Vance v. City of Maumee

• Decision Date: 15 May 2013
• Docket Number: No. 3:11CV2182.,3:11CV2182.
• Citation: 960 F.Supp.2d 720
• Parties: Bernita L. VANCE, et al., Plaintiffs, v. CITY OF MAUMEE, OHIO, Defendant.
• Court: U.S. District Court — Northern District of Ohio

960 F.Supp.2d 720

Bernita L. VANCE, et al., Plaintiffs,

v.CITY OF MAUMEE, OHIO, Defendant.

No. 3:11CV2182.

United States District Court,

N.D. Ohio,

Western Division.

May 15, 2013.

Stephen F. Hayes, Stephen M. Dane, Relman, Dane & Colfax, Washington, DC, for Plaintiffs.

Sheilah H. McAdams, City of Maumee, Maumee, OH, Joan C. Szuberla, Spengler Nathanson, Suzanne Belot Norton, Reminger & Reminger, Toledo, OH, for Defendant.

ORDER

JAMES G. CARR, Senior District Judge.

This is a disability and housing discrimination case. Pending is Defendant's motion for summary judgment (Doc. 28). Also pending is Plaintiff's counter-motion for partial summary judgment (Doc. 36) on her reasonable accommodation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(7), and the Fair Housing Act (FHA), 42 U.S.C. § 3604(f)(3)(B).¹

Jurisdiction is proper under 28 U.S.C. § 1331.

For the reasons that follow, I grant Plaintiff's motion in part and deny it in part and deny Defendant's motion.

Background

Plaintiff, Bernita Vance, is disabled.² Her physical ailments include: hyperlipidemia, hypertension, coronary artery disease, deep vein thrombosis, pulmonary embolism, syncope, chest pain, dyspnea, acute thrombosis, osteopenia, and chronic back pain. She has had multiple heart attacks. Between 2005 and 2006 Plaintiff had both knees replaced. She alleges that her condition has deteriorated significantly in the last few years.

Since 1992, Plaintiff and her husband have lived in a single family residence in Maumee, Ohio. The front entrance to the home faces the street. The lot slopes downward from the house to the street. To access the front entrance from the street one has to walk up eleven inclined steps.

The back entrance to plaintiffs' home faces an alley. The back portion of their lot from her back entrance to the alley is level.

The alley, which is sixteen and a half feet wide and 410 feet long, parallels the street. Entrance to the alley is from a cross street to the East. The West end of the alley deadends near the at a cross street and a ravine. Plaintiff's property is on the westernmost portion of the alley.

The City has graveled the easternmost 170 feet of the alley. The remainder has become overgrown with grass and other vegetation. The City plows and maintains this portion of the alley to provide driveway access for the corner house on plaintiff's street.

The corner house is the only residence on the street with a driveway entrance onto the alley. The remaining residents access their driveways from the street.

Currently, Plaintiff can enter her home in one of three ways: 1) park on the street, climb eleven stairs, cross the front lawn, and climb another seven stairs; 2) park in the driveway and climb eighteen outdoor stairs leading from the driveway to the back porch; or 3) park in the garage and climb eighteen stairs leading from the garage to the home's first floor.

According to Plaintiff, her physical impairments limit her to using the eighteen outdoor stairs to the home's back entrance. She alleges these stairs are the least steep. To get up the stairs, Plaintiff crawls on her hands and feet or pulls herself up one step at a time using blocks her husband installed on the railing. Plaintiff states that entering her home in this manner causes her substantial pain and embarrassment.

Members of Plaintiff's family live nearby. Her daughter built a home in 2002 on the lot on the east of of Plaintiff's lot.³ At that time, Plaintiffs asked the City to extend the graveled portion of the alley to the rear of her house, where she wanted to build a connecting driveway similar to that on the corner lot. The City refused, the daughter appealed, and the Common Pleas Court of Lucas County affirmed the denial of the request, which was not appealed.

In 2007, Plaintiff began seeking alley access for herself. She sent her first written request for alley access in May, 2007, to the City. At that time, Plaintiff's physical impairments had become so severe that they precluded her from accessing her home from the street. Plaintiff alleges her request specifically informed the City of her disability and stated that she was requesting accommodation under the Americans Disabilities Act. The City does not recall receiving this request.

A month after Plaintiff sent her first request, she had an attorney send the City a request for alley access. The City confirms that it did in fact receive this written request. However, according to the City, it did not consider the letter to be a formal request for reasonable accommodation because the letter referenced “health concerns” rather than disability, per se.

Three years later, after a third heart incident, Plaintiff states that she made another written request for accommodation. According to Plaintiff, that request again noted her “legal disability rights.” The City does not recall receiving this request.

In addition to acknowledging receipt of one written request, the City does not dispute that its ADA coordinator spoke with Plaintiff at least three times between 2009 and 2010. According to both Plaintiff and the City, during each of these conversations, the parties discussed Plaintiff's need to use the alley to access her home because of her serious health problems.

In July or August 2010, in accordance with municipal procedure, Plaintiff filed a formal petition for alley access.⁴

The petition stated:

The majority of landowners abutting the alley in the three hundred blocks of West Broadway Street and West Harrison Street, Hunts Addition, are requesting that the small portion of the alley that has become overgrown with grass be resurfaced to allow them full use and full access of the open public alley.

In the event that the City of Maumee does not have the money to do the work it can be done at the petitioners expense by Vance Property Management. Proof of bond may be provided if needed.

Plaintiff's petition was on the agenda for the following City Council meeting. However, the Council did not discuss Plaintiff's disability or the substance of the petition. Instead, the Council agreed to remove consideration of the petition from the agenda because the petition did not have “fifty percent of the property owners' signatures, as required.”

On November 15, 2010, according to the Plaintiffs, the Ability Center of Greater Toledo contacted the City to reaffirm Plaintiff's need for accommodation. The City's disability coordinator does not dispute that the Center contacted the City and helped install the hand railings on the Plaintiff's property.

On November 16, 2010, Mr. Vance and his son began installing a parking pad on the back portion of the Plaintiff's lot. Prior to Mr. Vance's beginning the work, the City had assured him that he did not need a permit to build the pad. Shortly after this project began, the City's Public Commissioner and Police Chief arrived. Mr. Vance had used the alley to bring in gravel and had temporarily placed some of the gravel on the alley. The Commissioner informed Mr. Vance that he could not use the alley for any purpose and would be fined if he did not stop using the alley and remove the gravel immediately.

In response, Mr. Vance threatened to sue the City for discrimination. That same day, the Commissioner installed a “road closed” temporary barricade at the east end of the of the alley.

Currently, that barricade continues to block Plaintiff from driving down the portion of the alley behind her home. It is undisputed that Plaintiff could, if the barricade were removed, drive her car over this portion of the alley without difficulty. Both the Commissioner and Plaintiff's engineering expert agree that the alley can support light vehicular traffic. Larger utility vehicles currently access this portion of the alley to make repairs when necessary.

As of the time Plaintiff filed this suit, the City had not: 1) contacted Plaintiff to assess the extent of her condition; 2) followed up on its telephone conversations with Plaintiff; or 3) responded to her written request for accommodation. The City had yet to consider any options for accommodating Plaintiff.

At issue as a result of the pending motions are plaintiff's claims that the City's actions violate her right to reasonable accommodation under the ADA and FHA and constitute retaliation for her exercise of rights under those statutes.

Standard of Review

A party is entitled to summary judgment on motion under Fed.R.Civ.P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548.

Once the movant meets that initial burden, the “burden shifts to the nonmoving party to set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and submit admissible evidence supporting its position. Celotex, supra, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding a motion for summary judgment, I accept the opponent's evidence as true and construe all evidence in the opponent's favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). The movant can prevail only if the materials offered in support of the motion show there is no genuine issue of material fact. Celotex, supra, 477 U.S. at 323, 106 S.Ct. 2548.

Discussion

1. Collateral Estoppel and Judicial Estoppel

The City claims that the judgment of the Lucas County Common Pleas Court bars this suit pursuant to the doctrines of collateral estoppel and judicial estoppel. Collateral estoppel is an affirmative defense. As such, a defendant...