Neithamer v. Brenneman Property Services, Inc.

• Decision Date: 17 December 1999
• Docket Number: No. Civ.A. 98-1969(GK).,Civ.A. 98-1969(GK).
• Citation: 81 F.Supp.2d 1
• Parties: William NEITHAMER, Plaintiff, v. BRENNEMAN PROPERTY SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

81 F.Supp.2d 1

William NEITHAMER, Plaintiff, v. BRENNEMAN PROPERTY SERVICES, INC., et al., Defendants.

No. Civ.A. 98-1969(GK).

United States District Court, District of Columbia.

December 17, 1999.

Benjamin S. Boyd, Piper & Marbury, L.L.P., Washington, DC, John P. Relman, Washington Lawyer's Committee for Civil Rights and Urban Affairs, Washington, DC, for plaintiff.

Charles Stephen Rand, Allen Wright, McKernan & Rand, Rockville, MD, Donald Melvin Temple, Temple Law Office, Washington, DC, for defendants.

MEMORANDUM OPINION

KESSLER, District Judge.

Plaintiff William Neithamer, who is gay and HIV positive, brings this action against Brenneman Property Services, Inc. and several of its agents under the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., and the D.C. Human Rights Act ("DCHRA"), D.C.Code § 1-2515. Plaintiff alleges that Defendants discriminated against him when he applied for housing because of his sexual orientation and his medical disability. This matter comes before the Court on Defendants' Motion for Summary Judgment and Plaintiff's Motion to Strike. Upon consideration of the pleadings and the entire record herein, for the reasons stated below, Defendants' Motion for Summary Judgment [# 49] is denied, and Plaintiff's Motion to Strike [# 51] is denied.

I. — Background¹

In September 1997, in his search for new rental housing, Plaintiff contacted Defendant Brenneman Property Services, Inc. ("Brenneman Property") in response to an advertisement for a townhouse on the Northwest side of the District of Columbia. Plaintiff viewed the property, and upon finding it to his liking, filed an application with Brenneman Property for rental of the property.

Plaintiff provided Defendant Padraig A. Wholihan, the agent of Brenneman Property who handled the transaction, with bank statements and credit references in addition to the application. He also informed Wholihan that his credit report would show that he failed to make payments to some of his creditors a few years earlier. He explained that the reason for this was that several years ago, he had devoted his financial resources to paying the medical bills of his lover, who died in 1994 of AIDS. Plaintiff assured Wholihan that since 1994, he had maintained good credit, and that the bank statements and credit references would confirm this.

After Wholihan presented Plaintiff's application to Alida Stephens, the owner of the property, Stephens rejected Plaintiff's application. Upon being informed of this, Plaintiff offered to pay a second month's rent as additional security to rent the property. Wholihan informed Plaintiff that Stephens had rejected this offer too. Plaintiff was then able to obtain a co-signor for the lease, Reverend Louise Lusignan, who completed a co-signor form on Plaintiff's behalf. Wholihan, however, did not run a credit report on Reverend Lusignan's application. Wholihan Dep. at 155-56. Stephens also rejected Plaintiff's offer of a co-signor. At that point, Plaintiff made his final offer to pre-pay one year's rent. Wholihan informed Plaintiff that Mrs. Stephens had rejected this offer as well.

Upon learning of the rejection of his final offer, Plaintiff called Brenneman Property to inquire why his offer was rejected, and spoke with Defendant George Brenneman, the owner of Brenneman Property, as well as Wholihan. When Plaintiff stated he felt he was a victim of discrimination, Plaintiff alleges that Brenneman became angry and shouted, "if you try to sue me, I have a pack of bloodsucking lawyers who will place countersuits against you for libel and drive you into the ground." Neithamer Dep. at 67-68. Wholihan's recollection of the conversation was that Brenneman did say he had a "bulldog of an attorney", and that he may countersue. Wholihan Dep. at 240.

II. Standard of Review

Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the movant has met this burden, a court must consider all factual inferences in the light most favorable to the non-moving party. McKinney v. Dole, 765 F.2d 1129, 1135 (D.C.Cir.1985). Once the moving party makes its initial showing, however, the nonmoving party must demonstrate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548; McKinney, 765 F.2d at 1135.

III. Analysis

Defendants bring their Motion for Summary Judgment, arguing that there is no basis in fact for either of Plaintiff's claims: discrimination under the FHA and the DCHRA, and intimidation and coercion under those same statutes. Plaintiff brings his Motion to Strike, arguing that Defendants' Motion should be struck as untimely and premature.

A. Plaintiff's Motion to Strike

Plaintiff argues that because Defendants' Motion for Summary Judgment was filed one day after the deadline for filing dispositive motions, and because there are critical issues of material fact in dispute precluding summary judgment, Defendants' Motion should be struck. Defendants argue that the untimeliness of their motion is insignificant and not prejudicial, and was due to inadvertence arising from several changes in the deadlines. Defendants also argue that Plaintiff's motion should be denied because those arguments could have been raised in the opposition to Defendants' motion, rather than burdening the Court with an additional motion to decide, and because Plaintiff is not entitled to a "preliminary ruling" on Defendants' motion, to save him the time of filing a full opposition. Because Defendants' reasons are persuasive, Plaintiff's Motion to Strike is denied.

B. Discrimination in violation of FHA and DCHRA

Although the D.C. Circuit Court of Appeals has not yet addressed the issue, a number of other Circuit Courts have already ruled that when a plaintiff offers no direct evidence of discrimination, his claim of discrimination under the FHA is to be examined under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), established in Title VII cases.² Gamble v. City of Escondido, 104 F.3d 300, 305 (9th Cir.1997); Mountain Side Mobile Estates Partnership v. Secretary of Hous. and Urban Dev., 56 F.3d 1243, 1250-51 (10th Cir.1995); Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir.1994), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994); Casa Marie, Inc. v. Superior Court of Puerto Rico for Dist. of Arecibo, 988 F.2d 252, 270 (1st Cir.1993); Secretary, U.S. Dep't of Hous. and Urban Dev., on Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir.1990); Hamilton v. Svatik, 779 F.2d 383, 387 (7th Cir.1985); Williams v. Matthews Co., 499 F.2d 819, 827 (8th Cir.1974), cert. denied, 419 U.S. 1021, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). Given the agreement between the Circuits, this Court adopts their reasoning here.

Under this framework, Plaintiff must establish a prima facie case of discrimination by showing: (1) that he is a member of a protected class and Defendants knew or suspected that he was; (2) that he applied for and was qualified to rent the property in question; (3) that Defendants rejected his application; and (4) that the property remained available thereafter. Blackwell, 908 F.2d at 870. Plaintiff must provide sufficient evidence to show that he was "rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Hayman v. National Academy of Sciences, 23 F.3d 535, 537 (D.C.Cir.1994). Once Plaintiff establishes a prima facie case, the burden shifts to Defendants to articulate some legitimate, nondiscriminatory reason for their rejection of Plaintiff's application. Id. If Defendants satisfy this burden, Plaintiff must show either that Defendants' reasons are pretext, id., or that material facts are disputed, precluding summary judgment. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.Cir.1998).

Of the four elements of a prima facie case, the last two are undisputed in this case (that Defendants rejected Plaintiff's application, and that the property remained available thereafter). Whether Plaintiff has established the first two elements, however, is very much in dispute.

As to the first element, it is clear that Plaintiff has established a prima facie case as to his sexual orientation. Plaintiff is gay, and Defendants knew or suspected that he was. Neithamer Decl. at ¶ 2; Brenneman Dep. at 136. Although the DCHRA prohibits discrimination based on sexual orientation, the FHA does not. Thus, in order to make a prima facie case under the FHA, Plaintiff must also establish that he is disabled, as that word is used in the FHA, and that Defendants knew or suspected he was.

It is undisputed that Plaintiff is HIV positive, Neithamer Decl. at ¶ 2, and that being HIV positive constitutes a handicap under the FHA. See, e.g., Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 179 (1st Cir.1994). Plaintiff alleges that he is handicapped within the meaning of § 3602(h)(3) of the FHA, that is, Defendants regarded or perceived him as being handicapped, while Defendants deny that they ever knew or suspected that Plaintiff was HIV positive. The question is whether Plaintiff has provided enough evidence to give rise to an inference that Defendants perceived he was HIV positive.

Plaintiff provides the following evidence...