Steven Unger v. Majorca at Via Verde Homeowners Association Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 29, 2022
• Docket: 21-13134
• Status: Unpublished

Opinion

USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 1 of 12

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 21-13134 Non-Argument Calendar ____________________

STEVEN UNGER, Plaintiff-Appellant, versus MAJORCA AT VIA VERDE HOMEOWNERS ASSOCIATION INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:20-cv-81175-AHS ____________________ USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 2 of 12

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Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Steven Unger appeals from the district court’s dismissal of his complaint against Majorca At Via Verde Homeowners Associ- ation, Inc. (“Majorca”). Unger asserted a claim against Majorca for failing to reasonably accommodate his disability in violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3604(f). 1 The district court dismissed Unger’s complaint for failure to state a claim. After care- ful review, we reverse the district court’s order. I. This is an appeal from an order dismissing Unger’s com- plaint under Federal Rule of Civil Procedure 12(b)(6). We there- fore accept the complaint’s factual allegations “as true and con- stru[e] them in the light most favorable to” Unger. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).

1This provision of the FHA is sometime referred to as the “Fair Housing Amendments Act of 1988” to reflect the amendment to the FHA that included a provision concerning discrimination against handicap-persons. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 (11th Cir. 2008) (“The FHAA amended 42 U.S.C. § 3604, the primary substantive provision of the FHA, by adding a new subsection (f) that applies only to discrimination against the handicapped.”). USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 3 of 12

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Unger and his wife live at Majorca At Via Verde. Because Unger is disabled—he suffers from severe ankylosing spondylitis— he cannot attend Majorca’s homeowners’ association meetings. Before April 2019, the minutes from the homeowners’ asso- ciation meetings “were promptly posted online . . . immediately after the meeting was held.” Beginning in April 2019, however, the minutes were no longer promptly published on Majorca’s website. Without access to the meeting minutes, Unger could not access Majorca At Via Verde’s “community happenings.” Unger and his wife reached out to members of Majorca’s board, and to Majorca’s property management company, to obtain access to the meeting minutes. When they did not receive access, Unger’s wife informed Majorca’s property manager that Unger’s disability prevented him from attending homeowners’ association meetings and requested an accommodation on his behalf. Unger’s wife requested that Majorca accommodate Unger by either record- ing the board meetings or providing “a transcript of the monthly board meetings minutes . . . immediately after the meetings occur.” In response to Unger’s request, Majorca’s property manager stated that “the board of directors does not record” their meetings and that “[t]he only transcripts which are available are the ap- proved meeting minutes from the previous meeting,” meaning the transcripts would not be made available until a month after the rel- evant meeting. But the property manager stated that Unger could designate “a set representative by power of attorney” to attend the USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 4 of 12

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meetings in his place and that the representative “may record or take notes as necessary” at the meetings. Unsatisfied with this response, Unger retained counsel who repeated Unger’s requested accommodations and informed Ma- jorca that they had to accommodate Unger’s disability. Majorca responded that “[t]here is no ‘immediate’ transcribing of the minutes”—because the minutes must be approved by the board before publication—and that the board “does not tape or video rec- ord any association meetings.” Majorca also noted that it “has pro- vided and continues to provide reasonable accommodations” to Unger. Majorca stated that, because of COVID-19, association meetings were now being held by Zoom (a remote video confer- ence platform) and that Unger could attend the meetings remotely via Zoom. And Majorca stated that Unger may designate a third- party to attend and record the meetings on his behalf when meet- ings are held in person. Unger filed a complaint against Majorca and alleged that Ma- jorca violated the FHA by failing to grant his reasonable accommo- dation requests. Unger alleged that Majorca failed to accommo- date his disability “by providing him minutes or recordings of meetings . . . either immediately after the meetings, or at all.” Majorca moved to dismiss Unger’s complaint for failure to state a claim. Among other arguments, Majorca asserted that Un- ger was not entitled to the specific accommodations he requested and that Majorca offered Unger two reasonable alternative accom- modations: (1) the ability to attend association meetings via Zoom; USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 5 of 12

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and (2) the ability to designate a third-party to attend and record association meetings on Unger’s behalf. The district court granted Majorca’s motion to dismiss with- out prejudice. The district court found that Unger sufficiently al- leged that he was disabled, that he requested an accommodation, and that an accommodation was necessary because of his disability. But the district court did not address whether the accommodations Unger requested were reasonable. Instead, the district court noted that Unger is not entitled to the accommodations he requested and found that Majorca did not refuse to reasonably accommodate Un- ger. In so doing, the district court relied on the alternative accom- modations Majorca offered to Unger. Unger moved to amend his complaint. In his proposed amended complaint, Unger alleged that the alternative accommo- dations Majorca proposed were not reasonable and that the accom- modations he requested do not impose an undue burden on Ma- jorca. The district court denied Unger’s motion for leave to amend and determined that Unger’s proposed amended complaint conceded that Majorca “did not refuse the request” to accommo- date Unger and that Majorca “proffered several reasonable accom- modations.” Accordingly, the district court found that the pro- posed amended complaint “suffer[ed] from the same deficiency as USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 6 of 12

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the original [c]omplaint” and directed the clerk to close Unger’s case. This appeal followed. 2 II. “We review the district court’s grant of a motion to dismiss for failure to state a claim de novo, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Hunt, 814 F.3d at 1221. III. The FHA prohibits discriminating “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwell- ing, because of a handicap.” 42 U.S.C. § 3604(f)(2). Under the FHA, discrimination “on the basis of a ‘handicap,’ or a disability,” in- cludes “refusing to make reasonable accommodations when neces- sary to afford the person equal opportunity to use and enjoy a dwelling.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014) (footnote omitted).

2 Unger appealed both the order dismissing his original complaint and the or- der denying his motion for leave to file an amended complaint. Because we find that the district court erred in dismissing Unger’s original complaint, and the district court denied Unger’s motion to amend because the proposed amended complaint “suffer[ed] from the same deficiency as the original [c]om- plaint,” we do not separately address the district court’s order denying Unger’s motion for leave to amend. USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 7 of 12

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To state a claim for failure to accommodate under the FHA, a plaintiff must plead: (1) the plaintiff is a person with a disability within the meaning of the FHA or a person associated with that individual; (2) the plaintiff requested a reasonable ac- commodation for the disability; (3) the requested ac- commodation was necessary to afford the plaintiff an opportunity to use and enjoy the dwelling; and (4) the defendant refused to make the [requested] accommo- dation. Hunt, 814 F.3d at 1225. “At the pleading stage, the relevant ques- tion is whether the complaint provides ‘a short and plain statement of the claim’ that ‘give[s] the defendant fair notice of what the plain- tiff’s claim is and the grounds upon which it rests.”’ Id. at 1221 (alteration in original) (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002)). And the complaint must “present[] a plausi- ble set of facts from which we can infer that” Unger has “suffi- ciently pled [his] claim.” Id. at 1225. Here, the district court dismissed Unger’s complaint, and then denied his motion to amend, because the court found that Un- ger failed to plausibly allege the fourth element of his failure-to- accommodate claim, i.e., that Majorca refused to accommodate Unger. Unger argues that the district court erred because the dis- trict court should have determined whether the accommodations Unger requested, which Majorca refused to provide, were reason- able and should not have relied on the alternative accommodations Majorca proposed in dismissing his claim. USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 8 of 12

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This appeal asks us to determine whether the district court properly relied on the alternative accommodations Majorca of- fered to Unger, before considering the reasonableness of the ac- commodations Unger requested. Our analysis is divided into two parts. First, we discuss this Court’s framework for failure-to-ac- commodate claims under the FHA. Then, we discuss whether the district court correctly applied that framework. A. Framework for Failure-to-Accommodate Claims In Schaw v. Habitat for Humanity of Citrus County, Inc., 938 F.3d 1259 (11th Cir. 2019), this Court addressed the framework for failure-to-accommodate claims under the FHA and reversed a district court’s decision that a defendant “was entitled to summary judgment because it had provided a sufficient ‘alternative accom- modation.’” Id. at 1269 (emphasis in original). While we acknowl- edged that a plaintiff is not entitled to his requested accommoda- tion, we concluded that so long as the plaintiff’s request “is facially reasonable, the burden shifts to the defendant, who must prove that the accommodation would nonetheless impose an ‘undue bur- den’ or result in a ‘fundamental alteration’ of its program.” Id. at 1266 (quoting Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220 (11th Cir. 2008)). We concluded that the district court erred in its “alternative accommodation” finding because the district court should have “consider[ed] first whether the plaintiff’s own requested accommodation ‘seems reasonable on its face’ before turning to consider a defendant’s objections and USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 9 of 12

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counterproposals.” Id. at 1269 (quoting U.S. Airways v. Barnett, 535 U.S. 391, 401 (2002)). Majorca argues that the Schaw framework does not apply here because Schaw was decided at a different procedural stage— an order granting summary judgment. We disagree. At the mo- tion to dismiss stage, the plaintiff also bears the initial burden of showing that the plaintiff’s requested accommodation is reasona- ble on its face. Cf. id. at 1265–66 (“A plaintiff carries the initial bur- den of showing that his proposed accommodation is [facially] rea- sonable.”). Indeed, “[t]o withstand a motion to dismiss under Rule 12(b)(6), a complaint must include ‘enough facts to state a claim to relief that is plausible on its face,’” and a request for a reasonable accommodation is an element of Unger’s FHA claim. Hunt, 814 at 1221, 1225 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). But arguments that a plaintiff’s requested accommodation “impose[s] an ‘undue burden’ or result[s] in a ‘fundamental altera- tion’ of its program,” Schaw, 938 F.3d at 1266, are affirmative de- fenses for which a defendant bears the burden of proof at both the motion to dismiss and the summary judgment stages of litigation, see Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997) (de- scribing “undue hardship” as “an affirmative defense to be pled and proven by an [American with Disabilities Act] defendant”); Haddad v. Dudek, 784 F. Supp. 2d 1308, 1330 (M.D. Fla. 2011) (explaining that, at the motion to dismiss stage, a defendant must establish its USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 10 of 12

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“fundamental alteration defense” based “on the face of [the] [p]laintiff’s [c]omplaint”). 3 Therefore, Schaw’s general framework for failure-to-accom- modate claims under the FHA also applies at the motion to dismiss stage. 4 Accordingly, at the motion to dismiss stage, courts “must consider first whether the plaintiff’s own requested accommoda- tion ‘seems reasonable on its face’ before turning to consider a de- fendant’s objections and counterproposals.” Schaw, 938 F.3d at 1269 (quoting Barnett, 535 U.S. at 401). B. Whether the District Court Applied the Schaw-Framework Turning to Unger’s complaint, Unger alleged that he re- quested Majorca either to record the association’s meetings or to provide him with a transcript of the meeting minutes immediately

3 While these cases involved the American with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”), “we look to case law under the RA and the ADA for guidance on what is reasonable under the FHA.” Schwarz, 544 F.3d at 1220. 4 We recognize that not every aspect of Schaw applies here because of the procedural posture of this case. For example, in Schaw, the district court was able to consider “outside evidence” in connection with the defendant’s objec- tions and counterproposals. 938 F.3d at 1269. But at the motion to dismiss stage, a court’s consideration of a defendant’s objections and counterproposals is limited to “the four corners of the complaint.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (explaining that, at the motion to dismiss stage, “[t]he scope of review must be limited to the four corners of the complaint”); see, e.g., Haddad, 784 F. Supp. 2d at 1330 (denying defendants’ motion to dismiss because “[d]efendants’ fundamental alteration defense [was] not established . . . on the face of” the complaint). USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 11 of 12

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after the meetings. Unger further alleged that, in response to his requests, Majorca stated that it would neither record its meetings nor provide Unger with a transcript of the meeting minutes imme- diately after the meetings. Therefore, Unger plausibly alleged that Majorca refused to provide either of his requested accommoda- tions. The district court’s contrary conclusion—that Unger failed to allege that Majorca refused to accommodate him—was prem- ised on the alternative accommodations Majorca offered to Unger. But the district court did not assess whether the accommodations Unger requested were facially reasonable before turning to Ma- jorca’s counterproposals. In so doing, we conclude that the district court erred. In accordance with Schaw, the district court should have first considered whether Unger’s “requested accommodation[s] ‘seem[ed] reasonable on [their] face’ before turning to consider” Majorca’s “objections and counterproposals.” 938 F.3d at 1269 (quoting Barnett, 535 U.S. at 401). Because the district court failed to follow this framework, remand is appropriate to allow the dis- trict court to do so in the first instance. See Maldonado v. Baker Cnty. Sheriff’s Off., 23 F.4th 1299, 1308 (11th Cir. 2022). IV. For the reasons stated, we reverse the district court’s order dismissing Unger’s claim and remand for further proceedings con- sistent with this opinion. USCA11 Case: 21-13134 Date Filed: 09/29/2022 Page: 12 of 12

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REVERSED AND REMANDED.