Jordan v. Greater Dayton Premier Mgmt.
| Citation | 9 F.Supp.3d 847 |
| Decision Date | 28 March 2014 |
| Docket Number | Case No. 3:13–cv–281. |
| Parties | Renee JORDAN, Jordan, v. GREATER DAYTON PREMIER MANAGEMENT, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Debra A. Lavey, Advocates for Basic Legal Equality, Inc., Matthew N. Currie, Dayton, OH, Kerstin Sjoberg–Witt, Kevin J. Truitt, Disability Rights Ohio, Columbus, OH, for Renee Jordan, Jordan.
Ray C. Freudiger, Marshall Dennehey Warner Coleman & Goggin, Cincinnati, OH, for Defendants.
DECISION AND ENTRY RULING ON OBJECTIONS TO EXHIBITS PRESENTED AT EVIDENTIARY HEARING; SUSTAINING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. # 1); ORDERING DEFENDANT GDPM TO PROVIDE COPIES OF ALL CORRESPONDENCE ON MICROCASSETTE TAPE; SETTING STATUS CONFERENCE FOR APRIL 10, 2014
Plaintiff Renee Jordan filed a Complaint against Greater Dayton Premier Management (“GDPM”) and Dayton Metropolitan Housing Authority (“DMHA”), alleging violations of the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3604(f)(3)(B), Section 504 of the Rehabilitation Act of 1973 (“Section 504 ”), 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Doc. # 2.
Jordan, who is blind, alleges that Defendants have discriminated against her on the basis of her disability by failing to provide her with equal access to the Section 8 Housing Choice Voucher Program, administered through the United States Department of Housing and Urban Development (“HUD”). As an accommodation for her disability, Jordan requested that Defendants provide all correspondence to her on microcassette tapes. GDPM maintains that her request constitutes an undue administrative and financial burden, and has denied her request. Jordan requests injunctive, declaratory, and monetary relief.
Along with her Complaint, Jordan filed a Motion for Preliminary Injunction, asking that, until there can be a full adjudication on the merits, GDPM be ordered to send her all correspondence on microcassette tapes. Doc. # 1. After the parties conducted discovery, the Court held an evidentiary hearing on January 16, 2014, and January 23, 2014. The parties have filed post-hearing briefs, Docs. 30, 32, and 33, and this matter is now ripe for decision.
Plaintiff Renee Jordan is blind. Since 2003, when she moved to Dayton, she has been a participant in HUD's Section 8 Housing Choice Voucher Program (“Voucher Program”). Tr. at 29. The Voucher Program allows eligible, low-income participants to obtain affordable housing through the issuance of vouchers. HUD pays rental subsidies to participating landlords. Local agencies receive federal financial assistance to administer the Voucher Program. Prior to October 26, 2011, the local Voucher Program was administered by the Dayton Metropolitan Housing Authority (“DMHA”). Since then, it has been administered by Greater Dayton Premier Management (“GDPM”).1
As with most government programs, participation in the Voucher Program entails quite a bit of paperwork, including, but not limited to, Request for Tenancy Approval (“RTA”) packets, housing assistance payment (“HAP”) contracts, housing quality standards inspection reports, and annual recertification packets. GDPM also sends participants written notification of inspection appointments, recertification appointments, and changes in rent payments. A participant who fails to keep appointments and complete the necessary paperwork in a timely manner, or otherwise fails to comply with requirements may be terminated from the Voucher Program.
As a result of her disability, Jordan cannot read written correspondence. Although she occasionally hires someone to read her mail to her, her limited income makes this difficult. Concerned that she might inadvertently miss a required appointment or a deadline for returning paperwork, thereby jeopardizing her continued participation in the Voucher Program, Jordan asked DMHA to send her copies of all correspondence on microcassette tape. In this manner, she is able to review the information on her own, and respond as needed. This also allows her to maintain a record of all correspondence, in an accessible format, in case she needs to retrieve it at a later date. In 2003, DMHA agreed to honor Jordan's request. Tr. at 27–30.
However, on numerous occasions over the next few years, attorneys representing Jordan had to remind DMHA of its obligation. In 2006, Jordan filed a complaint of discrimination with HUD, alleging that DMHA was violating Section 504 of the Rehabilitation Act by failing to provide her with microcassette tapes of all written correspondence. As a result, HUD and DMHA entered into a Voluntary Compliance Agreement (“VCA”), whereby DMHA agreed to provide Jordan with audiotapes of all written correspondence, and to maintain supporting documentation. The VCA specified that any modifications had to be in writing, approved by the Columbus FHEO Center Director, Carolyn Murphy, and signed by the party adversely affected. Pl. Ex. 9.
In late 2009 and early 2010, Jordan received at least more three letters from DMHA without audiotapes. Her attorney contacted Christopher Green, General Counsel for DMHA. Pl. Ex. 17. Green, who was hired by DMHA in 2008, testified that he was unaware of the VCA in Jordan's file. Tr. at 273. He nevertheless charged the Section 8 department head with making certain that DMHA sent all correspondence to Jordan in the format she had requested. Id. at 266.
The problem resurfaced in 2012, after GDPM had assumed authority for administering the Voucher Program. In February, and again in September, of that year, Debra Lavey, one of Jordan's attorneys, contacted Green about the repeated failure to provide audiotapes of written correspondence. Def. Ex. G, at 1, 6. On September 26, 2012, Green responded that the latest three “letters” were probably just inspection reports. He asked, “[a]re you suggesting that we have to read all of the data contained on an inspection report to the tenant?” Lavey responded, “I am suggesting that all communication be in a format that is accessible to her and yes, in the format that she requested.”Id. at 7–8.
Green testified that he believed that this significantly expanded the scope of Jordan's previously requested accommodation. Because of recent budget cuts, GDPM was already having trouble finding the resources to make audiotapes of all “correspondence.” He believed that taping all “communications” sent to her was an undue administrative and financial burden. Tr. at 274–75. Green researched the issue and determined that federal regulations did not require GDPM to honor Jordan's request. He told Lavey that the regulations did not require GDPM to provide “readers for personal use” or “devices of a personal nature.” He believed that audiotapes of correspondence directed solely to Jordan fell within these categories. He did, however, offer to open up discussions “so that we can find a service provider to accommodate her disability.” Def. Ex. G at 9.
Green, who still knew nothing of the VCA in Jordan's file, also contacted Linda Sanford, an Equal Opportunity Specialist with the HUD Fair Housing Division in Columbus, Ohio. Sanford and her Enforcement Branch Chief agreed with Green that the requested accommodation constituted an undue administrative burden.2 She encouraged Green to continue to engage in an interactive process to find an alternative accommodation. Def. Ex. E.
On October 17, 2012, Green again wrote to Lavey, reiterating his position that the federal regulations did not require GDPM to transmit all correspondence via audiotapes. He indicated that he had spoken to the Access Center for Independent Living, and to two Fair Housing officers at HUD, who agreed that the requested accommodation constituted “an administrative burden” and was not legally required. Def. Ex. G at 10.
On November 21, 2012, Lavey responded to Green. She denied that the audiotapes were the equivalent of “readers for personal use or study, or other devices of a personal nature,” 24 C.F.R. § 9.160(a)(1)(ii). She maintained that they were instead “auxiliary aids,” as defined in 42 U.S.C. § 12103. She further noted that Green had provided no evidence that Jordan's request constituted an undue financial and administrative burden on GDPM. In addition, Lavey questioned Green's decision that GDPM would no longer provide Jordan with any audiotapes or read documents to her over the phone. She stated, “I realize that there may be some dispute as to the format; however, doing nothing is unacceptable.” Id. at 12–13.
On November 26, 2012, Green reiterated his position, and again offered to engage in an interactive process to find an alternative solution involving the assistance of an outside service provider. He noted that Linda Sanford of HUD was available to discuss the matter with him and Lavey. Id. at 14–15. A conference call was held on December 11, 2012.
At the suggestion of Sanford and Green, Lavey subsequently contacted the Vision Department for Goodwill in Dayton and the Bureau of Services for the Visually Impaired. In a letter dated February 20, 2013, Lavey stated that neither agency was able to provide free reading services to Jordan. She further stated that, even if they could, this was not the reasonable accommodation that Jordan had requested. She threatened a lawsuit unless GDPM provided the requested accommodation. Id. at 23–24. On February 27, 2013, Green notified Lavey that GDPM would not provide the requested accommodation. Id. at 25–26.
On August 22, 2013, Jordan filed the above-captioned Complaint, Doc. # 2, along with her Motion for Preliminary Injunction, Doc. # 1. Jordan maintains that without the microcassette tapes, she faces an ongoing risk of unknowingly missing a required appointment or a deadline, and subsequently being terminated from the Voucher Program. She alleges that, because she cannot afford to pay rent on her own, this could result in...
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