United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 19)
J. FURSE UNITED STATES MAGISTRATE JUDGE
Melanie Haws moves the Court for summary judgment on her
failure to accommodate her disability and retaliation claims
against Defendant Michael Norman. (Pl.'s Mot. for Summ.
J. (“Mot.”), ECF No. 19.) Ms. Haws alleges Mr.
Norman denied her requests for an assistance animal and
retaliated against her in violation of the Federal Fair
Housing Act and the Utah Fair Housing Act. (Compl., ECF No.
2.) After considering the parties' briefing and
hearing oral argument, the Court DENIES summary judgment on
Ms. Haws's failure to accommodate and retaliation claims.
Rule 56(a) of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “A fact is
‘material' if, under the governing law, it could
have an effect on the outcome of the lawsuit. A dispute over
a material fact is ‘genuine' if a rational jury
could find in favor of the nonmoving party on the evidence
presented.” Tabor v. Hilti, Inc., 703 F.3d
1206, 1215 (10th Cir. 2013) (quoting E.E.O.C. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th
Cir. 2000)). On a motion for summary judgment, the Court
reviews the facts in a light most favorable to the nonmovant
and draws all reasonable inferences in the nonmovant's
favor. Jones v. Norton, 809 F.3d 564, 573 (10th Cir.
the facts in a light most favorable to Mr. Norman, the
following facts provide the basis for decision. Mr. Norman
owns a triplex in Logan, Utah. (Pl.'s Mot. for Summ. J.
(“Mot.”) ¶ 1, ECF No. 19; Corrected Mem. in
Opp'n to Pl.'s Mot. for Summ. J.
(“Opp'n”) 4, ECF No. 21.) In spring 2013, Ms.
Haws rented one room in a triplex unit from Mr. Norman. (Mot.
¶ 3, ECF No. 19; Opp'n 4, ECF No. 21.) The triplex
unit includes four bedrooms with their own bathrooms, a
common kitchen area, common living room, and common hallway.
(Reply Mem. to Def.'s Opp'n to Mot. for Summ. J.
(“Reply”) ¶ 60, ECF No. 22; Payne Dep.
8:8-13, Ex. 1, ECF No. 21-1; Arrowood Dep. 8:2-10, Ex. 2, ECF
No. 21-1.) Ms. Haws lived with three roommates in the triplex
unit. (Id. ¶ 61.) Ms. Haws's original lease
began August 15, 2013 and ran through May 10, 2014. (Reply
¶ 52, ECF No. 22.) The lease agreement included a
provision about pets:
Residents may not keep a pet of any kind in the building or
on the Owner's property. For any violation of this
provision in addition to the Owner's other remedies,
Owner may charge and collect the sum of $50.00 per day, per
violation. All costs of cleaning, de-fleaing, or other damage
or loss suffered on account of a violation of this section
shall be promptly paid to Owner by Resident. Violation of
this provision will allow Owner to commence eviction on the
bases of nuisance without any further notice.
(1st Lease Agreement, Ex. 11 at 2, ECF No. 21-1.)
or July of 2013, Ms. Haws asked Mr. Norman whether she could
have a dog live with her in the apartment. (Opp'n ¶
10, ECF No. 21.) Ms. Haws does not recall if she specifically
mentioned that the dog related to her disability or if she
made a specific accommodation request. (Haws Dep. at 31:7-12,
Ex. E, ECF No. 19-1.) Mr. Norman does not recall Ms. Haws
making a specific accommodation request or offering to
provide a prescription letter or other medical documentation
at that time. (Norman Dep. at 11:1-25, Ex. 8, ECF No. 21-1;
Def.'s Resps. to Pl.'s 1st Set of Interrogs., Reqs.
for Admiss., & Reqs. for Produc. of Docs.,
(“Def.'s 1st Disc. Resps.”) at 5-6, Ex. 9,
ECF No. 21-1.)
Haws renewed her lease agreement with Mr. Norman for the
following August 15, 2014 to May 10, 2015. (Reply ¶ 53,
ECF No. 22.) The renewed lease agreement included the same
pets provision. (2d Lease Agreement at 2, Ex. 12, ECF No.
21-1.) In January of 2015, Ms. Haws's bishop, Daniel
Everton, called Mr. Norman on her behalf to ask whether Ms.
Haws could live with a dog. (Opp'n ¶ 23, ECF No.
21.) Specifically, Mr. Everton stated in his affidavit that
he told Mr. Norman about Ms. Haws's doctor's
suggestion and “asked if [Mr. Norman] would allow her
to have a dog.” (Norman Aff. ¶ 5, Ex. H, ECF No.
19-1.) Ms. Haws gave a letter to Mr. Everton from her
therapist to give Mr. Norman, but she does not know if Mr.
Everton ever gave that letter to Mr. Norman. (Letter from
Booton to Norman, Jan. 29, 2016, Ex. 6, ECF No. 21-1; Haws
Dep. 49:7-50:19, Ex. E, ECF No. 19-1.) Mr. Norman does not
recall the conversation and did not understand that Mr.
Everton sought an accommodation for Ms. Haws's
disability. (Norman Dep. at 13:1-14:22, Ex. 8, ECF No. 21-1;
Def.'s 1st Disc. Resps. at 6, Ex. 9, ECF No. 21-1.) Mr.
Norman did not seek follow up information and denied the
request. (Norman Dep. at 14:10-22, Ex. 8, ECF No. 21-1.)
March of 2015, Ms. Haws obtained a dog that lived with her in
the apartment. (Opp'n ¶ 25, ECF No. 21.) In April
2015, Mr. Norman discovered Ms. Haws had a dog after one of
Ms. Haws's roommates called Mr. Norman to complain.
(Opp'n ¶ 26, ECF No. 21; Reply ¶ 65, ECF No.
22.) When Mr. Norman asked Ms. Haws about the dog, Ms. Haws
gave Mr. Norman an accommodation request letter and
documentation from her psychologist. (Opp'n ¶ 14,
ECF No. 21.) In her accommodation letter, Ms. Haws informed
Mr. Norman that she needed an emotional support animal in her
residence to “aid in the alleviation of some of the
symptoms of [her] disabilities” as recommended by her
therapist. (Letter from Haws to Norman, Ex. G, ECF No. 19-1.)
The April 20, 2015 letter from Ms. Haws's psychologist
stated that Ms. Haws “has been diagnosed with 309.81,
Posttraumatic Stress Disorder and 296.30, Major Depressive
Disorder, Recurrent Episode.” (Letter from Melvin &
Kleiner, Apr. 20, 2015, Ex. A, ECF No. 19- 1.) The letter
states, “[t]the animal is a necessary accommodation for
her functioning and to increase her subjective enjoyment of
her residence.” (Id.)
Haws was diagnosed with depression, anxiety, and
post-traumatic stress disorder in 2014 and experienced these
conditions prior to her diagnosis. (Opp'n ¶ 8, ECF
No. 21.) Ms. Haws's conditions did not appear to her
roommates to affect her daily functioning, and they did not
know she had a disability. (Opp'n ¶ 9, ECF No. 21.)
Ms. Haws experienced emotional ups and downs, sought
counseling, and received prescriptions for anxiety,
depression, and insomnia. (Clinic Notes, Ex. 3, ECF No.
21-1.) Ms. Haws's mental condition made studying
difficult, and she had trouble focusing; it interfered with
her ability to sleep, eat, and develop interpersonal
relationships. (Clinic Notes, Ex. 3, ECF No. 21-1; Univ. of
Utah Health Care Records, Ex. 4, ECF No. 21-1; Letter from
Melvin & Kleiner, Apr. 20, 2015, Ex. A, ECF No. 19-1;
Assessment by Johnson, Ex. C, ECF No. 19-1; Clinic Notes, Ex.
D, ECF No. 19-1.) At times, Ms. Haws contemplated suicide.
(Assessment by Johnson, Ex. C, ECF No. 19-1; Clinic Notes,
Ex. D, ECF No. 19-1.)
Ms. Haws provided Mr. Norman with the accommodation letters,
Mr. Norman told Ms. Haws she could not have a dog at the
apartment because her roommates had complained about it.
(Norman Dep. 18:2 - 19:17, Ex. F, ECF No. 19-1.)
Specifically, Ms. Haws failed to confine the dog to her room,
and it urinated in the common rooms as well as in the
roommates' rooms. (Payne Dep. 16:1-17:13, 19:1-20, Ex. 1,
ECF No. 21-1; Arrowood Dep. 16:10-18:25, Ex. 2, ECF No.
21-1.) Mr. Norman told Ms. Haws he would charge her fifty
dollars a day for having the dog prior to requesting
accommodation in April 2015. (Opp'n ¶ 35, ECF No.
21.) Mr. Norman also called Ms. Haws's uncle, Brad
Bachman, and attempted to enlist Mr. Bachman's help in
resolving the dispute with Ms. Haws over her dog. (Opp'n
¶ 37, ECF No. 21.) However, Ms. Haws continued to live
in the apartment with her dog through the end of her lease on
May 10, 2015. (Haws Dep. 74:5-75:7, Ex. 5, ECF No. 21-1.) On
April 29, 2015, Mr. Norman billed Ms. Haws $1, 050 for
keeping a dog in the apartment. (Opp'n ¶ 36, ECF No.
21.) Mr. Norman billed Ms. Haws for fifty dollars per day for
each day Ms. Haws had her dog prior to his receiving the
request for accommodation. (Def.'s 1st Disc. Resps., Ex.
9, ECF No. 21-1.)
15, 2015, Mr. Norman initiated a small claims action against
Ms. Haws in the Logan City Municipal Justice Court seeking to
recover $1, 400 plus fees for “keeping a dog in her
apartment.” (Opp'n ¶ 38, ECF No. 21.) Mr.
Norman took these actions because he wanted to avoid
obtaining “a reputation for just letting everything
slide.” (Opp'n ¶ 49, ECF No. 21.)
Application to Shared Living Units
threshold issue, Mr. Norman argues the Federal Fair Housing
Act and Utah Fair Housing Act (collectively “the Fair
Housing Acts”) do not apply to shared living units,
precluding summary judgment in Ms. Haws's favor.
(Opp'n 31, ECF No. 21.) As explained above, Ms. Haws
rented one of the four rooms with a communal living space.
She did not select her roommates. The Fair Housing Acts
prohibit discrimination in the rental of a
“dwelling” because of a person's
disability. 42 U.S.C. § 3604(f)(2); Utah Code
Ann. § 57-21-5(1)(b). The Acts define a
“dwelling” as a building or any portion of a
building “intended for occupancy as, a residence by one
or more families.” 42 U.S.C. § 3602(b); Utah Code
Ann. § 57-21-2(14).
Norman cites Fair Housing Council v. Roommate.com,
LLC, 666 F.3d 1216 (9th Cir. 2012), for the proposition
that the Fair Housing Acts do not apply to shared living
units. In that case, the defendant Roommate.com, LLC
(“Roommate”) operated a website that matched a
person seeking to find a roommate with a person looking to
rent an available room. Id. 666 F.3d at 1218. When
users signed up with Roommate, they created a profile and
answered a series of questions including questions about
their sex, sexual orientation, and familial status.
Id. The Fair Housing Councils of San Fernando Valley
and San Diego sued Roommate, claiming the required questions
about a person's sex, sexual orientation, and familial
status violated the Federal Fair Housing Act. Id.
The court held that Roommate's questions did not violate
the Federal Fair Housing Act because the Act permits
potential roommates to discriminate in selecting a roommate
in a shared living unit. Id. at 1222. The Ninth
Circuit reached this conclusion by interpreting the Act
narrowly to avoid reaching the constitutional implications
raised by the intrusion into the privacy of a person's
home and the choice of with whom one lives. Id. at
1221-22. The court also explained that in enacting the
Federal Fair Housing Act:
Congress wanted to address the problem of landlords
discriminating in the sale and rental of housing, which
deprived protected classes of housing opportunities. But a
business transaction between a tenant and landlord is quite
different from an arrangement between two people sharing the
same living space. We seriously doubt Congress meant the FHA
to apply to the latter.
Id. at 1220.
Roomate.com, this case does not involve alleged
discrimination in roommate selection. In fact, Ms. Haws did
not even choose her roommates-her landlord did. Instead, this
case involves alleged discrimination by a landlord. As noted
above, the Roommate.com court recognized that the
Federal Fair Housing Act specifically aims to govern the
conduct of landlords in housing rentals. To hold that an
individual protected by the Fair Housing Acts loses those
protections because she lives in a shared living unit would
exempt landlords who rent shared living units from the Fair
Housing Act. Nothing in the Fair Housing Acts demonstrates an
intent to exempt those landlords, and Roommate.com
did not address landlords but rather roommates. Therefore,
the Court declines to extend Roommate.com's
holding to relieve landlords of their Fair Housing Acts
Failure to Accommodate
under the Fair Housing Acts 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); Utah Code
Ann. § 57-21-5(4)(b). To prevail on a failure to
accommodate claim under the Fair Housing Acts, Ms. Haws must
prove: (1) she suffers from a disability as defined by the
Fair Housing Acts; (2) Mr. Norman knew or reasonably should
have known of Ms. Haws's disability; (3) Ms. Haws needs
accommodation to have an equal opportunity to use and enjoy
her dwelling; (4) the accommodation is reasonable; and (5)
Mr. Norman refused to make such accommodation. Arnal v.
Aspenview Condo. Ass'n, 226 F.Supp.3d 1177, 1183 (D.
Colo. 2016) (citing Dubois v. Ass'n of Apartment
Owners, 453 F.3d 1175, 1179 (9th Cir. 2006)).
Whether Ms. Haws Qualifies as Disabled Under the
Fair Housing Acts
Haws argues she qualifies as disabled under the Fair Housing
Acts because her depression, anxiety, and post-traumatic
stress syndrome substantially limit her major life activities
of “eating, self-care, receiving an education,
sleeping, and interacting socially, and have caused her to
contemplate suicide on several occasions.” (Mot. 3, ECF
No. 19.) Mr. Norman disputes that Ms. Haws's conditions
substantially limit her major life activities, citing to Ms.
Haws's roommate's deposition testimony “that
they never saw Plaintiff struggle in any way and that nothing
seemed unusually difficult for Plaintiff.” (Opp'n
5, ECF No. 21.) Further, Mr. Norman argues Ms. Haws's
“medical records demonstrate that whatever effects