Rodney Green, Sr. v. Mercy Housing, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY GREEN, Sr., Nos. 20-15134
20-15358
Plaintiff-Appellant,
D.C. No. 3:18-cv-04888-WHA
v.
MERCY HOUSING, INC.; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted March 2, 2021
San Francisco, California
Before: BALDOCK,** WARDLAW, and BERZON, Circuit Judges.
Rodney Green, Sr. appeals the grant of summary judgment to Mercy
Housing on his claims of race- and disability-based discrimination under the Fair
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Bobby R. Baldock, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Housing Act, 42 U.S.C. § 3604 et seq., and related statutes.1 We affirm in part,
reverse in part, and remand for further proceedings. We vacate the district court’s
grant of costs to Mercy Housing in an accompanying opinion.
1. The district court erred in granting summary judgment to Mercy Housing
on Green’s parking claim. According to Evelyn Singh, the East Leland Court
property manager, Green requested an accessible parking space before he moved in
but never made any further requests for accommodation. Green asserts that he
continued to request a more accessible parking space after he moved into his unit.
Accessible parking is necessary to afford mobility-impaired tenants equal
opportunity to use and enjoy their homes. United States v. Cal. Mobile Home Park
Mgmt. Co., 29 F.3d 1413, 1418–19 (9th Cir. 1994); 24 C.F.R. § 100.204(b). The
record indicates that accommodation in the form of a more accessible parking
space may have been possible, because parking spaces existed that were closer to
Green’s unit. If Green did request an accessible parking space other than the space
1
Green brings claims under the California Fair Employment and Housing Act, Cal.
Gov’t Code § 12900 et seq., and the Unruh Civil Rights Act, Cal. Civ. Code § 51et seq. We “apply the same standards to FHA and FEHA claims.” Pac. Shores
Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1156 n.14 (9th Cir. 2013)
(quoting Walker v. City of Lakewood, 272 F.3d 1114, 1131 n.8 (9th Cir. 2001)).
As the Unruh Act is “coextensive” with the Americans with Disabilities Act,
Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1175 n.2 (9th Cir. 2021), it is
analyzed under the same framework as the FHA’s reasonable accommodation
provisions, Giebeler v. M&B Assocs., 343 F.3d 1143, 1149 (9th Cir. 2003). We
therefore discuss all of Green’s claims under the rubric of the FHA.
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allotted to him, then the burden would fall on Mercy Housing to show that a more
accessible parking space was not a reasonable accommodation. Giebeler, 343 F.3d
at 1157.
Mercy Housing has not met this burden. On appeal, Mercy Housing argues
only that it did not control the parking spaces leased to First Baptist Head Start and
that Green had access to the tenant parking spaces closest to his unit. But Mercy
Housing has not shown that no accommodation of Green’s accessible-parking need
is reasonable. The record is somewhat vague as to the number and location of
visitor parking spaces. Mercy Housing has not disputed that a visitor space would
be an accessible one for Green, and has provided no explanation as to why
allowing Green to use one would not be reasonable. Nor is it possible to discern
from the record whether other accommodations aside from assigning one of the
Head Start spaces to Green—for example, adding parking space or assigning
Green one of the spaces reserved for Mercy Housing employees—would have been
reasonable. As genuine disputes of material fact remain as to Green’s parking
claim, we reverse the grant of summary judgment. See Christian v. Umpqua Bank,
984 F.3d 801, 808 (9th Cir. 2020) (citing Dominguez-Curry v. Nev. Transp. Dep’t,
424 F.3d 1027, 1033 (9th Cir. 2005)).
2. The district court did not err in granting summary judgment to Mercy
Housing on Green’s in-home care claim. Green does not contend that Mercy
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Housing has denied him access to any in-home care, nor has Green shown that in-
home care provided by Elijah, specifically, is necessary to afford him equal
opportunity to enjoy his home. See Giebeler, 343 F.3d at 1155. We therefore
affirm the grant of summary judgment as to Green’s second reasonable
accommodation claim.
3. The district court erred in granting summary judgment to Mercy Housing
on Green’s racial discrimination claim. Green argues that racial animus motivated
the issuance of the December 2017 sixty-day notice; he does not contest his
ultimate 2018 eviction. Green has produced sufficient “direct or circumstantial
evidence” of a discriminatory motive to survive summary judgment. Pac. Shores
Props., 730 F.3d at 1158 (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1122 (9th Cir. 2004)).
Green states that Evelyn Singh, the East Leland Court property manager,
made racist comments about Black tenants2 and accused Elijah of being a
“gangster drug dealer.” The only evidence in the record supporting that
characterization of Elijah are: (1) statements by Singh that another Mercy Housing
employee, Jaymie Lenz, told Singh she had seen two men—neither of whom Lenz
2
Singh vigorously denies that she made any such comments.
4
identified as being Elijah Green—in a car “smoking marijuana,”3 (2) that Singh
herself thought she had seen Elijah Green smoking marijuana another time, but
when she approached him she “did not smell anything”; and (3) Singh once
“observed what I believed was a drug sale involving Elijah Green on the East
Leland property,” but the record contains no details as to what Singh saw, why she
“believed” it was a drug sale, or how Elijah Green was “involv[ed].” An absence
of competent evidence of Elijah’s alleged criminal activity would allow the
inference that racial stereotyping played a role in Singh’s characterization of
Elijah.
Singh’s statements are likely admissible under Fed. R. Evid. 801(d)(2)(D),
because a jury could conclude that Singh is an agent of Mercy Housing and that
these statements relate to a matter within the scope of her employment. See Harris
v. Itzhaki, 183 F.3d 1043, 1054 (9th Cir. 1999). Evidence of a single
discriminatory comment is sufficient to preclude summary judgment on a disparate
treatment claim. Dominguez-Curry, 424 F.3d at 1039 (considering disparate
treatment in the Title VII context). Furthermore, the evidence of Green’s alleged
lease violations underlying the December 2017 sixty-day notice—most notably
3
Singh later that day saw the car Lenz described parked elsewhere on the property
and learned afterwards that one of the people in the car when she saw it was Elijah
Green. Singh apparently assumed the same people had been in the car earlier, but
the record contains no basis for the assumption.
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those concerning Elijah’s alleged criminal activity—is sufficiently inconclusive to
create a genuine issue of material fact as to whether a “discriminatory purpose was
. . . a ‘motivating factor’” in the issuance of the notice. Ave. 6E Invs., LLC v. City
of Yuma, 818 F.3d 493, 504 (9th Cir. 2016) (quoting Arce v. Douglas, 793 F.3d
968, 977 (9th Cir. 2015)). We therefore reverse the grant of summary judgment as
to Green’s race-based discrimination claim and remand for further proceedings.
4. As Green’s request for a continuance did not “set forth in affidavit form
the specific facts [he] hope[d] to elicit from further discovery” as required by Fed.
R. Civ. P. 56(d), the court did not abuse its discretion in denying the request. Fam.
Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th
Cir. 2008). Nor did the district court err in failing to rule on the merits of Green’s
discovery motion filed seven days after the discovery deadline. See Clark v. Cap.
Credit & Collection Servs., Inc., 460 F.3d 1162, 1178 (9th Cir. 2006).
5. We address the question of costs in an accompanying opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
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