Chavez v. Aber

• Citation: 122 F.Supp.3d 581
• Decision Date: 08 August 2015
• Docket Number: No. EP–15–CV–00068–KC.,EP–15–CV–00068–KC.
• Parties: Yvonne CHAVEZ, et al., Plaintiffs, v. Dick ABER, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

122 F.Supp.3d 581

Yvonne CHAVEZ, et al., Plaintiffs,

v.Dick ABER, et al., Defendants.

No. EP–15–CV–00068–KC.

United States District Court, W.D. Texas, El Paso Division.

Signed Aug. 8, 2015.

Veronica Carbajal, Stephanie Welch, Texas Rio Grande Legal Aid, Inc., El Paso, TX, Carmen Ilene Garcia, Texas Rio Grande Legal Aid, Inc., San Antonio, TX, for Plaintiffs.

Bruce A. Koehler, Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C., El Paso, TX, for Defendants.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Defendants' First Amended Motion to Dismiss and Memorandum of Points and Authorities in Support Thereof ("Motion"), ECF No. 8, in the above-captioned case (the "Case"). For the following reasons, the Motion is DENIED.

I. BACKGROUND

Unless otherwise stated, the following facts are taken from Plaintiffs' Complaint ("Complaint"), ECF No. 1.

The Case arises from allegations of housing discrimination on the basis of disability. Id. at 1.¹ Specifically, Plaintiffs seek damages stemming from Defendants' refusal to accommodate Plaintiff Yvonne Chavez's ("Chavez") minor son's ("M.C.") mental health disabilities by allowing Plaintiffs to keep a mixed-breed pit bull as an emotional support animal in their rented duplex. Id. at 2, 15–19.

Chavez began renting a duplex apartment (the "Duplex") in El Paso, Texas in February 2006. Id. at 5. Defendant Fairview Court, LLC ("Fairview") held title to the Duplex at the time Chavez began renting. Id. at 4.² Defendant Dick Aber ("Aber") is "the owner, director and manager of Fairview." Id. at 3. Aber also owned and managed the Duplex, and was responsible for the oversight of the Duplex's day-to-day operations, including decision-making power on whether to grant requests for reasonable accommodations of disabilities. Id. at 4–5. The most recent lease between Chavez and Defendants ran from January 1, 2010, to December 31, 2012, had a "no pets" policy, and provided for a rent of $550.00 per month. Id. at 5; Residential Lease of Jan. 1, 2010 (the "January 1, 2010, Lease"), Compl. Ex. 1, ECF No. 1–3.³

In November 2011, while M.C. was receiving out-patient care at a local psychiatric hospital, M.C.'s psychiatrist, Dr. Gerardo Moreira ("Dr. Moreira"), recommended that M.C.'s treatment should include the use of an emotional support animal. Compl. 5. As a result, in June of 2012, Chavez adopted a three-month old mixed-breed pit bull ("Chato"). Id. At the time Chavez adopted Chato, other tenants in neighboring duplexes owned one or more dogs as well. Id. at 6. Chato largely remained inside the Duplex in order to promote interaction with M.C. Id. When Chato was outside, Chavez and M.C. supervised him in the Duplex's front yard. Id.

At an unspecified date prior to or in September 2012, Aber orally asked Chavez to remove Chato from the Duplex. Id. Chavez explained to Aber that Chato was an emotional support animal needed to alleviate M.C.'s disabilities, and requested an accommodation of the Duplex's "no pet" policy ("First Accommodation Request"). See id. Aber refused the accommodation request and again verbally asked Chavez to remove Chato from the premises. Id. On September 14, 2012, after Chavez did not remove Chato, Aber provided Chavez with a notice to vacate because Chavez was not permitted to have a dog at the Duplex. Id. at 7; Notice to Vacate ("First Notice to Vacate"), Compl. Ex. 2, ECF No. 1–4. By the First Notice to Vacate, Aber threatened to evict Chavez and have El Paso Animal Control Services remove Chato from the Duplex if Chavez did not remove the dog from the premises by September 20, 2012.See Compl. 7; First Notice to Vacate 2. Aber also attached to the First Notice to Vacate a copy of a news article about a death related to a pit bull attack. Compl. 7; First Notice to Vacate 3. The First Notice to Vacate was the first such notice that Chavez had received from Aber during her nearly six-year tenancy at the Duplex. Compl. 7.

After receiving the First Notice to Vacate, Chavez provided Aber with letters from Dr. Moreira and Cecilia Burgos, M.C.'s psychotherapist, in support of the First Accommodation Request. Id.; see also Letter from Gerardo Moreira to Hous. Auth. of El Paso (Aug. 15, 2012) ("Moreira Letter"), Compl. Ex. 3 at 2, ECF No. 1–5; Letter from Cecilia Burgos (Sept. 11, 2012) ("Burgos Letter"), Compl. Ex. 3 at 3, ECF No. 1–5. Both the Moreira Letter and the Burgos Letter (collectively, the "Support Letters") stated that M.C. would benefit from the presence of an emotional support animal. See Compl. 7; Support Letters. In response, Aber again verbally denied Chavez's accommodation request, and reiterated that he would evict the family and call Animal Control Services if Chavez did not remove Chato from the premises. See Compl. 7.

Fearing eviction, Chavez removed Chato from the Duplex on September 22, 2012. Id. at 8. Nonetheless, and despite informing Chavez that he would not proceed with the threatened eviction after Chato's removal, Aber filed an eviction complaint against Chavez on September 24, 2012. Id. In his eviction complaint, Aber alleged that Chavez had violated the rental agreement by "[k]eeping a potentially dangerous dog (a pit bull-full blood) at the [Duplex]." See Citation—Forcible Entry and Detainer 5 ("First Eviction Complaint"), Compl. Ex. 4, ECF No. 1–6. After a trial, a Justice of the Peace ruled against Chavez. Compl. 8.

On October 17, 2012, Chavez again sent Aber a request to keep Chato on the premises. Id.; see also Letter from Att'y Veronica Carbajal to Dick Aber (Oct. 17, 2012) ("Second Accommodation Request"), Compl. Ex. 5, ECF No. 1–7. In support of her Second Accommodation Request, Chavez attached a copy of a letter from a veterinarian stating that upon examination, Chato had shown no signs of aggression. See Second Accommodation Req. 6. Aber subsequently denied the Second Accommodation Request, stating that "[t]he problem with [Chavez's Second Accommodation Request] is that she has chosen to get a pit bull [and] [t]hat choice of dog is completely unacceptable." See Letter from Att'y Robert Hedicke to Att'y Veronica Carbajal (Oct. 19, 2012) ("Second Accommodation Denial"), Compl. Ex. 6, ECF No. 1–8. Instead, Aber presented Chavez with three options: (1) Chavez could find other housing which would allow pets, (2) Chavez could choose a dog of a breed acceptable to Aber, or (3) Chavez could propose a pet that does not run loose in the yard. Id.

A week later, on October 25, 2012, a canine behaviorist evaluated Chato's temperament and concluded that Chato exhibited no indications of "aggression, fear, or lack of socialization issues." See Canine Behavior Servs. Temperament Evaluation Report 4 ("Behavioral Report"), Compl. Ex. 7, ECF No. 1–9. The canine behaviorist further noted that Chato displayed "very good social skills with people, and another dog, before, during, and after the exam." Id. Thereafter, on November 2, 2012, Chavez filed a fair housing complaint with the Department of Housing and Urban Development ("HUD"). See Hous. Discrimination Compl. ("HUD Complaint"), Compl. Ex. 8, ECF No. 1–10. The HUD Complaint was later forwarded to the Texas Workforce Commission Civil Rights Division ("TWCCRD"). Compl. 9.

Chavez returned Chato to the Duplex on November 6, 2012. Id. Despite Chato's return, M.C. continued to exhibit worry, fear, anxiety, and stress that Aber would remove or otherwise harm Chato when the dog was outside or left alone in the Duplex. Id. at 9–10. On January 5, 2013, Aber contacted the City of El Paso's Animal Control Services to report that Chato was not confined. Id. at 11. Though an Animal Control officer responded to the call, Chavez did not receive a citation after showing that Chato was vaccinated, registered, and micro chipped. Id.

On January 25, 2013, Aber sent Chavez a proposed lease renewal and lease addendum. See Letter from Dick Aber to Yvonne Chavez (Jan. 25, 2013) ("Proposed Lease"), Compl. Ex. 10 at 4–12, ECF No. 1–12. The Proposed Lease would last for one year and included a rent increase from $550.00 to $750.00, a pet deposit for M.C.'s support animal, and a provision that Chato was not allowed to use the Duplex's shared yard. Id. at 4, 7–8. Aber told Chavez that if she did not sign the Proposed Lease he would terminate Chavez's tenancy on February 28, 2013. See Letter from Att'y Robert Hedicke to Att'y Veronica Carbajal (Jan. 28, 2013), Compl. Ex. 10 at 3, ECF No. 1–12. Chavez refused to sign and informed Aber that the Proposed Lease violated both the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601 et seq., and the Texas Property Code because (1) other tenants paid no more than $600.00 in rent for units of comparable size, (2) the FHA does not permit pet deposits for emotional support animals, and (3) Aber sought to impose stricter rules regarding M.C.'s emotional support animal than Aber imposed on other tenants' dogs. See Letter from Att'y Veronica Carbajal to Att'y Robert Hedicke (Jan. 29, 2013), Compl. Ex. 11, ECF No. 1–13.

On January 29, 2013, Aber again contacted the City of El Paso Animal Control Services to report that Chato was not confined. Compl. 11. On this occasion, Chavez received a citation. Id. A week and a half later, on or around February 9, 2013, Aber installed a fence to divide the yard Chavez shared with her next door neighbor. Id. The fence was comparable to fences in the yards of the duplexes next to Chavez's unit. Id.

Chavez later withdrew her administrative complaint with the TWCCRD on March 28, 2013, in order to pursue a federal complaint. See Letter from Yvonne Chavez to TWCCRD (Mar. 28, 2013), Compl. Ex. 12, ECF No. 1–14.

On July 10 and 17, 2013, Chavez requested repairs related to water damage in the Duplex. See Letter from Att'y Veronica Carbajal to Att'y Stewart Forbes (July 10, 2013), Compl. Ex. 13, ECF No. 1–15; Letter from Att'y Veronica Carbajal to Att'y Stewart Forbes (July 17, 2013), Compl. Ex. 14, ECF No. 1–16. City of El Paso building inspectors then inspected the...