Douglas Furbee, Furbee Properties, LLC, Furbee Properties I, LLC v. Gregory L. Wilson, Sr. in his Official Capacity as Executive Director of the Indiana Civil Rights Commission, and Shelley Linder ( 2020 )

FILED
Mar 30 2020, 9:00 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Craig E. Beougher GREGORY L. WILSON, SR.
Eric C. Welch Curtis T. Hill, Jr.
Welch & Company, LLC Attorney General
Muncie, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
Doneisha Posey
Indiana Civil Rights Commission
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
SHELLEY LINDER
Martin R. Shields
Attorney at Law
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Douglas Furbee, March 30, 2020
Furbee Properties, LLC, Court of Appeals Case No.
Furbee Properties I, LLC, 19A-PL-1756
Appellants-Defendants, Appeal from the
Delaware Circuit Court
v. The Honorable
Marianne L. Vorhees, Judge
Gregory L. Wilson, Sr. in his Trial Court Cause No.
Official Capacity as Executive 18C01-1805-PL-44
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 1 of 16
Director of the Indiana Civil
Rights Commission,
Appellee-Plaintiff
and
Shelley Linder,
Appellee-Intervenor
Vaidik, Judge.
Case Summary
[1] This case involves an apartment tenant’s request for an emotional-support
animal. The tenant lived at an apartment with a no-pet policy. The tenant
asked the landlord if she could have an emotional-support animal and provided
a letter from a licensed family and marriage therapist, which said that the tenant
had a disability and needed an emotional-support animal to help alleviate her
symptoms. The letter, however, identified no disability or symptoms. The
landlord requested more information from the tenant, and when the tenant did
not provide the requested information and instead brought the animal into her
apartment, the landlord evicted her. The Indiana Civil Rights Commission
filed a complaint against the landlord, arguing that it failed to accommodate the
tenant’s request for an emotional-support animal in violation of the Indiana
Fair Housing Act. The landlord sought summary judgment, arguing that it did
not have enough information to evaluate the tenant’s request for an
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 2 of 16
accommodation because the therapist’s letter failed to identify the tenant’s
disability. The trial court denied summary judgment, and the landlord now
appeals.
[2] Before a landlord makes a decision about a tenant’s request for an
accommodation, it can conduct a “meaningful review” to determine whether
the accommodation is required; this review includes requesting documentation
and opening a dialogue. Here, when the landlord asked the tenant for more
information, the tenant did not respond. By not giving the landlord
information about her disability and disability-related need for the animal, the
tenant caused a breakdown in the process. Without this basic information, the
landlord could not meaningfully review the tenant’s request for an emotional-
support animal. We therefore reverse the trial court and remand with
instructions for the court to enter summary judgment in favor of the landlord.
Facts and Procedural History
[3] On October 12, 2016, Shelley Linder (“Tenant”) entered into a rental lease with
Furbee Properties, LLC (“Landlord”), for an apartment in Muncie.1 According
to the lease, Tenant agreed “[n]ot [to] allow dogs, cats or other animals or pets
on the premises.” Appellants’ App. Vol. II p. 27. In addition, the lease
1
Furbee Properties I, LLC, and Douglas Furbee are also defendants. For simplicity, we refer to all three
defendants as “Landlord.”
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 3 of 16
provided that if a pet was discovered on the leased premises, Landlord could
charge a $500 fine and evict Tenant. Id. at 33.
[4] Approximately five months later, on March 28, 2017, Tenant asked Landlord if
she could have an emotional-support animal. Tenant gave Landlord the
following letter from Monique Snelson, LMFTA:
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 4 of 16
Linder’s App. Vol. II p. 27.2
[5] On April 11, Landlord sent Tenant a letter stating that in order for it to
determine whether the accommodation would be allowed, it needed
“additional information,” as Tenant’s letter did “not provide all of the details
necessary to make a reasonable decision.” Appellants’ App. Vol. II p. 43.
Landlord asked Tenant for the following information:
[P]lease specify the number of sessions you had with Monique
Snelson and an approximation of how long each session lasted.
We will also need to know your disability. Without providing
any specific details regarding your disability, please advise us of
the disability so that we can make an informed decision.
Id. Landlord also enclosed a letter it planned to send to Snelson once Tenant
gave her consent. The letter asked Snelson to provide the following
information:
1. The nature of the mental or physical impairment that is
disabling, including a reference to the DSM 5 description of the
2
Landlord suggests that Snelson’s letter is “consistent with bogus prescription letters that are readily
available on the internet.” Appellants’ Br. p. 19. Our legislature addressed this concern when it enacted
Indiana Code chapter 22-9-7 effective July 1, 2018 (after the events in this case). Specifically, Indiana Code
section 22-9-7-12 provides that it is a Class A infraction for a health-service provider to “verif[y] an
individual's disability status and need for an emotional support animal without adequate professional
knowledge of the individual’s condition to provide a reliable verification” or “charge[] a fee for providing a
written verification for an individual’s disability status and need for an emotional support animal” without
providing another service to the individual.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 5 of 16
condition and a statement of what major life activity this
disability interferes with.
2. Was a physical examination conducted of your patient?
3. Did you interview the patient in person?
4. How many sessions did you have with the patient and
approximately how long was each session?
5. A statement from you indicating that you conducted an
examination of the patient appropriate for the diagnosis of the
mental impairment in question under the professional guidelines
applicable to a Licensed Clinical Social Worker and as described
in the DSM 5.
6. Please provide a photocopy of your license.
Id. at 44. Landlord asked Tenant to “sign the consent on the bottom of the
page” so it could speak to Snelson. Id. Tenant neither provided the additional
information to Landlord nor signed the consent so that Landlord could talk to
Snelson. As a result, Landlord took no action on Tenant’s request for an
emotional-support animal.
[6] In August 2017, Tenant brought the cat into her apartment. On August 4,
Landlord charged Tenant a fine for having the cat in her apartment and told her
she had seven days to remove the cat. Tenant did not remove the cat. On
August 31, Landlord told Tenant that if she didn’t remove the cat within seven
days, she would face further fines or actions. Tenant kept the cat in her
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 6 of 16
apartment until December, when she was evicted. Later that month, Tenant
filed a complaint with the Indiana Civil Rights Commission.
[7] In July 2018, the Civil Rights Commission, on behalf of Tenant, filed a
complaint against Landlord in Delaware Circuit Court.3 The complaint alleged
“discrimination on the basis of disability and handicap in violation of the
Indiana Fair Housing Act, IC 22-9.5-1-1 et seq.” Id. at 11. Specifically, the
complaint alleged that Landlord failed to grant Tenant a reasonable
accommodation. Landlord moved for summary judgment, arguing it did not
have enough information to evaluate Tenant’s request for an accommodation
because Snelson’s letter “failed to identify the Tenant’s disability” and “did not
state what major life activity was impaired.”4 Id. at 59. Following a hearing,
the trial court denied summary judgment. The court recognized that a landlord
may meaningfully review a tenant’s request for an accommodation. However,
the court found that Landlord’s questions (such as how many times Tenant and
Snelson met, how long the visits were, and whether a physical examination
occurred) “exceeded the reasonable inquiry to which [it was] entitled.” Id. at
159.
3
Tenant filed a motion to intervene as plaintiff, which the trial court granted.
4
The Civil Rights Commission filed a motion in opposition to Landlord’s motion for summary judgment
and designated several documents, including Tenant’s medical records from Dr. Keith Dinklage, M.D.
(which reflect that she suffers from anxiety), and records from Snelson. Appellants’ App. Vol. II pp. 79-106.
However, it is undisputed that these records were not provided to Landlord before the eviction. Accordingly,
they have no bearing on the issue in this case.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 7 of 16
[8] This interlocutory appeal now ensues.5
Discussion and Decision
[9] Landlord contends that the trial court erred in denying its motion for summary
judgment. We review motions for summary judgment de novo, applying the
same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.
2014). That is, “The judgment sought shall be rendered forthwith if the
designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Ind. Trial Rule 56(C).
[10] Under the Indiana Fair Housing Act (IFHA), it is unlawful to discriminate
based on disability. Ind. Code § 22-9.5-5-5. The IFHA borrows heavily from
the federal Fair Housing Act (FHA), with many parallel provisions and similar
language. Ind. Civil Rights Comm’n v. Cty. Line Park, Inc., 738 N.E.2d 1044, 1048
(Ind. 2000). Indeed, the first section of the IFHA declares that its purpose is
“[t]o provide rights and remedies substantially equivalent to those granted
under federal law.” Ind. Code § 22-9.5-1-1. When interpreting the FHA,
federal courts look to policy statements from the United States Department of
Housing and Urban Development (HUD) and the United States Department of
Justice (DOJ). See Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d
5
Tenant and the Civil Rights Commission have each filed an appellee’s brief. For simplicity, we refer to the
appellees’ arguments as Tenant’s argument.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 8 of 16
1277, 1286 n.3 (11th Cir. 2014). Consequently, we look to federal statutes,
federal cases, and policy statements in resolving the issue in this case.
[11] Under federal law, to prevail on a failure-to-accommodate claim, a plaintiff
must establish: (1) the plaintiff is a person with a disability within the meaning
of the FHA6; (2) the plaintiff requested a reasonable accommodation for the
disability; (3) the requested accommodation was necessary to afford the plaintiff
an opportunity to use and enjoy the dwelling; and (4) the defendant refused to
make the accommodation. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1225-
26 (11th Cir. 2016); Bhogaita, 765 F.3d at 1285. Under the FHA, disability
means “a physical or mental impairment which substantially limits one or more
. . . major life activities.” 42 U.S.C. § 3602(h)(1); 24 C.F.R. § 100.201.
“Physical or mental impairment” includes any “mental or psychological
disorder, such as . . . emotional or mental illness.” 24 C.F.R. § 100.201(a)(2).
“Major life activities” means “functions such as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working.” Id. at (b).
6
The FHA refers to discrimination based on “handicap” rather than “disability.” See 42 U.S.C. § 3604(f).
Disability scholars, however, generally prefer the term “disability” to “handicap,” and the Americans with
Disabilities Act (ADA) reflects that preference. Bhogaita, 765 F.3d at 1285; see also Joint Statement of HUD
and DOJ, Reasonable Accommodations Under the Fair Housing Act at 1 (May 17, 2004),
https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf.
[https://.cc/X67C-T7ES] As other courts have done, we treat the terms interchangeably and elect to use
“disability.”
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 9 of 16
[12] We begin by pointing out that Landlord doesn’t dispute the first three elements
of Tenant’s failure-to-accommodate claim. See Appellants’ App. Vol. II p. 61.
That is, Landlord doesn’t dispute that Tenant is disabled or that the Tenant
requested a reasonable and necessary accommodation. Indeed, Landlord notes
it “routinely approve[s]” requests for emotional-support animals. Appellants’
Br. p. 22. Instead, Landlord argues that it was not given enough information to
meaningfully review Tenant’s request for an accommodation and therefore
cannot be found to have refused her request, which is the fourth element.
[13] As both parties acknowledge on appeal, the FHA does not demand that
housing providers immediately grant all requests for accommodation. Bhogaita,
765 F.3d at 1285-86. Once a housing provider knows of a person’s request for
an accommodation, the provider can make a final decision, “which necessarily
includes the ability to conduct a meaningful review” to determine whether the
FHA requires the requested accommodation. Id. at 1286 (quotation omitted).
This review includes “request[ing] documentation or open[ing] a dialogue.” Id.
at 1287; Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996).
Generally, housing providers “need only the information necessary to apprise
them of the disability and the desire and possible need for an accommodation.”
Bhogaita, 765 F.3d at 1287. “In most cases, an individual’s medical records or
detailed information about the nature of a person’s disability is not necessary
for this inquiry.” Joint Statement of HUD and DOJ, Reasonable Accommodations
Under the Fair Housing Act at 14 (May 17, 2004),
https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_stat
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 10 of 16
ement_ra.pdf. [https://.cc/X67C-T7ES] Certain impairments, including
impairments that support a request for an emotional-support animal, may not
be observable. HUD Notice, Assessing a Person’s Request to Have an Animal as a
Reasonable Accommodation Under the Fair Housing Act at 9 (Jan. 28, 2020),
https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-
2020.pdf. [https://perma.cc/QE5C-767U] In these cases, the housing provider
may request information regarding “both the disability and the disability-related
need for the animal.” Id. However, “[h]ousing providers are not entitled to
know an individual’s diagnosis.”7 Id.
[14] Failing to make a timely determination after meaningful review amounts to a
constructive denial of the requested accommodation, as an indeterminate delay
has the same effect as an outright denial. Bhogaita, 765 F.3d at 1286. In
assessing whether a constructive denial has occurred, “courts often consider
whether the delay was caused by the defendant’s unreasonableness,
unwillingness to grant the requested accommodation, or bad faith, as opposed
to mere bureaucratic incompetence or other comparatively benign reasons.”
Bone v. Village Club, Inc., 223 F. Supp. 3d 1203, 1214 (M.D. Fla. 2016). As the
Seventh Circuit has explained in the ADA context:
[N]either party should be able to cause a breakdown in the
process for the purpose of either avoiding or inflicting liability.
7
We acknowledge that saying a landlord is entitled to know a tenant’s disability but not diagnosis might
cause some confusion. However, because Snelson’s letter does not provide a diagnosis or disability and the
parties don’t make any argument about the difference, we need not address this issue.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 11 of 16
Rather, courts should look for signs of failure to participate in
good faith or failure by one of the parties to make reasonable
efforts to help the other party determine what specific
accommodations are necessary. A party that obstructs or delays
the interactive process is not acting in good faith. A party that
fails to communicate, by way of initiation or response, may also
be acting in bad faith. In essence, courts should attempt to
isolate the cause of the breakdown and then assign
responsibility.
Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).
[15] Here, the designated evidence shows that Snelson’s letter—the only
documentation that Tenant gave Landlord to support her request for an
emotional-support animal—provides that Tenant “meets the definition of
disability”; however, it identifies no disability. Snelson’s letter also provides
that Tenant “has certain limitations regarding coping with symptoms that stem
from her disability.” Again, the letter identifies no limitations or symptoms of
the “disability.” Landlord, at the very least, was entitled to know Tenant’s
disability and disability-related need for the animal. See, e.g., Bhogaita, 765 F.3d
at 1287; HUD Notice, Assessing a Person’s Request to Have an Animal as a
Reasonable Accommodation Under the Fair Housing Act at 9. Accordingly,
Landlord was justified in trying to open a dialogue with Tenant and requesting
more information from her.
[16] Tenant, however, claims that she didn’t respond because Landlord’s requests
“went far beyond what it was permitted to ask.” Civil Rights Comm’n Br. p.
16; see also Linder’s Br. p. 11 (“[T]he Landlord’s request for medical
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 12 of 16
documentation regarding the Tenant’s mental health exceeded the legally
permissible boundaries.”). In other words, Tenant asserts that Landlord was
being unreasonable, causing a breakdown in the process. In making this
argument, Tenant claims that the facts in this case are “strikingly similar” to the
facts in Bhogaita. Civil Rights Comm’n Br. p. 17.
[17] In Bhogaita, the homeowner brought into his condo a dog that exceeded the
condominium association’s weight limit for pets. When the condominium
association demanded that the homeowner remove the dog in May 2010, the
homeowner responded by giving the condominium association three letters
from his psychiatrist, which stated that he was treating the homeowner for
“[a]nxiety related to military trauma,” his condition “limit[ed] his ability to
work directly with other people, a major life activity,” and his dog alleviated his
symptoms. Bhogaita, 765 F.3d at 1282. In August, the condominium
association sent the homeowner a request for more information, and the
homeowner did not respond. In November, the condominium association sent
the homeowner another request and said that if the homeowner did not respond
by December 6, it would demand that he remove the dog from his condo.
Thereafter, the homeowner filed a complaint with HUD and sued in federal
court. The district court granted partial summary judgment to the homeowner,
finding that the psychiatrist’s three letters supplied “sufficient information” and
that the condominium association’s delay, as “evidenced by escalating requests
for information, amounted to a constructive denial” of the homeowner’s
request for an accommodation. Id. at 1283.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 13 of 16
[18] The condominium association appealed the district court’s grant of partial
summary judgment to the homeowner on the refusal-to-accommodate element.
The Eleventh Circuit explained that the condominium association’s “critical
inquiries” were whether the homeowner’s PTSD amounted to a qualifying
disability and whether the dog alleviated the effects of the disorder. Id. at 1287.
The court said that the psychiatrist’s letters, which were provided to the
condominium association before it requested additional information, contained
all the information it needed to make a determination. Id. at 1286. That is, the
letters “described the nature and cause of [the homeowner’s] PTSD diagnosis,
stated that [the homeowner] was substantially impaired in the major life activity
of working, and explained that the dog alleviated [the homeowner’s]
symptoms.” Id. at 1286-87. Accordingly, the court concluded that the
condominium association’s request for additional information “exceeded that
essential for [its] critical inquiries” and affirmed the district court’s grant of
partial summary judgment to the homeowner. Id. at 1287.
[19] This case easily differs from Bhogaita. In Bhogaita, the condominium
association knew the homeowner’s disability and disability-related need for the
animal but nevertheless requested more information from the homeowner.
Here, however, Landlord did not know Tenant’s disability or disability-related
need for the animal when it requested additional information. This difference
between the cases is critical.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 14 of 16
[20] Nevertheless, Tenant points out that some of the information the condominium
association requested in Bhogaita is similar to what Landlord requested in this
case. Specifically, Landlord asked Tenant for three pieces of information:
[P]lease specify the number of sessions you had with Monique
Snelson and an approximation of how long each session lasted.
We will also need to know your disability. Without providing
any specific details regarding your disability, please advise us of
the disability so that we can make an informed decision.
Appellants’ App. Vol. II p. 43. Even assuming that Landlord’s questions about
the number of sessions Tenant had with Snelson and an approximation of how
long each session lasted were overbroad, the question about Tenant’s disability
was not. Tenant could have told Landlord her disability and chosen not to
answer the other two questions. Tenant, however, did nothing. The
overbreadth of some of the questions did not absolve Tenant from providing the
required information. The same can be said about Landlord’s proposed letter to
Snelson. Again, even assuming that Tenant rightfully did not give consent
because she believed many, if not all, of the questions to Snelson were
overbroad, this still did not absolve Tenant from providing the required
information. Neither party should be able to cause a breakdown in the process
for the purpose of either avoiding or inflicting liability. See Beck, 75 F.3d at
1135. “A party that fails to communicate, by way of initiation or response, may
be acting in bad faith.” Id. Here, Tenant did not respond at all to Landlord,
causing a breakdown in the process. Without information about Tenant’s
disability and disability-related need for the animal, Landlord could not
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 15 of 16
meaningfully review Tenant’s request for an emotional-support animal. We
therefore reverse the trial court and remand with instructions for the court to
enter summary judgment in favor of Landlord.
[21] Reversed and remanded.
Mathias, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 16 of 16