Parham v. Cih Properties, Inc. ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELIZA PARHAM, )
)
Plaintiff, )
)
V. ) Civil Case No. 14-1613 (RJL)
)
CIH PROPERTIES, INC. et al., )
, FILED
Defendants. ) SEP 8 8 2015
I?!“ Clerk, us. Districra Bankruptcy
MEMORAND M OPINION Courts for the District of Columbia
September , 2015 [#17]
PlaintiffEliza Parham (“plaintiff”) brings this action against CIH Properties, Inc.
and Dupont Park Apartments Joint Venture (“defendants”), seeking damages for, inter
alia. fraudulent misrepresentation and housing discrimination under various federal and
local laws. See generally Am. Compl. [Dkt. #11]. Before this Court is defendant CIH
Properties, lnc.’s ("defendant") Motion for Partial Summary Judgment [Dkt. #17]
(“Def’s Mot”).l Upon consideration ofthe parties’ pleadings, relevant law, and the
entire record in this case, defendant’s motion is GRANTED.
' This case was originally filed in the Superior Court for the District of Columbia against CIH
Properties, Inc. and CIH Ventures, Inc. See Compl. [Dkt. #1—1]. However, plaintiff’s Amended
Complaint, which names as defendants CIH Properties Inc. and Dupont Park Apartments Joint
Venture, is now the operative complaint in this case——it superseded the original complaint,
rendering it without any legal effect. See Adams v. Quattlebaum, 219 F.R.D, 195, 197 (D.D.C.
2004); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2015).
Thus, plaintiffis deemed to have abandoned her action with regard to CIH Ventures, Inc. See
Rasidesca v. Midland Credit Mgmt., Inc, 435 F. Supp. 2d 1090, 1101 (SD. Cal. 2006) (“An
amended complaint that drops a defendant named in the original complaint effectively dismisses
that defendant from the action”). Therefore, although the defendant’s motion purports to be
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BACKGROUND
For almost fifty years, plaintiffhas resided in an apartment complex owned and
managed by defendants. Pl.’s Opp’n to Def.’s Mot. for Partial Summ. J. ‘H 1 [Dkt. # 22]
(“Pl.’s Opp’n”); Def.’s Statement of Undisputed Material Facts 11 l [Dkt. # 17] (“Def.’s
SOMF"). The case now before this Court arises from plaintiff's myriad complaints
regarding the condition of her apartment unit and its location in the apartment complex.
See generally Pl.‘s Opp'n. Plaintiff‘s series of complaints begins with the harm she
suffered, and the property damage that resulted from, a water leak in her apartment. Id. at
W 3-26. Specifically, in September 201 1 the rental office requested access to plaintiffs
unit to investigate a water leak potentially originating from the plumbing in her hallway
closet or her bathroom. Id. at W 3-4. Upon examination, plaintiffs daughter discovered
that the closet was covered in mildew and black mold and that the ceiling was collapsing.
Id. at T1 5. Making matters worse, the maintenance crew member sent to investigate the
leak punched holes in the closet wall to inspect the sewage pipes, which were left open
for several weeks. Id. at 1111 6-10. Ultimately, it was determined that the leak did not
originate in plaintiff's apartment but was, in fact, due to a faulty gutter leaning against the
building. Id. at W 13—14;P1.’s Opp’n Exs. at 32 [Dkt. #22—1] (“PL’s Exs.”). Plaintiff
alleges that this ordeal resulted in damage to the property she stored in her closet, Pl.’s
Opp’n 11 12, and that the presence of mold caused her and her daughter to suffer serious
filed on behalf ofCIH Properties, Inc. and CIH Ventures, Inc., see Def.’s Mot. l n.1, the Court
will treat the motion as ifit were filed only on behalfof CIH Properties, Inc.
2 This Court will reference the page numbers assigned in the docket entry caption for plaintiff s
exhibits.
as with all apartments in plaintiffs complex, it was not, and could not be modified to be,
fully “ADA accessible.” Pl.’s Exs. at 19. Plaintiff never responded to this offer. Id. at
20. After learning from plaintiff s counsel that plaintiff was interested in a first-floor unit
with fewer steps, Def.’s Mot. Ex. 7, on January 22, 2015 and February 10, 2015,
defendants offered plaintiff the only available first-floor unit, which has one step to enter
the building and three steps to the first floor landing. Pl.’s Exs. at 21, 25. Plaintiff did
not accept this offer, citing the unit’s “remote” and “hilly” location and its situation in a
“courtyard with dim lighting,” Pl.’s Opp’n W 38—42, and suggesting instead that she be
relocated to a D Street apartment or the unit currently used as the rental office. Pl.’s
Opp’n W 44—45, 70, 73. As defendant notes, however, the first-floor unit plaintiff
rejected has the “identical number of steps” as the D Street units she now seeks. Def.’s
Reply in Supp. of Mot. for Partial Summ. J. 4 [Dkt. #24].
Unfortunately for plaintiff, the law does not entitle her to get exactly what she
wants, but only what is reasonable. See Logan v. Malveevskii, 57 F. Supp. 3d 234, 264-
65 (S.D.N.Y. 2014) (noting that a failure to provide an apartment in the exact location
desired by the plaintiffis not a denial ofa request for an accommodation for an apartment
with fewer steps). Here, defendants” good- faith offers to relocate plaintiff to a first-floor
unit, exactly as plaintiff originally requested, satisfied their duty to reasonably
accommodate plaintiff’s disability. Defendants are not required to undertake the
financial and administrative burden associated with moving plaintiff into a D Street
apartment that is currently occupied or relocating their rental office so that plaintiff can
occupy that space. In the end, the difficult living situation plaintiff now finds herselfin is
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not a product of defendants’ refusal to comply with the law, but her own refusal to accept
the reasonable accommodation defendants offered. For that, the law affords no remedy.
CONCLUSION
For the foregoing reasons, defendant’s Motion for Partial Summary Judgment is
GRANTED. A separate Order consistent with this decision accompanies this
Memorandum Opinion.
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health problems, for which they each sought medical treatment, id. at 1111 17, 23. She also
claims, though the record does not corroborate, that she requested that they be moved to a
first—floor, mold-free unit at that time. Id. at i1 51. Plaintiff’s list of grievances continues
by describing several features of her unit that she believes make it uninhabitable. These
include that there is a “big gap” between the roof and the ceiling, that there is a “great
opening” between her unit and that of her neighbor, and that the “critters come in from
time to time.” [d at 11 50.
Beyond her complaints regarding the condition of her unit, plaintiff raises several
issues regarding her unit’s accessibility. See id. at W 27-45. Plaintiff has had a
handicapped parking tag since 2001, id. at ii 27, and has been confined to a wheelchair
since 2008, id. at fl 30. Because plaintiff‘s apartment is on the second floor ofa building
that does not have an elevator, id. at $1 2, she requires the assistance of the DC. Fire
Department to enter and exit the building, id. at 11 30. In an attempt to remedy this
difficult situation, on August 4, 2014, plaintiff sent a letter to defendants requesting that
she be relocated to a handicapped-accessible, first—floor apartment. Pl.’s Exs. at 14.
After a month without a response, plaintiff filed the instant case, stating claims for breach
of contract, fraudulent misrepresentation, and violations of the Americans with
Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), the Rehabilitation Act (“RA”),
and the DC. Human Rights Act (“DCHRA”). See generally Am. Comp].
Subsequent to filing suit, plaintiff continued to discuss the possibility of moving
into a first-floor apartment with defendants. On September 22, 2014, plaintiff delivered a
follow-up letter to defendants reiterating her request for “the first floor equivalent unit as
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[her] current apartment.” Pl.’s Exs. at 15. One week later, defendants responded that
they wished to accommodate plaintiffs request, but that no such units were available at
that time. Id. at 18. They committed to notifying plaintiff when a two-bedroom ground-
floor unit became available. Id. On October 4, 2014, plaintiff followed up once again,
this time asking to be advised of all available two-bedroom, ADA-accessible. first-floor
units. Pl.’s Exs. at 16. Several days later, on October 7, 2014, defendants notified
plaintiff that a first-floor unit was available; however, it was not, and could not be
modified to be, fully “ADA accessible.” Id. at 19. Plaintiff never contacted defendants
about moving into that first-floor unit. Id. at 20. After learning from plaintiff’s counsel
that plaintiff was interested in a first-floor unit with fewer steps, Def.’s Mot. Ex. 7 [Dkt.
#17-7], on January 22, 2015 and February 10, 2015, defendants again offered plaintiffa
first-floor unit, this time in a different building and with only four stairs. Pl.’s Exs. at 21,
25. Plaintiff rejected this offer, citing in her pleadings the unit’s “remote” and “hilly”
location as compared to her current unit and its situation in a “courtyard with dim
lighting.” Pl.’s Opp’n W 38-42. On February 5, 2015, defendant CIH Properties, Inc.
moved for summary judgment on plaintiff s fraudulent misrepresentation and
discrimination claims. See Def.’s Mot. 1.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings and the record demonstrate
that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter oflaw.” Fed. R. Civ. P. 56(a). The moving party has the initial
burden ofdemonstrating the absence ofa genuine issue of material fact to be decided
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with respect to any essential element of the nonmovant’s claim. Celotex Corp. v. Catrett,
477 US. 317, 323 (1986). Once the moving party has met its burden, the nonmovant
must set forth specific facts showing that there is a genuine issue for trial. See id. at 323-
24. In evaluating a motion for summary judgment, the Court must View the facts in the
light most favorable to the nonmovant, giving it the benefit ofall justifiable inferences
derived from the evidence in the record. Anderson v. Liberty Lobby, Inc, 477 US. 242,
255 (1986). The nonmovant’s opposition, however, may not rest upon the mere
allegations or denials of the pleadings. but must be supported by affidavits or other
competent evidence. Celotex, 477 US. at 324. Thus, by pointing to the absence of
evidence sufficient to establish the existence of an element essential to the nonmovant’s
case, a moving party may succeed on summary judgment. Id. at 325.
ANALYSIS
The facts material to this case are generally not in dispute; rather, defendant CIH
Properties, Inc. moves for summary judgment arguing that the record simply does not
contain evidence sufficient to establish the existence of the essential elements of
fraudulent misrepresentation or discrimination. See generally Def.’s SOMF. I agree.
A. Fraudulent Misrepresentation
To prevail on a claim of fraudulent misrepresentation, plaintiff must prove five
elements: (1) a false representation, (2) in reference to a material fact, (3) made with
knowledge of its falsity, (4) and with the intent to deceive, (5) with action taken in
reliance upon the representation. Nader v. Allegheny Airlines, Inc, 626 F.2d 1031, 1036
(DC. Cir. 1980). In addition, plaintiff must show that she suffered some injury as a
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consequence of her reliance on the misrepresentation. Chedick v. Nash, 151 F.3d 1077,
1081 (DC. Cir. 1998). In order to survive summaryjudgment on this claim, plaintiff
must point to competent evidence to establish each of these essential elements. See
Celotex, 477 U.S. at 322. Unfortunately for plaintiff, she simply has not done so.
With respect to the first element, a false representation, plaintiff has repeatedly
alleged that defendants misrepresented that her apartment is habitable. Am. Compl. ll 38;
Pl.’s Opp’n fl 50. While plaintiff alleges various facts that, if proven, may support the
falsity of such a statement—including that there are “gaps” between the roof and ceiling,
a “great opening” between her unit and her neighbor. that “critters” occasionally enter her
apartment, and that her unit has mold—plaintiff does not point to any evidence in the
record to suggest that such a statement was, in fact, made. In lieu ofidentifying who
represented to her that her unit is habitable, when such representation was made, or what
specifically was said, in her opposition to defendant’s motion plaintiffsimply restates
verbatim the thread—bare allegations contained in her amended complaint. See Pl.’s
Opp’n W 50—53. Simply alleging a misrepresentation, without any evidence, is
insufficient to defeat summary judgment. See Celotex, 477 U.S. at 324. Moreover, with
respect to elements three and four, knowledge of falsity and intent to deceive, without
knowing who is alleged to have made the allegedly false statement, it is impossible to
evaluate whether that person did so with knowledge of the statement’s falsity or with the
intent to deceive. Indeed, plaintiff has not alleged, much less provided evidence tending
to demonstrate, that anyone intended to deceive her. Finally, even assuming that a false
representation regarding the habitability of her apartment was made, plaintiff has wholly
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failed to describe how she acted in reliance upon that statement to her detriment, as
required by the fifth element.
Because plaintiff has not offered evidence to establish the existence ofthe
essential elements of fraudulent misrepresentation, defendant is entitled tojudgment in its
favor on this count as a matter oflaw.
B. Discrimination Claims
Plaintiff advances her FHA, ADA, RA, and DCHRA discrimination claims on the
theory that defendants failed to reasonably accommodate her mobility disability by
refusing her repeated requests to move her into an ADA-accessible, first-floor apartment.
See Pl.’s Opp’n W 30-45. As a preliminary matter, this Court notes that the ADA is not
applicable in this case. Title III of the ADA—the provision relevant to plaintiff's failure
to accommodate claimv—prohibits discrimination in any “place of public
accommodation,” 42 U.S.C. § 12182(a), which is defined to include, inter alia, “an inn,
hotel, motel, or other place oflodging.” 42 U.S.C. § l2l81(7)(A). A number of courts
have observed that private apartment complexes do not qualify as “public
accommodations" for purposes ofthe ADA, even ifthey offer publicly subsidized
housing. Indep. Housing Servs. ofSan Francisco v. Fillmore Center Assocs., 840 F.
Supp. 1328, 1344 (N.D. Cal. 1993) (finding that the legislative history ofthe ADA
clarifies that “other place oflodging” does not include residential facilities); accord
Hardaway v. Equity Residential Mgmt., LLC, No. DKC 11—1924, 2012 WL 3903489, at
*5 (D. Md. Sept. 6, 2012); Reid v. Zackenbaum, No. OS-CV-1569 PB, 2005 WL
1993394, at *4 (E.D.N.Y. Aug.17, 2005). I agree and therefore find that plaintiff does
not have a cause of action for failure to accommodate under the ADA.3
The remaining discrimination claims can be treated collectively because the FHA,
RA, and DCHRA are generally interpreted to be coextensive with regards to the
requirement to reasonably accommodate.4 See, e.g., Whitbeck v. Vital Signs, Inc, 116
F.3d 588, 591 (DC. Cir. 1997) (interpreting the language ofthe DCHRA consistent with
interpretations of federal antidiscrimination laws); Giebeler v. M& B Assocs., 343 F.3d
1143, 1148-49 (9th Cir. 2003) (noting that the court ordinarily looks to RA and ADA
case law in interpreting the FHA reasonable accommodation requirement); Era’man v.
City ofFortAtkinson, 84 F.3d 960, 962 (7th Cir. 1996) (recognizing that the FHA
reasonable accommodation requirement is most often interpreted by analogy to the same
phrase in the RA). Thus, for purposes of this analysis, the reasonable accommodation
provisions ofthe RA and DCHRA are construed under the FHA legal standards.
3 Whether or not the ADA is applicable in this case makes no practical difference. Title III ofthe
ADA is interpreted to impose the same obligations as the FHA and RA. See, e.g,, Good
Shepherd Manor Found, Inc. v. City ofMomence, 323 F.3d 557, 561 (7th Cir. 2003) (observing
that the requirements for showing a failure to reasonably accommodate are the same under the
ADA and the FHA); Vinson v. Thomas, 288 F.3d 1 145, 1 152 n.7 (9th Cir. 2002) (noting that
there is “no significant difference in the analysis or rights and obligations created by” the ADA
and RA). As discussed, plaintiff has failed to point to evidence sufficient to sustain her claims
under the FHA and the RA. Such failure would similarly render deficient her ADA claim.
4 The FHA makes housing discrimination unlawful, see 42 U.S.C. § 3604(t)(1)-(2), and provides
that “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,” 42 U.S.C. § 3604(f)(3)(B). The RA prohibits
discrimination solely on the basis of disability from any “program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a), and obligates the provision ofreasonable
accommodations, see Scarborough v. Natsios, 190 F. Supp. 2d 5, 18—19 (D.D.C. 2002). The
DCHRA prohibits landlords from discriminating against persons with disabilities and includes in
its definition of “unlawful discrimination” a “refusal to make reasonable accommodations” for
disabled tenants. DC. Code § 2-1402.21(d).
To succeed on a failure to accommodate claim under the FHA, plaintiff must
show: (1) that she had a handicap within the meaning ofthe statute; (2) that defendants
knew or reasonably should have known of the handicap; (3) that an accommodation may
be necessary to afford her an equal opportunity to use and enjoy the dwelling; and (4) that
defendants refused to make the requested accommodation. United States v. District of
Columbia, 538 F. Supp. 2d 211, 217-18(D.D.C. 2008). As these elements suggest, the
“underlying assumption of any reasonable accommodation claim is that the plaintiff. . .
has requested an accommodation which the defendant . . . has denied.” Flemmings v.
Howard Univ, 198 F.3d 857, 861 (DC. Cir. 1999). Moreover, the request for an
accommodation is not without limit—only reasonable accommodations must be made,
see, eg, Giebeler 343 F.3d at 1 157 (describing reasonable accommodation as those that
do not impose undue financial or administrative burden), and a tenant is not entitled to
the exact accommodation of its choice, see Clio/ill v. Episcopal Church Home
Friendship, No. 10—cv-418(RLW). 2012 WL 3886950, at *4 (D.D.C. Sept. 7,2012)
(“[A] tenant is not entitled to each and every accommodation that he prefers").
Defendant does not dispute that plaintiff is disabled for the purposes of the FHA,
that it knew of this disability, or that an accommodation for her disability may be
necessary. Rather defendant contends that plaintiff has not made a request for a
reasonable accommodation as required by the law. Def.’s Mot. 6. Plaintiff counters that
she requested accommodations for her disabilities first in 2011, Pl.’s Opp’n W 57, 60-61,
and again through a series of letters in 2014, id. at W 57, 64-65. While plaintiff
acknowledges that defendants offered her two different first-floor units in response to her
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2014 requests, she maintains that the second apartment offered was not really an
“accommodation” because ofthe unit’s “remote” and “hilly” location as compared to her
current unit and its situation in a “courtyard with dim lighting.” P1.’s Opp’n W 38-42.
Plaintiff further suggests that a unit on D Street or the unit currently used as the rental
office should have been offered to her. Pl.’s Opp’n W 44-45, 70, 73.
Despite plaintiff’s protestations, I agree with defendant that the record simply does
not contain evidence sufficient for a jury to find that defendant refused to comply with a
request for a reasonable accommodation. To begin with, the record reveals that any
request to move apartments in 201 l was related to the presence of mold in plaintiffs
apartment and the health problems she may have suffered as a result. See Pl.’s Exs. at 9,
12. There is nothing in the record to indicate that plaintiff was requesting a move based
on her disability, and therefore defendant cannot be held liable under the FHA, RA, or
DCHRA for any inaction at that time.
By contrast, the record clearly demonstrates that plaintiff made a request for an
accommodation in the form of an ADA-accessible, first—floor unit in 2014. See P1.’s Exs.
at 14-17; Thompson 1/. Rice, 422 F. Supp. 2d 158, 176 (D.D.C. 2006) (“The request for
accommodation does not have to be formal . . . but the employer must be alerted to the
condition and the need for accommodation”). However, plaintiff has not shown that
defendant refused to make a reasonable accommodation for her once she made that
request. In fact, defendant repeatedly offered to do just that and continued to work with
plaintiff in good faith even after her request proved to be a moving target. On October 7,
2014 defendants offered to move plaintiff into a first-floor unit; however, they noted that,
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