Owner Not Liable for Discriminatory Retaliation

Facts: A disabled resident sued the owner and management of a low-income senior housing site for discrimination and retaliation. After receiving an announcement that the site was opening its Section 8 waiting list, the resident completed an application for the Section 8 housing. He claimed he got a letter from the assistant manager stating that his name was next on the list for Section 8 rental assistance and that there was one Section 8 studio apartment available.

A few months later, the resident received another letter from the assistant manager, again informing him that his “name had come up on our Section 8 waiting list” and that there was one studio apartment available, and to notify her if he was interested. The resident went to the management office, where the assistant manager informed him that there was another applicant who was also interested in Section 8, but the resident could have the Section 8 assistance if the other applicant changed his mind. The assistant manager called the resident a few days later and informed him that she gave the unit to the other applicant.

The resident claimed that the site used inappropriate Section 8 policies and procedures and that the denial of Section 8 assistance was retaliation for having reported the management in the past for unsanitary conditions. The owner and management asked the court to dismiss the case.

Ruling: A California district court granted the owner and management’s request.

Reasoning: It wasn’t clear from the resident’s complaint whether the basis of the alleged discrimination and retaliation was his disability or his complaints about the unsanitary conditions in the building. The owner and management devoted the bulk of their motion to dismiss attacking any claim that they acted on the basis of the resident’s disability. In his opposition to the motion to dismiss, the resident clarified that he claims that the discrimination and retaliation occurred because of his complaints about the unsanitary conditions, not his handicap.

As a result, the court concluded that the resident failed to state a claim for discrimination or retaliation under the Fair Housing Act (FHA) or the Americans with Disabilities Act (ADA). The FHA protects against discrimination in the sale or rental of housing, but only where the discrimination is on the basis of race, color, national origin, religion, sex, familial status, or disability. Similarly, in order to state a claim of disability discrimination under Title II of the ADA, the resident must claim that the owner’s or management’s actions were “on the basis of a disability.” Retaliation claims under the ADA require that the resident was discriminated against because he pursued his rights under the ADA. Here, the resident wasn’t pursuing his rights under the ADA in his complaints; rather, he complained about unsanitary conditions of the housing complex.

• Atterbury v. Sanchez et. al., August 2012