Shelton v. Waldron et al

Filing 33

MEMORANDUM Signed by District Judge Todd J. Campbell on 11/5/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BARBARA SHELTON
v.
KEVIN WALDRON, et al.

)
)
) NO. 3-12-0688
) JUDGE CAMPBELL
)
MEMORANDUM

Pending before the Court is Defendants’ Motion for Summary Judgment (Docket No. 25).
For the reasons stated herein, Defendant’s Motion is GRANTED, and this action is DISMISSED.
FACTS
Plaintiff’s Complaint alleges that Plaintiff is a disabled individual who rented an apartment
in Rutherford County, Tennessee, from Defendants, in May 2010. Plaintiff claims that she made
it known to the management of the apartment complex that she was disabled and requested a parking
space accommodation and ramps to help with her mobility. Plaintiff asserts that, despite her
persistent requests, Defendants failed to respond.
Plaintiff contends that on July 19, 2011, Defendants sent her a letter stating that it would not
install any type of ramps for her. Plaintiff alleges that she then filed a complaint with the Tennessee
Human Rights Commission, which began an investigation. Plaintiff avers that in March of 2012,
while the investigation was still pending, Defendants notified Plaintiff that they were not going to
renew her lease and her tenancy would expire effective April 29, 2012. Plaintiff alleges that
Defendants discriminated and retaliated against her, in violation of the Fair Housing Act (“FHA”)
and Tennessee’s human rights law, because of her disability.

Defendants argue that they had no obligation to provide modifications to the building and
facilities for Plaintiff and that they notified Plaintiff she could install a ramp at her own expense.
Defendants also contend that they did not retaliate against Plaintiff.
MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence
has been presented to make the issue of fact a proper jury question. Id. The mere existence of a
scintilla of evidence in support of the nonmoving party’s position will be insufficient to survive
summary judgment; rather, there must be evidence on which the jury could reasonably find for the
nonmoving party. Rodgers, 344 F.3d at 595.

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REASONABLE MODIFICATIONS
The Fair Housing Act makes it unlawful for anyone to discriminate in the rental of a
dwelling to any renter because of a handicap of that renter. 42 U.S.C. § 3604(f)(1)(A). It is also
unlawful to discriminate against any person in the terms, conditions, or privileges of rental of a
dwelling or in the provision of services or facilities in connection with such dwelling because of a
handicap of that person. 42 U.S.C. § 3604(f)(2)(A). The FHA imposes an affirmative duty
reasonably to accommodate the needs of handicapped persons. Smith & Lee Assocs., Inc. v. City of
Taylor, Michigan, 102 F.3d 781, 795 (6th Cir. 1996).
“Discrimination” under the FHA includes a refusal to permit, at the expense of the
handicapped person, reasonable modifications of existing premises occupied by such person if such
modifications may be necessary to afford such person full enjoyment of the premises. 42 U.S.C.
§ 3604(f)(3)(A) (emphasis added). 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. Discrimination also includes a refusal to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B).
Tennessee law prohibits discrimination on the basis of disability, including refusing to
permit, at the expense of the disabled person, reasonable modifications of existing premises if such
modifications may be necessary to afford the person full enjoyment of the premises. Tenn. Code
Ann. § 4-21-601(b)(2)(A) (emphasis added).

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A modification under the FHA is distinct from an accommodation. Hollis v. Chestnut Bend
Homeowners Ass’n., __ F.Supp.2d __, 2013 WL 5372362 at * 12 (M.D. Tenn. Sept. 24, 2013).
Regulations promulgated under the FHA define a modification as any change to the public or
common use areas of a building or any change to a dwelling unit. Id. (citing 24 C.F.R. § 100.201).
“Claims for reconstruction or renovation to a dwelling are actionable under the reasonable
modification section of the FHA, and not the reasonable accommodation section.” Id.
Plaintiff’s request for a ramp and bathroom rails is a request for a “modification,” pursuant
to 42 U.S.C. § 3604(f)(3)(A) and Tenn. Code Ann. § 4-21-601(b)(2)(A). See Hollis at *12; Weiss
v. 2100 Condominium Ass’n., Inc., __ F.Supp.2d __, 2013 WL 1767974 at * 7 (S.D. Fla. April 8,
2013); Rodriguez v. 551 West 157th St. Owners Corp., 992 F.Supp. 385, 387 (S.D. N.Y. 1998).
Accordingly, Defendants cannot refuse to permit Plaintiff to install a ramp or bathroom rails at
Plaintiff’s own expense if such modifications may be necessary to afford Plaintiff full enjoyment
of the premises.
Defendants have not refused to permit Plaintiff to build a ramp or install rails at her own
expense. See Docket No.25-3, letter to Plaintiff from Defendants (“You can have one [ramp] put
in at your own expense as long as it’s removable when you leave and is not permanent.”).
Plaintiff insists that her request was for an accommodation, not a modification, but the Court
finds, based upon the three cases cited above (one of which is from this Court) and the authority
cited in each, that Plaintiff’s request was a request for a modification. Accordingly, Defendants were
not required to pay for and build a ramp or install rails for Plaintiff. They were required to permit
Plaintiff to make such modifications, at her own expense, if those modifications were necessary to
afford Plaintiff full enjoyment of the premises. Defendants met this requirement.

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Accordingly, Plaintiff’s claims for violation of the Fair Housing Act and Tennessee law
based upon Defendants’ failure to provide reasonable modifications should be dismissed.
RETALIATION
Plaintiff also claims that Defendants retaliated against her by refusing to renew her lease
after she filed a discrimination complaint against them. It is unlawful to retaliate against a person
for having exercised or enjoyed a right granted or protected by the FHA. 42 U.S.C. § 3617.
Similarly, it is a discriminatory practice in Tennessee for a person to retaliate or discriminate in any
matter against someone because that person filed a complaint under the Tennessee Human Rights
Law. Tenn. Code Ann. § 4-21-301(1).
To show retaliation in violation of the Fair Housing Law and Tennessee law, Plaintiff must
show a causal connection between her protected activity and the failure to renew her lease.
Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008).
Defendants sent Plaintiff a letter on March 28, 2012, indicating that they were not going to
renew her lease and that her tenancy would expire at the end of her lease term on April 29, 2012.
Docket No. 26, ¶ 20. Defendants contend that Plaintiff cannot show any discriminatory or retaliatory
motive for this decision.
Plaintiff maintains that there was no reason for Defendants not to renew her lease except for
the fact that she had filed a discrimination complaint. Plaintiff’s conclusory statement does not
address the fact that, as a private business, Defendants could fail to renew Plaintiff’s lease for no
reason or any reason at all, so long as that reason was not discriminatory or retaliatory. Plaintiff has
pointed to no authority, in the lease or in the law, to show that Defendants were bound to renew the
lease or obligated to state a reasonable or specific basis for refusing to renew it. Plaintiff must

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demonstrate that Defendants acted with a discriminatory or retaliatory motive, and she has not
carried that burden. Accordingly, Plaintiff’s claims for retaliation should be dismissed.
MALICIOUS HARASSMENT
Tennessee law provides for a civil cause of action for malicious harassment. Tenn. Code
Ann. § 4-21-701. Plaintiff’s Complaint alleges that Defendants’ actions and inactions constitute
malicious harassment.
To establish a claim for malicious harassment under this statute, Plaintiff must demonstrate
that Defendants intentionally intimidated her from the free exercise of a constitutionally protected
right and that the offending conduct was motivated by Plaintiff’s race, color, religion, ancestry or
national origin. Bowman v. City of Memphis, 329 S.W.3d 766,768 (Tenn. Ct. App. 2010).
Plaintiff does not allege that Defendants’ actions or inactions were motivated by race, color,
religion, ancestry or national origin. Harassment based on disability is not covered by this civil
statute. Oates v. Chattanooga Publishing Co., 205 S.W.3d 418, 428 (Tenn. Ct. App. 2006). A civil
malicious harassment claim under Tennessee law must be premised upon the specific categories set
forth in the criminal statute; i.e., race, color, ancestry, religion or national origin. Blair v. Rutherford
County Bd. of Educ., 2013 WL 3833516 at * 6 (Tenn. Ct. App. July 19, 2013).
Accordingly, Plaintiff’s malicious harassment claim should be dismissed.
CONCLUSION
For these reasons, Defendants’ Motion for Summary Judgment (Docket No. 25) is
GRANTED, and this action is DISMISSED.
IT IS SO ORDERED.
___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
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