. 38-6 p. 2]. Furthermore, plaintiffs do not dispute that
“not all rent payments were made within the time frame prescribed by the lease” [Doc. 45
p. 5]. These constitute legitimate, non-discriminatory reasons for sending the notices.
As such, the Court finds that defendants have met their burden of articulating
legitimate, non-discriminatory reasons for terminating plaintiffs’ lease, as well as for
sending the July 9, 2013, and July 10, 2013, notices.
3.

Whether Defendants’ Proffered Reasons are Pretextual

The burden now shifts back to plaintiffs, who must demonstrate that defendants’
proffered reasons for terminating the lease are pretextual.

See Robbins, 2007 WL

2728746, at *11. In order to meet this burden for purposes of summary judgment,
“plaintiff[s] must identify evidence from which a reasonable jury could conclude that the

23

proffered reason[s] [are] actually pretext for unlawful discrimination.” See Ward, 2012
WL 1038184, at *4.
The Court finds that plaintiffs have met this burden. Firstly, plaintiffs point to
defendant Franklin’s deposition, in which Franklin indicated at the time of the lease’s
termination that “[Istre] had pushed [her] and the tenants for the last time,” and that she
was “tired of all the phone calls from [Istre] in general” [Doc. 47-33 p. 34]. A reasonable
jury could conclude that these phone calls from plaintiff referenced by Franklin include
calls requesting accommodation/modification, and were the real reason why defendants
terminated plaintiffs’ lease. Secondly, plaintiffs point to the fact that the letter in which
Franklin warned plaintiffs that defendants had received a number of complaints from
other tenants regarding plaintiffs making racial comments and harassing other tenants,
was

sent

nearly

contemporaneously

to

when

plaintiffs

made

requests

for

accommodation/modification. Furthermore, the letter threatening to evict plaintiffs for
nonpayment of rent was sent only one day later, on July 10, 2013. The time at which
these letters were sent could support a reasonable jury’s conclusion that the reasons
offered in the letter were pretextual, and that the letters were really sent in response to the
requests for accommodation/modification. See Lindsay, 578 F.3d at 419 (“Just as a
reasonable juror may infer a plaintiff’s undertaking of a protected activity was the likely
reason for the defendant’s adverse action when the temporal proximity is ‘very close’ in
retaliation cases . . . .”). As such, the Court finds that plaintiffs have met their burden of

24

introducing evidence such that a reasonable jury could conclude that the proffered
reasons are pretextual. See Ward, 2012 WL 1038184, at *4.
Defendants argue that their decision to terminate plaintiffs’ lease based on
nonpayment of rent is not pretextual as a matter of law, and cite a number of cases in
support of their argument. The Court has reviewed these cases, and finds that they do not
support defendants’ argument.
The first case defendants cite is Ward v. Dickens, a case in which the Western
District of Kentucky granted summary judgment for the defendants on reasonable
accommodation and retaliation claims. 2012 WL 1038184, at *4. While the court did so
after finding that plaintiff had not paid rent, which the court found to be a legitimate, nondiscriminatory reason for denying plaintiff’s requests for accommodation, the court also
found that plaintiff offered no evidence from which a reasonable jury could conclude that
the failure to pay rent was pretextual. See id. In fact, the court specifically noted that
such a showing would have precluded summary judgment.

See id. (“To preclude

summary judgment, Plaintiff must show that Defendants’ proffered reason is a pretext
that masks discrimination.”). In this case, however, plaintiffs have offered evidence from
which a reasonable jury could find that defendants’ stated reasons for terminating the
lease were pretextual, particularly the phone call with Franklin. Therefore, the Court’s
ruling in this case is consistent with the district court’s ruling in Ward.

25

Similarly, the other cases cited by defendants, Morris v. Dehaan, 944 F.2d 905
(6th Cir. 1991); Stephenson v. Ridgewood Village Apartments, No. 1:93-cv-614, 1994
WL 792581 (W.D. Mich. Nov. 10, 1994); and Mercado v. Realty Place, Inc., No. 2-14cv-2644, 2015 WL 5626510 (S.D. Ohio Sept. 24, 2015); do not support defendants’
arguments. Although these cases each involve situations where tenants had failed to
timely pay rent or comply with terms of their leases and district courts dismissed FHA
claims, the cases do not involve a situation where plaintiff offered evidence from which a
reasonable juror could find that the failure to pay rent was a pretextual reason for taking
adverse action. Such a showing precludes summary judgment. See Ward, 2012 WL
1038184, at *4. As such, the Court does not find that these cases support defendants’
argument that plaintiffs’ failure to pay rent requires as a matter of law that the Court
dismiss plaintiffs’ retaliation claim.
In sum, the Court will deny defendants’ motion for summary judgment as to the
FHA retaliation claim.
C.

Tennessee Breach of Contract Claim

Plaintiffs’ complaint also asserts a Tennessee law breach of contract claim.
Although defendants’ motion for summary judgment states that the breach of contract
claim should be dismissed, it does not contain a specific argument as to why that claim
should be dismissed. Furthermore, the section of defendants’ brief in which defendants
assert that the breach of contract claim should be dismissed is titled “Summary Judgment
is proper as to all claims under the Tennessee Uniform Residential Landlord-Tenant Act”
26

[Doc. 38 p. 21]. In addition, plaintiffs also make no specific argument in their response
regarding the breach of contract claim [Doc. 47]. As such, the Court does not find that it
is able to reach a determination on the breach of contract claim for purposes of summary
judgment, and will deny defendants’ motion for summary judgment with respect to the
breach of contract claim.
D.

Claims Brought Under the Tennessee Uniform Residential LandlordTenant Act

The complaint also alleges a number of claims arising under the Tennessee
Uniform Residential Landlord-Tenant Act (“URLTA”). Specifically, plaintiff contends
in the complaint that defendants violated the following provisions of the URLTA: Tenn.
Code Ann. § 66-28-304(a)(1)–(3); § 66-28-505(a)(2); § 66-28-508; § 66-28-514(a)(1)–
(2); § 66-28-514(a)(1)-(2); and § 66-28-516. In their motion for summary judgment,
defendants assert that all such claims should be dismissed. In their motion, however,
defendants only address plaintiffs’ URLTA claim alleging a violation of Tenn. Code
Ann. § 66-28-505(a)(2), which is based on defendants’ failure to provide plaintiffs with
notice and an opportunity to remedy any alleged breach of the lease agreement before
plaintiffs were evicted. See Tenn. Code Ann. § 66-28-505(a)(2).
In asserting that this claim should be dismissed, defendants argue that the lease
expressly waived any notice requirement, and granted defendants the right to terminate
the lease “without the necessity of demand or notice” upon lessee’s failure to pay rent.
[Doc. 38 p. 23]. Therefore, defendants argue that they did not violate § 66-28-505(a)(2)
by failing to provide plaintiffs with notice and an opportunity to remedy any breaches of
27

the lease agreement. The Court notes that plaintiffs neither dispute the terms of the lease,
nor offer any argument in response to defendants’ assertions. As such, the Court will
grant defendants’ motion for summary judgment with respect to the URLTA claim under
§ 66-28-505(a)(2).
The Court further notes, however, that defendants offer no arguments as to why
the other URLTA claims addressed in the complaint should be dismissed. As such, the
Court will not dismiss any of plaintiffs’ other URLTA claims.
E.

Civil Conspiracy Claim

The complaint also brings a claim of civil conspiracy, asserting that defendants
conspired to commit the previously discussed violations. Defendants argue that summary
judgment is appropriate with respect to this claim both because plaintiffs cannot establish
any underlying violations, and because there are no facts supporting any conspiracy
between defendants. The Court notes that plaintiffs did not respond to this argument in
their response to defendants’ motion for summary judgment.
While the Court notes that it has determined that there are material questions of
fact with respect to whether defendants committed the underlying violations alleged in
the conspiracy claim, plaintiff has not identified any evidence of a conspiracy between
defendants, nor presented the Court with any argument as to why the conspiracy claim
should not be dismissed. As plaintiffs have failed to provide evidence upon which a
reasonable jury could determine that defendants engaged in a civil conspiracy, the Court
will grant defendant’s motion with respect to this claim.
28

IV.

Conclusion
For the reasons discussed herein, the Court hereby DENIES plaintiffs’ Motion for

Partial Summary Judgment [Doc. 41], and GRANTS in part and DENIES in part
defendants’ Motion for Summary Judgment [Doc. 37] in that the Court hereby
DISMISSES plaintiffs’ civil conspiracy claim, as well as the claim alleging a violation of
Tenn. Code Ann. § 66-28-505(a)(2).
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

29