Dussault v. Rre Coach Lantern Holdings, LLC

86 A.3d 52

2014 ME 8

Nicole DUSSAULT

v.RRE COACH LANTERN HOLDINGS, LLC, et al.

Docket No. Cum–11–591.

Supreme Judicial Court of Maine.

Argued: May 8, 2012.

Decided: Jan. 23, 2014.

Patricia M. Ender, Esq. (orally), and Katherine McGovern, Esq., Pine Tree LegalAssistance, Inc., Augusta and Portland, for appellant Nicole Dussault.

Margaret Coughlin LePage, Esq., and Katharine I. Rand, Esq. (orally), Pierce Atwood, LLP, Portland, for appellees RRE Coach Lantern Holdings, LLC, and Resource Real Estate Management, Inc.

John P. Gause, Esq., Maine Human Rights Commission, Augusta, for amicus curiae Maine Human Rights Commission.

Justin W. Andrus, Esq., and Neil S. Shankman, Esq., Shankman & Associates, Topsham, for amicus curiae Maine Apartment Owners and Managers Association.

Mark C. Joyce, Esq., Disability Rights Center of Maine, Augusta, for amicus curiae Disability Rights Center of Maine.

John J. McDermott, Esq., National Apartment Association, Arlington, Virginia, and David J. Van Baars, Esq., Windham, for amici curiae National Apartment Association and Maine Apartment Association.

J. Danian Ortiz, Esq., Patrick Bushell, Law Student, and Ian Friel, Law Student, The John Marshall Law School Fair Housing Center & Clinic, Chicago, Illinois, and David A. Lourie, Esq., Portland, for amicus curiae The John Marshall Law School Fair Housing Center & Clinic.

Robert Edmond Mittel, Esq., MittelAsen LLC, and Danielle Pelfrey Duryea, Esq., James P. Dowden, Esq., and Thomas R. Sutcliffe, Esq., Ropes & Gray LLP, Boston, Massachusetts, for amici curiae National Center for Medical Legal Partnership and Lawyers' Committee for Civil Rights and Economic Justice.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, SILVER, and MEAD, JJ.

Concurrence: ALEXANDER. J.

Dissent: LEVY, GORMAN, and JABAR, JJ.

SILVER, J.

[¶ 1] Nicole Dussault appeals from a summary judgment entered in the Superior Court (Cumberland County, Cole, J.) in favor of RRE Coach Lantern Holdings, LLC, and Resource Real Estate Management, Inc. (collectively, Coach Lantern). Dussault claims that Coach Lantern's policy of not including in its standard lease a tenancy addendum that binds the landlord to the requirements of the federal government's Section 8 Housing Choice Voucher Program constitutes unlawful discrimination on the basis of her status as a public assistance recipient in violation of 5 M.R.S. § 4582 (2007)¹ of the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551– 4634 (2007). She also argues that the court erred by granting Coach Lantern's motion for summary judgment and denying her cross-motion for summary judgment based on three theories of discrimination: direct evidence, disparate treatment, and disparate impact. We disagree and affirm the judgment.

I. FACTUAL AND LEGAL BACKGROUND

[¶ 2] The following facts are drawn from the summary judgment record and are not disputed by the parties. Nicole Dussault and her three children became homeless in June 2008 following a foreclosure on Dussault's home. On July 14, 2008, Dussault was issued a voucher pursuant to the Section 8 Housing Choice Voucher Program by Avesta Housing, a nonprofit organization that administers the federal voucher program as a contract agent for the Maine State Housing Authority.² Through the voucher program, the Housing Authority provides assistance to people with low incomes by subsidizing rent. The Housing Authority pays a portion of the voucher recipient's rent each month directly to the landlord for a unit of the recipient's choosing. See24 C.F.R. § 982.1 (2013). The Housing Authority calculates an amount of rent for which the recipient is responsible, which is usually equal to thirty percent of the recipient's adjusted income as defined by statute. See42 U.S.C.A. §§ 1437a(b)(5), 1437f( o)(2)(A)-(B) (West, Westlaw through P.L. 113–65 (excluding P.L. 113–54) approved 12–20–13). Federal law explicitly makes landlords' participation in the voucher program voluntary. See24 C.F.R. § 982.302(b) (2013) (“If the family finds a unit, and the owner is willing to lease the unit under the program, the family may request [Housing Authority] approval of the tenancy.” (emphasis added)).

[¶ 3] Dussault sought housing in Scarborough in order to maintain her son's placement in the school system there. Through Craigslist, Dussault found a listing for a three-bedroom apartment in the Coach Lantern Apartments in Scarborough with an advertised rent that was within the voucher program limits. The apartment is owned by RRE Coach Lantern Holdings, LLC, of which Resource Real Estate Management, Inc., is an affiliate.

[¶ 4] On August 5, 2008, Dussault called Coach Lantern to inquire about renting the apartment. Dussault alleges that after she disclosed that she would be using a voucher to pay the rent, she was told that Coach Lantern does not accept vouchers. She alleges that her caseworker at Avesta Housing was told the same thing by Coach Lantern when the caseworker inquired on Dussault's behalf. Approximately two weeks later Dussault again called Coach Lantern to inquire about the apartment, but she did not mention that she would be using a voucher. After arranging an appointment and being shown the apartment, Dussault was given a rental application. A Coach Lantern employee encouraged her to fill it out. Two days later a Coach Lantern representative called Dussault to ask if she planned to submit the application. Dussault did submit an application, and on it she disclosed that she would be using a voucher. Dussault qualified for an apartment and “was accepted.”

[¶ 5] Dussault's Avesta caseworker sent Coach Lantern a “landlord packet” indicating that in order for Dussault to be able to use her voucher, Coach Lantern would have to include a HUD tenancy addendum in her lease. Federal regulations require any landlord that accepts a housing voucher to include the tenancy addendum in its lease. 24 C.F.R. § 982.308(f) (2013). The addendum sets forth the program requirements for participating landlords and tenants. Id.; see also24 C.F.R. §§ 982.308–.310 (2013). The caseworker informed Coach Lantern that paperwork would need to be filled out before a HUD-mandated property inspection could take place, and that the paperwork and inspection process “could take a couple of weeks.”

[¶ 6] Coach Lantern, through its attorney, contacted Avesta Housing by letter dated September 3, 2008, to state its “problem with the inclusion of a Tenancy Addendum with [the standard] lease” and to see whether it could rent to Dussault without including the addendum in her lease. The letter stated, “I wish to make it absolutely clear that my client is not refusing to rent to [Dussault] primarily because she is a recipient of public assistance,” but because “[t]he addendum includes more restrictive rights and obligations on the landlord th[a]n the standard lease that they use, and my client does not wish to be bound by these more restrictive obligations.” Avesta Housing replied by email dated September 12, 2008, that Coach Lantern could not rent to Dussault without including the addendum.

[¶ 7] Coach Lantern is unwilling to include the addendum in any of its leases. Specifically, Coach Lantern finds it unacceptable that pursuant to the addendum the landlord agrees (1) to maintain the unit and premises in accordance with the housing quality standards set by the Housing Authority; (2) not to raise the rent during the initial term of the lease; (3) to charge a “reasonable” rent, as determined by the Housing Authority in accordance with HUD requirements, during the lease term; (4) not to evict the tenant or terminate the lease solely because the Housing Authority has failed to pay the subsidized portion of the rent; (5) not to evict a tenant who is a victim of domestic violence based on acts of domestic violence committed against her, unless the landlord can demonstrate an actual and imminent threat to other tenants or employees; (6) to open the premises to inspection by a Housing Authority inspector at the beginning of the lease, upon any complaint by the tenant, or after the landlord has remedied a problem identified by an inspector in a prior inspection; and (7) to notify the Housing Authority at least sixty days prior to any rent increase.

[¶ 8] Dussault was unable to afford the apartment without using the voucher. Because she could not use the voucher unless Coach Lantern included the addendum in her lease, she did not rent the apartment. She could not find housing in Scarborough and ultimately moved to South Portland. Dussault does not intend to seek housing at any Coach Lantern property in the future.

II. PROCEDURAL BACKGROUND

[¶ 9] In November 2008, Dussault filed a complaint with the Maine Human Rights Commission (Commission), alleging that Coach Lantern's policy of refusing to include the HUD tenancy addendum in her lease, and therefore its refusal to participate in the voucher program, constitutes discrimination against Dussault on the basis of her status as a public assistance recipient in violation of the MHRA. After an investigation, the Commission voted unanimously at a hearing on April 13, 2009, that there were reasonable grounds to believe that Coach Lantern discriminated against Dussault because of her status as a recipient of public assistance.

[¶ 10] Dussault then filed a complaint in the Superior Court seeking declaratory and injunctive relief and damages. Coach Lantern filed a motion for summary judgmentand Dussault filed a cross-motion.³ The court granted Coach Lantern's motion and denied Dussault's motion, ruling in favor of Coach Lantern on each of three theories of discrimination. First, the court determined that there was no direct evidence of discrimination, and thus declined to perform a mixed-motive analysis. Next, the court concluded that Dussault failed to meet her burden, as part of the three-step, burden-shifting test that applies when...