Jankowski Lee & Associates v. Cisneros , 91 F.3d 891 ( 1996 )

ESCHBACH, Circuit Judge.

On March 8, 1993, Andrew Rusinov filed a complaint against River Park Apartments (RPA), alleging that Petitioners Jankowski Lee & Associates and Sue Sellin discriminated against him based on his handicap in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., (the “FHA”) by refusing to make a reasonable accommodation in their rules, policies, practices and services related to parking. On September 30, 1994, the Department of Housing and Urban Development (HUD) issued a Determination of Reasonable Cause and Charge of Discrimination against Jankowski Lee and Associates, River Park Development Corporation, John R. Pankratz, and Sue Sellin (collectively, “Petitioners”), alleging that they had violated 42 U.S.C. §§ 3604(f)(2) and 3604(f)(3)(B). Administrative Law Judge Robert Andretta (the “ALJ”) held a two-day hearing and issued an “Initial Decision and Order” holding that Petitioners had violated the FHA by failing to accommodate Rusinov’s need for a parking space as close as possible to his apartment building. The ALJ enjoined Petitioners from discriminating against Rusinov, required Petitioners to assign Rusinov his own parking spot as close as possible to the RPA building, assessed a civil penalty of $2,500 against Petitioners jointly and severally, and awarded Rusinov $2,500 in compensatory damages. The Initial Decision and Order became the final order of the Secretary of HUD.

Petitioners seek review in this court of the final order of the Secretary. For the following reasons, we deny the request to review and affirm the Secretary’s order.

I.

Mr. Rusinov was diagnosed with multiple sclerosis (“MS”) in 1982. For the first five years after the onset of the disease, Rusinov was severely disabled with paralysis from the waist down, loss of control of bodily functions, temporary blindness, slurred speech, and anxiety attacks. Since then, Rusinov’s condition and the severity of MS’s symptoms have varied with remissions, exacerbations, and relapse. Rusinov does everything in his power not to appear disabled because he feels that he is treated with less respect and credibility once other people see him as disabled. The documentation is, however, unequivocal-that Rusinov’s MS severely limits his activities.

In. 1986, Rusinov moved into an apartment in the RPA complex. On his application for an apartment at RPA, Rusinov indicated that he was disabled and that he had MS. Petitioner Jankowski Lee & Associates is the managing agent for the owners of RPA. Petitioner Sellin is employed by RPA as the on-site manager.

The RPA complex consists of two apartment buddings. .Most of RPA’s residents are elderly and many use wheelchairs, walkers, or canes. The complex includes a total of 108 parking spaces. Before 1993, visitors were permitted to park in the RPA lot. In 1993, parking was limited to tenants only. Parking at RPA is permitted on a “first come, first served basis.” As of December 1994, there were approximately 96 persons registered to park in the lot. In 1986, when Rusinov moved into RPA, there was one handicapped space at each of the two buildings. By March 1993, there were two handicapped spaces at each building.

Rusinov has had a car since he first moved into RPA. He has always had problems locating a space close to his building because the handicapped spaces and the nonhandi-eapped spaces close to the entrance are usually filled. Rusinov requires a large space that is close to the building for a number of reasons. Rusinov cannot get in and out of his ear if it is parked in a narrow spot. Rusinov has trouble walking and he cannot walk great distances without resting. Rusi-nov does not have full, voluntary control of his bladder and carries a portable urinal for those times when he cannot find a space close enough to his apartment to use his bathroom.

In the fall of 1992, Rusinov and his father visited the RPA management office twice regarding parking. On the first visit, they asked the office secretary for an assigned space or a “sufficient” number of handicapped spaces to accommodate Rusinov’s disability. The secretary, who had no authority to grant the request, told them she did not think it was possible and that they needed to speak to the manager, Petitioner Sellin. Ru-sinov and his father later returned to the office and told Sellin that Rusinov needed an assigned parking space because of his disability. Although this was the first time that Sellin spoke personally with Complainant, she had been informed by the office secretary that Rusinov had previously requested an assigned parking space. Without further inquiry, Ms. Sellin denied Rusinov’s request and the office secretary told Rusinov and his father that Rusinov would have to take his chances in finding a spot close to the building.

Sellin testified that she knew Rusinov had MS, but that she did not know the degree to which the disease affected Rusinov’s mobility. She denied the request because she did not consider it to be a reasonable request given that she had seen Rusinov walking to and from his car without any apparent difficulty.

In the complaint filed with HUD on March 8, 1993, Rusinov states, “I have asked the management to either increase the number of handicap spots or assign me a parking spot.” Shortly after Rusinov filed his complaint with HUD, Petitioners increased the number of handicapped parking spaces at each building from two to four and added a van-accessible handicapped parking space to the lot in front of Rusinov’s building.

II.

Petitioners present two reasons why we should overturn the Agency’s decision: First, Petitioners were not aware of the extent to which Rusinov’s condition limited his mobility; and second, Petitioners argue that, as a matter of law, they did not violate the FHA because they granted Rusinov’s request when they increased the number of handicapped parking spaces. We reverse the Secretary’s decision only if it is “not in accordance with law,” “without observance of procedure required by law,” or “unsupported by substantial evidence.” 5 U.S.C. § 706(2)(A), (D), and (E); Jancik v. HUD, 44 F.3d 553, 555 (7th Cir.1995). We review the entire record, but we do not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the agency. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994).

Petitioners’ first argument is essentially that Rusinov bore the burden of pro-during documentation establishing the extent of his handicap and his need for the requested accommodation. Petitioners admit that they knew that Rusinov had MS, but they argue that they were unaware that Rusinov’s MS affected his mobility such that he needed an assigned parking space. Petitioners’ denial of Rusinov’s request based on their lack of knowledge of the extent of his injury is simply a ruse to avoid the penalty for violating the FHA. It is telling that Petitioners denied his request without asking Rusinov for more information regarding his condition. Regardless of their motive for pursuing the issue, however, Petitioners’ position is untenable.

The FHA prohibits discrimination “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....” 42 U.S.C. § 3604(f)(2). This prohibition on discrimination also makes it unlawful to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling!;.]” 42 U.S.C. § 3604(f)(3)(B). It is clear that Rusinov’s MS is a handicap within the meaning of the FHA. 42 U.S.C. § 3602(h) (“ ‘Handicap’ means, with respect to a person — (1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment....”); Shapiro v. Cadman Towers, Inc., 844 F.Supp. 116, 123 (E.D.N.Y.1994), aff'd, 51 F.3d 328 (2d Cir.1995); cf. Carter v. Casa Central, 849 F.2d 1048 (7th Cir.1988) (Multiple Sclerosis is a “handicap” under analogous section of the Rehabilitation Act of 1973). The ALJ appropriately found that Rusinov is a handicapped individual under the meaning of the FHA, and Petitioners do not challenge that finding.

Petitioners were aware that Rusinov had MS, Rusinov’s MS qualified as a handicap, Rusinov informed. Petitioners that he required a parking space close to his building because of his handicap, and Rusinov requested an assigned parking space as a reasonable accommodation. At that point, Petitioners had a duty to make a reasonable accommodation. They did not make a reasonable accommodation, so they violated the FHA. .It is irrelevant whether Rusinov’s mobility did not “appear” to Petitioners to be limited by his MS. The existence of a handicap, as defined by Congress in 42 U.S.C.'- § 3602(h), does not depend on Rusinov’s appearance, it depends upon his physical condition.¹ Petitioners denied Rusinov’s request without asking for more information regarding the extent to which Rusinov’s MS limited his activities. Had they asked, we presume that Rusinov would have provided them with the substantial documentation that he provided to HUD and the ALJ. If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue.

Petitioners’ second argument is that they did all that the FHA requires when they increased the number of parking spaces in response to Rusinov’s complaint. Rusinov’s HUD complaint requested that Petitioners accommodate his disability by either increasing the number of handicap spaces or assigning a space to him. Petitioners increased the number of handicapped parking spots in front of Rusinov’s building from two to four.

Petitioners cannot prevail on this issue because Petitioners’ action still falls short of providing a “reasonable accommodation.” Rusinov’s complaint suggested two possible solutions, but both suggestions, were simply alternative means to the end that is at issue in all FHA cases of this type: a request for a reasonable accommodation. Rusinov’s complaint, in the same paragraph that offered the alternative solutions, stated that Petitioners had violated the FHA by their “failure to make a reasonable accommodation....” The FHA does not create a right to an assigned handicapped space any more than it creates a right to an increase in the number of handicapped parking spaces at RPA The FHA does create a statutory right to a “reasonable accommodation.” 42 U.S.C. § 3604(f)(3)(B). Rusinov’s complaint was a request for a “reasonable accommodation.”

Whether an accommodation is “reasonable” is a question of fact, determined by a close examination of the particular circumstances. United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1418 (9th Cir.1994). The ALJ appropriately found that the two additional handicapped spaces were not a “reasonable accommodation.” . Petitioners do not challenge this finding as a factual matter and the ALJ’s finding was not clearly erroneous. Even after the additional spots were added, there were only eight handicapped parking spaces and one van space for the 27 tenants registered to park at RPA with handicapped stickers or tags for their vehicles. At night, the handicapped spaces and all of the parking spaces close to the entrance to Rusinov’s building were usually taken. During the day, the handicapped spaces were filled between 50 percent and 75 percent of the time.

Two of the Petitioners raise an additional issue. Petitioners River Park Development Corporation (“RPDC”) and John Pankratz argue that no credible evidence was presented that could tie them to any liability. The record contradicts their assertions. Owners of real estate may be held vicariously liable for discriminatory acts by their agents and employees. Chicago v. Matchmaker Real Estate Sales Center, 982 F.2d 1086, 1096-99 (7th Cir.1992), cert. denied, Ernst v. Leadership Council for Metropolitan Open Communities, 508 U.S. 972, 113 S.Ct. 2961, 125 L.Ed.2d 662 (1993); see also Marr v. Rife, 503 F.2d 735, 740 (6th Cir.1974). This principle applies to suits alleging violations of the FHA. Matchmaker, 982 F.2d at 1096. Building Manager Sellin testified that Petitioner Pankratz is one of the investors in RPA and the managing partner of RPA She also testified that the decision to increase the number of handicapped parking spaces rather than assign Rusinov a separate space “was a mutual and joint agreement between myself, my supervisor, Mr. Paul Lee, [and] Mr. Pankratz, our managing partner .... ” Thus, the evidence is clear that Pankratz may be held liable.

The record satisfies us that the evidence was sufficient to hold RPDC liable for violating the FHA Sellin testified that RPDC “is a limited partnership I believe of some of the owners of River Park Apartments.” This testimony is, standing on its own, equivocal. Sellin might be saying that RPDC is one of several owners of RPA. . On the other hand, she might mean that some (but not all) of the partners in RPDC are owners of RPA but that RPDC does not own RPA This testimony before the ALJ did not stand alone. In her deposition testimony, Sellin stated: “River Park Development Company is the name of the partners who own part of River Park Apartments as a project, the investors.” It was reasonable for the ALJ to find that RPDC owns RPA In addition, documentation provided by the Petitioners establishes that Sellin sent Rusinov’s security deposit to RPDC in 1986 for “deposit ... into the appropriate interest bearing accounts.” Finally, in a letter in response to HUD’s request for information and documentation regarding Rusinov’s request, Petitioners state:

River Park Devélopment Company Properties — one.

River Park Apartments 1700 & 1600 E. River Park Ct.

Shorewood, Wis. 53211 215 Total Units

Petitioners’ response indicates that RPDC² owned one property, River Park Apartments. There also was no evidence or testimony that RPDC does not own RPA.

III.

For the foregoing reasons, the Petition for Review is denied and the ALJ’s Initial Decision and Order and the Secretary’s final order are, therefore, Affirmed.

1 . As the district court in Shapiro stated:

[Discrimination against the handicapped often begins with the thought that she looks just like me — that she’s normal — when in fact the handicapped person is in some significant respect different. Prejudice, it bears recalling, includes not just mistreating another because of the difference of her outward appearance but also assuming others are the same because of their appearance, when they are not.

Shapiro, 844 F.Supp. at 121.

2 . We recognize that the response letter states "River Park Development Company," not. "River Park Development Corporation,” the party named in this appeal. There is some indication from Petitioners’ brief that River Park Development Corporation may not exist, but we presume that Attorneys for Petitioners would not perpetrate a fraud on this court by purporting to represent a nonexistent party.