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Simmons v. Cpi Apartment Fund 2012, LLC

United States District Court, E.D. Michigan, Southern Division

May 22, 2015

LEE SIMMONS, Plaintiff,
v.
CPI APARTMENT FUND 2012, LLC, THE HAYMAN COMPANY, SUBURBAN BUILDING SERVICES, INC., DANA M. BENAC, and KRISTEN FIORE, Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 35 & 36]

LINDA V. PARKER, District Judge.

Plaintiff Lee Simmons ("Simmons") initiated this lawsuit against Defendants on May 8, 2014, alleging a failure to accommodate Simmons' disability, retaliation, and disability discrimination in violation of the federal Fair Housing Act ("FHA") and the Michigan Persons with Disabilities Civil Rights Act ("PWDCRA"). On February 23, 2015, Defendants filed motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. The motions have been fully briefed. Finding the facts and legal arguments sufficiently presented in the parties' pleadings, the Court dispensed with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f) on May 18, 2015. For the reasons that follow, the Court grants Defendants' motions.

I. Factual and Procedural Background

Simmons is paralyzed from the waist down as a result of a spinal cord injury on December 1, 2002. (Defs.' Mot., Ex. A at 22.)[1] He was hired by a prior management company in 2009 to work at Carnegie Park Apartments as a pool attendant for the complex's indoor pool. ( Id. at 29; Defs.' Mot., Ex. B at 1, 2, & 6.) Simmons moved into an apartment, unit 722, within the complex at the same time and was given an employee discount where he paid $432 per month on a twobedroom unit that normally rented for $1, 009 per month. (Defs.' Mot., Ex. B at 22.)

Carnegie Park was built originally as condominiums and a number of units are owned by individuals who pay homeowner association dues. ( Id., Ex. A at 57.) When the recession hit, a company bought up the unsold units and turned them into rental apartments. ( Id. )

Beginning in 2012, Simmons began working in Carnegie Park's leasing office on an occasional basis. ( Id. at 32.) He would occasionally lease properties to prospective tenants while also answering phones. (Defs.' Mot., Ex. C at 73-74.) Defendant Dana Benac ("Benac") worked at Carnegie Park as well and became the property manager shortly before January 2013. ( Id. at 14.)

In January 2013, Defendant Hayman Company ("Hayman") took over the management contract for Carnegie Park following the purchase of the property by Defendant CPI Apartment Fund, 2012, LLC ("CPI"). ( Id., Ex. C at 13.) Hayman continued the employment of the Carnegie Park employees who worked for the previous management company, including Simmons and Benac.[2]

In October 2013, Defendant Kristen Fiore ("Fiore") became the Hayman Regional Director and her territory included Carnegie Park. ( Id., Ex. D ¶ 2.) Fiore did not work on-site at Carnegie Park until around November or December 2013. ( Id. ) At about that time and until approximately January 2014, Fiore undertook a budget review to "improve efficiencies and operations at Carnegie Park and maximize resident safety and satisfaction." ( Id. ¶ 4.) Based on her review, Fiore determined that Carnegie Park did not have sufficient maintenance staff. ( Id. ¶ 5.) Fiore felt that the existing two maintenance technicians could not handle all maintenance tasks, keep the common areas safe and secure, and handle snow and ice removal during the winter. ( Id. ¶ 6.) Fiore therefore decided that Carnegie Park needed a third maintenance technician. ( Id. ¶ 7.) To pay for this new position, Fiore identified three existing positions she believed could be eliminated.

Fiore determined that there was no need for a full-time painter and decided to eliminate that position which was held by Travis Hammond. ( Id. ¶ 7b.) Fiore also decided to install a security camera and key fob system at the pool- at a cost of approximately $2, 500- which eliminated the need for a pool attendant and provided the added benefit of allowing twenty-four hour indoor pool access. ( Id. ¶ 7a.) Finally, Fiore determined that there was no need for an Assistant Manager and the employee in that position, Carole Brown, was demoted to Leasing Agent with a $4.50 reduction in pay. ( Id. ¶¶ 7c, 10.) Defendants indicate that neither Hammond nor Brown is disabled.

Once the positions were eliminated, a third maintenance technician was hired. At this time, a part-time leasing agent also was hired to work weekends. Benac and Fiore testified that Simmons was not considered for the latter position in part because he previously had requested to not work weekends after he acquired custody of his daughter. (Defs.' Mot., Ex. C at 174-75; Ex. G at 58.) Simmons also was not considered for the position based on information Defendants received regarding his activities as a real estate agent.

In December 2013, around the time Fiore was making restructuring decisions, Thomas Doyle, a member of the board of Carnegie Park's condominium association, complained that Simmons was working in the leasing office when he also was a real estate agent. (Defs.' Mot., Ex. C at 62-65.) Apparently Simmons had acquired his real estate license in April 2013. ( Id., Ex. B at 10.) Fiore was initially unaware that Simmons was working in the office at all and thought he only worked as the pool attendant. ( Id., Ex. G at 126.) Although Benac was aware that Simmons had his real estate license, she did not know he was actively selling real estate. ( Id., Ex. C at 67.) Doyle, Fiore, and Benac felt that Simmons' activities created a conflict of interest, as he had access to inside information working in the leasing office that benefitted him as a real estate agent. ( Id., Ex. C at 65-66, 68-69; Ex. G at 16-17.) Simmons in fact sold several condominiums to would-be-renters at Carnegie Park. ( Id., Ex. A at 60-61.) Benac testified that if she had known Simmons was selling condominiums in Carnegie Park while working in the rental office, she would have contacted the corporate office and recommended that he be terminated. ( Id., Ex. C at 174.)

The key fob system and security cameras were installed at Carnegie Park's indoor pool on or about February 19, 2014, and Simmons' employment was terminated effective March 8, 2014. (Defs.' Mot., Ex. D ¶ 8.) Fiore agreed, however, to continue a rental discount for Simmons even though he was no longer an employee. ( Id. ¶ 9.) On March 4, 2014, Simmons signed a new month-to-month lease at Carnegie Park pursuant to which he received a $50 per month discount and a waiver of the $150 fee charged for a month-to-month lease. ( Id., Ex. A at 79; Ex. 9 ¶ 11.)

Prior to that date, on February 22, 2014, some water had entered Simmons' apartment due to melting snow and ice. Defendants hired OneWay Restoration to extract the water and treat the area with Bio Kill to ensure that there was no mold growth. (Defs.' Mot., Ex. H at Pg ID 427.) On March 17, 2014, melting snow and ice from a large ice dam that had formed behind the apartment row caused additional water to leak into Simmons' apartment, as well as two other units on his row. ( Id. at Pg ID 428-33.) OneWay Restoration again was called in to extract the water and treat the affected area to prevent mold. ( Id., Ex. H at Pg ID 428-30; Ex. A at 82.) Simmons' furniture was moved up on blocks to stay dry. ( Id., Ex. H at Pg ID 428; Ex. A at 80.)

Two of Simmons' neighbors also had flooding issues related to the ice dam. ( Id., Ex. A at 83; Ex. C at 106.) Those tenants moved out of their apartments, with one being allowed to cancel their lease with no penalty. ( Id., Ex. C at 106-07.) Defendants did not otherwise assist those tenants in any way when they moved out of the complex. ( Id., Ex. C at 106-07.) Simmons spoke with Fiore around March 19, at which time he was offered three options: (1) temporarily move to a fully furnished penthouse model unit while his unit was being repaired, (2) permanently move to an unfurnished penthouse at market rate, or (3) be released him from his lease with no penalty. ( Id., Ex. G at 21-22.)

On March 20, Simmons sent a letter addressed to "Management" at Carnegie Park, complaining that "[r]egional management has stated that since the property has no standard 2 bedroom apartments, I must pay an extra $200.00 monthly to transfer to a comparable 2 bedroom apartment to maintain the habitable conditions that are lawfully due to me in the current lease agreement." ( Id., Ex. I at Pg ID 435.) In his letter, Simmons refers to Carnegie Park's obligations "under State and Federal laws to provide safe and habitable conditions" and asserts that flooding has made his apartment "uninhabitable" and an "immediate health and safety risk[] for [his] family." ( Id. ) Nowhere in the letter does Simmons refer to his disability or claim that he needs an accommodation.

Around the same time, Simmons also contacted Gerald Witkowski, head of Code Enforcement for the City of Southfield (where Carnegie Park is located). ( Id., Ex. J ¶ 2.) According to Witkowski, Simmons called the city regarding the flooding situation at this apartment, indicating that he wanted to move to a different apartment within the Carnegie Park complex. ( Id. ¶¶ 3, 4.) Witkowski then contacted Carnegie Park and was told that Simmons had been offered a bigger apartment at the same rental rate that he had been paying. ( Id. ¶ 4.)

On March 21, 2014, Fiore wrote Simmons, confirming the three options she previously had offered him. (Defs.' Mot., Ex. I at Pg ID 436.) Simmons indicated that he was going to accept the offer to move into the furnished penthouse model. Simmons apparently then contacted Witkowski from the City of Southfield about having the apartment complex move his belongings. ( Id. Ex. J ¶ 5.) Witkowski offered to gather volunteers from Southfield to help Simmons move. ( Id. ¶ 6.) Witkowski then spoke with Fiore, who, according to Witkowski, indicated that the complex would move Simmons' belongings. ( Id. ¶ 7.)

Thereafter, but still on March 21, 2014, Simmons signed an agreement to move into the penthouse model, "to live temporarily while [his] current apartment is being repaired and is returned to normal living status." ( Id., Ex. I at Pg ID 437.) The penthouse model has more square footage than Simmons' unit, with vaulted ceilings and a fireplace. ( Id., Ex. A at 85-86.) The March 21 agreement provided that Carnegie Park maintenance staff would move Simmons' and his daughter's beds to the penthouse model and that no other belongings would be moved by the staff. ( Id., Ex. I at Pg ID 437.)

Benac instructed Joe Alverson, a member of Carnegie Park's maintenance staff, to move Simmons' furniture. ( Id., Ex. L at 25, 52.) When Alverson went to Simmons' existing unit, however, Simmons said that he did not want to keep any of the furniture and instructed Alverson to move none of it. ( Id. at 25; Ex. A at 94-95.) Simmons claimed the furniture was ruined by the water. ( Id., Ex. A at 95.) Alverson did move Simmons' other belongings that Simmons wanted moved to the new apartment. ( Id., Ex. A at 96.; Ex. L at 26.)

As reflected in the agreement signed by Simmons on March 21, the move to the penthouse model was intended to be temporary. Simmons and Benac discussed a permanent move to a new first floor two-bedroom apartment that would have been identical to Simmons' old unit. ( Id., Ex. I at 153; see also Ex. A at 107-111.) On April 8, 2014, after trying to communicate with Simmons via text about a unit that had become available and receiving no response from Simmons, Benac posted a note on the door of the penthouse model, informing Simmons of the available unit and inquiring whether he was still interested in this transfer or had changed his mind and found different accommodations. ( Id., Ex. I at Pg ID 439-442.)

The following day, Benac received a call from Kiesha Speech, District Director for Michigan's 35th District Representative Rudy Hobbs. (Defs.' Mot., Ex. M at Pg ID 470.) Speech followed up the call with an email to Benac, in which Speech indicated that she was contacting Carnegie Park regarding Simmons, who had reached out to Hobbs' "office ...


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