United States of America v. Barber et al

Filing 119

ORDER by Judge Benjamin H. Settle denying 79 Motion for Partial Summary Judgment; denying 81 Motion for Summary Judgment.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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UNITED STATES OF AMERICA,

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Plaintiff,

ORDER DENYING PLAINTIFF’S
AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT

v.
LINDA BARBER, et al.,

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CASE NO. C13-5539 BHS

Defendants.

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This matter comes before the Court on Plaintiff United States of America’s

14 (“Government”) motion for summary judgment (Dkt. 79) and Defendants Bert Barber,
15 Linda Barber, and Lori Thompson’s (collectively “Defendants”) motion for summary
16 judgment (Dkt. 81). The Court has considered the pleadings filed in support of and in
17 opposition to the motions and the remainder of the file and hereby denies the motions for
18 the reasons stated herein.
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I. PROCEDURAL HISTORY
On July 1, 2013, the Government, on behalf of Diana Alton, filed a complaint

21 against Defendants seeking enforcement of the Fair Housing Act, 42 U.S.C. §§ 3601, et
22 seq. (“FHA”). Dkt. 1.

ORDER - 1

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On August 20, 2014, both parties filed motions for summary judgment. Dkts. 79

2 & 81. On September 8, 2014, both parties responded. Dkt. 98 & 99. On September 12,
3 2014, both parties replied. Dkts. 100 & 101.
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II. FACTUAL BACKGROUND
In May 2008, Ms. Alton met with Ms. Barber to view an apartment owned by the

6 Barbers. At that meeting, Ms. Alton filled out the application to rent the apartment. Dkt.
7 82-5; Dkt. 98, Ex. 1, Deposition of Diana Alton (“Alton Dep.”) at 130:10–16, 133:4–17.
8 In place of her employer, Ms. Alton wrote “Disabled” and indicated that her income,
9 $1,055 per month, was from Social Security disability. Dkt. 82-5. Ms. Alton declared
10 that when Ms. Barber saw the application at that meeting, Ms. Barber asked Ms. Alton
11 about her disability. Alton Dep. at 133:21–134:2. In response, Ms. Alton told Ms.
12 Barber that she had post-traumatic stress disorder and major clinical depression. Id. Ms.
13 Alton also mentioned that she wanted to get a dog to assist her with her disabilities. Id. at
14 134:7–11. Ms. Barber informed Ms. Alton that she would have to pay the pet deposit
15 because it was Washington State law. Id. at 145:11–146:4.2. Ms. Alton did not get a dog
16 at that time. Id.
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On February 4, 2009, Ms. Alton obtained a note from her healthcare provider

18 stating that Ms. Alton was under the provider’s care for depression and that it would be
19 “very helpful for her to be allowed to have a dog as a service animal to help with her
20 depression.” Dkt. 82-16. Defendants concede that they received this note. Dkt. 81 at 6.
21 On July 27, 2010, Ms. Alton obtained and then provided to Defendants a second note
22 from her healthcare provider stating that she was under the provider’s “care for treatment

ORDER - 2

1 for depression” and that it “would greatly benefit her to be able to have a dog as a therapy
2 animal” Dkt. 82-17; Alton Dep. at 205:12–206:12.
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In January 2011, Ms. Alton obtained her dog, Scrappee Ann, from her neighbor.

4 Alton Dep. at 85:2–7. She informed Defendants that she had obtained the dog, and
5 Defendants told her that she had to sign a pet agreement and pay the $1,000 pet deposit.
6 Id. at 166:24–167:13. Ms. Alton testified that she told either Ms. Thompson or Ms.
7 Barber at that time that Scrappee was a “service animal,” and she should not have to pay
8 the deposit. Id. at 169:9–170:2. Specifically, the question and Ms. Alton’s answer are as
9 follows:
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Q. Did you ever specifically ask the defendants for a waiver of the
pet deposit?
A. I had spoken with Lori about this being a service animal and that
you weren’t allowed to charge a deposit on a service animal. She explained
to me in the State of Washington-- either her or Linda, I don’t know. But it
was explained to me in the same area of time that in the State of
Washington they did not recognize companion animals as service animals,
so thereby it would be considered a pet and I would have to pay the pet
deposit.

15 Id. In February 2011, Dee Areal, a friend of the Barbers who was acting under
16 instructions from Ms. Barber, brought the pet agreement to Ms. Alton and had her sign it.
17 Id. at 165:9–19. That same month, Ms. Alton began paying $50 per month toward the pet
18 deposit. Id. at 168:1–169:8.
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On March 7, 2011, Ms. Alton obtained and then provided to Defendants another

20 note from her healthcare provider, which states that she has major depressive disorder
21 and PTSD, anxiety, and fear of going into public places; the note states that Ms. Alton
22 “benefits greatly from her dog companion, who keeps her company and also helps to

ORDER - 3

1 relieve her depression and anxiety” and that the provider believed it was in Ms. Alton’s
2 “best interest for her mental health to continue to own and take care of her dog.” Dkt. 823 18; Alton Dep. at 211:4–212:17. That same month, Ms. Alton had her annual review
4 with the Kelso Housing Authority. Ms. Alton asked her housing counselor, Cecilia
5 Larson, if she could deduct the $50 payments toward the pet deposit as a medical expense
6 to lower her rent payment, and Ms. Larson informed her that she should not be paying a
7 deposit for an assistance animal. Alton Dep. at 89:2–13. Ms. Alton then filed a
8 complaint of housing discrimination with the United States Department of Housing and
9 Urban Development (“HUD”), which was mailed to Defendants on April 7, 2011. Ex. 3.
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On May 16, 2011, Ms. Alton obtained and then provided to Defendants a fourth

11 note from her healthcare provider, stating that “Diana Alton has a disability” and that the
12 note “is a request for [Ms. Alton] to have an accommodation to have an equal opportunity
13 to enjoy the dwelling where she resides.” Dkt. 82-19. The note states that Ms. Alton’s
14 “level of functioning and overall stability would be greatly improved by having a service
15 animal.” Dkt. 82-19; Alton Dep. at 215:10–216:3.
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On July 25, 2011, Ms. Alton sent a letter to Defendants stating, in part, “I request

17 reasonable accommodations for my disability in the form of a dog.” Dkt. 82-25 at 1.
18 This letter attaches a fifth note, a prescription from her medical provider, that states that
19 Ms. Alton “has a disability” and it is “medically necessary to have equal opportunity to
20 enjoy the dwelling.” Therefore, I am “prescribing a companion/service animal for this
21 patient based on above factors.” Id. at 2. Defendants concede that they received this
22 note. Dkt. 81 at 6. In fact, on August 8, 2011, Defendants’ attorney sent Ms. Alton a

ORDER - 4

1 letter stating “Thank you for submitting your request for a service animal” and requesting
2 that Ms. Alton have her provider fill out the attached Service Animal Certification Form
3 (“SAF”) within 30 days. The letter stated that, upon receipt of the completed form,
4 Defendants would make a decision on her request within 10 days. Dkt. 82-26.
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In response, Ms. Alton provided a sixth note, dated October 4, 2011, from her

6 medical provider to Defendants’ attorney. This note provided that Ms. Alton
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is in need of having her dog as she helps her with [Ms. Alton’s] physical
and mental disabilities. This dog gives [Ms. Alton] needed emotional
assistance as to manage her anxiety and depression so she can maintain her
mental functioning in her daily living.

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Dkt. 82-22. The note attached Defendants’ SAF, which Ms. Alton’s medical provider
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crossed out and added a note to “please see letter [and] prescription given to [patient].”
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Dkt. 82-21.
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Ms. Alton continued to pay the pet deposit until she moved out of the Barbers’
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property in May 2012. Alton Dep. at 168:1–169:8. Defendants admit that they did not
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return $350 of the $750 Ms. Alton paid toward the deposit. Dkt. 81 at 22. Ms. Alton
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testified that after she filed her HUD complaint, “things started getting very
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uncomfortable” with Defendants. Alton Dep. at 89:14–25. For example, Defendants sent
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Ms. Alton a letter requiring her to submit all repair requests in writing when prior to her
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complaint they permitted oral requests. Dkt. 82-28. Thus, when Ms. Alton later called
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Ms. Barber to report an urgent maintenance issue (a broken lock on her front door), Ms.
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Barber angrily told Ms. Alton to never call her again. Alton Dep. at 89:14–22. Less than
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three weeks after being notified of Ms. Alton’s HUD complaint, Defendants sent a letter
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ORDER - 5

1 to Ms. Alton regarding the terms of the pet agreement, including “leash and licensing
2 requirements.” Dkt. 82- 24 at 1. These requirements included keeping Scrappee on a
3 leash at all times. Ms. Alton claims that Ms. Barber also made intimidating statements,
4 telling Ms. Alton that she knew all of the local judges and if she were to bring a lawsuit
5 she would lose in court. Alton Dep. at 248:10–249:24. Ms. Alton also claims that she
6 was so concerned about keeping the peace that she asked the police to be present at her
7 move-out inspection. Id. at 170:11–17.
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III. DISCUSSION

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The Government moves for summary judgment on whether Defendants’ policy

10 violates the FHA. Dkt. 79 at 1. Defendants move for summary judgment on the
11 Government’s claims on behalf of Ms. Alton. Dkt. 81 at 1.
12 A.

Summary Judgment Standard

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Summary judgment is proper only if the pleadings, the discovery and disclosure

14 materials on file, and any affidavits show that there is no genuine issue as to any material
15 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
16 The moving party is entitled to judgment as a matter of law when the nonmoving party
17 fails to make a sufficient showing on an essential element of a claim in the case on which
18 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,
19 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,
20 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.
21 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must
22 present specific, significant probative evidence, not simply “some metaphysical doubt”).

ORDER - 6

1 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists
2 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or
3 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477
4 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
5 626, 630 (9th Cir. 1987).
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The determination of the existence of a material fact is often a close question. The

7 Court must consider the substantive evidentiary burden that the nonmoving party must
8 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477
9 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual
10 issues of controversy in favor of the nonmoving party only when the facts specifically
11 attested by that party contradict facts specifically attested by the moving party. The
12 nonmoving party may not merely state that it will discredit the moving party’s evidence
13 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.
14 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,
15 nonspecific statements in affidavits are not sufficient, and missing facts will not be
16 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).
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With regard to the burden of proof, “where the moving party has the burden—the

18 plaintiff on a claim for relief or the defendant on an affirmative defense— his showing
19 must be sufficient for the court to hold that no reasonable trier of fact could find other
20 than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.
21 1986) (citation omitted); see also Southern Calif. Gas Co. v. City of Santa Ana, 336 F.3d
22 885, 888 (9th Cir. 2003).

ORDER - 7

1 B.

Defendants’ Policy

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In this case, the Government moves for summary judgment on three distinct

3 issues, which are as follows: (1) Defendants’ policy violates the FHA’s reasonable
4 accommodation provisions, 42 U.S.C. § 3604(f)(3)(B); (2) Defendants’ policy imposes
5 discriminatory terms and conditions, in violation of 42 U.S.C § 3604(f)(2); and (3)
6 Defendants’ policy constitutes a pattern or practice of discrimination and/or a denial of
7 rights to a group of persons which raises an issue of general public importance, in
8 violation of 42 U.S.C. § 3614(a). Dkt. 79 at 1. As the moving party with the burden of
9 persuasion on the claim, the Government must show that no reasonable trier of fact
10 would find other than for the Government.
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1.

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The FHA defines discrimination to include “a refusal to make reasonable

FHA Reasonable Accommodation

13 accommodations in rules, policies, practices, or services, when such accommodations
14 may be necessary to afford [a disabled] person equal opportunity to use and enjoy a
15 dwelling.” 42 U.S.C. § 3604(f)(3)(B). An accommodation is “reasonable” if it does not
16 impose “undue financial and administrative burdens” or constitute a “fundamental
17 alteration in the nature of [defendants’] program.” Giebeler v. M&B Assocs., 343 F.3d
18 1143, 1157 (2003) (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410
19 (1979)). An accommodation is “necessary” if, “but for the accommodation, [a person
20 with a disability] likely will be denied an equal opportunity to enjoy the housing of [her]
21 choice.” Id. at 1155 (quoting Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795
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ORDER - 8

1 (6th Cir. 1996)); United States v. California Mobile Home Park Mgmt. Co., 107 F.3d
2 1374, 1381 (9th Cir. 1997).
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The Office of Fair Housing and Equal Opportunity has concluded that an

4 “assistance animal is not a pet” and is an animal “that works, provides assistance, or
5 performs tasks for the benefit of a person with a disability, or provides emotional support
6 that alleviates one or more identified symptoms or effects of a person’s disability.”
7 Service Animals and Assistance Animals for Persons with Disabilities in Housing and
8 HUD-Funded Programs, FHEO-2013-01 (Apr. 25, 2013) (“FHEO Notice”). A housing
9 provider covered by the FHA must “evaluate a request for a reasonable accommodation
10 to possess an assistance animal in a dwelling using the general principles applicable to all
11 reasonable accommodation requests.” Id. at 3.
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A housing provider may not deny a reasonable accommodation
request because he or she is uncertain whether or not the person seeking the
accommodation has a disability or a disability-related need for an assistance
animal. Housing providers may ask individuals who have disabilities that
are not readily apparent or known to the provider to submit reliable
documentation of a disability and their disability-related need for an
assistance animal. If the disability is readily apparent or known but the
disability-related need for the assistance animal is not, the housing provider
may ask the individual to provide documentation of the disability-related
need for an assistance animal. For example, the housing provider may ask
persons who are seeking a reasonable accommodation for an assistance
animal that provides emotional support to provide documentation from a
physician, psychiatrist, social worker, or other mental health professional
that the animal provides emotional support that alleviates one or more of
the identified symptoms or effects of an existing disability. Such
documentation is sufficient if it establishes that an individual has a
disability and that the animal in question will provide some type of
disability-related assistance or emotional support.

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Id. at 3–4.
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ORDER - 9

1

In this case, the Government argues that “undisputed evidence shows that

2 Defendants have a policy that precludes persons with disabilities who need untrained
3 assistance animals from receiving a reasonable accommodation.” Dkt. 100 at 1. The
4 evidence shows no such preclusive policy. First, Defendants’ SAF does not contain any
5 inappropriate question. A housing provider is allowed to request information to
6 determine whether “an individual has a disability and that the animal in question will
7 provide some type of disability-related assistance or emotional support.” FHEO Notice
8 at 3–4. Moreover, it is not a per se violation of the FHA to request “what work or service
9 the proposed animal will perform to ameliorate the unique problems of the handicapped
10 person.” Contrary to the Government’s position, such a request is in no way an outright
11 refusal to allow a reasonable accommodation for either a service animal or an assistance
12 animal. Therefore, the Government has failed to show that Defendants have an explicit
13 policy refusing reasonable accommodations for assistance animals.
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With regard to individual applications of the policy, the evidence shows that, at

15 most, Defendants consider applications on a case-by-case basis. For example, Ms.
16 Barber stated that a recent request for a service or a companion animal was turned over to
17 her attorneys. Dkt. 100-1 at 5. Moreover, Ms. Thompson stated that if she had any
18 questions about answers provided on the Defendants’ SAF, she would consult the
19 attorney. Dkt. 100-2 at 5. It is not a refusal to provide a reasonable accommodation by
20 implementing a policy of consulting an attorney before authorizing a companion animal.
21 Therefore, the Court denies the Government’s motion on this issue because the
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ORDER - 10

1 Government has failed to show that it is entitled to judgment as a matter of law or that no
2 reasonable juror could find for Defendants.
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2.

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The FHA makes it unlawful to “discriminate against any person in the terms,

Terms and Conditions

5 conditions, or privileges of . . . rental of a dwelling” because of the “handicap” of the
6 renter. 42 U.S.C. § 3604(f)(2).
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In this case, the analysis on this issue is essentially the same as the previous issue.

8 The evidence show that, if someone requests an accommodation, the individual is asked
9 to complete the SAF. If questions arise from a completed SAF or the person refuses to
10 complete the SAF, then Defendants consult their attorneys. Such a policy is not
11 discriminatory. Therefore, the Court denies the Government’s motion because they have
12 failed to show that it is entitled to judgment as a matter of law or that no reasonable juror
13 could find for Defendants.
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3.

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A housing provider violates the FHA by implementing a policy that discriminates

Pattern or Practice

16 against a group of persons and raises an issue of general public importance. 42 U.S.C. §
17 3614(a). An isolated act, such as the implementation of a discriminatory policy, violates
18 this provision if the policy “affects more than a single individual.” See United States v.
19 City of Parma, Ohio, 494 F. Supp. 1049, 1095 (N.D. Ohio 1980) (citing United States v.
20 Hunter, 459 F.2d 205, 217–18 (4th Cir. 1972)).
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1

In this case, the Government has failed to show a policy of discrimination.

2 Therefore, the Court denies the Government’s motion on this issue of whether
3 Defendants have engaged in a pattern or practice of discrimination. 1
4 C.

Claims on Behalf of Ms. Alton

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In this case, Defendants move for summary judgment on the Government’s claims

6 on behalf of Ms. Alton because (1) the Government has failed to allege any computation
7 of damages, (2) the claims fail as a matter of law under Washington law, (3) Ms. Alton
8 did not legally own Scrappee Anne, (4) Ms. Alton never requested a reasonable
9 accommodation, (5) the Government is unable to meet its burden on all elements of the
10 discrimination claim, and (6) the retaliation claim is meritless. Dkt. 81. The main
11 problem with Defendants’ motion is that they fail to view the facts in the light most
12 favorable to the Government. While they may have strong evidence in support of their
13 position, the Court is charged with determining whether evidence exists and is precluded
14 from weighing the evidence when considering this motion.
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With regard to the issue of no allegation or computation of damages, Defendants’

16 motion is without merit. Defendants’ position is that the Government has failed to
17 comply with its discovery obligations by supplementing its initial disclosures. Dkt. 81 at
18 8–9. Even if the Government did violate discovery rules, dismissal of this claim is a
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Defendants’ motion on these issues was stricken for failure to abide by local rules. The
Court is inclined to grant Defendants judgment as a matter of law on these claims either at a
22 pretrial hearing upon oral motion or on a Rule 50(a) motion.

ORDER - 12

1 drastic remedy that the Court declines to impose. Therefore, the Court denies
2 Defendants’ motion on this issue.
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With regard to whether the claim fails as a matter of law under Washington state

4 law, the issue is without merit because this action is brought under the FHA. Federal law
5 establishes the baseline for individual protection against discrimination regardless of any
6 additional restrictions or elements an individual must prove under state law. Therefore,
7 the Court denies the motion on this issue.
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With regard to the fact that Scrappee Anne was not licensed pursuant to the local

9 ordinances, Defendants’ arguments are also without merit. This issue is a post-hoc
10 discovery raised only for the purposes of litigation and has no bearing on whether
11 Defendants discriminated against Ms. Alton during the period of her tenancy. While
12 violations of the lease would justify disciplinary action pursuant to the terms of the lease
13 or maybe even termination of a lease, there is no evidence in the record that shows that
14 Defendants based any action on any violation of the licensing laws. Therefore, the Court
15 denies Defendants’ motion on this issue. The remaining issues are the elements of the
16 claim for discrimination and the retaliation claim.
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4.

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The FHA defines discrimination to include “a refusal to make reasonable

Discrimination

19 accommodations in rules, policies, practices, or services, when such accommodations
20 may be necessary to afford [a disabled] person equal opportunity to use and enjoy a
21 dwelling.” 42 U.S.C. § 3604(f)(3)(B).
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ORDER - 13

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To make out a claim of discrimination based on failure to reasonably
accommodate, a plaintiff must demonstrate that (1) he suffers from a
handicap as defined by the FHAA; (2) defendants knew or reasonably
should have known of the plaintiff’s handicap; (3) accommodation of the
handicap ‘may be necessary’ to afford plaintiff an equal opportunity to use
and enjoy the dwelling; and (4) defendants refused to make such
accommodation.

5 Giebeler v. M & B Assoc., 343 F.3d 1143, 1147 (9th Cir. 2003). The reasonable
6 accommodation analysis is a fact-specific inquiry. See United States v. Cal. Mobile
7 Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994).
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In this case, Defendants contest the last three elements of the Government’s claim.

9 First, Defendants claim that they did not know of Ms. Alton’s disability. In making this
10 argument, Defendants fail to consider the facts in the light most favorable to Ms. Alton.
11 When viewed properly, the evidence shows that Ms. Alton informed the Defendants and
12 provided sufficient notice of her disability. Ms. Alton alleges that she sent Defendants
13 multiple notes stating her illnesses and also personally informed Defendants of her PTSD
14 and depression. Therefore, the Court denies Defendants’ motion on this issue.
15

Second, Defendants contend that the Government has failed to establish that

16 Scrappee Anne was necessary for Ms. Alton to enjoy use of the apartment. Specifically,
17 Defendants argue that the Government “has failed to establish that the dog alleviated the
18 effects of Ms. Alton’s disability.” Contrary to this position, the Government need not
19 “establish” any fact at this juncture. The Government is required to submit evidence that
20 creates a material question of fact for the factfinder. Under that standard, there is
21 sufficient evidence in the record from medical providers stating that Scrappee Anne
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ORDER - 14

1 provides a disability related benefit. Therefore, the Court denies Defendants’ motion on
2 this issue.
3

Third, Defendants contend that the requested accommodation was not reasonable.

4 There are two parts to this issue with the first part being whether Ms. Alton ever
5 requested a waiver of the pet deposit. Defendants argue that she never made such a
6 request. Dkt. 81 at 13–15. Ms. Alton’s deposition and her HUD complaint dispute this
7 contention and create a material question of fact whether Ms. Alton made such a request.
8 Therefore, Defendants’ motion is without merit on the issue of whether Ms. Alton
9 requested a waiver of the pet deposit.
10

With regard to whether the request was reasonable, a plaintiff requesting an

11 accommodation under the FHA must show that the accommodation is reasonable.
12 Giebeler, 343 F.3d at 1147. The Government contends that “[w]aiver of a pet deposit is
13 per se reasonable for assistance animals that serve as reasonable accommodations for
14 tenants with disabilities . . . .” Dkt. 98 at 19 n. 12. The Government, however, fails to
15 provide binding authority for this proposition. Instead, the Government provides
16 citations to numerous cases that have settled with consent decrees that include provisions
17 requiring the housing provider to waive such fees. Dkt. 79 at 13–14. Settlements do not
18 establish per se rules of law. Therefore, the Government’s position is wholly without
19 merit.
20

On the other hand, Defendants contend that Ms. Alton only requested that she be

21 allowed to have a dog at the residence. Dkt. 101 at 10–11. Again, Defendants ignore
22 Ms. Alton’s deposition testimony and her HUD complaint wherein she requested waiver

ORDER - 15

1 of the pet deposit. Moreover, there is a question of fact whether Ms. Alton was able to
2 reasonably enjoy the apartment with the additional financial burdens of paying the pet
3 deposit. Ms. Alton was on a limited income and there is evidence in the record that
4 paying the deposit caused her financial strain. Therefore, the Court denies Defendants’
5 motion on this issue and the Government’s discrimination claim.
6

5.

7

Under the FHA, it is “unlawful to coerce, intimidate, threaten, or interfere with

Retaliation

8 any person in the exercise or enjoyment of, or on account of his having exercised and
9 enjoyed . . . any right granted or protected by [the Act].” 42 U.S.C. § 3617. Section
10 3617 “has been broadly applied to reach all practices which have the effect of interfering
11 with the exercise of rights under the federal fair housing laws.” Walker v. City of
12 Lakewood, 272 F.3d 1114, 1129 (9th Cir. 2001). Although the Ninth Circuit has not
13 adopted a specific standard for retaliation claims under the FHA, both parties cite the
14 burden shifting framework of Title VII actions. Dkts. 81 at 23 & 98 at 23. Under that
15 standard, a plaintiff establishes a prima facie claim of retaliation by showing that (1) the
16 tenant engaged in protected activity; (2) she suffered an adverse action, such as coercion,
17 intimidation, threats, or interference; and (3) a causal link existed between the protected
18 activity and the adverse action. See Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th
19 Cir. 2003).
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In this case, Defendants argue that the Government’s claim of retaliation is

21 meritless. It is undisputed that Ms. Alton engaged in a protected activity by filing a HUD
22 complaint. While the Court agrees with Defendants that enforcement of the leash law

ORDER - 16

1 and forcing Ms. Alton to submit all repair requesting in writing are not adverse actions,
2 Ms. Alton declares that Ms. Barber stated she knew all the local judges and that Ms.
3 Alton would lose in court if she brought a lawsuit. Alton Dep. at 248:10–249:24. This is
4 sufficient evidence of an intimidation or threat with a causal link between the protected
5 activity and the adverse action. Therefore, the Court denies Defendants’ motion on this
6 issue.
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IV. ORDER
Therefore, it is hereby ORDERED that the Government’s motion for summary

9 judgment (Dkt. 79) and Defendants’ motion for summary judgment (Dkt. 81) are
10 DENIED.
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Dated this 7th day of October, 2014.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 17