Douglas Furbee, Furbee Properties, LLC, Furbee Properties I, LLC v. Gregory L. Wilson, Sr. in his Official Capacity as Executive Director of the Indiana Civil Rights Commission, and Shelley Linder

FILED Mar 30 2020, 9:00 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Craig E. Beougher GREGORY L. WILSON, SR. Eric C. Welch Curtis T. Hill, Jr. Welch & Company, LLC Attorney General Muncie, Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana Doneisha Posey Indiana Civil Rights Commission Indianapolis, Indiana ATTORNEY FOR APPELLEE SHELLEY LINDER Martin R. Shields Attorney at Law New Castle, Indiana

IN THE COURT OF APPEALS OF INDIANA

Douglas Furbee, March 30, 2020 Furbee Properties, LLC, Court of Appeals Case No. Furbee Properties I, LLC, 19A-PL-1756 Appellants-Defendants, Appeal from the Delaware Circuit Court v. The Honorable Marianne L. Vorhees, Judge Gregory L. Wilson, Sr. in his Trial Court Cause No. Official Capacity as Executive 18C01-1805-PL-44

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Director of the Indiana Civil Rights Commission, Appellee-Plaintiff

and

Shelley Linder, Appellee-Intervenor

Vaidik, Judge.

Case Summary [1] This case involves an apartment tenant’s request for an emotional-support

animal. The tenant lived at an apartment with a no-pet policy. The tenant

asked the landlord if she could have an emotional-support animal and provided

a letter from a licensed family and marriage therapist, which said that the tenant

had a disability and needed an emotional-support animal to help alleviate her

symptoms. The letter, however, identified no disability or symptoms. The

landlord requested more information from the tenant, and when the tenant did

not provide the requested information and instead brought the animal into her

apartment, the landlord evicted her. The Indiana Civil Rights Commission

filed a complaint against the landlord, arguing that it failed to accommodate the

tenant’s request for an emotional-support animal in violation of the Indiana

Fair Housing Act. The landlord sought summary judgment, arguing that it did

not have enough information to evaluate the tenant’s request for an

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accommodation because the therapist’s letter failed to identify the tenant’s

disability. The trial court denied summary judgment, and the landlord now

appeals. [2] Before a landlord makes a decision about a tenant’s request for an

accommodation, it can conduct a “meaningful review” to determine whether

the accommodation is required; this review includes requesting documentation

and opening a dialogue. Here, when the landlord asked the tenant for more

information, the tenant did not respond. By not giving the landlord

information about her disability and disability-related need for the animal, the

tenant caused a breakdown in the process. Without this basic information, the

landlord could not meaningfully review the tenant’s request for an emotional-

support animal. We therefore reverse the trial court and remand with

instructions for the court to enter summary judgment in favor of the landlord.

Facts and Procedural History [3] On October 12, 2016, Shelley Linder (“Tenant”) entered into a rental lease with

Furbee Properties, LLC (“Landlord”), for an apartment in Muncie.1 According

to the lease, Tenant agreed “[n]ot [to] allow dogs, cats or other animals or pets

on the premises.” Appellants’ App. Vol. II p. 27. In addition, the lease

1 Furbee Properties I, LLC, and Douglas Furbee are also defendants. For simplicity, we refer to all three defendants as “Landlord.”

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provided that if a pet was discovered on the leased premises, Landlord could

charge a $500 fine and evict Tenant. Id. at 33. [4] Approximately five months later, on March 28, 2017, Tenant asked Landlord if

she could have an emotional-support animal. Tenant gave Landlord the

following letter from Monique Snelson, LMFTA:

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Linder’s App. Vol. II p. 27.2 [5] On April 11, Landlord sent Tenant a letter stating that in order for it to

determine whether the accommodation would be allowed, it needed

“additional information,” as Tenant’s letter did “not provide all of the details

necessary to make a reasonable decision.” Appellants’ App. Vol. II p. 43.

Landlord asked Tenant for the following information:

[P]lease specify the number of sessions you had with Monique Snelson and an approximation of how long each session lasted. We will also need to know your disability. Without providing any specific details regarding your disability, please advise us of the disability so that we can make an informed decision.

Id. Landlord also enclosed a letter it planned to send to Snelson once Tenant

gave her consent. The letter asked Snelson to provide the following

information:

1. The nature of the mental or physical impairment that is disabling, including a reference to the DSM 5 description of the

2 Landlord suggests that Snelson’s letter is “consistent with bogus prescription letters that are readily available on the internet.” Appellants’ Br. p. 19. Our legislature addressed this concern when it enacted Indiana Code chapter 22-9-7 effective July 1, 2018 (after the events in this case). Specifically, Indiana Code section 22-9-7-12 provides that it is a Class A infraction for a health-service provider to “verif[y] an individual's disability status and need for an emotional support animal without adequate professional knowledge of the individual’s condition to provide a reliable verification” or “charge[] a fee for providing a written verification for an individual’s disability status and need for an emotional support animal” without providing another service to the individual.

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condition and a statement of what major life activity this disability interferes with.

2. Was a physical examination conducted of your patient?

3. Did you interview the patient in person?

4. How many sessions did you have with the patient and approximately how long was each session?

5. A statement from you indicating that you conducted an examination of the patient appropriate for the diagnosis of the mental impairment in question under the professional guidelines applicable to a Licensed Clinical Social Worker and as described in the DSM 5.

6. Please provide a photocopy of your license.

Id. at 44. Landlord asked Tenant to “sign the consent on the bottom of the

page” so it could speak to Snelson. Id. Tenant neither provided the additional

information to Landlord nor signed the consent so that Landlord could talk to

Snelson. As a result, Landlord took no action on Tenant’s request for an

emotional-support animal. [6] In August 2017, Tenant brought the cat into her apartment. On August 4,

Landlord charged Tenant a fine for having the cat in her apartment and told her

she had seven days to remove the cat. Tenant did not remove the cat. On

August 31, Landlord told Tenant that if she didn’t remove the cat within seven

days, she would face further fines or actions. Tenant kept the cat in her

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apartment until December, when she was evicted. Later that month, Tenant

filed a complaint with the Indiana Civil Rights Commission. [7] In July 2018, the Civil Rights Commission, on behalf of Tenant, filed a

complaint against Landlord in Delaware Circuit Court.3 The complaint alleged

“discrimination on the basis of disability and handicap in violation of the

Indiana Fair Housing Act, IC 22-9.5-1-1 et seq.” Id. at 11. Specifically, the

complaint alleged that Landlord failed to grant Tenant a reasonable

accommodation. Landlord moved for summary judgment, arguing it did not

have enough information to evaluate Tenant’s request for an accommodation

because Snelson’s letter “failed to identify the Tenant’s disability” and “did not

state what major life activity was impaired.”4 Id. at 59. Following a hearing,

the trial court denied summary judgment. The court recognized that a landlord

may meaningfully review a tenant’s request for an accommodation. However,

the court found that Landlord’s questions (such as how many times Tenant and

Snelson met, how long the visits were, and whether a physical examination

occurred) “exceeded the reasonable inquiry to which [it was] entitled.” Id. at

159.

3 Tenant filed a motion to intervene as plaintiff, which the trial court granted. 4 The Civil Rights Commission filed a motion in opposition to Landlord’s motion for summary judgment and designated several documents, including Tenant’s medical records from Dr. Keith Dinklage, M.D. (which reflect that she suffers from anxiety), and records from Snelson. Appellants’ App. Vol. II pp. 79-106. However, it is undisputed that these records were not provided to Landlord before the eviction. Accordingly, they have no bearing on the issue in this case.

Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 7 of 16 [8] This interlocutory appeal now ensues.5

Discussion and Decision [9] Landlord contends that the trial court erred in denying its motion for summary

judgment. We review motions for summary judgment de novo, applying the

same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

2014). That is, “The judgment sought shall be rendered forthwith if the

designated evidentiary matter shows that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Ind. Trial Rule 56(C). [10] Under the Indiana Fair Housing Act (IFHA), it is unlawful to discriminate

based on disability. Ind. Code § 22-9.5-5-5. The IFHA borrows heavily from

the federal Fair Housing Act (FHA), with many parallel provisions and similar

language. Ind. Civil Rights Comm’n v. Cty. Line Park, Inc., 738 N.E.2d 1044, 1048

(Ind. 2000). Indeed, the first section of the IFHA declares that its purpose is

“[t]o provide rights and remedies substantially equivalent to those granted

under federal law.” Ind. Code § 22-9.5-1-1. When interpreting the FHA,

federal courts look to policy statements from the United States Department of

Housing and Urban Development (HUD) and the United States Department of

Justice (DOJ). See Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d

5 Tenant and the Civil Rights Commission have each filed an appellee’s brief. For simplicity, we refer to the appellees’ arguments as Tenant’s argument.

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1277, 1286 n.3 (11th Cir. 2014). Consequently, we look to federal statutes,

federal cases, and policy statements in resolving the issue in this case. [11] Under federal law, to prevail on a failure-to-accommodate claim, a plaintiff

must establish: (1) the plaintiff is a person with a disability within the meaning

of the FHA6; (2) the plaintiff requested a reasonable accommodation for the

disability; (3) the requested accommodation was necessary to afford the plaintiff

an opportunity to use and enjoy the dwelling; and (4) the defendant refused to

make the accommodation. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1225-

26 (11th Cir. 2016); Bhogaita, 765 F.3d at 1285. Under the FHA, disability

means “a physical or mental impairment which substantially limits one or more

. . . major life activities.” 42 U.S.C. § 3602(h)(1); 24 C.F.R. § 100.201.

“Physical or mental impairment” includes any “mental or psychological

disorder, such as . . . emotional or mental illness.” 24 C.F.R. § 100.201(a)(2).

“Major life activities” means “functions such as caring for one’s self, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning and

working.” Id. at (b).

6 The FHA refers to discrimination based on “handicap” rather than “disability.” See 42 U.S.C. § 3604(f). Disability scholars, however, generally prefer the term “disability” to “handicap,” and the Americans with Disabilities Act (ADA) reflects that preference. Bhogaita, 765 F.3d at 1285; see also Joint Statement of HUD and DOJ, Reasonable Accommodations Under the Fair Housing Act at 1 (May 17, 2004), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf. [https://.cc/X67C-T7ES] As other courts have done, we treat the terms interchangeably and elect to use “disability.”

Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 9 of 16 [12] We begin by pointing out that Landlord doesn’t dispute the first three elements

of Tenant’s failure-to-accommodate claim. See Appellants’ App. Vol. II p. 61.

That is, Landlord doesn’t dispute that Tenant is disabled or that the Tenant

requested a reasonable and necessary accommodation. Indeed, Landlord notes

it “routinely approve[s]” requests for emotional-support animals. Appellants’

Br. p. 22. Instead, Landlord argues that it was not given enough information to

meaningfully review Tenant’s request for an accommodation and therefore

cannot be found to have refused her request, which is the fourth element. [13] As both parties acknowledge on appeal, the FHA does not demand that

housing providers immediately grant all requests for accommodation. Bhogaita,

765 F.3d at 1285-86. Once a housing provider knows of a person’s request for

an accommodation, the provider can make a final decision, “which necessarily

includes the ability to conduct a meaningful review” to determine whether the

FHA requires the requested accommodation. Id. at 1286 (quotation omitted).

This review includes “request[ing] documentation or open[ing] a dialogue.” Id.

at 1287; Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996).

Generally, housing providers “need only the information necessary to apprise

them of the disability and the desire and possible need for an accommodation.”

Bhogaita, 765 F.3d at 1287. “In most cases, an individual’s medical records or

detailed information about the nature of a person’s disability is not necessary

for this inquiry.” Joint Statement of HUD and DOJ, Reasonable Accommodations

Under the Fair Housing Act at 14 (May 17, 2004),

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_stat

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ement_ra.pdf. [https://.cc/X67C-T7ES] Certain impairments, including

impairments that support a request for an emotional-support animal, may not

be observable. HUD Notice, Assessing a Person’s Request to Have an Animal as a

Reasonable Accommodation Under the Fair Housing Act at 9 (Jan. 28, 2020),

https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-

2020.pdf. [https://perma.cc/QE5C-767U] In these cases, the housing provider

may request information regarding “both the disability and the disability-related

need for the animal.” Id. However, “[h]ousing providers are not entitled to

know an individual’s diagnosis.”7 Id. [14] Failing to make a timely determination after meaningful review amounts to a

constructive denial of the requested accommodation, as an indeterminate delay

has the same effect as an outright denial. Bhogaita, 765 F.3d at 1286. In

assessing whether a constructive denial has occurred, “courts often consider

whether the delay was caused by the defendant’s unreasonableness,

unwillingness to grant the requested accommodation, or bad faith, as opposed

to mere bureaucratic incompetence or other comparatively benign reasons.”

Bone v. Village Club, Inc., 223 F. Supp. 3d 1203, 1214 (M.D. Fla. 2016). As the

Seventh Circuit has explained in the ADA context:

[N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability.

7 We acknowledge that saying a landlord is entitled to know a tenant’s disability but not diagnosis might cause some confusion. However, because Snelson’s letter does not provide a diagnosis or disability and the parties don’t make any argument about the difference, we need not address this issue.

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Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.

Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). [15] Here, the designated evidence shows that Snelson’s letter—the only

documentation that Tenant gave Landlord to support her request for an

emotional-support animal—provides that Tenant “meets the definition of

disability”; however, it identifies no disability. Snelson’s letter also provides

that Tenant “has certain limitations regarding coping with symptoms that stem

from her disability.” Again, the letter identifies no limitations or symptoms of

the “disability.” Landlord, at the very least, was entitled to know Tenant’s

disability and disability-related need for the animal. See, e.g., Bhogaita, 765 F.3d

at 1287; HUD Notice, Assessing a Person’s Request to Have an Animal as a

Reasonable Accommodation Under the Fair Housing Act at 9. Accordingly,

Landlord was justified in trying to open a dialogue with Tenant and requesting

more information from her. [16] Tenant, however, claims that she didn’t respond because Landlord’s requests

“went far beyond what it was permitted to ask.” Civil Rights Comm’n Br. p.

16; see also Linder’s Br. p. 11 (“[T]he Landlord’s request for medical

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documentation regarding the Tenant’s mental health exceeded the legally

permissible boundaries.”). In other words, Tenant asserts that Landlord was

being unreasonable, causing a breakdown in the process. In making this

argument, Tenant claims that the facts in this case are “strikingly similar” to the

facts in Bhogaita. Civil Rights Comm’n Br. p. 17. [17] In Bhogaita, the homeowner brought into his condo a dog that exceeded the

condominium association’s weight limit for pets. When the condominium

association demanded that the homeowner remove the dog in May 2010, the

homeowner responded by giving the condominium association three letters

from his psychiatrist, which stated that he was treating the homeowner for

“[a]nxiety related to military trauma,” his condition “limit[ed] his ability to

work directly with other people, a major life activity,” and his dog alleviated his

symptoms. Bhogaita, 765 F.3d at 1282. In August, the condominium

association sent the homeowner a request for more information, and the

homeowner did not respond. In November, the condominium association sent

the homeowner another request and said that if the homeowner did not respond

by December 6, it would demand that he remove the dog from his condo.

Thereafter, the homeowner filed a complaint with HUD and sued in federal

court. The district court granted partial summary judgment to the homeowner,

finding that the psychiatrist’s three letters supplied “sufficient information” and

that the condominium association’s delay, as “evidenced by escalating requests

for information, amounted to a constructive denial” of the homeowner’s

request for an accommodation. Id. at 1283.

Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 13 of 16 [18] The condominium association appealed the district court’s grant of partial

summary judgment to the homeowner on the refusal-to-accommodate element.

The Eleventh Circuit explained that the condominium association’s “critical

inquiries” were whether the homeowner’s PTSD amounted to a qualifying

disability and whether the dog alleviated the effects of the disorder. Id. at 1287.

The court said that the psychiatrist’s letters, which were provided to the

condominium association before it requested additional information, contained

all the information it needed to make a determination. Id. at 1286. That is, the

letters “described the nature and cause of [the homeowner’s] PTSD diagnosis,

stated that [the homeowner] was substantially impaired in the major life activity

of working, and explained that the dog alleviated [the homeowner’s]

symptoms.” Id. at 1286-87. Accordingly, the court concluded that the

condominium association’s request for additional information “exceeded that

essential for [its] critical inquiries” and affirmed the district court’s grant of

partial summary judgment to the homeowner. Id. at 1287. [19] This case easily differs from Bhogaita. In Bhogaita, the condominium

association knew the homeowner’s disability and disability-related need for the

animal but nevertheless requested more information from the homeowner.

Here, however, Landlord did not know Tenant’s disability or disability-related

need for the animal when it requested additional information. This difference

between the cases is critical.

Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020 Page 14 of 16 [20] Nevertheless, Tenant points out that some of the information the condominium

association requested in Bhogaita is similar to what Landlord requested in this

case. Specifically, Landlord asked Tenant for three pieces of information:

[P]lease specify the number of sessions you had with Monique Snelson and an approximation of how long each session lasted. We will also need to know your disability. Without providing any specific details regarding your disability, please advise us of the disability so that we can make an informed decision.

Appellants’ App. Vol. II p. 43. Even assuming that Landlord’s questions about

the number of sessions Tenant had with Snelson and an approximation of how

long each session lasted were overbroad, the question about Tenant’s disability

was not. Tenant could have told Landlord her disability and chosen not to

answer the other two questions. Tenant, however, did nothing. The

overbreadth of some of the questions did not absolve Tenant from providing the

required information. The same can be said about Landlord’s proposed letter to

Snelson. Again, even assuming that Tenant rightfully did not give consent

because she believed many, if not all, of the questions to Snelson were

overbroad, this still did not absolve Tenant from providing the required

information. Neither party should be able to cause a breakdown in the process

for the purpose of either avoiding or inflicting liability. See Beck, 75 F.3d at

1135. “A party that fails to communicate, by way of initiation or response, may

be acting in bad faith.” Id. Here, Tenant did not respond at all to Landlord,

causing a breakdown in the process. Without information about Tenant’s

disability and disability-related need for the animal, Landlord could not

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meaningfully review Tenant’s request for an emotional-support animal. We

therefore reverse the trial court and remand with instructions for the court to

enter summary judgment in favor of Landlord. [21] Reversed and remanded.

Mathias, J., and Tavitas, J., concur.

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