STATE OF IOWA ex rel. CAROL HENDERSON, Plaintiff-Appellant, vs. DES MOINES MUNICIPAL HOUSING AGENCY and CITY OF DES MOINES, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-272 / 06-1144
Filed December 28, 2007
STATE OF IOWA ex rel.
CAROL HENDERSON,
Plaintiff-Appellant,
vs.
DES MOINES MUNICIPAL HOUSING AGENCY
and CITY OF DES MOINES,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, D. J. Stovall, Judge.
The State of Iowa, on behalf of Carol Henderson, appeals the district
court’s grant of summary judgment to defendants on the State’s claim that the
defendants failed to accommodate Henderson’s disability by permitting her to
keep a large dog in her rental unit. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and Teresa Baustian, Assistant
Attorney General, for appellant.
Mark Godwin, Deputy City Attorney, for appellees.
Heard by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
The State of Iowa, on behalf of Carol Henderson, appeals the district
court’s grant of summary judgment to defendants Des Moines Municipal Housing
Agency (Agency) and the City of Des Moines (City) on the State’s claim that the
defendants failed to accommodate Henderson’s disability by permitting her to
keep a large dog in her rental unit. We reverse the judgment of the district court
and remand for further proceedings.
I.
BACKGROUND FACTS AND PROCEEDINGS.
The summary judgment record reveals the following undisputed facts. On
May 8, 2002, Carol Henderson entered into a dwelling lease with the Agency.
Henderson lived with her daughter, Nicole, and was eligible for a two-bedroom
unit. The lease provided:
If you or any member of your household listed on this Lease
Agreement are currently handicapped or disabled, we shall provide
reasonable accommodation to the extent necessary to provide this
individual with an opportunity to use and occupy the unit. You may
request at any time during your tenancy that we provide reasonable
accommodation, including reasonable accommodation so that you
can meet Lease Agreement requirements or other requirements of
tenancy.
The lease also provided that an attached pet policy was part of the lease.
Tenants were permitted to have pets but were required to first apply for a pet
permit with the Agency. The weight of a pet could not exceed twenty pounds.
Only one pet per household was permitted. The provisions concerning pets did
not apply to service animals.
After entering into the lease, Henderson obtained a doberman pinscher
dog, which she named “Sam.” Nicole had a presso canario dog named “Otis.”
3
Each dog weighed more than ninety pounds. Henderson and Nicole obtained
the dogs after they experienced two attempted break-ins at their apartment in
early 2003.
A housing inspector discovered the dogs in January 2005.
On
January 11, 2005, Henderson was notified she was in violation of the pet policy.
She was given fourteen days to comply with the lease or the lease agreement
could be terminated.
Henderson requested that the dogs be considered service animals. She
also filed an application for a pet permit. Her application was denied because the
pet policy only permitted one pet per household, and the pet could not exceed
twenty pounds.
The Agency also stated Henderson’s pets did not meet the
qualifications for service animals.
Henderson was informed she needed to
remove both dogs by February 7, 2005.
Henderson presented a letter from Dr. R. Coppola, which asked that she
be allowed to keep her dog for safety reasons, secondary to post-traumatic
stress disorder. Henderson also presented a letter from Jill Fulitanto-Avery, an
employee of the Iowa Division of Persons with Disabilities, which stated she
understood Henderson’s dog was a psychiatric service dog and pointed out that
regular pet policies did not apply to service animals.
Dr. Jerilyn Lundberg
reported Henderson had been diagnosed with post-traumatic stress disorder. Dr.
Lundberg stated:
[Henderson] has a self-trained service companion that lives with
her. This animal plays an important part in her recovery and in her
psychological well being at this time. In my opinion, removal of the
animal would impede the process of recovery.
4
In the meantime, Otis was removed from the home. Nicole became upset
about this and moved out. Effective April 1, 2005, Nicole was removed from
Henderson’s lease.
On May 2, 2005, Henderson filed a housing discrimination complaint with
the Iowa Civil Rights Commission. She claimed the Agency had discriminated
against her by failing to permit her to keep a service animal and by failing to
accommodate her disability by waiving the pet policy requirements.
An
administrative law judge determined probable cause existed to support the
allegations of discrimination based on disability.
On behalf of Henderson, the State filed a petition in district court for
declaratory judgment, permanent injunctive relief, and damages. 1
The State
alleged the Agency and the City had engaged in discrimination in housing, in
violation of the Iowa Civil Rights Act of 1965, Iowa Code chapter 216.
Henderson stated she was a person with a disability who needed the assistance
of a psychiatric companion animal. The State alleged defendants failed to make
reasonable accommodation for her disability in contravention of Iowa Code
section 216.8A(3)(c)(2) (2005).
Defendants filed a motion for summary judgment, arguing Henderson was
otherwise unqualified for her housing unit and thus not entitled to relief. The
State resisted the motion for summary judgment, claiming the provisions of the
1
After a housing discrimination complaint has been filed with the Iowa Civil Rights
Commission, the complainant, a respondent, or an aggrieved person on whose behalf
the complaint was filed may elect to proceed in a civil action. Iowa Code § 216.16A(1).
If such an election is made, the attorney general must file a civil action in district court on
behalf of the aggrieved person. Iowa Code § 216.17A(1). The Agency and City elected
a civil action, and the attorney general filed the action on behalf of Henderson.
5
pet policy should not apply to Henderson because she was seeking to keep an
animal as an accommodation for her disability. The district court granted the
motion for summary judgment, finding there was no genuine issue as to the
material fact that at the time Henderson filed her request for a service dog
accommodation she was not qualified to reside in her unit.
The State appeals, claiming the district court erred in granting summary
judgment in favor of the defendants.
The State argues the district court
improperly determined that based on undisputed facts Henderson was not
otherwise qualified to rent her housing unit.
II.
SCOPE AND STANDARDS OF REVIEW.
Appellate review of a grant of a motion for summary judgment is for
correction of errors at law. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d
673, 677 (Iowa 2004).
Summary judgment is appropriate when 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.” Iowa R. Civ. P. 1.981(3); Smidt v. Porter, 695
N.W.2d 9, 14 (Iowa 2005). The party moving for summary judgment has the
burden to prove the facts are undisputed. Estate of Harris, 679 N.W.2d at 677.
However, when a motion for summary judgment is made and properly supported
the opposing party may not rest upon the mere allegations or denials of his
pleadings but must set forth specific facts showing the existence of a genuine
issue for trial. Iowa R. Civ. P. 1.981(5); Bitner v. Ottumwa Cmty. Sch. Dist., 549
N.W.2d 295, 299 (Iowa 1996). The court views the facts in a light most favorable
to the nonmoving party. Howell v. Merritt Co., 585 N.W.2d 278, 280 (Iowa 1998).
6
III.
MERITS.
Section 216.8A(3)(b) of the Iowa Civil Rights Act of 1965 makes it unlawful
to “discriminate against another 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 the dwelling because of a disability of” that person or any person
associated with that person. Unlawful discrimination includes “[a] refusal to make
reasonable accommodations in rules, policies, practices, or services, when the
accommodations are necessary to afford the person equal opportunity to use and
enjoy a dwelling.” Iowa Code § 216.8A(3)(c)(2). 2
The State claims the defendants violated section 216.8A(3)(c)(2) by failing
to waive the pet policy requirements in order to accommodate Henderson’s
disability. The district court rejected this argument and found summary judgment
was appropriate because Henderson was not “qualified for the housing unit . . . in
question.”
The phrase “otherwise qualified handicapped individual” is based on the
federal Rehabilitation Act of 1973, 29 U.S.C. § 794. 3
In applying the Fair
Housing Act, courts often rely on the Rehabilitation Act to explore what
accommodations are reasonable. Douglas v. Kriegsfeld Corp., 884 A.2d 1109,
1122 n.22 (D.C. 2005); see also Oconomowoc Residential Programs, Inc. v. City
2
This provision is similar to 42 U.S.C. section 3604(f)(3) of the Fair Housing Act. We
may consider cases interpreting the federal Fair Housing Act in interpreting the housing
discrimination provisions of the Iowa Civil Rights Act. See State v. Keding, 553 N.W.2d
305, 307 (Iowa 1996).
3
The relevant portion of 29 U.S.C. section 794 provides, “No otherwise qualified
handicapped individual . . . shall, solely by reason of his handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal Financial Assistance. . . .”
7
of Milwaukee, 300 F.3d 775, 783 (7th Cir. 2002) (noting the requirements for
reasonable accommodation under the Americans with Disabilities Act and
Rehabilitation Act are the same as those under the Federal Housing Act).
Under section 216.8A(3)(c)(2) and its federal Fair Housing Act
counterpart, a landlord must reasonably accommodate a qualified individual with
a disability by making changes in rules, policies, practices, or services when
needed. Oconomowoc Residential Programs, 300 F.3d at 782. Accommodation
is required if such accommodation (1) is reasonable, and (2) necessary, (3) to
afford a disabled person the equal opportunity to use and enjoy a dwelling. Id. at
783 (citing 42 U.S.C. § 3604(f)(3)(B)). The burden is on the plaintiff to show the
accommodation is reasonable on its face. Id. at 784; accord U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 401, 122 S. Ct. 1516, 1523, 152 L. Ed. 2d 589, 602
(2002). Once the plaintiff has made this prima facie showing, the defendant must
come forward to demonstrate unreasonableness or undue hardship in the
particular circumstances. Oconomowoc Residential Programs, 300 F.3d at 784.
There is an overlap between the “otherwise qualified individual”
requirement and the reasonableness of the accommodation when the
discrimination claimed is the failure to make reasonable accommodations.
Peebles v. Potter, 354 F.3d 761, 768 n.6 (8th Cir. 2004).
If a requested
accommodation is unreasonable, then the plaintiff has not shown “discrimination”
or established the “otherwise qualified individual” element. Id.
“Whether a pet is of sufficient assistance to a tenant to require a landlord
to relax its pet policy so as to reasonably accommodate the tenant’s disability
8
requires a fact-sensitive examination,” Oras v. Hous. Auth., 861 A.2d 194, 202
(N.J. Super. Ct. App. Div. 2004), which “will infrequently be appropriate for
resolution on summary judgment.” Janush v. Charities Hous. Dev. Corp., 169 F.
Supp. 2d 1133, 1136 (N.D. Cal. 2000). “[U]nder the right circumstances, allowing
a pet despite a no-pets policy may constitute a reasonable accommodation.”
Auburn Woods I Homeowners Ass’n v. Fair Employ. & Hous. Comm’n, 121 Cal.
App. 4th 1578, 1593 (Cal. Ct. App. 2004). Summary judgment is not appropriate
if genuine issues of fact exist as to whether a pet is necessary for a tenant to use
and enjoy an apartment. Crossroads Apts. Assoc. v. LeBoo, 578 N.Y.S.2d 1004,
1007 (N.Y. City Ct. 1991).
The district court determined summary judgment was appropriate in this
case because Henderson was not otherwise qualified for the housing unit in
question. The court reasoned:
There exists no genuine issues of material fact that at the time
Plaintiff filed her request for the service dog accommodation, she
was not eligible to reside in the unit as she was in violation of the
Pet Policy Agreement for several reasons: first, she had not
obtained prior permission from [the Agency] for the dogs to reside
in the unit; secondly, she had not one but two dogs residing in the
unit; and thirdly, each of the dogs exceeded the maximum
allowable weight limit. Therefore, since Plaintiff cannot show a
prima facie case of discrimination by being eligible for the housing
benefit, Defendants are entitled to prevail on their motion.
The State argues the district court improperly considered whether Henderson
met the requirements of the pet policy given that she was requesting a waiver of
that pet policy as a reasonable accommodation for her disability. We agree.
We initially note the reasons supporting the district court’s conclusion that
Henderson was in violation of the pet policy and not eligible for her housing unit
9
were erroneous. Although the parties’ lease prohibited “pets of any kind on the
premises, without first obtaining written permission by the Owner,” the lease
further provided Henderson could “request at any time during [her] tenancy that
we provide reasonable accommodation. . . .” (Emphasis added.) Thus, pursuant
to the language of the lease, Henderson did not need “prior permission” from the
Agency for her requested accommodation of a service animal.
Henderson
requested accommodation and provided evidence of a disability while her lease
remained in effect and she was still residing in the apartment. Her request was
thus timely. 4 Furthermore, by the time she requested accommodation for her
disability, the second dog had been gone from her apartment for some time.
The district court’s analysis as to whether Henderson met the
requirements of the pet policy did not “give consideration to [her] needs.
A
reasonable accommodation ‘means changing some rule that is generally
applicable to everyone so as to make its burden less onerous on the
handicapped individual.’”
Oras, 861 A.2d at 203-04 (citation omitted).
An
agency is required to provide some services and accommodations to disabled
persons who could not participate without accommodation.
Majors v. Hous.
Auth., 652 F.2d 454, 457 (5th Cir. 1981); see also Edwards v. U.S. Envtl.
Protection Agency, 456 F. Supp. 2d 72, 100 n.7 (D.D.C. 2006) (stating “an
individual with handicaps” is “qualified” in the employment context if the individual
can
4
perform
the
essential
functions
of
the
position
with
reasonable
We additionally note that under the federal Fair Housing Act, a landlord illegally
discriminates against a disabled renter if the landlord takes prohibited adverse action at
any time after learning of the renter’s disability. See Radecki v. Joura, 114 F.3d 115,
116 (8th Cir. 1997) (noting that it was necessary only that the landlord knew of the
renter’s disability at any time before the eviction).
10
accommodation) (citation omitted) (emphasis added). But see Se. Cmty. College
v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 2367, 60 L. Ed. 2d 980, 988 (1979)
(“An otherwise qualified person is one who is able to meet all of a program’s
requirements in spite of his handicap.”). We must therefore consider “whether
reasonable accommodations will permit the handicapped person to realize the
principal benefits of the program.” Majors, 652 F.2d at 457; see also Oras, 861
A.2d at 204 (stating tenant “must prove that the requested accommodation was
necessary to afford him an equal opportunity to use and enjoy his dwelling”).
A factual scenario similar to the present case is found in Majors where a
tenant had a history of psychological problems and provided evidence to show
she had a psychological and emotional dependence upon her pet dog. Majors,
652 F.2d at 455. The tenant met the financial qualifications for housing but was
served notice of termination because she did not follow the no-pets policy. Id.
The district court granted summary judgment to the housing authority based on a
determination the tenant was not an “otherwise qualified handicapped individual”
because she was unable to comply with the ban against pets. Id.
The Court of Appeals for the Fifth Circuit reversed the district court’s
conclusion that the tenant was not an “otherwise qualified handicapped
individual.” Id. at 457-58. The appellate court noted “it is possible for Ms. Majors
to enjoy the full benefit of the covered program provided that some
accommodation is made for her alleged disability.” Id. The court stated:
[W]e must recognize as reasonable the inference that the Housing
Authority could readily accommodate Ms. Majors. Even if the “no
pet” rule is itself imminently reasonable, nothing in the record
rebuts the reasonable inference that the Authority could easily
11
make a limited exception for that narrow group of persons who are
handicapped and whose handicap requires (as has been
stipulated) the companionship of a dog.
Id. at 458. The court concluded summary judgment was inappropriate because
there were genuine issues of material fact as to whether the tenant was
handicapped, whether the handicap required the companionship of a dog, and
what reasonable accommodations could be made. Id.
We similarly conclude the district court in this case erred in concluding that
undisputed facts show Henderson is not an “otherwise qualified handicapped
individual” and in granting summary judgment.
There are genuine issues of
material fact as to whether Henderson’s requested accommodation is reasonable
given her mental health diagnosis and the statements of her mental health
professions regarding her concomitant need for her “self-trained service
companion” dog.
In determining the reasonableness of the requested service animal
accommodation, the court should consider the individual’s need for the service
animal and the effectiveness of the animal in resolving disability-based problems.
Edwards, 456 F. Supp. 2d at 101.
Service animals may be necessary
accommodations in certain circumstances. Prindable v. Ass’n of Apt. Owners of
2987 Kalakaua, 304 F. Supp. 2d 1245, 1256 (D. Hawaii 2003), aff’d sub nom.
DuBois v. Ass’n of Apt. Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006).
However, most animals are not equipped “to do work or perform tasks for the
benefit of an individual with a disability.” Prindable, 304 F. Supp. 2d at 1256; see
also Bronk v. Ineichen, 54 F.3d 425, 429 n.6 (7th Cir. 1995). Thus, there must be
12
some evidence of “individual training” to set the service animal apart from the
ordinary pet. Prindable, 304 F. Supp. 2d at 1256.
The disability in this case is mental and emotional rather than physical in
nature. “It therefore follows that the animal at issue must be peculiarly suited to
ameliorate the unique problems of the mentally disabled.”
Id.
According to
mental health professionals she has seen, Henderson suffers from posttraumatic stress disorder.
Henderson attributes her condition to domestic
violence she allegedly suffered more than ten years earlier. In an affidavit in
support of the State’s resistance to the defendants’ motion for summary
judgment, Henderson stated she is in a “persistent state of fear” and is
“frequently overwhelmed by events, tend[s] to isolate [herself] from others and
social activities, unable to place trust in others and [has] become unable to
maintain full-time employment.” Her affidavit stated her dog helps to alleviate her
“constant state of fear” because she trained him to “precede me into rooms to
help reduce my fears that someone will be lurking there; he has been trained to
switch on lights in darkened rooms; he has been trained to bring me my cell
phone.”
Viewing these facts in the light most favorable to Henderson, we conclude
reasonable minds could differ as to whether her requested accommodation of a
service animal was reasonable in light of her claimed mental illness. See, e.g.,
Janush, 169 F. Supp. 2d at 1136 (finding triable issues of fact remained as to
whether allowing a tenant to keep two birds and two cats in the apartment
despite a no-pet policy was a reasonable accommodation for his mental illness);
13
Auburn Woods I Homeowners Ass’n, 121 Cal. App. 4th at 1596 (stating the
question of whether a “companion dog” is an appropriate and reasonable
accommodation for tenants’ mental disabilities is a question of fact, not a matter
of law); Oras, 861 A.2d at 204 (holding a genuine issue of material fact existed
as to whether tenant’s dog was a reasonable accommodation for his mental
illness); Crossroads Apts. Assoc., 578 N.Y.S.2d at 1007 (finding genuine issues
of material fact existed as to whether tenant’s cat was necessary for him to use
and enjoy his apartment given his mental illness). We therefore reverse the
judgment of the district court and remand for further proceedings.
REVERSED AND REMANDED.
Sackett, C.J., concurs in part and dissents in part.
14
SACKETT, C.J. (concurs in part and dissents in part)
I concur in part and dissent in part. I would affirm the trial court in all
respects.
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