Anderson v. Lowell Hous. Auth.

ELIZABETH ANDERSON, Plaintiff,

v. LOWELL HOUSING AUTHORITY, GARY K. WALLACE, MARY ANN MACIEJEWSKI,and BRIAN WENCKUS, Defendants.

Civil Action No. 11-10580-DPW

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 24, 2012

MEMORANDUM AND ORDER

This case centers on the termination, after a hearing, of a Section 8 voucher and the denial of the voucher recipient's request for reasonable accommodation. Plaintiff Elizabeth Anderson, the voucher recipient, claims that Defendants the Lowell Housing Authority, Gary K. Wallace, and Mary Ann Maciejewski (the "Lowell Housing Authority Defendants" or "Defendants"¹ ) violated her rights under the Due Process Clause of the Fourteenth Amendment, 24 CFR 982.555, the federal Fair Housing Act, and G.L. c. 151B, § 4.

The Lowell Housing Authority Defendants have moved forsummary judgment. While I conclude most of the claims against the Defendants are not meritorious, I find one is. The hearing officer chose to conduct a post-hearing investigation and her decision rested in part on the results of that investigation, as to which the plaintiff was afforded neither notice nor an opportunity to be heard. Because of this core due process violation, I will vacate the termination decision and order the matter removed to the Lowell Housing Authority for a new hearing, if the Housing Authority continues to pursue termination of Anderson's Section 8 voucher, before a different hearing officer, who is not one of the individual defendants in this case.

I. BACKGROUND²

A. Factual Background

The Lowell Housing Authority ("LHA") is a public housing agency ("PHA") that administers the Section 8 Housing Choice Voucher Program, funded by the Department of Housing and Urban Development ("HUD"), for the Lowell, Massachusetts, area. Elizabeth Anderson received Section 8 rental assistance fromAugust 2002 until November 2010. Her voucher was initially issued by the Cambridge Housing Authority but came to be administered by the LHA at some point during or prior to June, 2003. On June 11, 2003, Anderson executed a lease, titled "Model SECTION 8 VOUCHER LEASE," for a three bedroom unit at 39 Wilder Road in Lowell, Massachusetts.

1. Unauthorized Occupant

At her deposition, Anderson testified that she and Brian Wenckus, her landlord at the 39 Wilder Road apartment, dated a few times in 2002, a few times in 2003, and for some months in 2004. She stated that the relationship was "on and off again until 2008" and ended in approximately the late summer of 2008. Anderson testified that after the relationship ended, Wenckus would still let himself into her house. A few times, he would open up the shower curtain while Anderson was showering, although she told him that it was no longer appropriate.

In the fall of 2009, Wenckus lost his job and his home, and in November, he asked Anderson if he could stay with her for a few days until he could decide where to go. Anderson told him that a stay of a few days would be fine. She testified that it was her understanding that he could stay in the unit without causing her to violate the LHA's rules because he would not exceed the two week limit for guest stays. The LHA's Administrative Plan, which sets forth the procedures for theadministration of its Housing Choice Voucher Program, states that "[a] guest can remain in the assisted unit no longer than 14 consecutive days or a total of 20 cumulative calendar days during any 12 month period." At her deposition, Anderson testified that at the time she received her voucher, she understood that no one other than herself and her children was allowed to reside in her rental unit for a longer period without permission from the housing authority administering the voucher.

When asked if she was afraid of Wenckus in November, 2009, Anderson testified that Wenckus made comments "that he could just move [her] stuff out and take over the apartment," and that at the time she believed that he could do so and was "afraid that he was going to change the locks and put all [her] belongings out on the street . . . ." She acknowledged that during that time period, she was not "desperate, desperately afraid of him" and was not afraid that Wenckus would become violent towards her.

Anderson testified that two days after Thanksgiving, she asked Wenckus to leave. She said that he had "caused a scene" at Thanksgiving, yelling at her sons, and further, she was concerned that if he stayed she would get in trouble. At that point, he had already overstayed the two week guest limitation. Wenckus told her that he did not have to leave because he owned the house.

Anderson testified that she did not tell the LHA in November, 2009, that Wenckus was staying in her apartment and would not leave because:

I was trying to get him out on my own. And I was afraid that I, that he was going to put my belongings out on the street if I had gone to them. I was also afraid I could get in trouble. And afraid of being homeless.

She testified that during December, 2009, she had at least three more conversations in which she asked Wenckus to leave. She stated that he remained at the apartment until May, 2010.

Anderson testified that in April, 2010, Wenckus became physically violent with her. She stated:

I was getting very frustrated that he was still there. He was questioning my kids on my whereabouts, if I didn't come home right after work. He was stalking. He was very rude to my friends. I asked him to leave on that day in April, I can't remember which day, and he wouldn't leave. And I starting chucking all of his belongings out of the basement bulkhead, and he came at me, and he raised his fist. [He did not hit me, but] he grabbed me and he raised his fist.

In May, 2010, he was again violent with her. Anderson stated:

That incident, he wanted me to pay my rent. I gave him my check, with the three quarter amount of payment, and he told me he was putting my belongings out on the street. He was verbally abusive, calling me a bitch, calling me all kinds of four letter names. And he told me that my stuff would be out on the street [the] next day. And I told him that he was leaving. And he said no. And I told him that I was going to call the police . . . . And he got right up in my face and started screaming, like nose to nose, about what a horrible person I was. Then he started to take things. He took the coffee maker off the counter. And I took it and put it out in his truck. And then he ripped the TV from out in front of the kids. I had my youngest son, James, and his friends were watching TV. He ripped the TV out from the wall and I--he pushed me before that, he pushed me in the kitchen with the coffee maker. And he ripped the TV out.

And I said, "Fine, take the TV[,"] and I pushed him out the door with the TV, because it was one of those big TVs. And I pushed him out the door, and I closed and locked the door. And he came in through the bulkhead and started pushing me and shoving me some more. And I got him out of the house again. And I had my oldest son, Ricky, run downstairs and lock the bulkhead, and he started smashing and screaming on it . . . . My youngest son had ran out of the house. He had gone out of the house with his friend who lived up the street. Brian chased him up the street, yelling at him, "Your mother is nothing but a cunt bag." Then he started screaming at the front door again, and he ripped the whole screen door out of the frame. The whole frame came loose.

Anderson testified that at this point she called her boss, an Assistant District Attorney, and said, "I don't know what to do. I'm really embarrassed, but this is what is going on." Her boss then called the police, who responded to the call and completed a police report. Anderson testified that in May, 2010, a restraining order was issued against Wenckus.

2. Subsidy Termination Process

Anderson testified that in July, 2010, her case worker from the LHA called her to tell her that Wenckus had reported that Anderson was not paying rent and to ask her why she was not paying. Anderson told her case worker that Wenckus had moved in and taken over a room and that she could not get him out, and further that she wanted to move. At the case worker's request, Anderson submitted copies of the restraining order and the police report from the May, 2010, incident.

Anderson testified that when she went to the LHA for her re-evaluation in September, 2010, Arlene McDermott of the LHA toldAnderson that McDermott would take her to court for fraud and that she was recommending that the LHA terminate Anderson's voucher. Anderson testified that she understood that the termination was because she had someone unauthorized in her home. Anderson told McDermott that she did not allow Wenckus to remain; instead, he refused to leave.

i. Notice

In a letter dated September 30, 2010, Tha Chhan, Director of the Division of Leased Housing at the LHA, informed Anderson that, as she had discussed with Arlene McDermott, "there are serious concerns relative to your ex-boyfriend/Landlord, Mr. Brian Wenckus, who has been residing at 39 Wilder Road, Lowell, MA as confirmed by the Lowell Police report dated May 12, 2010." The letter stated:

As stated in the report, you allowed Mr. Wenckus to stay with you in the unit. As a result, you are in violation of the Family Obligations of the Housing Choice Voucher, Section 4B, paragraph 7, which states that the tenant agreed to "use the assisted unit for residence by the family. The unit must be the family's only residence." I have no choice but to terminate your Section 8 Rental Assistance effective October 31, 2010 . . . . If you wish to appeal this decision, you may do so by sending a written request for a hearing within 10 days of this notice (on or before October 15, 2010) to: Gary K. Wallace, Executive Director, P.O. Box 60, 350 Moody Street, Lowell, MA 01853-0060.

In a letter dated October 4, 2010, Anderson wrote to request a hearing, stating that "the police report alone does not accurately...