Simmons v. Williams

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOISE K. SIMMONS,
Plaintiff,
v.
Civil Action No. 18-2169 (RDM)
LANGSTON LANE LIMITED
PARTNERSHIP, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Eloise K. Simmons brings this suit under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq.,
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the District of Columbia Human
Rights Act (“DCHRA”), D.C. Code § 2–1401.01 et seq. Dkt. 16-1 at 1–2 (3d Am. Compl. ¶ 1).
She alleges that Defendants—the companies that manage and own her apartment building and
two employees involved in the building’s management—discriminated against her in violation of
these statutes when they denied her request for a ground-floor, three-bedroom apartment as an
accommodation for her osteoarthritis and obesity. Id. at 2 (3d Am. Compl. ¶¶ 3–4). She also
alleges that Defendants filed, in violation of the DCHRA, two retaliatory lawsuits against her
after she engaged in certain protected activities, including complaining about her housing
conditions. Id. at 3–4, 21–23 (3d Am. Compl. ¶¶ 7, 75–77). Now before the Court are the
parties’ cross-motions for partial summary judgment, each of which focuses on a different subset
of Plaintiff’s claims. Dkt. 62; Dkt. 67.
Defendants’ motion for partial summary judgment focuses on Plaintiff’s failure-to-
accommodate claim. That motion argues that Simmons’ request for an accommodation was
unreasonable and that, in any event, no three-bedroom, ground-floor units were available to
accommodate Plaintiff’s request. Dkt. 62-2 at 5. But Defendants have failed to cite any law to
support the proposition that Plaintiff’s accommodation request was unreasonable, and they have
failed to bear “the[ir] initial responsibility” of “identifying those portions” of the record that
“demonstrate the absence of a genuine issue of material fact” as to the unavailability of a ground-
floor, three-bedroom apartment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). For these
reasons and those that follow, the Court will DENY Defendants’ motion for partial summary
judgment, Dkt. 62.
Plaintiff’s cross-motion for partial summary judgment, in turn, focuses on her retaliation
claims, arguing that the undisputed facts establish that Defendants retaliated against her for
engaging in protected activity. Dkt. 67. But because a reasonable jury could find that
Defendants filed both of the allegedly retaliatory lawsuits for legitimate, non-retaliatory reasons,
the Court will DENY Plaintiff’s cross-motion for partial summary judgment as well.
I. LEGAL STANDARD
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if it
can “show[] that there is no genuine dispute as to any material fact and [that it] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment
“bears the initial responsibility” of “identifying those portions” of the record that “demonstrate
the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. A fact is
“material” if it could affect the outcome of the litigation under governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the evidence is
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such that a reasonable jury could return a verdict for the nonmoving party. Scott v. Harris, 550
U.S. 372, 380 (2007). The Court must view the evidence in the light most favorable to the
nonmoving party and must draw all reasonable inferences in that party’s favor. See Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
If the moving party carries its initial burden, the burden then shifts to the nonmoving
party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving
party’s favor with respect to the “element[s] essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Id. (quoting Holcomb v. Powell, 433 F.3d 889, 895
(D.C. Cir. 2006)). The nonmoving party’s opposition, accordingly, must consist of more than
unsupported allegations or denials, and must be supported by affidavits, declarations, or other
competent evidence setting forth specific facts showing that there is a genuine issue for trial. See
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. If the nonmoving party’s evidence is “merely
colorable” or “not significantly probative,” the Court should grant summary judgment. Liberty
Lobby, 477 U.S. at 249–50.
In conducting this analysis, the Court “review[s] the record taken as a whole.” Wheeler
v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). But at summary
judgment, it is not the Court’s function to “weigh the evidence” or to “make credibility
determinations,” Wheeler, 812 F.3d at 1113, in order to determine “the truth of the matter,”
Liberty Lobby, 477 U.S. at 249.
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II. ANALYSIS
A. Failure to Accommodate
The Fair Housing Act makes it 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 . . . that person[] or . . . a person
residing in or intending to reside in that dwelling after it is so sold, rented, or made available.”
42 U.S.C. § 3604(f)(2). The Act defines discrimination to include “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.” Id.§ 3604(f)(3)(B). Like the FHA, the DCHRA prohibits discrimination on the basis of disability in
the “sale or rental of real estate” or in the “terms, conditions, or privileges of sale or rental”
thereof, D.C. Code § 2–1402.21(d)(1)–(2), and defines discrimination to include “[a] refusal to
make reasonable accommodations,” id. § 2–1402.21(d)(3)(B). The ADA prohibits disability
discrimination by both “public entit[ies],” 42 U.S.C. § 12132, and “public accommodation[s],”
id. § 12182, 1 and the Rehabilitation Act makes it unlawful to exclude a “qualified individual
with a disability . . . solely by reason of her . . . disability,” from any “program or activity
1
Although some courts have concluded that private apartment complexes are not subject to the
ADA because they do not constitute “public accommodations,” see, e.g., Parham v. CIH
Properties, Inc., No. 14-cv-1613, 2015 WL 5294683, at *3 (D.D.C. Sept. 8, 2015) (collecting
cases); Indep. Hous. Servs. of S.F. v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1344 (N.D. Cal.
1993), Defendants concede that the federally subsidized housing at issue in this case is subject to
the ADA, see Dkt. 62-2 at 3–4. In any event, the question matters little for present purposes
because Simmons can pursue a similar claim under Section 504 of the Rehabilitation Act. See
Chenari v. George Wash. Univ., 847 F.3d 740, 746 (D.C. Cir. 2017); see also Harrison v. Rubin,
174 F.3d 249, 253 (D.C. Cir. 1999) (“Claims and defenses under the two statutes are virtually
identical.”).
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receiving Federal financial assistance” or to “subject[] [that person] to discrimination under
[such] program or activity,” 29 U.S.C. § 794(a).
To prevail on an FHA reasonable-accommodation claim, a plaintiff must prove that
(1) she “is disabled within the meaning of the FHA;” (2) she “requested a reasonable
accommodation;” (3) “the requested accommodation was necessary to afford h[er] an
opportunity to use and enjoy h[er] dwelling;” and (4) “the defendants refused to make the
accommodation.” Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277, 1285 (11th Cir.
2014); see also Hollis v. Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 541 (6th Cir. 2014);
Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003); United States v. District of
Columbia, 538 F. Supp. 2d 211, 217–18 (D.D.C. 2008). That inquiry merges with the
reasonable-accommodation test under the ADA and the Rehabilitation Act because courts
applying the FHA’s reasonable-accommodation provision have typically looked to “the line of
decisions interpreting ‘reasonable accommodations’ in Section 504” of the Rehabilitation Act.
Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 795 (6th Cir. 1996); Am.
Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) (explaining “cases
interpreting [the Rehabilitation Act and Title II of the ADA] are applicable and interchangeable”
(internal citation and quotation marks omitted)); Arthur v. D.C. Hous. Auth., No. 18-cv-2037,
2020 WL 1821111, at *9 (D.D.C. Apr. 11, 2020) (citing an ADA case in the FHA context). The
same is true of the DCHRA: courts interpreting that statute “have generally looked [for
guidance] to cases from the federal courts’ arising under federal civil rights statutes.” Whitbeck v.
Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997) (alteration in original) (quoting Benefits
Comm. Corp. v. Klieforth, 642 A.2d 1299, 1301–02 (D.C. 1994)).
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Supreme Court and D.C. Circuit caselaw has construed the “reasonable accommodation”
requirement to demand an accommodation that “seems reasonable on its face, i.e., ordinarily or
in the run of cases,” unless the defendant can “show special (typically case-specific)
circumstances that demonstrate undue hardship in the particular circumstances.” U.S. Airways,
Inc. v. Barnett, 535 U.S. 391, 401–02 (2002) (interpreting Title I of the ADA); see also Seth v.
District of Columbia, 813 F. App’x 611, 614 (D.C. Cir. 2020) (applying this same approach to
Title II of the ADA); Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993) (concluding, in the
Rehabilitation Act context, that “a reasonable accommodation is one employing a method of
accommodation that is reasonable in the run of cases, whereas the undue hardship inquiry
focuses on the hardships imposed by the plaintiff’s preferred accommodation in the context of
the particular agency’s operations” (emphasis in original)). But see Paulson, 525 F.3d at 1266(casting some doubt on the proposition that “plaintiffs’ burden includes demonstrating that a
proposed accommodation is facially reasonable” in the Rehabilitation Act context).
Here, Defendants make two principal arguments in their motion for summary judgment.
First, they argue that Simmons’ requested accommodation was not a “reasonable” one because
she made a “very specific, narrow request”—a “three-bedroom ground floor unit.” Dkt. 62-2 at
5. Second, they contend that Simmons’ request was never “denied.” Id. at 6. On their telling,
“Defendants . . . made an extraordinary effort to assist her, but simply could not meet the very
specific, narrow requirements set forth . . . in her request for an accommodation.” Id. That
second assertion is a (minor) variation on the undue-hardship question: Defendants essentially
contend that, although they wanted to accommodate Plaintiff’s request, doing so was not feasible
because “ground-floor three-bedroom unit[s]” were “a commodity that was quite scarce” at
Langston Lane. Id.
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In support of these arguments, Defendants set forth twelve facts as to which they contend
there is no genuine dispute, Dkt. 62-1 at 1–2 (Defendants’ Statement of Material Facts (“Defs.’
SUMF”)), all but one of which relies on a single piece of evidence: the February 26, 2021
deposition of Joseph Anthony Ross, the president and co-principal of Defendant
ResidentialONE, LLC, who was previously “in charge of the management operation at the
Langston Lane Apartments.” Dkt. 74-1 at 4 (Ross Dep. 9:8–11; 11:11–16). Relying on that
deposition, Defendants assert that: (1) “Plaintiff requested a ground-floor three-bedroom
apartment at Langston Lane,” Dkt. 62-1 at 1 (Defs.’ SUMF ¶ 4); (2) “Plaintiff’s request for an
accommodation was approved,” but that “[a] unit meeting plaintiff’s request was not available,” 2
id. at 2 (Defs.’ SUMF ¶¶ 5–6); (3) “Plaintiff was placed on a waitlist” for the “four three-
bedroom apartments located on the ground floor” at Langston Lane, id. (Defs.’ SUMF ¶¶ 8, 10);
and (4) “Mr. Ross attempted to find the accommodation requested by Plaintiff by searching the
greater Residential One portfolio and directly communicating with HUD,” id. (Defs.’ SUMF
¶ 11). Plaintiff contests the second and third of these premises, arguing that “[t]here is no
evidence that Plaintiff was put on the waiting list” and that Ross’s deposition was “contradictory
2
The notion that Plaintiff’s specific accommodation request was actually “approved” is not
borne out in the record. It is undisputed that Simmons “requested a ground-floor three-bedroom
apartment at Langston Lane.” Dkt. 73-1 at 19 (Pl.’s Response to Defs.’ SUMF ¶ 4). And
although Defendants contend that “Plaintiff’s request for an accommodation was approved,”
Dkt. 62-1 at 2 (Defs.’ SUMF ¶ 5), the deposition transcript cited for that proposition states that
Simmons “was approved to occupy the next available, suitable unit at Langston Lane,” Dkt. 74-1
at 8 (Ross Dep. 27:12–13) (emphasis added). Defendants do not indicate why approval to
occupy the “next available, suitable” unit satisfies Plaintiff’s request to occupy a ground-floor,
three-bedroom apartment.
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as to whether or not there were three-bedroom apartments [available] during the time frame of
the reasonable accommodation.” 3 Dkt. 73-1 at 21 (Pl.’s Response to Defs.’ SUMF ¶ 10).
Based on this sparse evidence, the Court cannot conclude that Defendants have
successfully “b[orn] the initial responsibility” of “identifying those portions” of the record that
“demonstrate the absence of a genuine issue of material fact” as to the unreasonableness of
Plaintiff’s accommodation request. Celotex Corp., 477 U.S. at 323. To start, Defendants offer
nothing more than ipse dixit in support of the contention that the “method of accommodation”
requested by Simmons—here, the relocation to a similarly-sized apartment on the ground floor
of her apartment building, see Dkt. 62-1 at 1 (Defs.’ SUMF ¶ 4); Dkt. 73-1 at 19 (Pl.’s Response
to Defs.’ SUMF ¶ 4)—is “[un]reasonable in the run of cases,” Barth, 2 F.3d at 1187 (emphasis
removed); see also U.S. Airways, Inc., 535 U.S. at 402 (citing this standard from Barth). Nor do
Defendants press the argument that Simmons’ requested accommodation is categorically
unreasonable; they seek, instead, to establish that “special (. . . case-specific) circumstances
. . . demonstrate” why Plaintiff’s request for a three-bedroom is unreasonable or unduly
burdensome. See U.S. Airways, Inc., 535 U.S. at 402; Taylor v. Rice, 451 F.3d 898, 908 (D.C.
Cir. 2006) (recognizing that, although “[w]hether a proposed accommodation is reasonable and
whether it imposes undue hardship are separate inquiries, . . . “the analyses often overlap,
especially when evaluating as-applied claims of reasonableness” (internal citation omitted)).
3
Although an earlier filing by Plaintiff also “[d]enied” that Ross had searched the greater
Residential One portfolio, Dkt. 70-1 at 2, that initial response provided no explanation beyond a
bare denial and accordingly failed to comply with the requirements—set out in the Federal Rules
of Civil Procedure and in this Court’s local rules—for contesting factual assertions. Because a
court can “consider [a] fact undisputed for purposes” of a summary judgment motion where “a
party fails to properly support an assertion of fact or fails to properly address another party’s
assertion of fact,” Fed. R. Civ. P. 56(e), the Court concludes that Plaintiff’s conclusory
“[d]eni[al]” of that fact, without reference to the record, is insufficient to create any genuine
dispute thereto.
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Defendants contend, instead, that the “commodity” of three-bedroom, ground floor apartments
“was quite scarce,” Dkt. 62-2 at 6; that “[a] unit meeting plaintiff’s request was not available”
during the relevant timeframe, Dkt. 62-1 at 2 (Defs.’ SUMF ¶ 6); and that Defendants
accordingly could not accommodate Plaintiff’s request without “evict[ing] tenants currently
residing in three-bedroom ground floor units,” Dkt. 62-2 at 6.
Defendants’ argument fails for one simple reason: those factual assertions are not
supported by undisputed evidence. At his deposition, Ross testified that he did not “recall”
whether a qualifying apartment “became available” in Simmons’ building, Dkt. 74-1 at 10 (Ross
Dep. 33:13–17), but that “even i[f] there w[as] [an available unit], it d[idn’t] necessarily mean
that Ms. Simmons would have been next in line for it” given the relevant “wait lists,” id. (Ross
Dep. 33:17–20). Although Ross indicated at another point in his deposition that no “suitable
unit” became available at Langston Lane before “December 31st, 2018,” id. at 8 (Ross Dep.
27:12–18), Ross’s contradictory testimony cannot establish—as a matter of undisputed fact—
that “[a] unit meeting plaintiff’s request was not available.” Dkt. 62-1 at 2 (Def.’s SUMF ¶ 6);
see also Dkt. 73-1 at 21 (Pl.’s Response to Defs.’ SUMF ¶ 10) (arguing that “the testimony of
the witness, Tony Ross[,] was contradictory as to whether or not there were three-bedroom
apartments during the time frame of the reasonable accommodation”).
Nor does the testimony that Simmons was not “next in line” on the waitlist for an
available apartment establish, on its own, that granting Simmons’ accommodation request would
have “impose[d] . . . ‘undue financial and administrative burdens on [Defendants] or require[d] a
fundamental alteration in the nature of [their] program.’” Barth, 2 F.3d at 1187 (quoting Sch.
Bd. of Nassau Cty. v. Airline, 480 U.S. 273, 287 n.17 (1987)). Defendants do not describe the
nature of this waitlist; nor do they elucidate whether those listed above Simmons on the list had
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requested similar disability-related accommodations that precluded reshuffling the list or that
they would have declined an alternate apartment, including Simmons’ second-floor apartment.
And even if prioritizing Simmons’ request would have deviated from a policy of assigning
available apartments in the waitlist order, “the fact that an accommodation would require a
change in policy does not necessarily demonstrate unreasonableness or undue hardship.” Taylor,
451 F.3d at 911; see also U.S. Airways, 535 U.S. at 397 (“[T]he fact that the [proposed]
difference in treatment violates an employer’s disability-neutral rule cannot by itself place an
accommodation beyond the Act’s potential reach.”).
Because Defendants have failed to proffer undisputed evidence supporting their
defense—and establishing that no reasonable jury could find in Simmons’ favor—the Court will
deny Defendants’ motion for partial summary judgment on Plaintiff’s FHA, ADA, DCHRA, and
Rehabilitation Act claims. To be clear, the Court does not hold that Simmons is entitled to relief,
only that Defendants have not carried their burden of demonstrating that there is no issue for
trial.
B. Retaliation under the DCHRA
The Court turns next to Simmons’ partial cross-motion for summary judgment on her
DCHRA retaliation claim. Dkt. 67. Although Plaintiff’s motion for summary judgment seeks to
add retaliation claims “under the ADA [and] the Rehabilitation Act,” Dkt. 67 at 3, her complaint
labels those claims as “Retaliation DCHRA” and cites exclusively to provisions of the D.C.
Code, see Dkt. 16-1 at 21–23 (3d Am. Compl. ¶¶ 74–77). Simmons has not moved to amend her
complaint to add ADA or Rehabilitation Act claims, and she cannot expand the scope of her
complaint by merely referencing additional claims in her brief. Cf. Manna v. U.S. Dep’t of Just.,
106 F. Supp. 3d 16, 19 (D.D.C. 2015) (“[A plaintiff] cannot expand the scope of this litigation by
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merely referring to other requests in [her] opposition to Defendants’ motion.”). The Court will,
accordingly, address only the DCHRA.
The DCHRA provides that it is “an unlawful discriminatory practice to . . . retaliate
against . . . any person . . . on account of having exercised or enjoyed . . . any right granted or
protected under this chapter.” D.C. Code § 2–1402.61(a). The familiar McDonnell Douglas
framework governs DCHRA retaliation claims. Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d
231, 235–36 n. 3 (D.C. Cir. 1999). “Under that framework, a plaintiff must first establish a
prima facie case of retaliation by showing (1) that [s]he engaged in statutorily protected activity;
(2) that [s]he suffered a materially adverse action . . . ; and (3) that a causal link connects the
two.” Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (quoting Jones v. Bernanke,
557 F.3d 670, 677 (D.C. Cir. 2009)). But because this is Plaintiff’s motion for summary
judgment, she must do more than “establish a prima facie case” of retaliation. Id. To warrant
summary judgment on her claim, she must proffer undisputed evidence sufficient to show that
she is entitled to relief. Borgo v. Goldin, 204 F.3d 251, 257 (D.C. Cir. 2000). “Accordingly, the
court must ask whether, based on all the record evidence, a reasonable jury could reach no
conclusion other than that [Defendants’] stated reason was not the actual reason for the
[allegedly adverse action] and that, in fact, [Defendants] ‘intentionally [retaliated] against the
plaintiff.’” Bradley v. D.C. Pub. Schs., 222 F. Supp. 3d 24, 30 (D.D.C. 2016) (quoting Adeyemi
v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008)).
On Simmons’ telling, she engaged in three “protected activities” that are relevant to her
retaliation claim: (1) requesting a ground-floor, three-bedroom apartment due to her disability;
(2) reporting housing code violations (in an April 9, 2018 verified complaint with the D.C.
Superior Court and in an April 11, 2018 housing discrimination complaint to HUD); and
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(3) “organiz[ing] a group of tenants to sign a petition for the removal of Defendant Annette
Anderson.” Dkt. 67 at 7–10. And she contends that because she engaged in those activities, she
was subjected to two adverse actions. First, Defendants Annette Anderson and Vickie Williams
filed a defamation suit against her on April 11, 2018. Dkt. 67 at 10. Second, Defendants
“mismanaged [her] rental account,” resulting in a series of “Notices for Back Rent due that was
not owed,” id. at 10, and, ultimately, in a July 19, 2018 “suit for Possession of Real Estate for
nonpayment of Rent,” id. at 11.
As an initial matter, the Court notes that Plaintiff cites no caselaw or statutory provisions
for the proposition that these allegedly “protected activities” were in fact “right[s] granted or
protected under th[e] [DCHRA].” D.C. Code § 2–1402.61(a). 4 But the Court need not, at least
at this juncture, address whether Plaintiff’s actions were protected—or whether Defendants’
actions were “adverse”—because Simmons’ motion fails for another reason. In particular, she
has failed to carry her burden of showing that no reasonable jury could credit Defendants stated
reasons for filing suit against her and for issuing notices of back rent or find that Defendants
otherwise acted without retaliatory intent. See Bradley, 222 F. Supp. 3d at 30.
The Court begins by considering the allegedly retaliatory lawsuit Anderson and Williams
filed against Plaintiff on April 11, 2018. Plaintiff argues that there is a “causal connection”
between that suit and her “protected activity;” in broad strokes, she argues that “there is a
plethora of evidence of temporal proximity sufficient to support an inference . . . of actual
4
Plaintiff does, for the first time in her reply brief, argue that her effort to get other tenants to
sign a petition seeking Anderson’s removal was a “protected activit[y]” under D.C. Code
§ 42-3505.02(b), a provision of the D.C. Housing Code that regulates retaliatory action against
tenants. Dkt. 73 at 9. But Plaintiff’s complaint does not plead a retaliation claim under D.C.
Code § 42-3505.02, see Dkt. 16-1 (3d. Am. Compl.); nor does she contend that the DCHRA
incorporates the retaliatory actions listed in that provision of the Housing Code.
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retaliatory motive.” Dkt. 67 at 12. But mere “temporal proximity”—which the D.C. Circuit has
held insufficient to defeat an opposing party’s motion for summary judgment, see Minter v.
District of Columbia, 809 F.3d 66, 71–72 (D.C. Cir. 2015)—cannot provide evidence of
retaliation that is sufficient to enter judgment as a matter of law in movant’s favor, see Bradley,
222 F. Supp. 3d at 30. That is especially true where, as here, Defendants have proffered a non-
retaliatory reason for filing the defamation suit: that is, Plaintiff’s apparent “vitriol towards the
Defendants.” Dkt. 72 at 7. In support of that defense, Defendants cite two of Plaintiff’s exhibits:
one contains Anderson’s notes of an April 9, 2018 interaction with Simmons, in which Simmons
apparently threatened to kill Anderson, Dkt. 69-3 at 71 (Pl.’s Ex. 40); the other is a “Barring
Notice” that precludes Simmons from “coming inside of the Rental Office” because she
apparently “[u]sed abusive language towards Management staff in the Rental Office” and
“[c]aused a disturbance” to which “[p]olice were called,” Dkt. 69-5 at 44 (Pl.’s Ex. 58). Plaintiff
offers no argument or evidence to rebut those exhibits, which she herself provided to this Court,
or to establish that Plaintiff’s confrontation with Langston Lane staff on April 9, 2018 was “not
the actual reason” for Defendants’ defamation lawsuit. Bradley, 222 F. Supp. 3d at 30. In any
event, this evidence—construed, as it must be, in Defendants’ favor, see Borgo, 204 F.3d at257—raises a genuine issue of fact about what motivated Anderson and Williams to file suit in
April 2018. The Court, accordingly, cannot conclude as a matter of law that their motive was a
retaliatory one.
Nor has Plaintiff shown as a matter of law that Defendants mismanaged her rental
account or brought suit for non-payment of rent because Simmons engaged in any protected
activities. Dkt. 67 at 10–11. For the reasons explained above, the mere “temporal proximity”
between those management and rent-collection efforts and Plaintiff’s allegedly protected
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activities is insufficient to support entry of summary judgment in Plaintiff’s favor. Bradley, 222
F. Supp. 3d at 30. And here, as above, Defendants have offered a legitimate, non-retaliatory
explanation for their actions, which Plaintiff has failed to rebut. Pointing to one of Plaintiff’s
exhibits, Defendants explain that they issued the nonpayment notices—and ultimately filed
suit—because “Simmons did not make any rental payments between May 2017 and February
2019.” Dkt. 72-1 at 11 (Defs.’ Response to Pl.’s SUMF ¶ 14); see also Dkt. 69-3 at 12 (Pl.’s Ex.
31). Plaintiff counters that she made her rent payments into a “court registry” between July 2018
and August 2019. Dkt. 73-1 at 15 (Pl.’s Reply as to Pl.’s SUMF ¶ 14); see also Dkt. 69-5 at 48
(Pl.’s Ex. 59) (showing a court record of “Receipts” with several $281.00 payments by Simmons
between August 2018 and July 2019). But she altogether fails to address her alleged
nonpayment of rent in the most critical months, which are those before Defendants filed suit for
nonpayment of rent in July 2018. Because a reasonable jury could find, on this basis alone, that
Defendants’ rent-collection efforts were motivated by Plaintiff’s nonpayment of rent—and not
by a desire to retaliate—the Court cannot enter summary judgment in favor of Simmons on her
retaliation claim.
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CONCLUSION
For the foregoing reasons, Defendants’ partial motion for summary judgment, Dkt. 62, is
hereby DENIED, and Plaintiff’s partial cross-motion for summary judgment, Dkt. 67, is also
DENIED. It is further ORDERED that the parties shall file a joint status report on or before
April 14, 2023, proposing next steps in the case.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 31, 2023
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