Evans v. ForKids, Inc

Filing 24

ORDER granting Defendant's 14 Motion for Summary Judgment. Signed by District Judge Mark S. Davis on 1/23/18. (afar)

UNITED STATES DISTRICT COURT

JAN 2 3 2018

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

VEDA EVANS,

Plaintiff,
Civil No.

V.

FORKIDS,

2:17cvl53

INC.,
Defendant.

OPINION &

ORDER

This matter is before the Court on a motion for summary
judgment

filed

by

ForKids,

Inc.

("Defendant").

ECF

No.

14.

Plaintiff Veda Evans

("Plaintiff")/ a participant in Defendant's

permanent

housing

action

supportive

challenging

response

the

program,

timeliness

to Plaintiff's

requests

for

both parties

burden

of

due

On December 15, 2017,

on Defendant's motion,

proof,

and

the

efficacy

instant

of

for modifications

and/or necessary accommodations
ECF No. 1.

filed

to

could

support

and

the

whether

verdict

reasons set forth below.
i s GRANTED.

to her home

disability.

this Court conducted a hearing

and heard detailed arguments from counsel

regarding

a

Defendant's

Plaintiff's

facts
the

of

the

case.

inferences

in

Plaintiff's

Plaintiff's

that

asserts can be drawn from the undisputed facts are
and

civil

Plaintiff

"reasonable"

favor.

For

the

Defendant's motion for summary judgment

I. Factual Background

With the exception of the parties' diverging viewpoints as
to whether the factual record reasonably supports an inference
of

discriminatory intent,

largely

undisputed.

the material

Drawing

recitation of the facts,

facts

primarily

in this

from

case are

Plaintiff's

Defendant is a non-profit provider of

shelter and housing services assisting homeless families,

receives
its

funding

services.

children.

from

Plaintiff

United States
is

a

Government

disabled mother of

to provide
three young

Plaintiff was initially placed in one of Defendant's

short-term housing

Defendant's
medical

the

and it

assistance

permanent

in

but

ultimately

supportive housing program.

conditions

participated

programs,

worsened

Defendant's

during

the

programs,

Plaintiff's

time

and

in

entered

that

early

she

2015,

Defendant equipped Plaintiff's apartment residence with a toilet
lift and tub handles.
an adjacent
Plaintiff

toilet

unit

moved

lift

destroyed.
condition,
full-time
shower,

caused damage
back

and

into

tub

Moreover,
by
use

and a

elevated,

In September of that same year, a fire in

her

the
of

end
a

her

to
unit

handles

due
of

to

were

January

wheelchair,

to

utilize

in

of

grab

home,

November

2015,

damaged

continuing

2016,
bars

and when

of

purportedly

Plaintiff's

tub transfer bench.

need

Plaintiff's

the

or

worsening

Plaintiff
for

the

required

toilet

and

Because Plaintiff's unit was

a

wheelchair

required

either;

(1) that a
her home;

ramp be constructed to allow her to enter and exit
or

(2)

a

transfer to a

different unit that was either

not elevated or that already had a wheelchair ramp.
After

January,

Plaintiff

2016,

informed

Defendant

explored

construction and transfer),

Plaintiff,

various

contractors,
notes,

are

state

Defendant

of

both

her

documented

federal

in

late

(ramp

communications with

agencies,

emails,

in

possibilities

and Defendant's

and

needs

case

and

disability

reports,

progress

and narratives that were created between late January and

early March of 2016.

Such documents,

record

Court,

before

the

Plaintiff's

request

include

installation

the

transfer bench for

for

the

also

which are included in the

address

modifications
of

grab

bars

the

near

of

her

to

handling

bathroom,

to

the

toilet

and

a

tub.

While Plaintiff discusses many of these record documents in
a section of her brief in opposition to summary judgment titled

"Disputed Facts and Facts with Disputed Inferences," Plaintiff's
discussion

dispute

disputes

of

the

such

exhibits

actual

facts

whether

Defendant's

discriminatory intent.

reveals

that

documented

actions

Plaintiff

therein,

raise

Stated differently,

an

but

does

not

rather,

inference

of

Plaintiff does not

contest the accuracy of the factual record produced by Defendant

in

support

of

summary

Defendant's own facts,

judgment,

but

instead,

asserts

that

supplemented by Plaintiff's affidavit and

additional exhibits, clarify and/or add a "gloss" to Defendant's
facts

that

is

litigation.
are

drawn

favorable

Plaintiff
in

her

to

Plaintiff's

asserts

favor,

that

these

position

in

when reasonable

clarifications

this

inferences

and

additional

facts demonstrate both Defendant's discriminatory intent and its
failure

to

timely

modify

Plaintiff's

residence

or

otherwise

in

the

accommodate Plaintiff's disability.
Summarizing

the

material

facts

contained

most

relevant exhibits:

{1)
Defendant

On

or

that

residence with a

about
she

January

was

25,

2016,

wheelchair

Plaintiff

bound

and

reported

would

to

require

a

wheelchair ramp and grab bars in the bathroom

and hallway—Defendant

immediately began exploring possibilities

to address Plaintiff's asserted disability.

ECF Nos.

15-4,

15-

whether

she

6.

(2) On January

could be

moved

to

26,

a

Plaintiff

ground

asked Defendant

floor

unit;^

Defendant

informed

Plaintiff that it did not have any ground floor units available
and

that

Defendant

needed

medical condition was

time)

time

to

temporary

evaluate

whether

Plaintiff's

{Plaintiff was pregnant at

the

or permanent; Defendant asked permission to speak directly

with P l a i n t i f f ' s

doctor

to better understand

P l a i n t i f f ' s medical

^ The record establishes that while Plaintiff's unit was a first floor
unit, it was elevated several feet and there were multiple stairs leading
up to it.
4

needs,

or alternatively,

asked Plaintiff to provide information

in writing from her doctor;

Plaintiff was also informed that it

was unlikely that any solutions would be immediate as Defendant
needed medical information from Plaintiff.

ECF Nos.

15-7,

16-

14.

(3)

In addition to immediately starting a

Plaintiff

regarding

possible

solutions.

discussion with

Defendant's

employees

internally discussed concerns about Plaintiff's ability to care
for herself and her minor children,
to

involve

Child

Protective

to include the apparent need

Services

discussions, Defendant contacted CPS.
(4)

("CPS")—after

such

ECF Nos. 15-9, 16-15.^

On January 26 and January 27,

Defendant began taking

steps to schedule an inspection of Plaintiff's residence for a

feasibility analysis of potential modifications,

construction,

doorway

widening

installation of grab bars
ECF No.

in the

(if

needed/possible)

shower and near the

and

toilet.

15-8.

(5)

On February 4,

Defendant

indicating

Plaintiff provided a

that

Plaintiff

and

bathroom,

(b)
and a

"a

hospital

bed,

^ At the time such contact was made,

(a)

"24/7

to be living on her

wheelchair,

tub transfer bench";

doctor's letter to

requires:

assistance for all mobility and is unsafe

own,"

including ramp

grab

bars

in

the

after receiving the letter

various agencies,

including CPS,

previously had contact with Plaintiff as she (and her children)
evaluated for multiple forms of government assistance.

had been

documenting

Defendant

Plaintiff's

again

need

contacted

telephone

February
to

concerns;

8,

discuss

Defendant

around-the-clock

CPS

Plaintiff's medical condition.

(6) On

for

to

contacted

doctor's

informed

an

update

on

ECF Nos. 15-11, 15-12, 16-20.

Defendant

the

provide

assistance,

letter

Plaintiff

that

Plaintiff
and

by

associated

Defendant

cannot

provide the level of services that Plaintiff needs and that it
will be very important to connect with all available resources;
Plaintiff was further informed that Defendant would be reaching
out

to CPS and Adult Protective Services

services

that

conversation,

Plaintiff may be eligible

("APS")

for;

about ongoing

during that

same

Plaintiff stated that she would look into whether

her insurance would provide a

tub transfer bench and Defendant

indicated that i t would look into the grab bars in the bathroom

after it confirmed that Plaintiff would be staying in the unit;
Defendant

already

further

inspected

building a

again

informed

the

property

wheelchair ramp;

informed

Plaintiff

currently available.

Plaintiff

that

regarding

two

the

contractors

feasibility

during this conversation,

that

no

ground

had

floor

of

Defendant

units

were

ECF No. 16-21.

(7) On February 9, Defendant met with Plaintiff in her home
and Plaintiff expressed frustration that she was not being moved
into a

three bedroom accessible unit;

Plaintiff

that

no

such

units

were

Defendant

vacant,

again informed

although

Defendant

indicated

that

Department

it

of

would

Housing

be

and

seeking
Urban

guidance

from

Development

the

("HUD")

U.S.

as

to

whether any of Defendant's other tenants could be forced to move
out of an accessible unit;

Plaintiff asked whether a

leased unit

in the community was an option and Defendant informed her that

it was not;
quote

was

Defendant further informed Plaintiff that the ramp
around

$8,000

and

Defendant

was

still

working

to

determine if it could provide such resource;^ Defendant explained
to

Plaintiff

bedroom

that

unit

accessible

she

that

but

could move

could

Plaintiff

be

across

more

indicated

the

street

easily

that

she

made

housing"

Plaintiff

raised

in the community,

the

issue

(8) Also on February 9,

obligated

to

Plaintiff's

email,
pay

residence

is

the
a

not

accept

during such
"alternative

ECF No. 16-23.

Defendant's employees communicated

expressly

for

two-

and Defendant raised concerns about

Plaintiff's ability to afford such option.

internally via

of

a

wheelchair

would

such option because the offered \mit was too small
conversation,

into

noting

that

requested

"HUD

funded

Defendant

modifications
unit"

and

the

may be
because
expected

^ Based on the configuration of Plaintiff's apartment, a simple ramp on
the

front

of

exterior ramp,
the building.

the

residence

was

not

that included platforms,

feasible,

thus

requiring

a

large

to be constructed on the rear of

ECF Nos. 15-13, 15-24.

" The record indicates that Plaintiff was at the time living in a twobut the two-bedroom unit she rejected was smaller in size.

bedroom unit,
ECF No.

15-15.

cost of the changes

"does not appear to be a

financial burden

for our agency from a Fair Housing perspective."

(9) On February 12,

Defendant

ECF No. 15-13.

contacted one of

the ramp

contractors to determine how quickly a ramp could be built and

was told that installation could be completed approximately one
week after the
contractor by
call

with

job was authorized;
indicating

HUD

that

regarding

it

Defendant responded to the

needed

necessary

to

have

approvals

a

and

conference
that

the

contractor should hear back from Defendant in the next couple of
weeks;

on that same day.

Defendant sent a

lengthy email to HUD

asking for an opportunity to discuss Plaintiff's case,

and among

the multiple issues raised in the email were the possibility of
displacing another family to move

three bedroom unit,

Plaintiff

into an accessible

the possibility of moving Plaintiff into the

ground floor two bedroom unit that Plaintiff had rejected,

the

need to secure HUD authorization to move money from Defendant's
"services"
be

budget to its

constructed,

whether

"operations"
Defendant

budget if a
is

legally

ramp were to
obligated

to

perform stiructural modifications if Plaintiff cannot secure the
around-the-clock
whether Defendant

personal
has

a

care
legal

required
obligation

by
to

her

doctor,

provide

and

temporary

housing to Plaintiff while the various options were being sorted
out.

ECF No.

15-15.

(10)
HUD

to

On February 17,

discuss

these

Defendant had a conference call with

issues;

Defendant

called

Plaintiff

later

that same day to share the outcome of the HUD call, noting that,
going forward,

it was important to address both Plaintiff's need

for around-the-clock care and the

need for

the modifications

to

her home—Plaintiff expressed frustration that Defendant was not

moving quickly enough.^
(11)
Housing

On

February

Office

received

18,

{based

further

ECF Nos. 16-24, 16-25.

on

Defendant
HUD's

guidance

the

recommendation

on

Defendant

called

Virginia
to

these

issues,

should

do

proceed

so)

Fair
and

including

recommendations

that

with

modifications as

soon as possible and should obtain the advice

of legal counsel as to certain questions/concerns,
IS;

On

February

19,

Defendant

emailed

HUD

ECF No.

indicating

the

IB
that

Defendant planned to move forward with structural modifications
to Plaintiff's current \init and therefore needed HUD to approve

a

change

fund

the

to

its

grant

construction.

{12)

Defendant,

On

that

to allow Defendant to transfer money to
ECF No.

same

appearing

to

day

15-20.

(February

indicate

that

19) ,

she

Plaintiff

planned

emailed

on

leaving

® The record reflects that, at times, Plaintiff was very disrespectful to
Defendant's employees, although it is unclear the degree to which such
behavior was intentionally rude conduct versus conduct motivated by
Plaintiff's

medical/mental

condition.

The

Court

views

the

motivation

behind such conduct in a light most favorable to Plaintiff, and notes that
Defendant's interactions with Plaintiff over a lengthy period of time
reflect a s\ibstantial amount of patience.

Defendant's

program

because

she

feared

losing

her

children,

although Plaintiff sent a follow up email later that day stating
that she wanted to "stay here."

(13)

On

February

another update,

24,

ECF No. 16-26.

Defendant

provided

Plaintiff

with

indicating that Defendant was still waiting on

the third quote for the ramp (it had learned that funding rules
required three quotes),

that the grab bars would be installed as

soon as the contractor returned a quote,® and that, as requested
by Plaintiff,

housing

Defendant had conducted research

options

if

Plaintiff

decided

to

into alternative

leave

Defendant's

housing program,-^ Plaintiff responded by indicating that staying
in her current

not
were

approve

home

her

was

offering

to

an option and

(electric)

complete—Plaintiff

"called CP's"

not

wheelchair

further

iintil

indicated

on her for the last time;
call

Medicaid

directly

that Medicaid would

on

the

that

improvements

Defendant

had

Defendant responded by
Plaintiff's

behalf

to

® The record indicates that one of Defendant's internal maintenance people
had planned to install the grab bars as early as February 19; however, he
ultimately declined to do so because he was uncomfortable performing the
install as he did not know what was necessary to comply with ADA
requirements.
ECF Nos. 15-19, 15-22.
As useful context, HUD regulations
governing reasonable modifications to an existing premises provide an
example involving installation of "grab bars in the bathroom," and discuss

within such hypothetical the necessity of
blocking
§

between

studs

in

order

to

"reinforc[ing]

affix

the

grab

the walls with

bars."

24

C.F.R.

100.203.

' It is undisputed that Plaintiff's boyfriend, who was employed outside
the home, wanted to live with Plaintiff and be her caregiver (when he was
available)

but

he

had

been

banned

from

Defendant's

premises

based,

in

part, on a threat he previously made to one of Defendant's employees.
The
impediment on joint living would obviously be removed if Plaintiff left
Defendant's housing program.
10

confirm that Defendant is, in fact, building the ramp.

ECF No.

15-23.

(13)

On

February

further

email

planning

on

25

and

exchanges

staying

in

26,

Defendant

discussing

the

and

Plaintiff

whether

program

or

Plaintiff

leaving

the

had

was

program;

Defendant informed Plaintiff that the final ramp bid should be
received

in

approximately

five

days

and

that

Plaintiff

have to decide what she wanted to do by then.

ECF Nos.

would
16-29,

16-30.

(14)

The

following

week.

Plaintiff

stay in Defendant's program; on March 7,
after

Plaintiff

submitted

Defendant sent Plaintiff a
options,
into

a

which
three

Plaintiff

her

would

have

unit to be ready

note

to

Defendant,

lengthy email documenting her final

unit
to

approximately one month

doctor's

included modifying her
bedroom

confirmed her plan to

that

wait

a

current vinit,

already

few

weeks

{but i t would have a

had

a

for

the

ramp,

or moving

ramp,

although

three

grab bars,

bedroom

and tub

transfer bench all installed before move-in);® on that same day.
Plaintiff

indicated that she preferred to

bedroom accessible unit.

"wait"

for

the three

ECF No 15-29.

® During the relevant time period, one of Defendant's tenants vacated an
upper floor unit and,

in early March,

Defendant was able to "incentivize"

a resident of a lower-level 3 bedroom unit with an existing ramp to move
into

the

Plaintiff.

upper

unit,

Defendant

making

a

informed

3-bedroom
Plaintiff

accessible
in

the

unit

March

7

available
email

that

for
the

accessible unit would be vacated the following week, and promised such
unit to Plaintiff after it had been cleaned, repaired, and fully prepped
for Plaintiff's needs, which was expected to be done later that month.
11

(15) The

next

follow up email

day

(March

week

Defendant

sent

Plaintiff

a

indicating that Defendant had been in contact

with Plaintiff's doctor to
three

8),

time

table

for

inform her of

Plaintiff's

the planned two

move

into

the

to

accessible

three bedroom unit to permit sufficient time to have Plaintiff's
hospital bed and electric wheelchair ordered and delivered.
No.

15-30.

(16)

Several

kitchen

fire

respond

to

days

later,

in her home,

a

Defendant's

"wellness

employees

on March 12,

and

check"

forced

the

following

performed

his

Plaintiff

way

by

into

day

was

not

contacted

necessary;

APS

to

after

express

these

two

concern

that

(17)

she

did not
one

of

Plaintiff's home

to

an ambulance

incidents.

it

Defendant

continues

dangerous for Plaintiff to be in her unit alone.
15-32,

caused a

Defendant;

provide any needed assistance and determined that

31,

ECF

to

ECF Nos.

be
15-

15-33.

on

March

15,

Plaintiff

emailed

Defendant

indicating

that she would like to take the offer for assistance moving out

of the program as her "living issues are unsafe"; a moving truck
was

arranged and scheduled to move Plaintiff out approximately

one week later.

ECF Nos.

In March of 2017,

a

failure

under

the

to

15-35.

Plaintiff filed the instant suit alleging

provide

Fair

15-34,

Housing

a

reasonable
Act

and
12

modification/accommodation

discrimination

based

on

her

disability under the Rehabilitation Act.

Defendant thereafter

filed its summary judgment motion, which is now ripe for review.
II.

The

Federal

Standard of Review

Rules

of

Civil

Procedure

provide

that

a

district court shall grant summary judgment in favor of a movant
if such party "shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law."

the

Fed.

Courts,

R.

780

existence

of

will

defeat

not

Civ.

P.

F.3d

some

562,

alleged
an

56(a);

Jacobs v.

568

(4th

factual

otherwise

issue

U.S.

material

fact."

242,

247-48

{1986} .

A

fact

evidence

is

such

that

a

F.3d

at

568.

The

summary

between

the

the Federal Rules as a

just,

action.'"

speedy
Celotex

and
Corp.

v.

(quoting Fed. R. Civ. Proc. 1).

13

motion

it

and a

if

dispute is

Id.

for

jury

at 248;

could

procedure

U.S.

"might

if

return

see Jacobs,

is

not

a

780

"a

an integral part

determination
477

477

"genuine"

which are designed

Catrett,

parties

"material"

is

inexpensive

mere

Inc.,

judgment

whole,

the

supported

disfavored procedural shortcut, but rather [is]
of

" [T]he

Liberty Lobby

reasonable

verdict for the nonmoving party."

Office of

that there be no genuine

Anderson v.

affect the outcome of the suit,"
"the

is

Admin.

2015).

dispute

the requirement

of

Cir.

properly

summary judgment;

N.C.

317,

'to secure

of
327

every
(1986)

Although the
the

moving

initial burden on summary judgment falls

party,

once

a

movant

supporting summary judgment,

properly

files

on

evidence

the non-moving party may not rest

upon the mere allegations of the pleadings, but instead must set
forth

specific

facts

in

the

form

of

exhibits

affidavits illustrating a genuine issue for trial.
24;

Butler V.

(4th Cir.

Drive Auto.

2015) .

Indus,

of Am.,

In other words,

when such burden is

met,

sworn

Id. at 323-

793 F.3d 404,

408

while the movant must carry

the burden to show the absence of a
fact,

Inc.,

and

it

genuine

is

up

establish the existence of such an issue.

to

issue of material
the

non-movant

Celotex,

477 U.S.

to
at

322-23.

When evaluating a summary judgment motion, a district court

is not permitted "to weigh the evidence and determine the truth
of the matter,"

genuine
1866

issue

(2014)

"[t]he

but must instead "determine whether there is a

for

trial."

(quoting Anderson,

relevant

inquiry

sufficient

disagreement

whether

is

it

so

matter of law.'"

245,

247

Tolan v.

is
to

one-sided

Cotton,

477 U.S.

'whether
require
that

one

at 249).

the

submission
party

Ct.

1861,

Accordingly,

evidence

Stewart v. MTR Gaming Grp.,

(4th Cir. 2014)

134 S.

to

must
Inc.,

presents
a

jury

prevail

as

a
or
a

581 F. App'x

(quoting Anderson, 477 U.S. at 251-52).

In making such determination,

"the district court must

14

'view the

evidence in the light most favorable to the'
Jacobs,

780 F.3d at 568

nonmoving party."

(quoting Tolan, 134 S. Ct. at 1866).
III.

Discussion

A. Legal Standard under Relevant Statutes

Plaintiff's

civil

alleged violations of
504

of

action

seeks

the Fair Housing Act

the Rehabilitation Act.

FHA expressly prohibit:
rental .

.

.

handicap

of

[of]

that

monetary

(1)

relief

("FHA")

based

and Section

The relevant provisions of

"discriminat [ion]

in

on

the

sale

the

or

a dwelling to any buyer or renter because of a

buyer

or

against any person in the

renter";

(2)

"discriminat[ion]

conditions,

terms,

and

or privileges of

sale or rental of a dwelling, or in the provision of services or
facilities

in

connection

handicap of that person
{emphasis
FHA

added).

.

with

.

.

such

."

Immediately

dwelling,

42 U.S.C.

following

because

of

a

§ 3604 (f) (1) , (2)

such provisions,

the

states:

For

purposes of this subsection, discrimination includes—

(A)
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

(B)

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.

15

42 U.S.C. § 3604(f)(3)(A),
As

argued

by

(B)

(emphasis added).

Plaintiff,

42

U.S.C.

§

3604(f)

has

been

applied by federal courts to permit recovery for three types of
FHA violations:

(1)

"intentional discrimination";

(2)

practices

causing a widespread "discriminatory impact"; and (3)
to

grant

PI.
Inc.

reasonable

Opp'n Memo 13,
V.

City of

1996)).
or

a

accommodation

ECF No.

Taylor,

16

or

"a refusal

modification

request."

(citing Smith & Lee Associates,

Michigan,

102

F.3d 781,

790

(6th Cir.

To prove intentional discrimination under § 3604(f)(1)

(f)(2),

a

plaintiff

handicap/disability

was

need
the

not

sole

prove

that

motivating

the

plaintiff's

factor

behind

the

challenged decision, but rather, need only prove that it was one
of several motivating causes.

Thomas v.

Territory,

(4th

seemed

841

to

be

Defendant's

F.3d
some

632,

641

confusion

motion,

a

on

review

Cir.

the
of

The Salvation Army S.
2016) .

issue
the

at

briefs

While
the

there

hearing

reflects

on

that

Plaintiff does not pursue an intentional discrimination claim,
nor does
claims

she pursue a

discriminatory impact claim;

"are of the third type:

a

accommodation and/or modification."

refusal to grant a

pursuant

to

Section

504

which provides as follows:

16

her

reasonable

Pi. Opp'n Memo 13.

In addition to asserting an FHA violation.

recovery

rather,

of

the

Plaintiff seeks

Rehabilitation

Act,

No Otherwise qualified individual with a disability in
the United States

.

.

. shall,

solely by reason of her

or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance or under any program or
activity conducted by any Executive agency . . . .
29

U.S.C.

when

§

§

794(a)

794(a)

is

§ 3604(f)(3)(A),
allow

such

assistance.

legal

As

an

to

Rehabilitation

Act

has

that

his

a

certain

her

fact

the

causation

exclusion

641

(explaining that

While

the

parties

.

generally

it

has

a

modifications.
that

a

the

regarding

plaintiff

to

benefits

resulted

See Thomas,

841 F.3d

the Rehabilitation Act has a

causation requirement than the .

such

financial

standard

from

solely by reason of his or her disability.
at

for

fact

requiring

only

Plaintiff's

that

structural

that

U.S.C.

not

Federal

the

highlight

higher

to

pay

receiving

contest

42

Defendant

Defendant

discrimination,
or

that

asserts

with

modifications

not

however,

intentional

demonstrate

require

entity

fund

Plaintiff

conjunction

that

Defendant does

does,

of

statutes

require

obligation

Defendant

in

structural

but

modifications.

added).

applied

reasonable

residence,

proof

(emphasis

"stricter

. FHA").
agree

on

the

applicable

law,

they have starkly conflicting positions as to whether Plaintiff

has

the

succeed

burden
on

modification

her

to

prove

discriminatory

reasonable

claims.

animus

accommodation

Defendant

17

asserts

in

and/or
that

order

to

reasonable

Plaintiff

must

demonstrate
factors

either

that

motivating

standard)
conduct

her

disability

Defendant's

was

challenged

one

of

conduct

several
{the

FHA

or the sole factor motivating Defendant's challenged
(the

Rehabilitation

Act

standard),

whereas

Plaintiff

asserts that she need not satisfy either legal test.
Considering first the relevant FHA provisions,
above,

§ 3604(f)(1)

discriminate

in

prospective
to

state

and

housing

tenant's

that

(f)(2)

matters

disability,

and

interpretation

question

accommodation

and

§ 3604(f)(3)

stand-alone

provision

describes

that

whether

actionable
the

to

of"

a

tenant's

or

(f)(3)

denial

are

type

reasonable

statutory

whether

the

forth

in

set

defining

a

actionable

definitional

discrimination

subsections

that

of

is

merely

of

goes on

The

provisions

they

a

unlawful

Court

provisions

under

requirement

the

this

modification

are

is

modifications.

before

or

to

"because

it

and subsection

reasonable

discrimination,

siibject

that

"discrimination includes"

accommodations

potentially

state

as set forth

(f)(1)

that

and

the plaintiff prove

is

(f)(2),

that

such

discrimination is "because of" the plaintiff's disability.
Beginning

appears

the

ambiguous

"reasonable"

operative
statute

with

as

when

language
a

as

statutory

text,

multiple

considered

language

interpretations

appear
the

is used and in "the broader context of

the

Ignacio

v.
18

in

disputed

which

whole."

both

the

the

context

United States,

in

674

F.3d

252,

254

{4th Cir.

2012)

(quotation marks

Such apparent ambiguity,

therefore,

and

citations

warrants

a

omitted)

more

searching

inquiry as to proper interpretation of the statute.

While it does not appear that the United States Court of
Appeals

for

the

Fourth Circuit has

spoken on this

issue,

this

Court finds that the Fourth Circuit would likely join its sister
circuits

in

modification

concluding

provisions

that

are

actionable

comports

consistent

with

with

the

FHA

Such

reason
apparent

2003)

Inc.

v.

City of

Momence,

provisions

common

avoids

sense,

purpose

and

defining

interpretation

and

accommodation/modification provisions.
Found.,

accommodation

stand-alone

discrimination.

redundancy,

the

and

behind

is
the

See Good Shepherd Manor

323

F.3d

557,

562

(7th Cir.

(explaining that failure to accommodate is "an alternative

theory of

liability"

required proof
animus

towards

that
the

which would be
the

defendants'

handicapped,"

"entirely redundant
actions

further

if

it

were motivated by

noting

that

"to

be

' Each of the potential "reasonable" interpretations, however, appears to
have flaws.
Although Plaintiff's brief does not engage in a textual
analysis, Plaintiff's interpretation appears to ask the Court to read the
term

"actionable"

into

subsection

(f) (3)

in

order

to

clarify

that

discriminatory intent has no place in the analysis.
In contrast, while
the "definitional" approach to subsection (f)(3) espoused by Defendant is
facially more consistent with the opening phrase of subsection (f)(3),
problems arise when such provision is considered in the context of the
language that surrounds it.
Specifically, if the word "discriminate" in
subsection (f) (1) and (f) (2) is replaced with the definition provided in
subjection (f) (3) , the resulting provision is not only confusing, but
appears
to
render
subsection
(f)(3)
meaningless/superfluous,
a
construction that should be avoided "[w]here possible."
Scott v. United
States,

328 F.3d 132,

139

(4th Cir.

2003).
19

meaningful, it must be a theory of liability for cases where we
assume there is a valid reason behind the actions of the city,
but the city is liable nonetheless if it failed to reasonably
accommodate
almost

the

handicap

universal

of

real-world

the

plaintiff").

motivation

behind

Notably,
a

desire

the

not

to

allow an exception to an in-place policy or practice established
by a

landlord or residential

acros s-the-board

compliance

association is

with

tenant/homeowner's

disability.

motivations

a

the

desire

not

behind

to

allow

policy,

or

structural

to have

regardless

Similarly,

landlord's

a

the desire

the

residential

modification

of

a

consistent

association's

to

an

existing

building are either the desire to maintain consistent aesthetics

or

the

performed

desire
by

any

to

prevent

tenant,

asserted by Defendant,

structural

regardless

a blind person,

of

modifications
disability.

being
If,

as

for example, was required

to prove that the reason a landlord/association refused to allow
a

guide-dog

exception

to

a

no-pet

policy was

some

degree

of

animus toward the blind tenant,

as contrasted with the otherwise

lawful desire

of any kind on the property in

question,

the

to have

protections

virtually meaningless.
appropriately give

clauses,
is

not

no pets
of

§

3604(f)(3)

Accordingly,

effect

to all

this

would

Court

be

rendered

finds

that

to

separately numbered statutory

the proper interpretation is that discriminatory animus
a

required

element
20

of

proving

a

claim

under

§ 3604(f)(3)(A) or § 3604(f)(3)(B).
by

numerous

Austin V.

federal

cases

to

Tovm of Farmington,

Such finding is supported

have

addressed

826 F.3d 622,

cert, denied, 137 S. Ct. 398, 196 L.

the

issue.

627 {2d Cir. 2016),

Ed. 2d 297

(2016)

that neither subsection (A) or (B) of § 3604(f)(3)
"the denial

a

of modifications or accommodations be

discriminatory

Chestnut

2014)
test"

Bend

animus

Homeowners

(explaining

that

toward

the

Ass'n,

"the

760

F.3d

the result of

531,

Hollis

540

Douglas

(6th

proper

test

in

focuses

§ 3604(f)(3),

and

persons

equal

an

the

Sixth

instead

Circuit,

on

the

whether

Youth Crisis Ctr.,

(10th Cir.

it

is

opportunity
Inc. v.

2012)

intentional

for

FHA

F.

discrimination

"'failure

intentional

Supp.

to

sister

elements"

afford

enjoyment");

Saint George City,

(labeling an

discriminatory effect);
64

numerous

"operative

necessary

claim "a different sort of animal"

Columbia,

and

and that

of

to include whether the "proposed accommodation is

reasonable

of

Cir.

is not applicable "to FHA reasonable-accommodation claims,

circuits,

23

v.

intent-divining

which do not require proof of discriminatory intent,"

the

(stating

require that

disabled");

McDonnell

See

disabled

Cinnamon

685 F.3d 917,

FHA reasonable

Hills
922-

accommodation

that does not require proof
of

a

systematic

Hunter on behalf of A.H.

v.

District of

3d 158,

to accommodate'

nor

179

(D.D.C.

claims

discrimination");

Robert
21

proof

2014)

do not
G.

(holding that

require proof of
Schwemm,

Housing

Discrimination Law and Litigation
(citing additional cases
A.L.R.

Fed.

several

1

§ 3 [c]

courts

that

§

11D:8

n.5

(2017

update)

in support of such proposition);

("It
even

has
if

been

the

expressly

defendant's

148

recognized

conduct

by-

is

not

motivated by discriminatory intent and does not have a disparate
impact on individuals with disabilities,
found

of

42

Inc.

to

be

a

violation of

U.S.C.A.
V.

(stating,

Howard

§

the

reasonable

3604(f)(3)(B).");

Cty.,

Md. ,

it may nevertheless be

124

F.3d

see

accommodation mandate

also

597,

Bryant

603

(4th

Woods
Cir.

Inn,
1997)

without discussing discriminatory intent/animus,

that

the FHA "requires an accommodation for persons with handicaps if
the

accommodation

is

(1)

reasonable

and

(2)

afford handicapped persons

equal

housing"

§ 3604 (f) (3))) .^°

(citing 42 U.S.C.

In Scoggins v.

opportunity

Lee's Crossing Homeowners Ass'n,

necessary

to use

(3)

and

to

enjoy

Having made such

718 F.3d 262,

272

{4th

Cir. 2013), the Fourth Circuit repeated such three element test.
Other
circuits have described the test as having four, or even five elements,
although this Court is unaware of any circuit court that has identified
discriminatory intent/animus as an element.
See Olsen v. Stark Homes,
Inc. , 759 F.3d 140, 156 (2d Cir. 2014) (identifying the five elements as:
"(1) that the plaintiff or a person who would live with the plaintiff had
a handicap within the meaning of § 3602(h); (2) that the defendant knew or
reasonably should have been expected to know of the handicap; (3) that the
accommodation was

likely necessary

to

afford

the

handicapped person

an

equal
opportunity
to
use
and enjoy
the
dwelling;
(4)
that
the
accommodation requested was reasonable; and (5) that the defendant refused
to make the requested accommodation").
While the Fourth Circuit has not
expressly recognized the denial of a requested accommodation as an
"element" of the claim, the Fourth Circuit appeared to acknowledge in
Scoggins that a failure to accommodate claim is "premature" unless there
has been either a denial or a constructive denial of the requested
accommodation.
Scoggins,
718 F.3d at 271-72.
Moreover,
the Fourth
Circuit stated, in Bryant Woods Inn, that "a violation occurs when the
disabled resident is first denied a reasonable accommodation."
Bryant
22

preliminary legal finding,
a

reasonable

juror

the Court turns to addressing whether

could

rule

in

Plaintiff's

favor

on

her

reasonable accommodation claim or reasonable modification claim.

B. Reasonable Accommodation -

First,

any

as argued by Defendant,

evidence

that

her

request

§ 3604(f)(3)(B)

Plaintiff

for

ramp

fails

construction,

installation of grab bars in her bathroom and/or a
bench/seat,

constituted requests for a

with respect

record

42

U.S.C.

before

modifications

governed
100.204

by

the
to

42

3604(f)(3)(B).

Court,

an

such

existing

U.S.C.

(providing

reasonable

§

accommodation

Rather,

residence,

following
under

tub transfer

policies,

requests

§ 3604(f)(3)(A).

the

the

reasonable accommodation

to any of Defendant's rules,

or services.

to advance

based on the

seek
and

of

structural

are

Compare

examples

practices,

therefore

24

C.F.R.

requests

§ 3604(f)(3)(B):

(1)

§

for

a

a

blind

applicant for rental housing requesting an exception to the "no

pets policy" to accommodate his service dog; and (2) a mobility
impaired applicant

for

"first

served"

come

first

assignment of a
C.F.R.

§

a

handicap

Woods Inn,

parking

space

policy

to

(providing

modification under

ask[ing]

his

or

the

following

§ 3604(f)(3)(A):

her

124 F.3d at 602.
23

landlord

for

the

with 24

example
"[a]

the

allow

parking space close to his apartment);

100.2 03

reasonable

housing requesting an exception to

tenant

of

a

with

permission

to

install grab bars in the bathroom at his or her own expense") ;
see Nichols v.
Inc. ,

No.

July

Carriage House Condominiums at Perry Hall Farms,

CIV.A.

15,

2015

WL 4393995,

at

(categorizing

2015)

RDB-14-3611,

the

plaintiff's

request

driveway extension as a
not a

request

for a

"request for a

Ass'n,

from

reasonable accommodation,"

Inc.,

(explaining

941
that

accommodations

policies,

which

in

F.

or

Accordingly,

no

violated

the

accommodation

needs

Supp.

the

of

or

1337,

reasonable

improvements
reasonable

rules,

on

and

v.

2100

{S.D.

of

a

FHA

makes

"no

could

defines

in

*rules,

mention

that

make

practices

2013)

of

structures").

find

to

or

Condo.

Fla.

the

existing

refusing

policies,

for

practices,

accommodations

to

juror

Weiss

1344

language

services'"

prohibition
in

2d

Md.

noting that the

policies,

relief");

"plain

terms

practices,

adjustments

he

(D.

reasonable modification,

plaintiff did not point to any "'rules,
services'

*5

a

or

Defendant

reasonable
services

by

failing to make requested structural changes.
To

the

reasonable

or

lease

Plaintiff

accommodation

handicapped

program,

extent

accessible

in

unit

asserts
the

owned

form

or

the record demonstrates that:
any accessible

units

that
a

leased

requested

transfer

by

to

a
a

Defendant's

(1) Defendant did not own

that met

24

of

she

Plaintiff's

needs

that

were

vacant

between

(2) Defendant

did

requirements

needs,

to

ECF No.

late

not

have

acquire

17-7,

January

a

the

and

early March

capacity

new

property

at 30-31;^^ and

within
to

of
its

meet

2016;^^
program

Plaintiff's

(3) Defendant reasonably

took steps to investigate whether it had the lawful authority to

"force"
that

other

were

accessible,

tenants

accessible

out

of

units

and/or

owned/leased

easily

by

Defendant

converted

to

being

ultimately opting instead to "incentivize" a

tenant

to vacate a ground-floor three bedroom accessible unit in early

As noted herein, Plaintiff was offered a transfer to a smaller two
bedroom unit shortly after she made her accommodation request; however.
Plaintiff identified such unit as too small for her family's needs.

Even if it is assumed, in the absence of any supporting evidence, that
Defendant could have found a way to modify its program to acquire another
property for Plaintiff as part of Defendant's program, Defendant is not
legally
obligated
to
provide
Plaintiff
her
preferred
choice
of
accommodation/modification, but rather, must only provide a "reasonable"
accommodation or modification.
Weiss, 941 F. Supp. 2d at 1344,
Istre V. Hensley P'ship, No. 3:15cvl27, 2017 WL 744577, at *4 (e.D.

Feb. 23, 2017); s^ Griffin v. Holder,

972 F.

Supp. 2d 827,

849

1347;
Tenn.

(D.S.C.

2013) (reaching the same conclusion in the context of an accommodation
sought from an employer under the Rehabilitation Act); see also Bryant
Woods Inn, 124 F.3d at 604 {explaining that the court's inquiry into
whether a requested accommodation was "reasonable" includes considering
"whether alternatives exist to accomplish the benefits more efficiently").

Here,

within

32

days

of

receiving

the

note

from

Plaintiff's

Defendeint had done all the research and preparation necessary

doctor,

(including

getting three quotes from contractors and securing necessary funding
approvals through HUD) to arrange to have a ramp built and grab bars
installed at Plaintiff's current residence and/or to transfer Plaintiff to
a

three-bedroom

accessible

residence

that

would

meet

her

needs.

While

Defendant appears to have had the legal right to choose the reasonable
option it preferred. Defendant allowed Plaintiff to choose which option
she preferred, and Plaintiff herself elected the option with the longer
wait time.
In light of such undisputed facts, to include Plaintiff's
election of the option with the longer lead time, no reasonable juror
could

conclude

failure

that

Plaintiff

was

denied

a

reasonable

to transfer her to an accessible unit.

25

accommodation

for

March of 2016 so that Plaintiff could move into such residence.

ECP No. 15-2, at 70.

accessible

units

Plaintiff made

In light of the fact that Defendant had no

available

her

at

request,

the

but

Plaintiff's

initial

still

2016

when

affirmatively

within approximately six weeks

request

for

accommodation,

in

the

into

form

an

a

no reasonable factfinder could conclude that Plaintiff was
accommodation

Plaintiff

had

unit,

reasonable

transfer

an

plan

a

to

January

final

denied

in place

of

Defendant

acted to move another tenant and,
from

end

of

a

accessible

transfer

to

another housing unit."
C.

Turning

Reasonable Modification -

next

to

Plaintiff's

§ 3604(f) (3) (A)

request

for

a

modification in the form of the installation of a

bars at her current unit,
as

a

matter

of

law.

"

ramp and grab

the Court agrees with Defendant that,

Plaintiff

because the § 3604(f)(3)(A)

reasonable

reasonable

modifications,

cannot

requires a

and

it

is

recover

under

the

FHA

tenant to personally fund

undisputed

that

Plaintiff

Plaintiff fails to present evidence indicating that she requested to

move into such unit immediately upon the former tenant's exit (prior to
painting, repair, installation of grab bars, etc.).
Such a request, if
made, may have been a request for a reasonable accommodation.
Not only were Defendant's actions reasonable as a
Plaintiff

was

not

denied

the

accommodation.

matter of law,

Defendant

took

but

steps

to

secure the conforming unit within approximately one month from receiving
the

note

from

Plaintiff's

needed additional

time

for

for repairs/modifications.
offered

alternative

of

doctor,
the

informing

tenant

Plaintiff

to vacate

the unit

that
as

Defendant

well

as

time

Moreover, Plaintiff accepted the unit over the

structural

modifications

to

Plaintiff's

current

unit.
Plaintiff subsequently decided to leave Defendant's program one
week after electing to "wait" for the three bedroom unit.
26

never offered to pay for (and was not capable of paying for) the
modifications

at

issue.

42

2015 WL 4393995,

at *5.

U.S.C.

§ 3604(f)(3)(A);' Nichols,

That said.

Plaintiff appears correct

that the legal analysis is different in a case implicating both
§ 3604(f)(3)(A)

and § 504 of the Rehabilitation Act,

prohibiting

program

excluding

a

disabled

disability.
recipient

receives

individuals

Notably,

of

that

federal

here,

federal

solely

by

with § 504

funding

reason

of

their

Defendant acknowledges that,

funds,

it

"may have

an

from

as a

obligation under

Section 504 of the Rehabilitation Act to pay for a modification
to the premises that is reasonable and necessary."
7,

ECF

No.

17;

see

29

U.S.C.

§

794(c)

Def's Reply

(referencing

the

obligation to make "structural alterations"

in order to conform

with

Act) ;

Section

Pfrommer,

there

504

of

the

148 F.3d 73,

is

not

any

Rehabilitation

82-83

(2d Cir.

statutory

1998)

provision

ruled

that

eligibility

'cannot be defined

in a

for

a

Doe

v.

(noting that while

addressing

accommodations under the Rehabilitation Act,

has

cf.

reasonable

"the Supreme Court

federally

assisted

way that effectively denies

benefit

otherwise

qualified handicapped individuals the meaningful access to which
they

are

entitled;

to

assure

meaningful

access,

reasonable

accommodations in the grantee's program or benefit may have to
be

made.'"

(1985))).

(quoting

Alexander

Assuming that,

v.

Choate,

on these facts.
27

469

U.S.

287,

301

Defendant was legally

obligated

to

fund

reasonable

modifications

to

Plaintiff's

residence in the form of construction of a ramp and installation

of

grab

warranted

bars,

summary

because

judgment

Plaintiff

in Defendant's

fails

to

favor

demonstrate

is

that

still

she

was

denied such reasonable modification.

As

outlined

in

the

factual

summary

above,

Defendant

immediately responded to Plaintiff's January 25,

2016,

for

contact

an

accommodation/modification,

Plaintiff on a
on

the

reasonably

doctor

to

requested

determine

whether

was short-term due to her pregnancy,
investigated
other

the

options,

entities

for

modifications

in

with

weekly and almost daily basis providing updates

process,

Plaintiff's

stayed

request

cost

and

to

reached

guidance
could

modify
out

after

cost

more

documentation

Plaintiff's

or a

HUD

it
than

and

was

disability

long-term condition,

Plaintiff's
to

from

residence
other

government

determined

$8,000.

versus

that

Defendant

the

obtained

three quotes for the ramp in a relatively short time period and
took

steps

to

have

HUD

modify

Defendant's

necessary to fxind the ramp construction.
weeks of Plaintiff's original request,
weeks

from

receiving

documentation

grant,

which

was

Critically, within six

and within less than five
from

Plaintiff's

doctor.

Defendant had lined-up two viable and reasonable final options the structural modification of Plaintiff's residence,

a ramp to be fully funded by Defendant,
28

to include

or a near-term move to a

handicap

accessible

three-bedroom unit.

Plaintiff

elected

to

"wait" for the option that would take more time rather than have
her current unit modified.

decision
cannot

to

reject

now

the

establish

modification

record,

to

ongoing

the

she

efforts

to

a

Defendant's

feasibility

and

cost

and

on

to

conclude

that

Plaintiff

modification under § 3604(f)(3)(A),

case

and

never

specific

Defendant's

medical

condition,

investigate
and

permissibly

was

the

reasonable

were

involving

relatively siibstantial capital expenditure,
could

a

this

construction

how

offered,

bars

obligations,

ramp

investigate

grab

Plaintiff's

legal
of

"denied"

timeline

investigate

investigate

or

based

detailed

Plaintiff made

modification

was

ramp

Accordingly,

include

installation,

that point,

reasonable
that

because

built/installed.

At

grab

fund

the
bar

this

no reasonable juror

denied

a

reasonable

even when such provision is

applied in conjimction with the Rehabilitation Act.
D. Constructive Denial of Accommodation/Modification

As discussed above in footnote 9,

regardless of whether it

is properly labeled an "element" of Plaintiff's cause of action.
Plaintiff
"denied"

As

cannot
a

reasonable

analyzed

demonstrates

Plaintiff

obtain

relief

accommodation

immediately
that

can

absent

no

satisfy

above,

reasonable

such

or

a

showing

reasonable

the
juror

could

she

was

modification.

undisputed

requirement,
29

that

evidence

conclude

rendering

that

summary

judgment

proper.

Notwithstanding

Plaintiff's

arguments

Court

it necessary to

finds

contention

that

in

she

was

such

opposition

to

finding,
summary

in

light

judgment,

of
the

separately comment on Plaintiff's

constructively

denied

the

requested

accommodation or modification.

The

Fourth

request

for

a

Circuit

reasonable

but

rather may be

the

decision

Homeowners

the

recognized

accommodation

treated as

maker's

Ass'n,

Scoggins,

has

a

F.3d

Fourth

denial

"need

not

be

Scoggins

262,

Circuit

the

'constructive'

conduct."

718

that

271-72

concluded

explicit,

Lee's
Cir.

that

a

denial based on

v.

{4th

of

Crossing

2013) .

the

In

plaintiff's

request for an accommodation was constructively denied when the
defendant's

"pending

board

a

of

decision

directors

to

seek

twice

"tabled"

additional

the

information

request

from

the

plaintiffs, but the board did not ask the plaintiffs to provide
such

information

(emphasis
that

a

until

added).

delay of

accommodation

more

Similarly,

constituted

The

15

the

over six months

Altamonte Heights Condo.
2014) .

than

Eleventh

a

months

Eleventh
to

Inc.,

Circuit

Id.

Circuit

respond to a

constructive

Ass'n,

later."

denial.

has

Bhogaita

such

272

found

request

765 F.3d 1277
reached

at

for
v.

(11th Cir.
conclusion

notwithstanding the defendant's contention that i t was still in

the

process

plaintiff's

of

conducting

request,

finding

a

"meaningful

that,
30

based on

review"
the

case

of

the

specific

facts,

in

the

that

case

irrelevant

Eleventh

supplemental

to

was
the

Circuit

information requested by the

either

already

accommodation

did,

in

its

decision.

however,

defendant

possession
Id.

expressly

at

or

1286.

recognize

was
The

the

defendant's right to perform an appropriate investigation before

granting a requested accommodation, explaining as follows:
The
FHA does
not
demand
that
immediately grant
all
requests
Schwarz

v.

City

of

Treasure

housing
providers
for
accommodation.

Island,

544

F.3d

1201,

1219
(11th
Cir.
2008)
("'[T]he
duty
to make
a
reasonable accommodation does not simply spring from
the fact that the handicapped person wants such an
accommodation made.'" (quoting Prindable v. Ass'n of
Apt. Owners,
304 F.
Supp.
2d 1245,
1258
(D.
Haw.
2003), aff'd sub nom. DuBois v. Ass'n of Apt. Owners,
453 F.3d 1175 (9th Cir. 2005))).
Once a provider
knows of an individual's request for accommodation,
the provider has "'an opportunity to make a final

decision . . ., which necessarily includes the ability
to conduct a meaningful review'" to determine whether
the FHA requires the requested accommodation.
Id.
(quoting Prindable, 304 F. Supp. 2d at 1258).
The failure to make a
timely determination after
meaningful review amounts to constructive denial of a
requested accommodation,
"as an indeterminate delay
has the same effect as an outright denial."
Groome
Res. Ltd. V. Parish of Jefferson, 234 F.3d 192, 199
(5th Cir.

2000).

The

Joint

Statement

of

two

federal

agencies
counsels
similarly:
"An undue
delay
in
responding to a reasonable accommodation request may"
constitute a failure to accommodate.
Department of
Justice

and

Accommodations

HUD,

at

Joint

11

Statement

(May

17,

2004),

on

Reasonable

available

www.hud.gov/offices/fheo/library/huddojstatement.pdf
(last visited August 7,
Id.

at 1285-86

2014)

(footnote omitted).

31

("Joint Statement").

at

Here,

the

record

clearly

whether

Plaintiff

required

an

accommodation and/or modification,

and how,

such requests

could be satisfied,

to both modify Plaintiff's
new one.

construction

due

needed

specific

to

approvals
the

facts

a

fact

large

obtain

regarding
planned

demonstrate

warranting

further

and

law,

respect

with

the

exterior

additional

funding

that

of

Plaintiff's

ramp

with

platforms,

estimates

prior

to

Moreover,

Defendant

whether

and

making

had

investigation into both
to

ramp

layout

modifications.

concerns
the

and find

that

Defendant

on

existing premises

to

the

if,

and made parallel

the substantial expense of

necessitated

decision

considered

In light of

residence

outside

into

Defendant

began

her a

investigation

that

immediately

efforts

its

demonstrates

Defendant

obtain

a

final

the

case

legitimate
the
was

facts,
legally

obligated to modify Plaintiff's apartment if she was unable to
secure the around-the-clock personal assistance that Plaintiff's

own doctor had stated was necessary."
words

and actions

in early 2016

Furthermore, Plaintiff's

repeatedly

suggested that

she

Such concerns are not tied by Plaintiff in any way to a discriminatory
animus, and moreover, appear to find some support in the law.
See 42
U.S.C. § 3604(f)(9) ("Nothing in this subsection requires that a dwelling
be made available to an individual whose tenancy would constitute a direct
threat to the health or safety of other individuals. . .
Scoggins,
718 F.3d at 272-73; Casa Marie, Inc. v. Superior Court of Puerto Rico for
Dist. of Arecibo, 988 F.2d 252, 270 n.22 {1st Cir. 1993).
While the fire
Plaintiff started in her kitchen occurred after final accommodation/

modification options had been presented, the incident underscores the
legitimacy of: (1) Defendant's concerns regarding Plaintiff's ability to
safely live alone; and (2) Defendant's ongoing contact with APS and CPS.
32

was considering leaving Defendant's program,

obviously

render

unnecessary.
inferences
evidence

the

requested

Accordingly,
in

on

a

modification/accommodation

even after considering all facts and

Plaintiff's

which

favor.

reasonable

Plaintiff
juror

by,

but

not

driven

by,

fails

could

constructive denial occurred in this case.^®

informed

an event that would

cases

to

point

conclude

to

that

a

Such conclusion is

cited

by

Defendant

At oral argument. Plaintiff's counsel argued that the grab bars in the
bathroom were an extremely pressing need for Plaintiff and that they

should have been installed by Defendant far more quickly.
Plaintiff,
however,
does not point to any record evidence demonstrating that
Plaintiff at any point informed Defendant that this was a critical need,
that it should be separated from her other requests and evaluated
independently, and/or that the absence of such bars were making her daily
life vinmanageeible (as suggested at oral argument) .
To the contrary, some
of the record evidence arguably indicates that it was Plaintiff's
difficulty exiting her home due to her need for a wheelchair that was
creating the most pressing concerns.
The Court further notes that the
record indicates both that:

(1)

Defendant had been informed that Plaintiff

was
wearing
adult
diapers
during
the
relevant
timeframe;
and
(2) Unbeknownst to Defendant, Plaintiff was receiving in home care from
her boyfriend in the evenings.
Both of these facts offer useful context
to counsel's suggestion that the grab bars in the bathroom was such a
critical and immediate need that i t warrants separate analysis.
Moreover,
as referenced herein, the fact that, when presented with two reasonable

options to
would take
argument.
Defendant,
indicating

meet her needs. Plaintiff opted to "wait" for the option that
longer for Defendant to provide, further undercuts
counsel's
Notwithstanding the countless contacts between Plaintiff and
including emails authored by Plaintiff, there is no evidence
that Plaintiff placed any emphasis on requested modifications

to her bathroom, nor is there evidence demonstrating that she requested an
interim modification during the time in early March after she elected to
wait for the three bedroom accessible unit.
Additionally, the record
demonstrates

that

Defendant

did

take

steps

to

install

the

grab

bars

through its own staff prior to the completion of the ramp estimates, but
Defendant's
employees
felt
unqualified
to
make
such
structural
modification {thus requiring a quote from a professional).
Finally, it is
clear from the record that during the month of February, Plaintiff on more
than one occasion indicated that she was not going to remain in
Defendant's program.
Considering all of these facts, although Defendant
might have been able to be more efficient in addressing this one subpart
of Plaintiff's modification request, there is insufficient evidence to
support a reasonable juror in concluding that any delays in installing the
grab bars constituted a "constructive denial" of Plaintiff's request for a
reasonable modification to her home.

33

regarding constructive denials,

as each individual case requires

a

e.g.,

fact-specific inquiry.

at 1259

(finding that a

See,

required

304 F.

Supp.

2d

"period of less than two months" was not

an "'indeterminate delay'

which

Prindable,

under the circumstances" of that case,

investigation

into

the

plaintiff's

need

for

a

absence

of

a

service animal).

This

Court's

constructive

above

denial

is

finding

regarding

based on temporal

the

analysis,

considering

the events occurring between Plaintiff's request on January 25,
2016,

and

Defendant

the
on

accommodation

March

7,

and

2016.

modification

However,

both

offered

by

Plaintiff

and

Defendant suggest that this Court should not focus solely on the

elapsed period of time,
is

evidence

because
bias

some

of

discriminatory

federal

informs

but should also consider whether there

the

courts

animus

have

determination

57

271

of

under the FHA.

fact,

Supp.

3d

234,

Defendant's

recognized

"constructive denial"

F.

on

(S.D.N.Y.

that

whether

2014)

evidence

there

See Logan v.

(citing

part,

was

of
a

Matveevskii,

cases).

In

the district court in Logan found that bias was not only

"relevant"

to

such

inquiry,

a

but

constructive

denial,

demonstrating

discriminatory

that

plaintiff
intent."

"to make

bears
Id.

out

the

a

claim of

burden

Based

on

of
this

Court's finding that bias is not an element of an FHA reasonable
accommodation/modification claim,
34

as well as the absence of any

discussion of "bias" by the Fourth Circuit in Scoggins as part
of its constructive denial analysis,
degree

to

which

bias

is

relevant

analysis in an FHA case,
the

suggestion

constructive
assuming,

that

this

to

Court questions

the

constructive

the

denial

and has even greater reservations at

bias

must

denial.^"'

be

proven

Notwithstanding

without deciding,

to

demonstrate

such

a

reservations,

that bias is relevant to proving a

constructive denial because it can offer context to the length
of

a

defendant's

modification

delay

request,

in

this

ruling

Court

on

agrees

an
with

accommodation/
Defendant

that

Plaintiff's case-specific evidence of bias does not advance her

position in any meaningful way because no reasonable juror could
find

that

entirely

Plaintiff's

in

evidence,

conjecture,

which

demonstrates

is

bias

grounded

almost

associated

with

Plaintiff s disability.

First,

there

demonstrating
Defendant

an

took

is

no

intent

affirmative

direct

to

delay

steps

to

evidence

by

of

Defendant

delay

the

any

kind

and/or

process

that

in any

way,

let alone any evidence that links any purported delay to a

"

course,

Of

a plaintiff could always endeavor to prove that she was

discriminated against in conditions, or privileges of a rental unit or in
the provision of services or facilities in connection with such dwelling,

because of her handicap.
42 U.S.C. § 3604(f)(2).
But such a claim would
be a claim of direct discrimination, not a claim of failure to provide a
reasonable accommodation/modification.
Here, Plaintiff expressly asserts
that she only advances a claim based on Defendant's alleged failure to
provide a reasonable accommodation or modification (a sensible position
in light of the absence of evidence of discriminatory animus).
35

discriminatory

intent.

circumstantial

evidence

facts

and

Third,

inference

of

made

bias

to

in

an

that

discriminatory
entirely on
Defendant

is

established

to

are

is

delay,

viewed

no

material

even
in

when

all

Plaintiff's

through

Defendant's

repeated

calls that Plaintiff speculatively asserts
to

drive

Plaintiff

out

insufficient evidence for a
such

actions

animus,

helping

were

with

conjecture.

was

intent

inferences

effort

there is

conclude

an

there

with respect to Plaintiff's assertion that an

calls to CPS and APS,

program,

of

reasonable

favor."

were

Second,

Plaintiff's

Notably,
to

motivated

the

coordinate

of

Defendant's

reasonable juror
in any way by a

position

relying

record establishes

that

services/benefits

that

Plaintiff was receiving from various government agencies during
Plaintiff asserts in support of her constructive denial argument that,
in late 2015, Defendant unreasonably failed to repair or replace the
previously installed toilet lift seat and/or install a useful shower grab
bar

in

Plaintiff's

oral argument that,

bathroom.

factually,

See

ECF No.

16-13.

Defendant

asserted

at

Plaintiff never communicated this concern

to Defendant in 2015, alternatively arguing that, even if she did, any
claim predicated on Defendant's failure to act in 2015 is barred by the
statute of limitations.
Plaintiff responded at oral argument by disputing
Defendant's factual version of events, noting that although there is no
documentary evidence supporting Plaintiff's position, consistent with her
deposition
testimony,
Plaintiff
would
testify
at
trial
that
she
communicated her complaints to Defendant in late 2015.
Importantly,
Plaintiff further indicated at oral argument that she is not proceeding
separately on a claim that she was denied an accommodation/modification in
2015,

that

but rather, raises such issue as context for Plaintiff's contention
Defendant constructively denied her January 25,
2016,
request.

Accordingly,

a

limitations ruling on this issue is not necessary.

This

Court is, however, required to view the disputed facts in Plaintiff's
favor, and finds that Plaintiff's testimonial evidence of 2015 conduct
could be credited by a jury, and thus could offer some context to
Defendant's 2015 behavior.
That said, any inference of discriminatory
intent
that
could reasonably be drawn from the
2015 behavior is

insufficient to support a verdict in Plaintiff's favor when considered in
conjxmction with the detailed record of Defendant's 2016 actions.
36

the

relevant

re:

additional services

21.

time

Moreover,

after

frame,

and was
[Plaintiff]

Defendant's

specific

reaching out

events

to

CPS

legitimate

this
to

and

it

was

beneficial

information when determining what

Plaintiff.^'

suggesting

the

There

that

Plaintiff
and

thus

CPS

is

was

being

a

were

made

about

concerns

for

16-

both

Plaintiff's minor

CPS

and APS

to

have

level of aid to provide

scintilla

contacted

in

of

record

order

evidence

to

threaten

(such as through efforts to take her children away),
record evidence

speculative

assertion

demonstrates
assistance

direct,

not

ECF No.

and APS

Plaintiff's well-being and the well-being of
children,

"CPS and APS

qualifies for."

reports

raised

to

that

to

or

CPS

from

of

compelling

a

was

Plaintiff's

CPS

does

not

nefarious
focused

family.

motive,

on

Such

circumstantial

support

Plaintiff's

but

providing
contacts,

evidence

instead

additional
without

suggesting

any

a

discriminatory animus,^" are insufficient as a matter of law to

To reiterate, Plaintiff was pregnant, raising three minor children
largely on her own, reported to be confined to her bed or a wheelchair,
and according to the doctor's note provided to Defendant, "she requires
24/7 assistance for all mobility and is unsafe to be living on her own." ECF
No.

15-11.

At no point during the relevant time frame was Plaintiff actually

receiving such 24/7 care.
some of

the

in-home

care

In fact.
that

Plaintiff was not receiving at least

had been authorized by outside

agencies.

See ECF No. 16-31; cf. 17-4.
While the parties dispute whether Defendant
was legally obligated to make each and every contact to CPS/APS based on
its position as a "mandatory reporter" under Virginia law, such question
need not be resolved by the Court because even if one or more contacts was
not mandated by law, there is not a scintilla of evidence suggesting a
nefarious

motive

behind

Defendant's

contacts

with

state

or

federal

agencies.
20

At best,

the record reflects hesitation on Defendant's part regarding
37

support

a

reasonable

juror's

conclusion

that

Plaintiff's

evidence of discriminatory animus/bias would alter the outcome
of the constructive denial analysis.
In sum,
denied"

the

a

Plaintiff's assertion that she was

"constructively

reasonable accommodation and/or modification fails

evidence

is

matter of law.

so one-sided that Defendant must prevail

as

as

a

The Court's conclusion that no reasonable juror

could find in Plaintiff's favor on this issue is groimded in the

Court's
timeline

finding
of

occurred.

that

events

to

However,

the

proper

determine

inquiry
whether

is
a

to

focus

constructive

the Court alternatively finds

that,

on

the

denial

to the

extent evidence of bias is relevant and/or required as part of

such inquiry, Plaintiff's speculative evidence of bias/animus is

providing costly structural modifications before confirming that Plaintiff
was staying in her unit; however, nothing in the record ties such
legitimate program-based concerns to any form of bias, particularly in
light of the fact that: (1) the proposed modifications were substantial
and were to be funded out of Defendant's own budget,

raising an obligation

for Defendant to investigate both the cost of the modifications
available
funding
methods;
and
(2)
the
individual
requesting

and
the

modifications asserted a desire to leave Defendant's program on more than
one occasion.

See, e.g.,

ECF No.

16-23.

This Court does not "weigh" the evidence and determine the truth of the
matter at the summary judgment stage, but is called on to determine
whether there is a genuine issue for trial because the evidence presents a
sufficient and material disagreement that requires submission to the jury.
In the course of assessing whether the evidence is so one-sided that the
moving party should prevail as a matter of law, the Court notes that the
record contains additional evidence favorable to Defendant that suggests
an absence of bias, such as the fact that Defendant repeatedly took steps
to assist Plaintiff with her disability,
to include reaching out to
Plaintiff's doctor in early March in order to help align the delivery of

Plaintiff's

hospital

bed and electric wheelchair with her planned move

into the three bedroom accessible unit.

38

ECF No.

16-19.

insufficient

as

a

matter

of

law

to

support

a

finding

of

constructive denial.

IV.

For the

foregoing

judgment is GRANTED.

Conclusion

reasons,

ECF No.

Defendant's motion for

14.

summary-

The Clerk is REQUESTED to

send a copy of this Opinion and Order to all counsel of record.
IT

IS

SO ORDERED.

/s
Mark S.

Davis

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
January
, 2018

39