Oregon Bureau of Labor & Industries Ex Rel. Fair Housing Council of Oregon v. Chandler Apartments, LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

OREGON BUREAU OF LABOR AND No. 15-35604
INDUSTRIES, ex rel Fair Housing Council
of Oregon, D.C. No. 6:13-cv-01776-MC

Plaintiff-Appellee,
MEMORANDUM*
FAIR HOUSING COUNCIL OF OREGON,

Intervenor-Plaintiff-
Appellee,

v.

CHANDLER APARTMENTS, LLC, FKA
L&T Chandler, LLC, an Oregon limited
liability company; et al.,

Defendants-Appellants,

and

1031, INC., a Nevada corporation,

Defendant.

Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding

Argued and Submitted July 11, 2017

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 Portland, Oregon

Before: BERZON, WATFORD, and OWENS, Circuit Judges.

Defendants-Appellants Chandler Apartments, LLC, 1031, Inc., and James

Tarantino (collectively, “Chandler Apartments”) appeal from the district court’s

grant of summary judgment to Plaintiffs-Appellees Oregon Bureau of Labor and

Industries (“BOLI”) and Fair Housing Council of Oregon (“FHCO”) on their

claims of housing discrimination under the Fair Housing Act (“FHA”) and its

Oregon state law equivalent. As the parties are familiar with the facts, we do not

recount them here. We affirm.

Chandler Apartments argues that plaintiffs have not proved the elements of a

claim under the FHA and Or. Rev. Stat. § 659A.145(2)(g).1

To prevail on a claim under 42 U.S.C. § 3604(f)(3), a plaintiff must
prove all of the following elements: (1) that the plaintiff or his associate
is handicapped within the meaning of 42 U.S.C. § 3602(h); (2) that the
defendant knew or should reasonably be expected to know of the
handicap; (3) that accommodation of the handicap may be necessary to
afford the handicapped person an equal opportunity to use and enjoy
the dwelling; (4) that the accommodation is reasonable; and (5) that
defendant refused to make the requested accommodation.

Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th

1
The only distinction the parties offer between the elements of a claim under the
FHA and the equivalent Oregon statute is that the claims under the Oregon statute
include “[a]ssisting, inducing, and inciting Defendants’ agents and employees to
discriminate against applicants for tenancy[.]” As Chandler Apartments has
conceded liability for the actions of its agents and employees, the claims under
both statutes are addressed in the context of the FHA.

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Cir. 2006). Chandler Apartments challenges each of these elements as factual

conclusions that are in dispute.

Chandler Apartments first argues that plaintiffs’ claims do not satisfy the

first element of an FHA claim – “that the plaintiff or his associate is handicapped

within the meaning of 42 U.S.C. § 3602(h)” – because no plaintiff was disabled.

FHCO and BOLI both have standing to sue under the FHA even though the testers

they used were not actually disabled. FHCO suffered injuries through the

frustration of their organizational mission and diversion of resources. Fair Hous.

Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th

Cir. 2012). In her uncontested declaration attached to the motion for summary

judgment, the Executive Director of FHCO, Pegge McGuire, stated that FHCO

assigned testers to assess compliance with fair housing laws at Chandler

Apartments. Thus, FHCO diverted resources independent of litigation costs. See

id. BOLI has Article III standing as an executive agency whose purpose is

vindicating the public interest. Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d

1179, 1187 (9th Cir. 2016). Accordingly, FHCO and BOLI’s claims survive

because they suffered sufficient injury to have standing to bring a claim under the

FHA.

Chandler Apartments next appears to argue that plaintiffs cannot meet the

second element of an FHA claim because Chandler Apartments had no reason to

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know that the testers were requesting disability accommodations for service

animals. Chandler Apartments reasonably should have known that the testers were

requesting disability accommodation. Tester A said to Lyons: “Just so you know, I

have a therapy animal.” Tester B said to Lyons: “I should probably let you know

that I have an assistance dog” and mentioned that she had a note from a doctor. In

addition, as the district court stated, “Lyons’s declaration makes clear he

understood the requests related to reasonable accommodations for ‘service

animals,’ not ‘pets.’” Furthermore, a prospective tenant who requests

accommodation for a service animal need not affirmatively identify his or her

disability to trigger FHA protection. See HUD, FHEO Notice: FHEO-2013-01, at

3 (Apr. 25, 2013), available at

http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-

01.pdf. Accordingly, Chandler Apartments could reasonably be expected to know

that the callers were handicapped and were requesting disability accommodations.2

Finally, plaintiffs met the fifth element of an FHA claim because Chandler

Apartments refused to grant the requested disability accommodation. Chandler

2
The third and fourth elements of an FHA claim – that the disability
accommodation is necessary to afford the handicapped person an equal opportunity
to use and enjoy the dwelling and that the accommodation is reasonable – need not
be reached because, as discussed below, Chandler Apartments never even inquired
into whether the requested accommodations were necessary or reasonable before
denying them.

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Apartments did not reach out to the prospective tenants to “determine whether

[the] requested accommodation is reasonable . . . [and] reasonably related to the

claimed handicap.” Instead Chandler Apartments, via Lyons, heard that

prospective tenants wanted to keep a service dog or therapy dog and immediately

denied them the accommodation.

Accordingly, the district court did not err in holding that there is no genuine

issue of material fact about whether Chandler Apartments violated the FHA and

Or. Rev. Stat. § 659A.145(2)(g) and properly granted summary judgment to

plaintiff.

AFFIRMED.

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