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Douglas v. Kriegsfeld Corp.10/13/2005
Argued En Banc November 1, 2004
Before WASHINGTON, Chief Judge, TERRY, SCHWELB, FARRELL, WAGNER, RUIZ, REID, and GLICKMAN, Associate Judges, and FERREN, Senior Judge.
Concurring opinion by Associate Judge FARRELL, with whom Associate Judge TERRY joins, at p 55.
Dissenting opinion by Associate Judge SCHWELB, with whom Chief Judge WASHINGTON and Associate Judge GLICKMAN join, at p 57.
Dissenting opinion by Associate Judge GLICKMAN, with whom Chief Judge WASHINGTON and Associate Judge WAGNER join, and Associate Judge SCHWELB joins in part, at p. 85.
This case presents the question under the federal Fair Housing Act whether the trial court erred in denying a tenant the opportunity to defend her landlord's action for possession by claiming discrimination -- namely, the landlord's failure to provide a "reasonable accommodation" -- based on her alleged "handicap" (mental impairment). We disagree with several of the trial court's rulings and thus reverse and remand the case to the trial court for further consideration of the tenant's request for accommodation.
It is important to note, before proceeding, that although four colleagues have either written or joined in dissenting opinions, all of them except for Judge Schwelb subscribe fundamentally to virtually all the legal principles elaborated in this opinion for the court. The difference between the majority and three of our colleagues, as expressed in Judge Glickman's dissenting opinion, lies in applying those principles to the facts.
I.
Evelyn Douglas (tenant) receives federal Supplemental Security Income (SSI) benefits and is eligible for federally subsidized "Section 8" housing. On August 23, 2001, Kriegsfeld Corporation (landlord) served her with a thirty-day notice to "cure or quit" for violation of her lease covenant to "maintain the apartment in clean and sanitary condition." Later, at trial, the landlord presented evidence that the apartment had a foul odor emanating into the rest of the building; that the toilet was frequently filled with feces and urine; and that garbage, rotting food, and dirty laundry were strewn about. An exhibit to the tenant's earlier, unsuccessful motion for summary judgment confirmed that as a result of this situation the landlord's representative, Ms. Deborah Reid, had referred the tenant to St. Elizabeths Hospital for a psychiatric evaluation.
The tenant neither cleaned up nor vacated the premises, and the landlord accordingly filed an action for possession on November 30, 2001. Through counsel, the tenant filed a timely answer and asked for a jury trial. Her answer included a general denial, a challenge to the validity of the notice to cure or quit, a defense of discrimination under "the federal Fair Housing Act and local fair housing laws," and a counterclaim of discrimination under "the Fair Housing Act and D.C. Human Rights Act."
Soon thereafter, on February 5, 2002, counsel for the tenant sent a letter to the Director of the Department of Consumer and Regulatory Affairs (DCRA) "requesting a reasonable accommodation under the Federal Fair Housing Act" for a "disability (mental)," namely a "mood disorder," that affected the tenant's ability to keep the apartment "safe and sanitary." Counsel added: The "District of Columbia Government is prepared to assist her with cleaning the apartment." DCRA never took action.
On February 20, 2002, two weeks after his letter to DCRA, counsel for the tenant wrote counsel for the landlord "requesting a reasonable accommodation in complying with provisions of [the tenant's] lease." In this letter -- filed with the trial court as Exhibit 2 to the tena
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 District of Columbia Employee Leasing Services
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