USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13134
Non-Argument Calendar
____________________
STEVEN UNGER,
Plaintiff-Appellant,
versus
MAJORCA AT VIA VERDE HOMEOWNERS ASSOCIATION
INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-81175-AHS
____________________
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2 Opinion of the Court 21-13134
Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Steven Unger appeals from the district court’s dismissal of
his complaint against Majorca At Via Verde Homeowners Associ-
ation, Inc. (“Majorca”). Unger asserted a claim against Majorca for
failing to reasonably accommodate his disability in violation of the
Fair Housing Act (“FHA”),
42 U.S.C. § 3604(f). 1 The district court
dismissed Unger’s complaint for failure to state a claim. After care-
ful review, we reverse the district court’s order.
I.
This is an appeal from an order dismissing Unger’s com-
plaint under Federal Rule of Civil Procedure 12(b)(6). We there-
fore accept the complaint’s factual allegations “as true and con-
stru[e] them in the light most favorable to” Unger. Hunt v. Aimco
Props., L.P.,
814 F.3d 1213, 1221 (11th Cir. 2016).
1This provision of the FHA is sometime referred to as the “Fair Housing
Amendments Act of 1988” to reflect the amendment to the FHA that included
a provision concerning discrimination against handicap-persons. Schwarz v.
City of Treasure Island,
544 F.3d 1201, 1212 (11th Cir. 2008) (“The FHAA
amended
42 U.S.C. § 3604, the primary substantive provision of the FHA, by
adding a new subsection (f) that applies only to discrimination against the
handicapped.”).
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21-13134 Opinion of the Court 3
Unger and his wife live at Majorca At Via Verde. Because
Unger is disabled—he suffers from severe ankylosing spondylitis—
he cannot attend Majorca’s homeowners’ association meetings.
Before April 2019, the minutes from the homeowners’ asso-
ciation meetings “were promptly posted online . . . immediately
after the meeting was held.” Beginning in April 2019, however, the
minutes were no longer promptly published on Majorca’s website.
Without access to the meeting minutes, Unger could not access
Majorca At Via Verde’s “community happenings.”
Unger and his wife reached out to members of Majorca’s
board, and to Majorca’s property management company, to obtain
access to the meeting minutes. When they did not receive access,
Unger’s wife informed Majorca’s property manager that Unger’s
disability prevented him from attending homeowners’ association
meetings and requested an accommodation on his behalf. Unger’s
wife requested that Majorca accommodate Unger by either record-
ing the board meetings or providing “a transcript of the monthly
board meetings minutes . . . immediately after the meetings occur.”
In response to Unger’s request, Majorca’s property manager
stated that “the board of directors does not record” their meetings
and that “[t]he only transcripts which are available are the ap-
proved meeting minutes from the previous meeting,” meaning the
transcripts would not be made available until a month after the rel-
evant meeting. But the property manager stated that Unger could
designate “a set representative by power of attorney” to attend the
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4 Opinion of the Court 21-13134
meetings in his place and that the representative “may record or
take notes as necessary” at the meetings.
Unsatisfied with this response, Unger retained counsel who
repeated Unger’s requested accommodations and informed Ma-
jorca that they had to accommodate Unger’s disability. Majorca
responded that “[t]here is no ‘immediate’ transcribing of the
minutes”—because the minutes must be approved by the board
before publication—and that the board “does not tape or video rec-
ord any association meetings.” Majorca also noted that it “has pro-
vided and continues to provide reasonable accommodations” to
Unger. Majorca stated that, because of COVID-19, association
meetings were now being held by Zoom (a remote video confer-
ence platform) and that Unger could attend the meetings remotely
via Zoom. And Majorca stated that Unger may designate a third-
party to attend and record the meetings on his behalf when meet-
ings are held in person.
Unger filed a complaint against Majorca and alleged that Ma-
jorca violated the FHA by failing to grant his reasonable accommo-
dation requests. Unger alleged that Majorca failed to accommo-
date his disability “by providing him minutes or recordings of
meetings . . . either immediately after the meetings, or at all.”
Majorca moved to dismiss Unger’s complaint for failure to
state a claim. Among other arguments, Majorca asserted that Un-
ger was not entitled to the specific accommodations he requested
and that Majorca offered Unger two reasonable alternative accom-
modations: (1) the ability to attend association meetings via Zoom;
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21-13134 Opinion of the Court 5
and (2) the ability to designate a third-party to attend and record
association meetings on Unger’s behalf.
The district court granted Majorca’s motion to dismiss with-
out prejudice. The district court found that Unger sufficiently al-
leged that he was disabled, that he requested an accommodation,
and that an accommodation was necessary because of his disability.
But the district court did not address whether the accommodations
Unger requested were reasonable. Instead, the district court noted
that Unger is not entitled to the accommodations he requested and
found that Majorca did not refuse to reasonably accommodate Un-
ger. In so doing, the district court relied on the alternative accom-
modations Majorca offered to Unger.
Unger moved to amend his complaint. In his proposed
amended complaint, Unger alleged that the alternative accommo-
dations Majorca proposed were not reasonable and that the accom-
modations he requested do not impose an undue burden on Ma-
jorca.
The district court denied Unger’s motion for leave to
amend and determined that Unger’s proposed amended complaint
conceded that Majorca “did not refuse the request” to accommo-
date Unger and that Majorca “proffered several reasonable accom-
modations.” Accordingly, the district court found that the pro-
posed amended complaint “suffer[ed] from the same deficiency as
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6 Opinion of the Court 21-13134
the original [c]omplaint” and directed the clerk to close Unger’s
case. This appeal followed. 2
II.
“We review the district court’s grant of a motion to dismiss
for failure to state a claim de novo, accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.” Hunt, 814 F.3d at 1221.
III.
The FHA prohibits discriminating “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 dwell-
ing, because of a handicap.”
42 U.S.C. § 3604(f)(2). Under the FHA,
discrimination “on the basis of a ‘handicap,’ or a disability,” in-
cludes “refusing to make reasonable accommodations when neces-
sary to afford the person equal opportunity to use and enjoy a
dwelling.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc.,
765
F.3d 1277, 1285 (11th Cir. 2014) (footnote omitted).
2 Unger appealed both the order dismissing his original complaint and the or-
der denying his motion for leave to file an amended complaint. Because we
find that the district court erred in dismissing Unger’s original complaint, and
the district court denied Unger’s motion to amend because the proposed
amended complaint “suffer[ed] from the same deficiency as the original [c]om-
plaint,” we do not separately address the district court’s order denying Unger’s
motion for leave to amend.
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21-13134 Opinion of the Court 7
To state a claim for failure to accommodate under the FHA,
a plaintiff must plead:
(1) the plaintiff is a person with a disability within the
meaning of the FHA or a person associated with that
individual; (2) the plaintiff requested a reasonable ac-
commodation for the disability; (3) the requested ac-
commodation was necessary to afford the plaintiff an
opportunity to use and enjoy the dwelling; and (4) the
defendant refused to make the [requested] accommo-
dation.
Hunt, 814 F.3d at 1225. “At the pleading stage, the relevant ques-
tion is whether the complaint provides ‘a short and plain statement
of the claim’ that ‘give[s] the defendant fair notice of what the plain-
tiff’s claim is and the grounds upon which it rests.”’ Id. at 1221
(alteration in original) (quoting Swierkiewicz v. Sorema N. A.,
534
U.S. 506, 512 (2002)). And the complaint must “present[] a plausi-
ble set of facts from which we can infer that” Unger has “suffi-
ciently pled [his] claim.” Id. at 1225.
Here, the district court dismissed Unger’s complaint, and
then denied his motion to amend, because the court found that Un-
ger failed to plausibly allege the fourth element of his failure-to-
accommodate claim, i.e., that Majorca refused to accommodate
Unger. Unger argues that the district court erred because the dis-
trict court should have determined whether the accommodations
Unger requested, which Majorca refused to provide, were reason-
able and should not have relied on the alternative accommodations
Majorca proposed in dismissing his claim.
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8 Opinion of the Court 21-13134
This appeal asks us to determine whether the district court
properly relied on the alternative accommodations Majorca of-
fered to Unger, before considering the reasonableness of the ac-
commodations Unger requested. Our analysis is divided into two
parts. First, we discuss this Court’s framework for failure-to-ac-
commodate claims under the FHA. Then, we discuss whether the
district court correctly applied that framework.
A. Framework for Failure-to-Accommodate Claims
In Schaw v. Habitat for Humanity of Citrus County, Inc.,
938 F.3d 1259 (11th Cir. 2019), this Court addressed the framework
for failure-to-accommodate claims under the FHA and reversed a
district court’s decision that a defendant “was entitled to summary
judgment because it had provided a sufficient ‘alternative accom-
modation.’”
Id. at 1269 (emphasis in original). While we acknowl-
edged that a plaintiff is not entitled to his requested accommoda-
tion, we concluded that so long as the plaintiff’s request “is facially
reasonable, the burden shifts to the defendant, who must prove
that the accommodation would nonetheless impose an ‘undue bur-
den’ or result in a ‘fundamental alteration’ of its program.”
Id. at
1266 (quoting Schwarz v. City of Treasure Island,
544 F.3d 1201,
1220 (11th Cir. 2008)). We concluded that the district court erred
in its “alternative accommodation” finding because the district
court should have “consider[ed] first whether the plaintiff’s own
requested accommodation ‘seems reasonable on its face’ before
turning to consider a defendant’s objections and
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21-13134 Opinion of the Court 9
counterproposals.”
Id. at 1269 (quoting U.S. Airways v. Barnett,
535 U.S. 391, 401 (2002)).
Majorca argues that the Schaw framework does not apply
here because Schaw was decided at a different procedural stage—
an order granting summary judgment. We disagree. At the mo-
tion to dismiss stage, the plaintiff also bears the initial burden of
showing that the plaintiff’s requested accommodation is reasona-
ble on its face. Cf.
id. at 1265–66 (“A plaintiff carries the initial bur-
den of showing that his proposed accommodation is [facially] rea-
sonable.”). Indeed, “[t]o withstand a motion to dismiss under Rule
12(b)(6), a complaint must include ‘enough facts to state a claim to
relief that is plausible on its face,’” and a request for a reasonable
accommodation is an element of Unger’s FHA claim. Hunt, 814 at
1221, 1225 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570
(2007)). But arguments that a plaintiff’s requested accommodation
“impose[s] an ‘undue burden’ or result[s] in a ‘fundamental altera-
tion’ of its program,” Schaw, 938 F.3d at 1266, are affirmative de-
fenses for which a defendant bears the burden of proof at both the
motion to dismiss and the summary judgment stages of litigation,
see Willis v. Conopco, Inc.,
108 F.3d 282, 286 (11th Cir. 1997) (de-
scribing “undue hardship” as “an affirmative defense to be pled and
proven by an [American with Disabilities Act] defendant”); Haddad
v. Dudek,
784 F. Supp. 2d 1308, 1330 (M.D. Fla. 2011) (explaining
that, at the motion to dismiss stage, a defendant must establish its
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10 Opinion of the Court 21-13134
“fundamental alteration defense” based “on the face of [the]
[p]laintiff’s [c]omplaint”). 3
Therefore, Schaw’s general framework for failure-to-accom-
modate claims under the FHA also applies at the motion to dismiss
stage. 4 Accordingly, at the motion to dismiss stage, courts “must
consider first whether the plaintiff’s own requested accommoda-
tion ‘seems reasonable on its face’ before turning to consider a de-
fendant’s objections and counterproposals.” Schaw, 938 F.3d at
1269 (quoting Barnett,
535 U.S. at 401).
B. Whether the District Court Applied the Schaw-Framework
Turning to Unger’s complaint, Unger alleged that he re-
quested Majorca either to record the association’s meetings or to
provide him with a transcript of the meeting minutes immediately
3 While these cases involved the American with Disabilities Act (“ADA”) and
the Rehabilitation Act (“RA”), “we look to case law under the RA and the ADA
for guidance on what is reasonable under the FHA.” Schwarz,
544 F.3d at
1220.
4 We recognize that not every aspect of Schaw applies here because of the
procedural posture of this case. For example, in Schaw, the district court was
able to consider “outside evidence” in connection with the defendant’s objec-
tions and counterproposals. 938 F.3d at 1269. But at the motion to dismiss
stage, a court’s consideration of a defendant’s objections and counterproposals
is limited to “the four corners of the complaint.” St. George v. Pinellas
County,
285 F.3d 1334, 1337 (11th Cir. 2002) (explaining that, at the motion to
dismiss stage, “[t]he scope of review must be limited to the four corners of the
complaint”); see, e.g., Haddad,
784 F. Supp. 2d at 1330 (denying defendants’
motion to dismiss because “[d]efendants’ fundamental alteration defense
[was] not established . . . on the face of” the complaint).
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21-13134 Opinion of the Court 11
after the meetings. Unger further alleged that, in response to his
requests, Majorca stated that it would neither record its meetings
nor provide Unger with a transcript of the meeting minutes imme-
diately after the meetings. Therefore, Unger plausibly alleged that
Majorca refused to provide either of his requested accommoda-
tions.
The district court’s contrary conclusion—that Unger failed
to allege that Majorca refused to accommodate him—was prem-
ised on the alternative accommodations Majorca offered to Unger.
But the district court did not assess whether the accommodations
Unger requested were facially reasonable before turning to Ma-
jorca’s counterproposals. In so doing, we conclude that the district
court erred.
In accordance with Schaw, the district court should have
first considered whether Unger’s “requested accommodation[s]
‘seem[ed] reasonable on [their] face’ before turning to consider”
Majorca’s “objections and counterproposals.” 938 F.3d at 1269
(quoting Barnett,
535 U.S. at 401). Because the district court failed
to follow this framework, remand is appropriate to allow the dis-
trict court to do so in the first instance. See Maldonado v. Baker
Cnty. Sheriff’s Off.,
23 F.4th 1299, 1308 (11th Cir. 2022).
IV.
For the reasons stated, we reverse the district court’s order
dismissing Unger’s claim and remand for further proceedings con-
sistent with this opinion.
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12 Opinion of the Court 21-13134
REVERSED AND REMANDED.
