UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Cumberland County
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Lorraine Saint Pierre
Plaintiff
v. COMPLAINT
2:21-cv-00300-GZ
NFG Housing Partners and
Preservation Management Inc.
Defendant.
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RESPONSE TO DEFENDANTS’ MEMORANDUM OF LAW
FOR SUMMARY JUDGMENT
COMES NOW, Plaintiff Saint Pierre to enlarge Defendants’ assessment of the legal issues relatable to its quest for summary judgment.
1. BASIS:
In accordance with Magistrate Judge’s decision dated December 20, 2021, Plaintiff’s claim under 14 MRSA §6021, disability discrimination and retaliation pursuant to federal and state fair housing laws which includes and not limited to FHA 42 U.S.C. §§ 3601-19 with its applicable 8 statutes.
2. ISSUES:
A) Defendants focus their memo narrowly of on Plaintiff’s requests for disability accommodations. It is not reasonable to blow insulation into the wall nor necessary, or install an exhaust fan because implementing these request would have interfered with existing systems. ►Proof? There is none. PMI’s Vice President Green does not appear to have contacted anyone to look into the matter. He states in his rejection for the blown-in insulation that it would damage existing systems within the wall. Were that so, such a process would not be feasible or offered widely as it presently is. The minimum expense of insulating one partial indoor wall of a small low-ceiling senior unit allowing Plaintiff the same advantages of having sound in her apartment, music, film, video, is a reasonable expenditure.
B) ►Plaintiff requested the bathroom ceiling fan at the urging of air quality testers who noted its lack in their report and proposed to her that it would help alleviate the problem. Again, on its face, it would appear to benefit the flow of air through the system, Green offers no explanation except to state that it would interfere. how? Too costly? there is no documentation to support that it was unreasonable to blow insulation into the wall or install an exhaust fan because implementing these requests would have interfered with existing systems and triggered considerable expense.
C) It was not reasonable to remedy the “mold situation because Ms. Saint Pierre refused to even allow PMI access to her unit for mold testing for more than a year, states opposing counsel. ►Plaintiff did not refuse: in her correspondence with PMI she repeatedly pointed out that the air purifiers and open windowsin her apartment would not produce an accurate reading. In an email dated December 15, 2020 to building manager Rivera, she reiterated that in order to get an accurate reading PMI would need to provide accommodations in another unit for a few days and close her apartment windows, air purifiers, etc. to get an accurate reading. They refused.
D) And testing later performed by two different contractors failed to even identify a significant mold problem that NFG/PMI could have remedied.
►It is not the air quality contractors’ responsibility to identify methods of remedying the mold spores found in Plaintiff’s apartment. they are merely recording its presence.
►Defendants’ own contractor stated there was significant mold spores caused by rotting plants to which he offered no evidence because there were no rotting plants. rather this appeared to be boilerplate responses for landlord’s benefit.
►The assertion that there was no significant mold problem is a non-sequitur. The amount of spores does not indicate how specific individuals will react to it, and especially in Saint Pierre’s case with her allergy to mold.
E) Finally, Ms. Saint Pierre did not present any evidence to establish that any of these three requested accommodations was necessary: ►Saint Pierre’s audiologist Ruth Cook informed Mr. Green of the severity of Plaintiff’s hearing loss. He stated at first that he had not been informed but proof was established that he did indeed receive the information. Plaintiff like others at the complex was entitled to listen to music, watch films, videos. The constant complaints were a seering experience. ►The emergency room doctor at Maine Med stated that the mold situation needed eradication because of her allergy. ►It is not plaintiff’s responsibility to present evidence to establish the efficacy of accommodations to alleviate the mold problem in her home. Per Maine’s Title 14 §6021, Implied warranty and covenant of habitability it was landlord’s responsibility, once the problem was identified, to remediate the situation. it has not. At the federal level there is the precedential Javins v. First National Reality Corporation 428 f.2D 1071, 1074 (d.c. cir.1970) which other courts have adopted that places Landlord under the duty to repair. ►Plaintiff’s sought accommodations were merely stopgap measures to alleviate her suffering until the mold could be eradicated. she did not ask to install her own bathroom fan but for landlord to secure and install a fan.
F) Notwithstanding, NFG/PMI sought to engage Ms. Saint Pierre in the interactive process contemplated by the HUD guidelines throughout, in an effort to determine whether any alternative suitable accommodation could be made. See Astralis, 620 F. 3d at 68, n. 3 (1st Cir. 2010). Ms. Saint Pierre continuously rejected these efforts.
G) ►At no time did Defendants seek to engage Plaintiff in the interactive process to determine whether an alternative accommodation could be made. PMI’s Vice President Geoff Green has produced a letter which offers such a process. The document was created after the fact with no proof of its being sent or received. There is evidence of Mr. Green’s duplicity and lies with the Court (exhibit 6, 13 of Complaint) to cast shade on his credibility.
H) A Section 3617 interference claim requires proof of three elements: (1) That the plaintiff exercised or enjoyed any right granted or protected by Sections 3603-3606; (2) That the defendant’s conduct constituted interference; and (3) A causal connection existed between the exercise or enjoyment of the right and the defendant’s conduct. 42 U.S.C. § 3617. In the instant case, Ms. Saint Pierre will not be able to establish the requisite causal connection. There is a glaring lack of temporal proximity between each of the protected activities alleged by Ms. Saint Pierre and the claimed retaliatory actions, all of which were founded on legitimate, non-discriminatory reasons instead. There was no coercion, there was no intimidation, and there was no interference within the meaning of the FHA.
►State v. Cripps, 533 N.W.2d defines a legally reasonable person as one, “with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective standard by which to measure or determine something.” In Plaintiff’s Complaint, paragraphs 21, 22, 23, she notes 3 recorded incidents in 2019, 14 in 2020 and 15 in 2021(mold problem was reported on January 8, 2020) Would such a “reasonable person” consider them all as, founded on legitimate, non-discriminatory reasons. Would that person consider Resident Coordinator’s gossip with tenants about Plaintiff, informing them of the ongoing lawsuit and recording tenants’ reactions to be later used in court to evict Plaintiff, as legitimate, or would they consider it harassment, maltreatment, quid pro quo, discrimination? ►Plaintiff supports Lawrence v. Courtyards at Deerwood Ass'n, 318 F. Supp. 2d 1133, 1145 (S.D. Fla. description of interference as applies “only to discriminatory conduct that is so severe or pervasive that it will have the effect of causing a protected person to abandon the exercise of his or her housing rights.”
I) Among the federal and state laws, statutes protecting Plaintiff in this matter she will avail herself of the following:
§ 886.127(b) Lease requirements.
Required and prohibited provisions. The lease between the
owner and the
family must comply with HUD regulations and requirements, and must be in the form required by HUD.
42 U.S. Code § 12203(a) Prohibition against retaliation and coercion No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
§ 100.600(1)(2)Quid pro quo and hostile environment harassment.
a) General. Quid pro quo and hostile environment harassment because of race, color, religion, sex, familial status, national origin or handicap may violate sections 804, 805, 806 or 818 of the Act, depending on the conduct. The same conduct may violate one or more of these provisions.
The specific FHA statutes, which Plaintiff will address, with supporting evidence in response to Defendants’ summary are §§ 100.7(ai)(ii)(iii)(2)(b), 100.50(2)(4)(5), 100.65(2)(4)(7), 100.202(a), 100204,(a), 100.400(b)(2)(4)(5)(6) and the above100.600(i)(C)(c).
J) Plaintiff does not intend to file a Daubert or Kumho motion.
K) She will abide by the 20 page maximum in Local Rule 7(e)
L) Per rule 56d plaintiff has already filed an affidavit for documents with the Court on August 31, 2022, initially requested through discovery for production of documents and never received.
M) Plaintiff estimates that she will file between 40 to 50 factual statements.
N) ESTIMATED RECORD
*January 8, 2020 and December 15, 2020 emails seeking accommodation in another unit to get an accurate mold spores evaluation - rejected, 2 pages
*Decision and Order March 13, 2021, first eviction # SA-2020-301, 6 pages
*Copies of photos taken in Plaintiff apartment unbeknown to her while she lay sleeping in bedroom July 28,202, 1 page
*Notice of Annual Unit Inspection, November 7 2021, and Plaintiff’s response, 2 pages
*Transcript for 2nd eviction #SA-2021-545 dated January 6, 2022 (estimate 10 to 15 pages)
*USPS Case #37429232 April 1, 2022 2 pages
* Police Report April 3, 2022, Officer Patrick Landrigan, incident of management
harassment, 2 pages
* ‘Place in File’ email to Manager Rivera August 17, 2021 with 4 attached emails from her superiors, not acceded to. 3 pages
*In Response to Defendants’ “The applicable Lease and attendant House Regulations executed by Plaintiff Lorraine Saint Pierre on February 9, 2019”
*HUD Occupancy Handbook 4350.3: Chapter 6, page 417, line D Required attachments ;
House Rules, Chapter 6 page 428, A. Overview, section 2; page 428, HOUSE RULES, A. Overview, section 3, 2 pages
There are literally hundreds of cases in which courts uphold the rules and regulations in HUD Handbook to which Landlords sign on to, Crotona Park Redevelopment, LLC v. Williams 66 Misc. 3d 1223 (N.Y. Civ. Ct. , Park Front Apts. LLC v Peterson 2016 NY Slip Op 51306(U, Greater Centennial Homes Hous. Dev. Fund, Inc. v Jones 2017 NY Slip Op 27147, Riverstone Assoc., LP v Campbell 2015 NY Slip Op 25470
Dated September 6, 2022
Respectfully submitted,
Certificate of Service
I hereby certify that on September 6, 2022 I filed with the Clerk of Court and with opposing attorney, Elizabeth Fontugne of the firm Petruccelli, Martin & Haddow at P.O. Box 17555 Portland ME 04112 a copy of this affidavit by U.S. postal mail.
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