Equal Rights Ctr. v. Residential

• Decision Date: 22 July 2011
• Docket Number: Civil Action No. CCB–06–1060.
• Parties: EQUAL RIGHTS CENTER v. EQUITY RESIDENTIAL, et al.
• Court: U.S. District Court — District of Massachusetts

798 F.Supp.2d 707

EQUAL RIGHTS CENTER

v.EQUITY RESIDENTIAL, et al.

Civil Action No. CCB–06–1060.

United States District Court, D. Maryland.

July 22, 2011.

Isabelle Marie Thabault, Robert Mark Bruskin, Washington Lawyers Committee for Civil Rights, Joseph M. Sellers, Matthew Keith Handley, Peter Romer–Friedman, Cohen Milstein Sellers and Toll PLLC, Justin Frank Lavella, Dickstein Shapiro LLP, Washington, DC, for Equal Rights Center.

Craig M. White, Beth L. Fancsali, Deborah Lynne Morgan, Tracy A. Hannan, Wildman Harrold Allen and Dixon LLP, Chicago, IL, Charles O. Monk, II, Edward Joseph Baines, Jason M. St. John, Jennifer Ann Derose, Saul Ewing LLP, Baltimore, MD, for Defendants.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

The Equal Rights Center (the ERC) is a non-profit organization based in Washington, D.C. dedicated to, among other things, ensuring equal opportunities in housing for persons with disabilities through education, research, training, counseling, enforcement and advocacy. The ERC has sued Equity Residential and ERP Operating L.P. (collectively, “Equity”), alleging that Equity has “repeatedly and continually” designed and constructed properties that violate the Fair Housing Act (FHA), 42 U.S.C. §§ 3601–3619, and Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. Those violations, the ERC alleges, render the properties inaccessible to persons with disabilities. Equity moved to dismiss, arguing that the ERC did not allege facts sufficient to establish standing under Article III of the Constitution. Judge Andre Davis, to whom the case was then assigned, denied the motion.¹ Equity then moved for partial summary judgment, also on standing grounds, but this time on the basis of facts established through discovery. For the reasons that follow, the motion will be granted in part and denied in part. The ERC has shown standing to pursue its claims under the FHA, but not under Title III of the ADA.

BACKGROUND

As the only issue before this court is the ERC's standing to sue, the court will only recite the facts relevant to standing. The ERC is a non-profit organization based in Washington, D.C., “dedicated to ensuring equal opportunities in housing, employment, disability rights, immigrant rights, public accommodations and government services.” (Declaration of Rabbi Bruce Kahn (“Kahn Decl.”) ¶ 5.) It was formed in 1999 from the merger of the Fair Housing Committee of Greater Washington and the Fair Employment Council of Greater Washington. ( Id. ¶ 6; Deposition of Rabbi Bruce Kahn, Def.'s Ex. B (“Kahn Dep.”), at 12.) In 2005 it merged with the Disability Rights Council, and on April 7, 2006, amended its articles of incorporation to become a membership organization. (Kahn Decl. ¶ 6.) Its original membership included persons with disabilities as well as relatives of persons with disabilities and other persons dedicated to promoting the rights of persons with disabilities. ( Id. ¶ 8.) Ensuring that people with disabilities are provided equal housing opportunities is one of the “core missions” of the ERC. ( Id. ¶ 7.) The ERC advances its mission in various ways, including through “education, research, training, counseling, enforcement and advocacy.” ( Id. ¶ 5.)

One “well established ERC practice” is to engage in civil rights testing, which the organization has long used “to determine whether illegal discrimination [is] present, the extent of the discrimination, and the identities of the people or companies responsible for the discrimination.” ( Id. ¶¶ 10, 11.) Where testing reveals that discrimination might be present, the ERC “often engage[s] in a more systemic and targeted investigation that might include additional research and testing.” ( Id. ¶ 11.) If the ERC finds evidence that a particular person or company is engaging in discrimination, it “adhere[s] to its vision and mission by taking appropriate action to redress that discrimination.” ( Id. ¶ 12.) Sometimes that means “education and outreach, advocacy, training, [and/or] counseling.” ( Id.) For example, the ERC develops and publishes reports to educate victims of discrimination, persons or entities that have committed acts of discrimination, and the general public about the existence and extent of discriminatory practices. ( Id. ¶ 13.) Other times the ERC decides to use “persuasion, negotiation, [and/or] bringing the issue to the attention of government enforcement agencies” to redress instances of discrimination. ( Id. ¶ 9.) Still other times the ERC determines that it is appropriate to file a lawsuit against a person or company that is engaged in unlawful discrimination in order to “eliminate instances of discrimination and to promote compliance with the civil rights laws.” ( Id. ¶¶ 9, 18.) “The choice of which measures to employ depend[s] on the origin of the decision to test, the nature and extent of the discrimination found, whether the discriminatory actor [is] an industry leader, the resources available to the ERC at the time and the costs associated with the measures being considered.” ( Id. ¶ 12.)

The ERC began conducting studies of multifamily housing properties in the Washington, D.C. area in 1997 through grants from the U.S. Department of Housing and Urban Development (HUD). ( Id. ¶ 20.) The ERC published the results of those studies in a report on disability discrimination in the Washington, D.C. area housing market. ( Id.) The ERC began receiving complaints about the inaccessibility of multifamily housing for people with disabilities in or around 2000. ( Id.) Based on those initial studies and complaints, the ERC identified the inaccessibility of such properties as a “serious problem.” ( Id.) In 2004 the ERC conducted another study, also funded by HUD, which involved “a variety of tests including more than two dozen accessible design and construction tests of multifamily housing projects in and around the greater Washington D.C. metropolitan area.” ( Id.) This study revealed “violations of the FHA and ADA at every one of the multifamily properties tested.” ( Id.)

Based on these studies and complaints, the ERC began investigating particular developers, including Equity. ( Id. ¶ 21.) The ERC began its investigation of Equity on June 10, 2005, when Rebecca Crootof, an ERC staff member, began conducting research about Equity properties, developing a testing methodology, choosing properties to test, finding testers, creating “tester profiles,” drafting memoranda and reports, and arranging travel plans. (Def.'s Supp. App'x Tab L.) After conducting this “pre-testing investigation,” the ERC began sending testers to Equity properties to determine whether Equity was complying with the design and construction requirements of the FHA and ADA. (Kahn Decl. ¶ 21.) The tests of five of these properties were conducted in connection with a project funded by HUD, through which the ERC conducted “more than 80 accessible design and construction tests of multifamily housing projects in and around the greater Washington D.C. metropolitan area.” ( Id. ¶ 22.) The initial testers of Equity properties found violations at every property, including the five tested through the HUD grant, and so the ERC continued to send testers to other Equity properties. “These results provided further reason for the ERC to continue and intensify its investigation of Equity.” ( Id.) Ultimately the ERC sent testers to inspect Equity properties in Florida, New Jersey, Washington, California, and Texas as well as the metropolitan D.C. area. (Kahn Decl. ¶ 21.) In all, the ERC tested sixty-one Equity properties and found violations of the FHA and ADA at every property tested. ( Id.)

The ERC also acquired floor plans of additional Equity properties to which the ERC had not sent testers. (Deposition of Rebecca Crootof, Def.'s Ex. Tab F (“Crootof Dep.”), at 160.) ERC staff inspected the plans to determine whether those properties shared “design elements ... that were similar to design elements in tested properties that did not meet the requirements of the FHA.” (Kahn Decl. ¶ 21.) If testing had revealed a potential violation, and if “an untested property had a similar or the same floor plan for, let's say, the bathroom,” and the violation at the tested property “was of the type that was related to the layout of that bathroom,” then the ERC concluded that “there was reason to assume that the same violation might also exist at the untested property.” (Crootof Dep. at 168–69.) This “floor plan review ... disclosed that violations were likely to exist at the remainder of Equity's multifamily portfolio.” (Kahn Decl. ¶ 21.)

In August 2005 Rabbi Kahn convened a meeting of leaders from Washington-area disability rights organizations. ( Id. ¶ 23.) During the meeting, Rabbi Kahn “asked them if there was one crisis above all others that afflicted people with disabilities.” ( Id.) Rabbi Kahn reports that “without hesitation the entire group of leaders told me that the number one crisis for people with disabilities was finding accessible housing.” ( Id.) This response contributed to his decision to continue the ERC's investigation of Equity and other multifamily developers and “eventually [to] take enforcement actions against” them. ( Id. ¶ 24.)

As the executive director of the ERC at the relevant times, Rabbi Kahn was responsible for deciding to further investigate Equity in the summer of 2005 and eventually to file this lawsuit. ( Id.) Although the ERC had not received complaints about accessibility or discrimination at Equity properties specifically, Rabbi Kahn's decision to investigate Equity “was based entirely on the history of individual complaints received by the ERC during the period prior to the summer of 2005, evidence of widespread violations of the FHA and the ADA discovered during testing prior to the summer of 2005, coupled with the broad-based belief held by the representatives of the community of people with disabilities that lack...