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Milan v. Pyros

May 5, 2008

ROBERT MILAN, KATHLEEN KLEINMANN AND TRIPIL SERVICES, PLAINTIFFS,
v.
KYRK A. PYROS, RONALD DEVERSE, PYRSQUARED GROUP, INC. PYRSQUARED MANAGEMENT CO., INC. AND K.P. BUILDERS, INC., DEFENDANTS.



The opinion of the court was delivered by: Cohill, D.J.

Opinion and Order

On March 3, 2008, Plaintiffs Robert Milan, Kathleen Kleinmann, and TRIPIL Services filed this disability discrimination action against Defendants Kyrk A. Pyros, Ronald Deverse, Pyrsquared Group, Inc., Pyrsquared Management Co., Inc., and K.P. Builders, Inc., claiming that they violated their rights by discriminating against Plaintiffs in violation of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601, et seq. ("FHAA"). On March 24, 2008, Plaintiffs filed a motion for a Temporary Restraining Order seeking to enjoin Defendants from interfering in Plaintiffs' leasehold and possessory interest in Apartment Units in the George Washington Hotel, 60 South Main Street, Washington, Pennsylvania, 15301. The Court entered a Temporary Restraining Order on March 25, 2008.

A hearing to determine if a preliminary injunction should issue was held before this Court from April 1, 2008 through April 4, 2008. Plaintiff Robert Milan was represented by Robert Jenner, Esquire, and Plaintiffs Kathleen Kleinmann and TRIPIL Services were represented by Edward Olds, Esquire and Richard Matesic, Esquire. Defendants were represented by Steven Engel, Esquire, and William Weiler, Jr., Esquire.

At the conclusion of the hearing, the parties were asked to submit proposed findings of fact and conclusions of law. Oral argument was held on April 16, 2008, and this matter is now ripe for resolution. For the reasons that follow we will grant Plaintiffs' motion for a preliminary injunction in favor of Ms. Kleinmann and TRIPIL Services and deny Plaintiff's motion for a preliminary injunction in favor of Mr. Milan.

I. FACTS

The George Washington, L.P., a Pennsylvania limited partnership, is the owner of the George Washington Hotel (hereinafter the "George Washington" or the "Hotel"), located at 60 South Main Street, Washington, Pennsylvania. Defendants Kyrk Pyros and Pyrsquared Management Co., Inc., are limited partners of the George Washington, L.P. Pyrsquared Management Company is the managing partner of the George Washington L.P., and Kyrk Pyros is the president of Pyrsquared Management Company, making Mr. Pyros the de facto owner and operator of the Hotel. Defendant Ronald Deverse is the operations manager of the Hotel. The George Washington operates, in part, a multi-unit apartment complex, and houses two restaurants and a bar. Howard Martin is the Hotel's security/maintenance supervisor. Harry Elenitsas works security at the hotel. Larry Hopkins is a cook/dishwasher working in the kitchen of the hotel.

Plaintiff Robert Milan is a resident of the George Washington residing in Unit 501. He has the condition of quadriplegia and uses a wheelchair. Daisy is Mr. Milan's service dog.

Plaintiff Kathleen Kleinmann is a resident of the George Washington residing in Unit 802. She has Muscular Dystrophy, and uses a wheelchair. Ms. Kleinmann is the Chief Executive Officer of TRIPIL Parent, the corporate parent of Plaintiff TRIPIL Services. TRIPIL is an acronym standing for Tri-County Patriots for Independent Living. TRIPIL Services is a private non-profit corporation, organized under I.R.C. § 501(c)(3), that, among other things, promotes independent living through direct services to disabled persons and advocates on behalf of disabled individuals. TRIPIL Services leases Unit 511 of the Hotel for use as a transitional living space for disabled persons moving from institutional care to independent living. Michael Cogley is the Executive Director of TRIPIL Services, and Nicole Headlee is his executive secretary.

We will confine our recitation of the relevant events to the time period necessary for resolution of the instant motion. In doing so we are omitting some of the events that occurred after January 9, 2008, but will refer to subsequent events in the body of our opinion as necessary.

On December 25, 2007, Mr. Milan sought Ms. Kleinmann's assistance in finding new housing as he was presently in the hospital and knew that he would not be returning to his former residence when he was discharged. (Transcript of hearing, April 1, 2008, testimony of Kathleen Kleinmann, at 94 (Doc. 31) (hereinafter "Kleinmann April 1, 2008".) Ms. Kleinmann suggested to Mr. Milan that she inquire at the George Washington to see if any apartments were available. (Kleinmann April 1, 2008, at 94.) Mr. Milan agreed and stated that he desired a month-to-month lease with a rent no greater than $400. (Kleinmann April 1, 2008, at 95.) Ms. Kleinmann knew that Mr. Milan's requests would have to be approved by management at the George Washington since the normal lease was for one year and the lowest rent on an efficiency unit was about $450. (Kleinmann April 1, 2008, at 96.) She also told Mr. Milan that she thought he would like living at the George Washington and eventually would want to sign a long-term lease. (Kleinmann April 1, 2008, at 95.)

On December 26, 2007, Ms. Kleinmann went to see Mr. Deverse to explain that she had a friend who was looking for month-to-month lease for around $400 rent per month, and that if it worked out he would sign a year lease. (Kleinmann April 1, 2008, at 95-96.) She asked Mr. Deverse if that would be possible, and he stated that he would have to seek approval from Mr. Pyros. (Kleinmann April 1, 2008, at 96.)

On December 27, 2007, Mr. Deverse arranged for Ms. Kleinmann to view several vacancies, after which Ms. Kleinmann decided that efficiency units 501 and 1005 might be suitable for Mr. Milan. (Kleinmann April 1, 2008, at 96-97.) She took photographs of the units and emailed the photographs to Mr. Milan. (Kleinmann April 1, 2008, at 97.) Mr. Milan reviewed the photographs and decided that he would like to move in to 1005. (Transcript of hearing, April 2, 2008, testimony of Robert Milan, at 96 (Doc. 25) (hereinafter "Milan April 2, 2008".)

In late December, 2007, Ms. Kleinmann traveled to Ohio to visit with her friend, Roland Sykes. (Kleinmann April 1, 2008, at 99-100.) Mr. Sykes, who was also disabled, was suffering from cancer at the time and was being assisted by a disabled friend. (Kleinmann April 1, 2008, at 109-110.) Due to snow, Ms. Kleinmann was unable to return to the Hotel in time to pay her January rent. (Deverse April 3, 2008, at 176.) On January 1, 2008, she telephoned Mr. Deverse to tell him that she was snowed-in and that she would pay her rent when she returned. (Kleinmann April 1, 2008, at 110, 110; Deverse April 3, 2008, at 176.) She also told Mr. Deverse that she planned to bring Mr. Sykes into her apartment as a guest for a short time as his caregiver had recently died and Mr. Sykes was in need of care. (Kleinmann April 1, 2008, at 111.)

On January 3, 2008, Ms. Kleinmann telephoned Mr. Deverse from Ohio to ask if Mr. Pyros had agreed to the special conditions Mr. Milan requested. (Kleinmann April 1, 2008, at 98.) Mr. Deverse responded that Mr. Pyros wanted to know the reason for Mr. Milan's housing need. (Kleinmann April 1, 2008, at 98.) Ms. Kleinmann explained that Mr. Milan and his wife were separating and Mr. Milan would not be returning to his former residence. (Kleinmann April 1, 2008, at 98.) Mr. Deverse then told Ms. Kleinmann that he would relay this information to Mr. Pyros. (Kleinmann April 1, 2008, at 98.)

On the morning of January 4, 2008, Ms. Kleinmann again telephoned Mr. Deverse who stated that Mr. Pyros had given his consent for a month-to-month lease to last for six months, with a $400 rental fee per month and the condition that at the end of the six months Mr. Milan must decide to either sign a year lease or leave. (Kleinmann April 1, 2008, at 99.) Mr. Deverse also stated that Mr. Milan could sign a lease on Monday January 7, 2008 when Mr. Deverse was in the office. (Kleinmann April 1, 2008, at 102.)

During this telephone conversation, Ms. Kleinmann also told Mr. Deverse that she would need extra sets of keys for caregivers for Mr. Sykes, who she was bringing to stay with her for a short time. (Kleinmann April 1, 2008, at 111.) Mr. Deverse told Ms. Kleinmann that they would talk about the keys when she returned to the George Washington. (Kleinmann April 1, 2008, at 111.)

After speaking with Mr. Deverse, Ms. Kleinmann telephoned Michael Cogley and asked him to facilitate Mr. Milan's move-in with regard to arranging transportation and getting the keys to the apartment. (Kleinmann April 1, 2008, at 100-101;, Transcript of hearing, April 2, 2008, testimony of Michael Cogley at 41 (Doc. 25).) Mr. Cogley first tried to reach Mr. Deverse by telephone, and when he was unable to reach him, he walked to the George Washington to speak with Mr. Deverse. (Cogley, at 41-42.) Mr. Deverse confirmed to Mr. Cogley that Mr. Pyros had agreed to rent an apartment unit to Mr. Milan. (Cogley, at 42-43.) Mr. Deverse also said that Mr. Milan's preferred apartment, Unit 1005, was not ready as it needed to be painted. (Cogley, at 42-43.) However, Mr. Milan could temporarily move into Unit 501 until Unit 1005 was ready. (Cogley, at 42-43.) Finally, Mr. Deverse told Mr. Cogley that he would prepare the appropriate lease and fax it to Mr. Cogley's executive assistant, Nicole Headlee, and that keys would be made available for Mr. Milan's move-in date when necessary. (Cogley, at 43.)

Once Mr. Milan was informed that his request for a $400 month-to-month lease had been approved he prepared to move in on Saturday, January 5, 2008, since he was being discharged from the hospital. (Milan April 2, 2008, at 97-98; Cogley, at 45.) At the direction of Mr. Cogley, Ms. Headlee telephoned Mr. Deverse and explained to him that Mr. Milan needed to move in the next day, Saturday, January 5, 2008. (Transcript of hearing, April 2, 2008, testimony of Nicole Headlee, at 73 (Doc. 25).) Mr. Deverse consented to the move-in date, and stated that he would leave keys with the night security guard. (Headlee, at 73.)

Mr. Milan arrived at the George Washington with his service animal, Daisy, in the late afternoon or early evening on January 5, 2008. (Milan April 2, 2008, at 100.) He received the key to Unit 501 from the security guard, Howard Martin, and moved in to the unit. (Milan April 2, 2008, at 100; Transcript of hearing, April 3, 2008, testimony of Howard Martin, at 4 (Doc. 32).) Mr. Martin saw Daisy get off the bus with Mr. Milan. (Martin, at 5.) Later that evening, Harry Elenitsas, a security guard, observed a women with a dog enter the elevator in the George Washington. (Transcript of hearing, April 3, 2008, testimony of Harry Elenitsas, at 61 (Doc. 32).) The next morning he telephoned the Hotel to notify management that a dog was in the building. (Elenitsas, at 62.) Later that afternoon he told Mr. Martin about the dog. (Elenitsas, at 62.) He did not attempt to ascertain whose dog it was or otherwise identify the dog. (Elenitsas, at 62.)

At the same time that Ms. Kleinmann was talking to Mr. Deverse about Mr. Milan's potential tenancy at the George Washington she also spoke with Mr. Deverse about TRIPIL's interest in obtaining another apartment at the George Washington to use as a second transitional apartment for TRIPIL's clients. (Kleinmann April 1, 2008, at 103-104.) TRIPIL already had one transitional apartment at the George Washington unit occupying Unit 511, which was across the hall from Unit 501. (Kleinmann April 1, 2008, at 104-105.) Ms. Kleinmann sought to obtain Unit 501 for TRIPIL's use in light of its proximity to its already existing transitional unit. (Kleinmann April 1, 2008, at 105-106.) At the time Ms. Kleinmann spoke to Mr. Deverse about the possibility of obtaining a second transitional unit she explained to him that it was not urgent. (Kleinmann April 1, 2008, at 105.) To obtain a second unit would require the approval of TRIPIL's Board, so Ms. Kleinmann considered her discussions at the preliminary stage, but wanted a lease to take to the Board. (Kleinmann April 1, 2008, at 105-106.)

Ms. Kleinmann returned to the George Washington in the evening on January 5, 2008, along Mr. Sykes. (Kleinmann April 1, 2008, at 109.)

On Monday, January 7, 2008, Ms. Kleinmann went to the George Washington after lunch to pay her January rent. (Kleinmann April 1, 2008, at 107.) While she was paying her rent, Mr. Deverse arrived and told Ms. Kleinmann that he had the leases for the two units but wanted to clarify that he had prepared them correctly. (Kleinmann April 1, 2008, at 107.) He orally stated to Ms. Kleinmann that Mr. Milan would be taking Unit 501 and TRIPIL would be taking Unit 1005. (Kleinmann April 1, 2008, at 107.) Ms. Kleinmann corrected Mr. Deverse and stated that it was the reverse: Mr. Milan would be taking Unit 1005, and TRIPIL would be taking Unit 501. (Kleinmann April 1, 2008, at 107.) In response, Mr. Deverse noted that he had to correct the leases. (Kleinmann April 1, 2008, at 107.) During this conversation, Mr. Deverse also asked Ms. Kleinmann how many new keys she wanted, and told Ms. Kleinmann that he would need the number off her key in order to obtain identical new keys. (Kleinmann April 1, 2008, at 112.)

Later that afternoon Mr. Milan arrived in the lobby with Daisy and introduced himself to Mr. Deverse. (Milan April 2, 2008, at 104-105.) While they spoke Daisy was lying down next to Mr. Milan's wheelchair out of sight of Mr. Deverse. (Milan April 2, 2008, at 104.) Mr. Milan asked Mr. Deverse when Unit 1005 would be ready, and Mr. Deverse stated that it should be ready Wednesday morning. (Milan April 2, 2008, at 104-105.) Mr. Milan stated that he was really looking forward to moving into the unit. (Milan April 2, 2008, at 105.) After their conversation, Mr. Milan left and Daisy got up to follow him, thereby allowing Mr. Deverse to see that Mr. Milan was accompanied by a dog. (Milan April 2, 2008, at 105.)

On Tuesday, January 8, 2008, Mr. Pyros and Mr. Deverse together telephoned TRIPIL Services to speak to Mr. Cogley. (Cogley, at 46; Headlee, at 76, 85) Mr. Deverse and Mr. Pyros initially told Ms. Headlee, who answered the telephone, that they had a problem with the pet, Mr. Milan's pet dog. (Headlee, at 85.) Ms. Headlee informed Mr. Deverse and Mr. Pyros that Daisy was not a pet, that she was a service animal. (Headlee, at 85.)

Mr. Cogley then joined the conversation on the speaker phone with Ms. Headlee. (Headlee at 76. 85.) Mr. Pyros and Mr. Deverse repeated their complaint they had about Mr. Milan's pet dog to Mr. Cogley. (Headlee, at 76.) Mr. Cogley also explained to Mr. Deverse and Mr. Pyros that Daisy was a service animal. (Headlee, at 77.) Neither Mr. Deverse nor Mr. Pyros stated that Daisy was disturbing the other residents of the George Washington, that she was out of control, barking repeatedly, or that she was a threat to the health or safety of other persons. (Cogley, at 67-68; Headlee, at 76-77.) Their objection at the time was that they were unaware that Mr. Milan had a dog. (Headlee, at 76.)

Later that day Mr. Cogley met in person with Mr. Deverse and Mr. Pyros. (Cogley, at 46; Headlee, at 84.) Mr. Pyros explained to Mr. Cogley that the Hotel had a no pets policy, that he did not want any animals in the building, and that the dog could not be there. (Cogley, at 47.) Mr. Cogley again explained that Daisy was a service animal, not a pet. (Cogley, at 47, 60-61; Transcript of hearing, April 2, 2008, testimony of Kathleen Kleinmann, at 30 (Doc. 25) (hereinafter "Kleinmann April 2, 2008".) Mr. Cogley further stated that any dispute management had about Daisy should be directed to Mr. Milan, not TRIPIL Services. (Cogley, at 47, 49.) During this conversation there were no complaints from Mr. Deverse or Mr. Pyros that Daisy was out of control, disturbing the other residents, barking repeatedly, or that she was a threat to the health or safety of other persons. (Cogley, at 67-68.) After the meeting Mr. Cogley informed Mr. Milan that the management had a problem with Daisy. (Milan, April 2, 2008, at 105.)

At the end of her work day on January 8, 2008, Ms. Kleinmann placed a handwritten note on Mr. Deverse's desk requesting that her guest be added to the lease for a period of about two months. (Kleinmann April 1, 2008 , at 113-114.) At that time, Mr. Sykes had been in Ms. Kleinmann's apartment four days.

On January 9, 2008, general counsel for Pyrsquared Management, William Weiler, Jr., issued a letter to Ms. Kleinmann, which stated in relevant part as follows:

As General Counsel for PyRsquared Management Company, Inc., general partner of The George Washington, L.P., I am writing regarding the unauthorized tenants you brought in to reside in your apartment this past weekend, and the pet apparently brought in with one of them. Your lease does not permit you to run a hospice out of your apartment, or to provide housing for indigents. As you made no application for these individuals, and their presence is unauthorized, we will not nor will we ever be providing additional keys to provide to these individuals, as per your request made yesterday to Mr. Ronald DeVerse, our General Manager.

We are also hereby providing you with the ten day notice required by law to commence eviction proceedings. Unless the unauthorized individuals and the pet are removed from your apartment and our Hotel by January 21, 2008, we will file a Landlord-Tenant action for eviction against you on January 22, 2008. You are further advised that you and Triple [sic] Services are not to bring any additional tenants into the George Washington, without first making application for the proposed tenant for residency with Mr. DeVerse. The building is our facility, and we steadfastly maintain the right to ascertain to whom we desire to rent. (Plaintiff's Ex. 4.)

On January 11, 2008, Mr. Milan and Daisy traveled through the kitchen of the restaurant on his way to the hotel lobby. (Transcript of hearing, April 4, 2008, testimony of Robert Milan, at 96-98 (hereinafter "Milan April 4, 2008").) According to Defendants, Daisy defecated just outside the service entrance to the kitchen. (Hopkins, at 44.) As a result, Defendants instituted a "triclean" on the kitchen that cost $3,316.25. (Transcript of hearing, April 3, 2008, testimony of Kyrk Pyros, at 214-217 (hereinafter "Pyros April 3, 2008"); Pl. Ex. 5.) Defendants informed Ms. Headlee and Mr. Cogley that the Hotel had video surveillance tape of Daisy defecating in the Hotel. (Headlee, at 78; Cogley at 63).

On January 14, 2008, Mr. Pyros and Mr. Deverse arrived at Mr. Milan's apartment to discuss the weekend incident. (Milan April 2, 2008, at 107; Kleinmann April 1, 2008, at 121-122.) Ms. Kleinmann was present at Mr. Milan's apartment when the two men arrived, and had just finished signing a letter addressed to Mr. Deverse dated January 14, 2008. (Milan April 2, 2008, at 107; Kleinmann, April 1, 2008, at 121-122.) In this letter, Mr. Milan indicated that he was looking forward to moving into Unit 1005, that he had a service dog for which he was requesting a reasonable accommodation, and that he also required certain alterations in the interior of the apartment that he would pay for. (Pl. Ex. 6.) It was explained to Mr. Pyros and Mr. Deverse that Daisy was a service dog, and the letter was given to either Mr. Deverse or Mr. Pyros. (Milan April 2, 2008, at 108, 110; Kleinmann, April 1, 2008, at 122-123, 124; Transcript of hearing, April3, 2008, testimony of Ronald Deverse, at 96 (hereinafter "Deverse April 3, 2008").) Later that day, Mr. Deverse delivered a credit application to Mr. Milan by slipping it under his apartment door. (Deverse April 3, 2008, at 97, 98-99.)

On January 15, 2008, Ms. Headlee was asked by Mr. Deverse to come to the Hotel to pick up the video surveillance tape of Daisy defecating in the Hotel over the weekend. (Headlee, at 78-79.) When she arrived she saw law enforcement personnel talking to Mr. Deverse, Mr. Weiler, and Mr. Milan. (Headlee, at 79). The officers had been summoned by Mr. Weiler to evict Mr. Milan as a squatter. (Headlee, at 79-80.) The officers explained to Mr. Deverse and Mr. Weiler that they could take no action without a court order. (Headlee, at 80). Mr. Deverse then gave Ms. Headlee a photograph allegedly depicting feces in the snow. (Headlee, at 81.)

On January 17, 2008, Mr. Weiler issued two letters, one to Mr. Milan, and one to Ms. Kleinmann at TRIPIL Services office address. (Pl. Exs. 9 & 8.) Mr. Milan was informed that he was to remove himself from the hotel or face eviction proceedings as he was not an authorized tenant. (Pl. Ex. 9.) There was no mention in this letter regarding Mr. Milan's dog, there were no references to any complaints by other tenants, and no mention of the incident in the kitchen over the weekend.

Ms. Kleinmann was told that she brought Mr. Milan into the building under the false pretense that TRIPIL Services would execute a lease for him. (Pl. Ex. 8.) The January 17, 2008 letter also indicated to Ms. Kleinmann that Mr. Milan was unable to care for his dog and that the dog was defecating in the Hotel and on the exterior of the property. (Pl. Ex. 8.) Finally, Mr. Weiler notified Ms. Kleinmann that it would cease doing business with TRIPIL Services and those individuals that TRIPIL Services represents. (Pl. Ex. 8.)

On January 21, 2008, Mr. Sykes left Ms. Kleinmann's apartment. (Kleinmann April 2, 2008, at 15, 20, 25.)

On January 22, 2008, the George Washington, L.P., filed Landlord and Tenant Complaints for recovery of real property against Ms. kleinmann and Mr. Milan in Magisterial District No. 27-1-01 in Washington County, Pennsylvania. (Pl. Exs. 11 & 12.)

Defendants also testified that on January 25, 2008, while giving tours of the Hotel to dinner guests at a five-course white glove dinner, Mr. Pyros and Mr. Deverse witnessed Daisy defecate on the oriental rug in the Hotel lobby while Mr. Milan waited, and that Mr. Milan entered the elevator without cleaning up the feces.

On February 15, 2008, Ms. Kleinmann, in anticipation that Mr. Sykes would be discharged from the hospital later that month, requested permission in writing that Mr. Sykes be permitted to return to her apartment as a guest and be added on the lease. (Kleinmann April 2, 2008, at 23-24; Pl. Ex.16.) By letter dated February 20, 2008, Mr. Weiler indicated that Ms. Kleinmann's request was denied. (Pl. Ex. 17.) Nonetheless, Mr. Sykes returned to stay with Ms. Kleinmann on February 29, 2008, when he was discharged from the hospital. (Kleinmann April 2, 2008, at 20.) On March 7, 2008, Mr. Sykes was moved to a medical facility. (Kleinmann April 2, 2008, at 20.)

II. APPLICABLE LAW

A. Preliminary Injunction

Four factors govern a district court's decision whether to issue a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.1999); ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir.1996) (en banc). The court need only consider factors three and four if relevant or if the first two factors have been met. Tenafly Erev Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir.2002); AT & T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir.1994).

B. Fair Housing Amendments Act

Congress enacted the Fair Housing Act ("FHA") in 1968, making it illegal to discriminate, in housing practices, on the basis of race or national origin. See 42 U.S.C. 3601 et seq. In 1988, Congress amended the Act so as to extend protection of the FHA to include people with disabilities. 42 U.S.C. § 3604(f). Under the FHAA it is unlawful:

To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of-

(A) that person; or

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that person.

42 U.S.C. § 3604(f)(2).

Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170, 176 (3d Cir. 2005).

In order to make out a claim for a Fair Housing Act violation Plaintiffs must show:

(i) that plaintiff is suffering from a disability as defined under 42 U.S.C. § 3602)h)(1);

(ii) that Defendants knew or reasonably should have been expected to know of the disability;

( iii) that reasonable accommodation of Plaintiff's disability might be necessary to afford him an equal opportunity to use and enjoy his dwelling; and

(iv) that Defendants refused to make a reasonable accommodation.

U.S. v. Port Liberte Condo 1 Ass'n, Inc., 2006 WL 2792780, *5 (D.N.J. 2006) (citing United States v. California Mobile Home Park Mgt. Co., 107 F.3d 1374, 1380 (9th Cir.1997)). "[U]nder 42 U.S.C. § 3604(f)(3)(B), discrimination includes 'a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.'" Community Services, Inc, 421 F.3d at 176.

Plaintiffs alleging violations of the FHAA under these sections may bring three general types of claims: (1) intentional discrimination claims (also called disparate treatment claims) and (2) disparate impact claims, both of which arise under § 3604(f)(2), and (3) claims that a defendant refused to make "reasonable accommodations," which arise under § 3604(f)(3)(B). See Lapid-Laurel [L.L.C. v. Zoning Bd. of Adjustment,] 284 F.3d [442,] 448 n.3 [(3d Cir.2002)]. To evaluate these claims under the FHAA, courts have typically adopted the analytical framework of their analogues in employment law, including their coordinate burden-shifting analyses once plaintiff has made a prima facie showing of discrimination under a specific claim.

Community Services, Inc, 421 F.3d at 176.

"Generally, to prevail on a disparate treatment claim, a plaintiff must demonstrate that some discriminatory purpose was a "motivating factor" behind the challenged action." Community Services, Inc, 421 F.3d at 177 (citing Cmty. Hous. Trust v. Dep't of Consumer & Regulatory Affairs, 257 F.Supp.2d 208, 225 (D.D.C.2003) ("It is well settled that a defendant's decision or action constitutes disparate treatment, or intentional discrimination, when a person's disability was a 'motivating factor' behind the challenged action or decision.") (other citations omitted). "The discriminatory purpose need not be malicious or invidious, nor need it figure in "solely, primarily, or even predominantly" into the motivation behind the challenged action." Community Services, Inc, 421 F.3d at 177 (citations omitted). "The plaintiff is only required to 'show that a protected characteristic played a role in the defendant's decision to treat her differently.'" Community Services, Inc, 421 F.3d at 177 (quoting Cmty. Hous. Trust, 257 F.Supp.2d at 225.)

Courts have also "developed a 'proxy' theory" for evaluating facially discriminatory classification claims, "recognizing that a regulation or policy cannot 'use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination,' such as classifications based on gray hair (as a proxy for age) or service dogs or wheelchairs (as proxies for handicapped status)." ...


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