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Evans v. Forkids, Inc

United States District Court, E.D. Virginia, Norfolk Division

January 23, 2018

VEDA EVANS, Plaintiff,
v.
FORKIDS, INC., Defendant.

          OPINION & ORDER

          MARK S. DAVIS, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a motion for summary judgment filed by ForKids, Inc. ("Defendant"). ECF No. 14. Plaintiff Veda Evans ("Plaintiff"), a participant in Defendant's permanent supportive housing program, filed the instant civil action challenging the timeliness and efficacy of Defendant's response to Plaintiff's requests for modifications to her home and/or necessary accommodations due to Plaintiff's disability. ECF No. 1. On December 15, 2017, this Court conducted a hearing on Defendant's motion, and heard detailed arguments from counsel for both parties regarding the facts of the case, Plaintiff's burden of proof, and whether the inferences that Plaintiff asserts can be drawn from the undisputed facts are "reasonable" and could support a verdict in Plaintiff's favor. For the reasons set forth below, Defendant's motion for summary judgment is GRANTED.

         I. Factual Background

         With the exception of the parties' diverging viewpoints as to whether the factual record reasonably supports an inference of discriminatory intent, the material facts in this case are largely undisputed. Drawing primarily from Plaintiff's recitation of the facts, Defendant is a non-profit provider of shelter and housing services assisting homeless families, and it receives funding from the United States Government to provide its services. Plaintiff is a disabled mother of three young children. Plaintiff was initially placed in one of Defendant's short-term housing assistance programs, but ultimately entered Defendant's permanent supportive housing program. Plaintiff's medical conditions worsened during the time that she participated in Defendant's programs, and in early 2015, Defendant equipped Plaintiff's apartment residence with a toilet lift and tub handles. In September of that same year, a fire in an adjacent unit caused damage to Plaintiff's home, and when Plaintiff moved back into her unit in November of 2015, the toilet lift and tub handles were purportedly damaged or destroyed. Moreover, due to Plaintiff's continuing worsening condition, by the end of January of 2016, Plaintiff required full-time use of a wheelchair, grab bars for the toilet and shower, and a tub transfer bench. Because Plaintiff's unit was elevated, her need to utilize a wheelchair required either: (1) that a ramp be constructed to allow her to enter and exit her home; or (2) a transfer to a different unit that was either not elevated or that already had a wheelchair ramp.

         After Plaintiff informed Defendant of her needs in late January, 2016, Defendant explored both possibilities (ramp construction and transfer), and Defendant's communications with Plaintiff, various state and federal agencies, and disability contractors, are documented in emails, case reports, progress notes, and narratives that were created between late January and early March of 2016. Such documents, which are included in the record before the Court, also address the handling of Plaintiff's request for modifications to her bathroom, to include the installation of grab bars near the toilet and a transfer bench for the tub.

         While Plaintiff discusses many of these record documents in a section of her brief in opposition to summary judgment titled "Disputed Facts and Facts with Disputed Inferences, " Plaintiff's discussion of such exhibits reveals that Plaintiff does not dispute the actual facts documented therein, but rather, disputes whether Defendant's actions raise an inference of discriminatory intent. Stated differently, Plaintiff does not contest the accuracy of the factual record produced by Defendant in support of summary judgment, but instead, asserts that Defendant's own facts, supplemented by Plaintiff's affidavit and additional exhibits, clarify and/or add a "gloss" to Defendant's facts that is favorable to Plaintiff's position in this litigation. Plaintiff asserts that when reasonable inferences are drawn in her favor, these clarifications and additional facts demonstrate both Defendant's discriminatory intent and its failure to timely modify Plaintiff's residence or otherwise accommodate Plaintiff's disability.

         Summarizing the material facts contained in the most relevant exhibits:

         (1) On or about January 25, 2016, Plaintiff reported to Defendant that she was wheelchair bound and would require a residence with a wheelchair ramp and grab bars in the bathroom and hallway-Defendant immediately began exploring possibilities to address Plaintiff's asserted disability. ECF Nos. 15-4, 15-6.

         (2) On January 26, Plaintiff asked Defendant whether she could be moved to a ground floor unit;[1] Defendant informed Plaintiff that it did not have any ground floor units available and that Defendant needed time to evaluate whether Plaintiff's medical condition was temporary (Plaintiff was pregnant at the time) or permanent; Defendant asked permission to speak directly with Plaintiff's doctor to better understand Plaintiff's medical needs, or alternatively, asked Plaintiff to provide information in writing from her doctor; Plaintiff was also informed that it was unlikely that any solutions would be immediate as Defendant needed medical information from Plaintiff. ECF Nos. 15-7, 16-14.

         (3) In addition to immediately starting a discussion with Plaintiff regarding possible solutions, Defendant's employees internally discussed concerns about Plaintiff's ability to care for herself and her minor children, to include the apparent need to involve Child Protective Services ("CPS")-after such discussions, Defendant contacted CPS. ECF Nos. 15-9, 16-15.[2]

         (4) On January 26 and January 27, Defendant began taking steps to schedule an inspection of Plaintiff's residence for a feasibility analysis of potential modifications, including ramp construction, doorway widening (if needed/possible) and installation of grab bars in the shower and near the toilet. ECF No. 15-8.

         (5) On February 4, Plaintiff provided a doctor's letter to Defendant indicating that Plaintiff requires: (a) "24/7 assistance for all mobility and is unsafe to be living on her own, " and (b)wa hospital bed, wheelchair, grab bars in the bathroom, and a tub transfer bench"; after receiving the letter documenting Plaintiff's need for around-the-clock assistance, Defendant again contacted CPS to provide an update on Plaintiff's medical condition. ECF Nos. 15-11, 15-12, 16-20.

         (6) On February 8, Defendant contacted Plaintiff by telephone to discuss the doctor's letter and associated concerns; Defendant informed Plaintiff that Defendant cannot provide the level of services that Plaintiff needs and that it will be very important to connect with all available resources; Plaintiff was further informed that Defendant would be reaching out to CPS and Adult Protective Services ("APS") about ongoing services that Plaintiff may be eligible for; during that same conversation, Plaintiff stated that she would look into whether her insurance would provide a tub transfer bench and Defendant indicated that it would look into the grab bars in the bathroom after it confirmed that Plaintiff would be staying in the unit; Defendant further informed Plaintiff that two contractors had already inspected the property regarding the feasibility of building a wheelchair ramp; during this conversation, Defendant again informed Plaintiff that no ground floor units were currently available. ECF No. 16-21.

         (7) On February 9, Defendant met with Plaintiff in her home and Plaintiff expressed frustration that she was not being moved into a three bedroom accessible unit; Defendant again informed Plaintiff that no such units were vacant, although Defendant indicated that it would be seeking guidance from the U.S. Department of Housing and Urban Development (WHUD") as to whether any of Defendant's other tenants could be forced to move out of an accessible unit; Plaintiff asked whether a leased unit in the community was an option and Defendant informed her that it was not; Defendant further informed Plaintiff that the ramp quote was around $8, 000 and Defendant was still working to determine if it could provide such resource;[3] Defendant explained to Plaintiff that she could move across the street into a two-bedroom unit that could be more easily made wheelchair accessible but Plaintiff indicated that she would not accept such option because the offered unit was too small;[4] during such conversation, Plaintiff raised the issue of "alternative housing" in the community, and Defendant raised concerns about Plaintiff's ability to afford such option. ECF No. 16-23.

         (8) Also on February 9, Defendant's employees communicated internally via email, expressly noting that Defendant may be obligated to pay for the requested modifications because Plaintiff's residence is a "HUD funded unit" and the expected cost of the changes "does not appear to be a financial burden for our agency from a Fair Housing perspective." ECF No. 15-13.

         (9) On February 12, Defendant contacted one of the ramp contractors to determine how quickly a ramp could be built and was told that installation could be completed approximately one week after the job was authorized; Defendant responded to the contractor by indicating that it needed to have a conference call with HUD regarding necessary approvals and that the contractor should hear back from Defendant in the next couple of weeks; on that same day, Defendant sent a lengthy email to HUD asking for an opportunity to discuss Plaintiff's case, and among the multiple issues raised in the email were the possibility of displacing another family to move Plaintiff into an accessible three bedroom unit, the possibility of moving Plaintiff into the ground floor two bedroom unit that Plaintiff had rejected, the need to secure HUD authorization to move money from Defendant's "services" budget to its "operations" budget if a ramp were to be constructed, whether Defendant is legally obligated to perform structural modifications if Plaintiff cannot secure the around-the-clock personal care required by her doctor, and whether Defendant has a legal obligation to provide temporary housing to Plaintiff while the various options were being sorted out. ECF No. 15-15.

         (10) On February 17, Defendant had a conference call with HUD to discuss these issues; Defendant called Plaintiff later that same day to share the outcome of the HUD call, noting that, going forward, it was important to address both Plaintiff's need for around-the-clock care and the need for the modifications to her home-Plaintiff expressed frustration that Defendant was not moving quickly enough.[5] ECF Nos. 16-24, 16-25.

         (11) On February 18, Defendant called the Virginia Fair Housing Office (based on HUD's recommendation to do so) and received further guidance on these issues, including recommendations that Defendant should proceed with the modifications as soon as possible and should obtain the advice of legal counsel as to certain questions/concerns, ECF No. 15-18; On February 19, Defendant emailed HUD indicating that Defendant planned to move forward with structural modifications to Plaintiff's current unit and therefore needed HUD to approve a change to its grant to allow Defendant to transfer money to fund the construction. ECF No. 15-20.

         (12) On that same day (February 19), Plaintiff emailed Defendant, appearing to indicate that she planned on leaving Defendant's program because she feared losing her children, although Plaintiff sent a follow up email later that day stating that she wanted to "stay here." ECF No. 16-26.

         (13) On February 24, Defendant provided Plaintiff with another update, indicating that Defendant was still waiting on the third quote for the ramp (it had learned that funding rules required three quotes), that the grab bars would be installed as soon as the contractor returned a quote, [6] and that, as requested by Plaintiff, Defendant had conducted research into alternative housing options if Plaintiff decided to leave Defendant's housing program;[7] Plaintiff responded by indicating that staying in her current home was not an option and that Medicaid would not approve her (electric) wheelchair until the improvements were complete-Plaintiff further indicated that Defendant had "called CP's" on her for the last time; Defendant responded by offering to call Medicaid directly on Plaintiff's behalf to confirm that Defendant is, in fact, building the ramp. ECF No. 15-23.

         (13) On February 25 and 26, Defendant and Plaintiff had further email exchanges discussing whether Plaintiff was planning on staying in the program or leaving the program; Defendant informed Plaintiff that the final ramp bid should be received in approximately five days and that Plaintiff would have to decide what she wanted to do by then. ECF Nos. 16-29, 16-30.

         (14) The following week, Plaintiff confirmed her plan to stay in Defendant's program; on March 7, approximately one month after Plaintiff submitted her doctor's note to Defendant, Defendant sent Plaintiff a lengthy email documenting her final options, which included modifying her current unit, or moving into a three bedroom unit that already had a ramp, although Plaintiff would have to wait a few weeks for the three bedroom unit to be ready (but it would have a ramp, grab bars, and tub transfer bench all installed before move-in);[8] on that same day, Plaintiff indicated that she preferred to "wait" for the three bedroom accessible unit. ECF No 15-29.

         (15) The next day (March 8), Defendant sent Plaintiff a follow up email indicating that Defendant had been in contact with Plaintiff's doctor to inform her of the planned two to three week time table for Plaintiff's move into the accessible three bedroom unit to permit sufficient time to have Plaintiff's hospital bed and electric wheelchair ordered and delivered. ECF No. 15-30.

         (16) Several days later, on March 12, Plaintiff caused a kitchen fire in her home, and the following day she did not respond to a "wellness check" performed by Defendant; one of Defendant's employees forced his way into Plaintiff's home to provide any needed assistance and determined that an ambulance was not necessary; after these two incidents, Defendant contacted APS to express concern that it continues to be dangerous for Plaintiff to be in her unit alone. ECF Nos. 15-31, 15-32, 15-33.

         (17) on March 15, Plaintiff emailed Defendant indicating that she would like to take the offer for assistance moving out of the program as her "living issues are unsafe"; a moving truck was arranged and scheduled to move Plaintiff out approximately one week later. ECF Nos. 15-34, 15-35.

         In March of 2017, Plaintiff filed the instant suit alleging a failure to provide a reasonable modification/accommodation under the Fair Housing Act and discrimination based on her disability under the Rehabilitation Act. Defendant ...


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