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Dunfee v. Lund

United States District Court, W.D. Pennsylvania

August 7, 2014

SHARON DUNFEE, Plaintiff,
v.
SALLY LUND, Defendant.

OPINION

MAURICE B. COHILL, Jr., Senior District Judge.

Plaintiff Sharon Dunfee commenced this civil rights housing discrimination action against Defendant Sally Lund by way of a Complaint in Intervention on July 23, 2013. Her Intervenor Complaint followed the June 19, 2013 filing of a Complaint on Ms. Dunfee's behalf by the United States Housing and Civil Enforcement Section of the Civil Rights Division. Both Complaints are substantially similar and allege that Ms. Lund discriminated against Ms. Dunfee based on her disability by refusing to rent to her in violation of the Fair Housing Act of 1968 and the Fair Housing Amendments Act of 1988 ("FHAA").

Ms. Lund filed her Answers to the Complaints on August 26, 2013, and an Initial Case Management Conference was set for November 12, 2013. Prior to the conference the United States entered into a Settlement Agreement with Ms. Lund and thus the case proceeds only on Ms. Dunfee's Complaint in Intervention. The day before the case management conference Ms. Lund filed a Motion for Partial Summary Judgment (ECF No. 18) seeking dismissal of two of Ms. Dunfee's three counts. For the reasons set forth below, we will deny Defendant's Motion.

I. Relevant Factual Background

From September 22, 1983 to September 17, 2009, Defendant Sally Lund and her husband David Lund (Mr. Lund passed away in 2011) owned a residence at 423 West Front Street, Erie, Pennsylvania, which they rented to tenants from time-to-time. Affidavit of Sally A. Lund, Sept. 23, 2013, ¶ 4. According to Ms. Lund, in the summer of 2009, she and her husband decided to sell the property and initially tried to sell the property by word of mouth. rd. ¶ 6. When the property did not sell right away, the Lunds placed the property back on the market for rental on August 7, 2009, while also still trying to sell the property. Id . ¶¶ 7-8. The Lunds placed a classified advertisement in the Erie Times-News on Friday, August 7, 2009, which was to run until August 16, 2009, advertising as a House for Rent their "Bayfront Cottage, 423 West Front St, " for $500 per month. Id . ¶¶ 7-8; Ex. A, to Lund Aff.

Plaintiff Sharon Dunfee telephoned the Lunds at the telephone number indicated in the advertisement on August 7, 2009, the first day the advertisement was in the paper. Ms. Dunfee spoke with Ms. Lund. Ms. Dunfee told Ms. Lund that she could afford the required rent of $500 per month with the assistance of a Section 8 Housing Voucher. During the relevant time period, Ms. Dunfee was a participant in the Section 8 Housing Choice Voucher program, 42 U.S.C. § 1437F. Ms. Dunfee maintains that Ms. Lund communicated to her that she would accept her as a tenant with the Section 8 Voucher. Ms. Dunfee then told Ms. Lund that she had two emotional support cats, to which Ms. Lund responded by telling Ms. Dunfee that they would not accept her as a tenant because of their "no pets" policy.

As a result of Ms. Lund's refusal to rent to her because she had support animals, Ms. Dunfee sought assistance from the Director of Housing Services, Constance L. Burnett, of a disability service organization called Voices for Independence. Ms. Burnett telephoned the Lunds on or about Tuesday August 11, 2009, to discuss the situation Ms. Dunfee brought to her attention. Ms. Burnett explained to either Mr. Or Ms. Lund that Ms. Dunfee has certain rights under the Fair Housing Act and that it would be a violation of the Act to deny housing to a person with a disability based on their need for a service animal. The Lunds, however, maintained their right to uphold their no pets policy and thus refused to rent the property to Ms. Dunfee.

In addition to Ms. Dunfee seeking to rent the Lunds' property, Ms. Lund indicates that she received telephone calls from several prospective tenants and that she arranged for seven or eight people to view the property on the same day. Lund Aff. ¶ 9. Ms. Lund does not indicate when she received the telephone calls or what day she scheduled the appointments with the prospective tenants, but she further indicates that on whatever day it was that she showed the property to several prospective tenants she also entered in a verbal agreement to sell the property to the neighboring property owner. Id . ¶ 10. Later that same evening that the Lunds agreed to sell the property, Ms. Lund telephoned all the people who had viewed the property that day (for whom she had a telephone number) to let them know that the property was no longer for rent as the Lunds were selling it. Id . ¶ 11. The next day, Ms. Lund telephoned the Erie Times-News to cancel the remaining days of the classified advertisement offering the property for rent. Id . The Lunds in fact did not rent the property and instead entered into a written agreement for sale of the property on August 31, 2009, and closed on the sale of the property on September 17, 2009. Id . ¶¶ 13-14.

Ms. Lund avers that the West Front Street Property was never a part of the Section 8 Housing Choice Voucher Program, that she and her husband had never rented the property to a person who had a Section 8 voucher, and that she would not have agreed to include the property in the Section 8 program. ¶¶ 15-18.

On June 24, 2010, Ms. Dunfee filed a complaint with the Department of Housing and Urban Development alleging that the Lunds violated the FHA and the FHAA and discriminated against her because of her disability. As noted, the United States subsequently filed a Complaint on behalf of Ms. Dunfee followed by Ms. Dunfee's Complaint in Intervention, and the case against Ms. Lund is proceeding solely on Ms. Dunfee's Complaint in Intervention.

Ms. Dunfee sets forth three causes of action against Ms. Lund as a result of her allegedly discriminating against Ms. Dunfee based on her disability by refusing to rent to her in violation of the FHAA. Count One sets forth a claim of discrimination in refusing to rent to Ms. Dunfee based on her disability in violation of 42 U.S.C. § 3604(f)(1)(A). Count Two sets forth a claim of discrimination based on the failure to grant Ms. Dunfee the reasonable accommodation of permitting her to reside in the property with her support cats to afford her an equal opportunity to use and enjoy the property in violation of 42 U.S.C. § 3604 (f)(3)(B). Finally, Count Three sets forth a claim of disability discrimination based on Ms. Lund's discriminatory statement that she should not be so emotionally dependent upon her cats in violation of 42 U.S.C. § 3604(c).

Ms. Lund argues that summary judgment as a matter of law is appropriate on Count One and Count Two primarily based on her assertion that the West Front Street Property was never enrolled in the Section 8 voucher program and that she and her husband would never have enrolled the property in the program in order to rent to Ms. Dunfee. Accordingly, Ms. Lund argues as a matter of law that Ms. Dunfee was not qualified to rent the property. Ms. Lund also argues that Ms. Dunfee cannot establish that the property remained available to rent after the Lunds rejected her. Finally, Ms. Lund argues that to require the Lund's to have enrolled the property in the Section 8 program as an accommodation for Ms. Dunfee is unreasonable as a matter of law.

II. Standard of Review.

Summary judgment is appropriate only if "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. Rule Civ. Proc. 56(a). "In making that determination, a court must view the evidence in the light most favorable to the opposing party.'" Tolan v. Cotton, ___ U.S. ___, ___ , 134 S.Ct. 1861, 1866 (2014), quoting Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); and citing Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). A "judge's function' at summary judgment is not to weigh the evidence and determine the truth of the ...


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