Investigators Report: H08-0281

Untitled Document

[Complainant]

[Respondent]

I. COMPLAINANT’S CHARGE:

Complainant, [Complainant], alleged that Respondent denied her reasonable accommodations in rules and regulations that she needed, because of her disabilities, in order to benefit from the [program] Voucher program.

II. RESPONDENT’S ANSWER:

Respondent, [Respondent], said that HUD regulations did not permit it to act upon or grant the accommodations requested at the time they were requested. Respondent also stated that Complainant knew her obligations under the Section 8 program, knew the consequences of not asking for assistance before her Section 8 Voucher was terminated, and knowingly chose not to request a hearing in a timely manner.

III. JURISDICTIONAL DATA:

Date of alleged discrimination: April 23, 2008.

Date complaint filed with the Maine Human Rights Commission: May 27, 2008.

Respondent is subject to the fair housing and public accommodation provisions of the Maine Human Rights Act, the federal Fair Housing Act, as well as state and federal housing regulations.

Respondent is represented by John S. Bobrowiecki, Esq. Complainant is represented by Patricia Ender, Esq.

Investigative methods used: A thorough review of the written materials provided by the parties, interviews, issues and resolution conference.

IV. DEVELOPMENT OF FACTS:

The parties and issues in this case are as follows:

The Complainant, [Complainant], has mental illnesses. She was a recipient of a Section 8 Housing Choice Voucher administered by the Respondent until the subsidy was terminated on February 23, 2008. [Complainant] used the subsidy to rent a home in Monmouth, owned by DP (Landlord), for herself, her seventeen year old daughter, and her sixteen and twelve year old sons.

Caseworker-KL is [Complainant]’s caseworker.

Staff Attorney-JP was [Complainant]’s attorney at the time of these events.

The Respondent, [Respondent] ([Respondent]), is a public housing authority that administers Section 8 Vouchers.

Inspector-VN is employed by Respondent to inspect rental housing and determine if it meets the Housing Quality Standards (HQS) set by the Section 8 program.

Program Officer-JJ is employed by Respondent in the Section 8 program. She is responsible for the administration of 300 to 350 Vouchers.

Counsel-JB is employed by Respondent as legal counsel.

[Respondent] terminated [Complainant]’s Section 8 Voucher on February 23, 2008.

On March 13, 2008, [Complainant], Staff Attorney-JP, and Caseworker-KL met with Program Officer-JJ and Counsel-JB to discuss her continued participation in the Housing Choice Voucher program.

On April 11, 2008, Staff Attorney-JP made a written request for reasonable accommodations that would enable her to continue participating in the Section 8 program.

On April 23, 2008, Counsel-JB denied the request for accommodations because:

“… She made no timely request for a hearing. As such HUD regulations require our action. It is our position that we are unable to grant a reasonable accommodation of HUD’s rules and any request would have to be addressed to them. We can find no authority that would allow us to reinstate your client and certainly none to allow back payments to the landlord. Further, the HQS regulations are also of a federal nature and any amendment of those rules should be directed to HUD…”

In response to this complaint, Respondent stated that the accommodations requested by Complainant were denied for the above reasons. Respondent also stated that Complainant knew her obligations under the Section 8 program, knew the consequences of not asking for assistance before her Section 8 Voucher was terminated, and knowingly chose not to request a hearing in a timely manner.

Complainant stated that she did not know how to request a reasonable accommodation before her Voucher was terminated. She stated that her disability prevented her from meeting Housing Quality Standards and from requesting a hearing within the Program time frames. Complainant also stated that [Respondent] has the obligation to make reasonable accommodations to its rules and regulations.

The following regulations apply to the issues in this case:

Requirement that housing meet HQS:

“All program housing must meet the HQS performance requirements both at the commencement of assisted occupancy, and throughout the assisted tenancy. 24 CFR 982.401.

Extensions of time for participant to meet HQS:

“If an HQS breach caused by the family is life-threatening, the family must correct the defect within no more than 24 hours. For other family-caused defects, the family must correct the defect within no more than 30 calendar days (or any PHA-approved extension.” 24 CFR 982.404(b)(2).

Enforcement of HQS:

“[Only] HUD or the PHA [may] require enforcement of the HQS by HUD or the PHA.” 24 CFR 982.406.

Participant breach of HQS:

“If the family has caused a breach of the HQS, the PHA must take prompt and vigorous action to enforce the family obligations. The PHA may terminate assistance for the family in accordance with § 982.552.” 24 CFR 982.404(b)(3).

Informal hearing for participant when assistance is terminated:

“A PHA must give a participating family an opportunity for an informal hearing . . . [to challenge] a determination to terminate assistance for a participant family because of the family’s actions or failure to act.” 24 CFR 982.555(a)(v).

The PHA must give the family written notice of its right to request a hearing. 24 CFR 982.555(c).

Reasonable Accommodations:

“It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.” 24 CFR 100.204(a).

[Respondent] also operates under a HUD-approved Administrative Plan for Section 8 Housing Choice Vouchers and Project-Based Voucher Program which provides, in part: “[Respondent] has a reasonable accommodations policy and procedure for . . . its programs and services.” (Addendum A, page 3).

[Complainant] provided the following with regard to her mental health during the relevant time frame.

When she moved in to the house in Monmouth eight or nine years ago, she was very sick. She sought treatment and took medications and gradually got her depression under control. She was able to start school at the University of Maine at Augusta, obtain an internship and engage in work-study, while maintaining her home and raising three children.

About one year ago, she began getting very sick again. Medications that had worked well in the past stopped working. Her doctor adjusted her medications but it was not effective. She felt sick (nauseous, vomiting) and had trouble sleeping. Gradually she lost control of her affairs. She became forgetful. She let things go one thing at a time. She gave priority to her children, her career and schooling and let other things slide. She stopped opening mail that might be upsetting and avoided answering the telephone. She got behind and then stopped paying bills. She let the housekeeping slide.

The consequences were personally devastating. She lost friends. Her grades dropped from A’s to C’s then to incompletes and she lost her educational financial aid. She lost her work study placement. She could not manage to clean her house enough to pass inspection. She understood that she would lose her Section 8 Voucher if her house did not pass inspection but at the time, she was not capable of meeting her obligations.

Caseworker-KL was her caseworker throughout this time period but Caseworker was not fully aware of what was going on. When she became aware of the problem, Caseworker-KL put her in touch with Pine Tree Legal Assistance and helped her get her affairs back in order.

(Documents) During [Complainant]’s interview for this investigation, she mentioned that she still had unopened mail from the time period in question. At the request of this Investigator, she retrieved a box of unopened mail from the trunk of her car. The unopened mail included:

Personal mail from her sister postmarked December 17, 2007;

Tax Return Document from University of Maine at Augusta postmarked February 25, 2008;

Notices from her credit union and bank postmarked March and April 2008;

Child’s SAT scores postmarked April 5, 2008;

Late and cut-off notices from the power and cable companies.

[Complainant]’s medical providers provided the following:

(DSM Diagnosis 3/4/08) Schizoaffective Disorder, Bipolar type; Posttraumatic Stress Disorder, Chronic; Attention-Deficit/Hyperactivity Disorder, predominantly inattentive type.

(Staff Psychiatrist 4/9/08) “…Ixchel has been severely depressed since past 6-9 months, which has resulted in her inability to keep up with household chores, inability to keep track of money and bills and inability to have enough energy to do housework. This is a chronic episodic disorder with high likelihood of recurrence. I would strongly support the renewal of her voucher for reasonable accommodation. Please call for any more questions…”

Chronology of events which led to the termination of [Complainant]’s Section 8 voucher. The facts are undisputed unless otherwise noted:

9/28/2007 [Complainant]Inspector-VN notified [Complainant] that her annual housing inspection was set for October 25, 2008.

10/25/08[Complainant]Inspector-VN inspected the house; it failed due to “housekeeping” issues; “remove trash” from fire exits and throughout house; and “clean” interior stairs and common halls. [Complainant] was given 30 days to rectify the failed items.

11/28/07 An extension of time for the re-inspection was granted. The new date was December 10, 2007.

12/10/07 Inspector-VN re-inspected the house and it failed again. “Entire unit needs to be cleaned.”

1/17/08 Inspector-KB sent [Complainant] a letter scheduling a “final r- inspection” for January 22, 2008. She wrote, “This inspection must take place….If your unit does not pass inspection at that time [Respondent] will have not (sic) choise but to terminate of (sic) your rental assistance.”

1/22/08 (Program Officer-JJ) She and Inspector-KB attempted to re-inspect [Complainant]’s unit. [Complainant] came outside as they approached and they introduced themselves. From a distance, Ms. [Complainant] yelled at them and told them she got the letter but the housekeeping was not done and she was not ready for the inspection. Program Officer-JJ told [Complainant] that she would be sending her a termination notice for not passing inspection.

[Complainant]) She was crying hard on the porch when they arrived. She called to them, from the porch, that she was depressed and just couldn’t do it [the housecleaning,] she just couldn’t do it. Program Manager-JJ told her that was fine. [Complainant] asked if they could come back another time and was told no, they would call her.

1/23/08 Program Officer-JJ sent [Complainant] a notice by regular and certified mail informing her that her Voucher was being terminated on February 23, 2008 for tenant-caused HQS violations. Program Officer-JJ also notified [Complainant] of her right to submit a written request for an Informal Hearing if she felt the decision was made in error. The January 23 letter was considered received by [Complainant] 3 days from the date of the letter was mailed (January 26) and the request for an informal hearing was due no later than 10 calendar days from that date (February 5).

1/28/08 Program Officer-JJ called [Complainant] by telephone to schedule a time to re-inspect the unit to confirm that Landlord had made a required

repair.

(Program Officer-JJ) [Complainant] told her that the housekeeping was not done and asked what the standards were for passing inspection. [Complainant] did not say that she was sick and needed help.

([Complainant]) She did not ask “what are the standards for passing inspections.” She did repeatedly, in several phone conversations with JJ, ask “what did [Inspector-VN] say I need to do?” and “what is on the list?” She was told that Inspector-VN did not write a list. During this or other conversations during this time frame, she told JJ that she was sick and needed help.

1/31/08 Program Officer-JJ returned to [Complainant]’s unit and confirmed that Landlord’s repair had been made. [Complainant] was present and let her in.

(Program Officer-JJ) [Complainant] told her she had not been able to take care of the housekeeping and confirmed that she knew that it had to pass before February 23. [Complainant] indicated that it needed a lot of work. Program Officer-JJ asked if she had anyone to assist her with the housekeeping and she said she did not. She mentioned that she had tried to get the kids to help with the cleaning but that it was just too much for them. [Complainant] did not say that she was sick and needed help and she did not appear to be sick.

([Complainant]) She did not confirm anything about February 23, not about the inspection, and not about her benefits being terminated. She had not received notice of this deadline in writing or orally by a [Respondent] representative. She was distressed during the visit and asked several times what she needed to do to pass. Program Officer-JJ said, “On top of general housekeeping, take out the carpet.” She was confounded by this; she did not understand why she, and not the owner, should do this. Program Officer-JJ told her to remove trash bags from the mudroom and ice from the entryway but did not explain what she meant by “general housekeeping.” By the end of the visit, she was crying or on the verge of tears. She understood that she needed to remove trash bags, the carpet, and ice but was unclear what else, if anything, she needed to do. She believed that Program Officer-JJ would be back but did not know when.

2/21/08 (Program Officer-JJ) [Complainant] called to request a re- inspection of her unit. She said it would not be ready until the following day. She stated that she had been working really hard on her housekeeping issues and had made a lot of progress. She talked about having gotten the letter and knew she had until the 23 rd to meet HQS.

([Complainant]) She called several times before February 21. On one occasion, she told Program Officer-JJ that she was making progress. Some of the trash bags were removed and her son had worked hard to break up and remove the ice. She asked if the carpet had to be removed and JJ told her it could wait. She did not tell Program Officer-JJ that she had gotten the letter and did not know that she had until the 23 rd to meet “HQS” (a term she would not have used).

2/22/08 ([Respondent]) [Complainant] called and told Program Assistant that she was not ready for a re-inspection because several trash bags had broken open on the floor. Program Assistant notified Program Officer-JJ of Ms. [Complainant]’s call.

(Program Manager-JJ) She called [Complainant] and offered to come see the unit and she would be able to see that the trash bag had broke open. [Complainant] told her not to come even after JJ reminded her that her Voucher would be terminated effective February 23 if the unit did not pass HQS.

([Complainant]) She called [Respondent] several times that day. The trash bags were breaking one after the other as she tried to remove them. When she spoke to Program Manager-JJ, JJ told her to keep cleaning and that “You still have time.” [Complainant] called her back a while later and told her it was no use, she needed more time. She was crying. JJ told her, “Don’t you think it’s been long enough? You lost your voucher.” She told JJ she needed help. JJ said, “It’s not my problem,” and hung up.

2/23/08[Respondent] terminated [Complainant]’s Section 8 Voucher. ([Complainant]) She became aware of the termination letter through her caseworker.

2/26/08 Caseworker-KL contacted Program Officer-JJ to obtain information about when and why [Complainant]’s Section 8 Voucher was terminated.

3/6/08 Landlord-DP contacted Program Officer-JJ and said that he did not receive the letter stating that [Complainant]’s participate in the program would be ending. He stated that he would have been willing to send a cleaning crew to help [Complainant].

3/10/08 Caseworker-KL and [Complainant] went to [Respondent] and spoke to Program Office-JJ. They asked for an informal hearing. Program Officer-JJ told them the deadline had passed. Program Officer-JJ offered to discuss with them “some options” (she did not have any specific options in mind). They declined her offer.

The following concerns [Complainant]’s request for reasonable accommodations:

3/13/08 [Complainant], Staff Attorney-JP, and Caseworker-KL met with Program Officer-JJ and Counsel-JB to discuss her continued participation in the Housing Choice Voucher program. Among other things, Ms. [Complainant] discussed her depression, her failed attempts to clean the house with help from her children, and her short and long term plans for cleaning the house and keeping it clean.

4/11/08 Staff Attorney-JP requested the following accommodations in writing:

Reinstate Complainant’s Section 8 Voucher;

Pay Complainant’s landlord back rent;

Additional time and a plan to comply with Housing Quality Standards.

Complainant submitted a letter from [Complainant]’s doctor in support of her request. She also submitted a Reasonable Accommodation Request and Verification form, signed by her doctor, using [Respondent]’s standard form.

Respondent did not request any additional medical information or verification from Complainant.

c) 4/23/08 Counsel-JB gave the following reasons for denying the request for accommodations:

She did not make a timely request for a hearing;

HUD regulations required [Respondent] to terminate the Voucher;

[Respondent] is unable to grant a reasonable accommodation of HUD’s rules;

[Respondent] lacks the authority to reinstate [Complainant]’s Voucher;

[Respondent] lacks the authority to allow back payments to the landlord.

Complainant provided examples of reasonable accommodations that have been provided by public housing authorities in Maine under circumstances similar to [Complainant]:

All public housing authorities in Maine operate under the same federal laws and regulations.

Timely request for a hearing:

One housing authority (HA) which serves a large number of people with very serious mental impairments reports that if they have sent a termination notice and the tenant misses the deadline for requesting an informal hearing by a relatively short time, and a disability is a significant factor, they will readily allow the informal hearing.

A tenant with mental illness was incarcerated when a termination notice was sent to her by [Respondent] regarding her failure to recertify her tenancy. Her request for an informal hearing was untimely. She submitted evidence that the letter had not been delivered to her. On the eve of the issuance of a writ of possession, [Respondent] granted her request for reasonable accommodation.

See subparagraph d(ii) below.

Passing inspection:

Severely mentally ill tenant refused to allow inspection of housing because of paranoid delusions about intent of owner and HA staff. Tenant also threatened HA staff. Tenant had taken measures to protect himself from imagined dangers (clogging the sinks so that bad things could not attack him through the drains, installing extra locks.) HA worked very closely with the tenant and his advocate over an extended period of time. Although tenant had to move, he preserved his voucher.

(HUD) There is nothing in HUD’s regulations or policy that forbids reinstatement of a Section 8 voucher as a reasonable accommodation, if reinstatement is necessary due to a disability and that reinstatement of the voucher constitutes a reasonable accommodation based on the facts of the case at hand.

V. ANALYSIS:

The Maine Human Rights Act requires the Commission to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.” 5 M.R.S.A. § 4612(1)(B). The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.

Fair Housing provisions of the Maine Human Rights Act reads, in part, as follows:

“It is unlawful housing discrimination, in violation of this Act ... for any owner [or] managing agent ... or any of their agents to refuse to make reasonable accommodations in rules, policies, practices or services when those accommodations are necessary to give that person equal opportunity to use and enjoy the housing.” 5 M.R.S.A. §4582-A.

Public Accommodation provisions of the Maine Human Rights Act reads, in part, as follows:

“…[U]nlawful discrimination includes a failure to make reasonable modifications in policies, practices or procedures, when modifications are necessary to afford the goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities…” 5 M.R.S.A. §4592(1)(B).

To establish a denial of reasonable accommodation claim, Complainant must show that:

(1) he has a “physical or mental disability” as defined by the Maine Human Rights Act;

(2) Respondent knew or reasonably should have known of the Complainant's disability;

(3) accommodation of the disability is necessary to afford Complainant an equal opportunity to use and enjoy the housing;

(4) the accommodation is reasonable on it face, meaning it is both efficacious and proportional to the costs to implement it; and

(4) Respondent refused to make such accommodation.

See Giebeler v. M & B Associates, 343 F.3d 1143, 1147 (9 th Cir. 2003) (interpreting similar provision of federal Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B)); Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7 th Cir. 2002) (same).

If Complainant makes this showing, Respondent can defeat the claim by showing that the proposed accommodation was unreasonable, meaning “it imposes undue financial or administrative burdens or requires a fundamental alteration in the nature of the program.” Oconomowoc Residential Programs, 300 F.3d at 784.

Analysis of the information and documents obtained during the investigation of this complaint revealed that the Respondent’s refusal to provide reasonable accommodations to [Complainant] was unlawful, with reasoning as follows:

Complainant, [Complainant], has mental disabilities. (See paragraph 5 in the Development of Facts for diagnoses.) At the time of these events, [Complainant] had been severely depressed for 6 to 9 months, which resulted in her inability to keep up with household chores and meet the Housing Quality Standards (HQS) of the Section 8 program.

Respondent, [Respondent], knew of [Complainant]’s disability when she, with the help of her caseworker and attorney, asked for reasonable accommodations.

Two of the accommodations requested (reinstatement of voucher, additional time and a play to comply with HQS) would have allowed [Complainant] to continue participating in the Section 8 program. The third accommodation requested (pay landlord back rent) would have allowed [Complainant] to continue living in her Monmouth home where she had lived for 8 or 9 years, renting from Landlord-DP. As such, the accommodations requested by Complainant were “necessary” to afford her participation in the Section 8 program and an equal opportunity to use and enjoy housing.

The Respondent refused to make the accommodations.

The central issue in this case is whether the accommodations requested by Complainant were “reasonable.”

The Respondent states that the accommodations could not be granted because (a) [Complainant] did not make a timely request for a hearing, (b) HUD regulations required that it terminate her voucher, (c) [Respondent] is unable to grant a reasonable accommodation of HUD’s rules, and (d) [Respondent] lacks the authority to reinstate [Complainant]’s voucher.

The evidence does not support Respondent’s position.

First: [Complainant]’s disability prevented her from making a timely request for a hearing. Although [Respondent] argued that [Complainant] “knowingly chose not to request a hearing in a timely manner,” citing Program Officer-JJ’s conversations with [Complainant] leading up to the termination, there is credible evidence from [Complainant], her caseworker, and her medical providers to the contrary. [Complainant] was in a deep state of depression and unable to manage her affairs. [Respondent] should have provided her with the reasonable accommodation of granting her an extension of time for her appeal.

Second: HUD regulations permitted but did not require [Respondent] to terminate Ms. Mayberry’s Voucher. [Respondent] has the authority to approve extensions of time for participants to correct non-life threatening HQS breaches. 24 CFR 982.404(b)(2). The termination of vouchers based on a participant’s breach of HQS is permitted, not required. 24 CFR 982.404(b)(3).

(It is noted, however, that when [Respondent] terminated [Complainant]’s voucher, it was not aware of her disability and need for reasonable accommodations. There is no recommendation here of a finding that the termination of [Complainant]’s Voucher was due to disability discrimination.)

Third: [Respondent] provided no evidence that it lacks the authority to grant extensions of time for informal hearings.

Fourth: [Respondent] did not attempt to contact HUD when Complainant asked for a reasonable accommodation. In the course of this investigation, [Respondent] was asked for, and failed to provide, a witness statement from [Respondent]’s HUD monitor or other HUD representative to supports this position.

Fifth: [Respondent] had the same authority to reinstate [Complainant]’s voucher as it does for any participant whose Voucher is terminated and who is granted an informal hearing. If [Respondent] had granted [Complainant] the reasonable accommodation of an extension of time to request an informal hearing, it could have reinstated her voucher.

Sixth: HUD confirmed that there is nothing in HUD’s regulations or policy that forbids reinstatement of a Section 8 voucher as a reasonable accommodation, if reinstatement is necessary due to a disability and that reinstatement of the voucher constitutes a reasonable accommodation based on the facts of the case at hand.

For all of the reasons outlined above, the Commission should conclude that [Respondent] failed to provide reasonable accommodations to [Complainant] that she needed to benefit from the Section 8 Housing Choice Voucher program.

In addition, [Respondent] refused [Complainant]’s request that it allow back rent payments to the landlord. This accommodation would have allowed [Complainant] to continue using her Voucher to rent the unit that she occupied at the time she made her request.

[Respondent] argues that it did not have the authority to allow back payments to the landlord. [Complainant] argues that such payments are allowed as restitution of erroneously terminated benefits and/or monetary damages for a fair housing violation. As such, this request for accommodation is more appropriate to treat as an element of damages, which are not under review at this time.

VI. RECOMMENDATION:

For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:

There are Reasonable Grounds to believe that the Respondent, [Respondent], refused to provide reasonable accommodations to Complainant, [Complainant]; and

Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).

_______________________________ _____________________________

Patricia E. Ryan, Executive Director Barbara Lelli, Chief Investigator

This complaint is dual-filed with the U.S. Department of Housing and Urban Development, HUD No. 01-08-0361-8.

JJ did not recall anything that Ms. [Complainant] actually said about the letter other than the fact that she knew that her subsidy would be terminated as of 2/23/08 if she did not meet HQS.

JJ states that she would have passed the unit if a broken trash bag was the only problem.

Complainant argues that MaineHousing did not have a legal basis under its Administrative Plan to terminate her Voucher. See file for more information.

COMMISSION INFORMATION

Investigators Report: H08-0281