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PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
ELEMENTS OF FAIR HOUSING CLAIM FOR FAILURE
TO PROVIDE "REASONABLE ACCOMMODATION"
The plaintiff, United States of America, must prove six (6)
essential
elements in order to prevail on its claim brought pursuant to Section
804(f)(3)(B) of the Fair Housing Act:
First: That Robert Gregory is a person who rented an apartment at
Gorman Towers and he is handicapped.
Second: That providing parking for tenants was a part of Gorman
Towers
"services and facilities."
Third: That Robert Gregory requested an accommodation of Gorman
Towers' policy of "first come first serve," in not assigning parking spaces
to
tenants.
Fourth: That the Gregorys requested an extra-wide handicap
parking
space be designated for their use.
Fifth: That to provide Robert Gregory a designated parking space
was
a "reasonable accommodation" to the "rules, policies, practices and
services" of
Gorman Towers, which "may be necessary to afford a handicapped person equal
opportunity to use and occupy a dwelling."
Sixth: That the defendants themselves, or through their employees
or
agents, refused to designate a parking space for the use of Robert Gregory.
AUTHORITY: Shapiro v. Cadman Towers, Inc., 42 U.S.C. 3604(f)(3)(B); 844 F.
Supp.
116 (E.D.N.Y. 1994), (affirmed Shapiro v. Cadman Towers, Inc., Slip op. No.
654
2nd Cir. March 21, 1995).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
DEFINITION OF HANDICAP
In addressing the first element of a violation of the Fair Housing Act,
you
must decide whether Robert Gregory was handicapped and entitled to the
protection
of the Fair Housing Act. I instruct you that a person is handicapped and
protected by the Act if he has a physical or mental impairment which
substantially limits one or more of his major life activities such as caring
for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working. A person is also protected by the Act if
he has
a record of having such an impairment, or is regarded by others as having
such
an impairment.
I instruct you, as a matter of law, that if you find that Robert
Gregory was handicapped within the meaning of the Fair Housing Act, you may
also
find that Ms. Helen Gregory is protected under the Fair Housing Act as a
person
associated with the handicapped applicant.
AUTHORITY: 42 U.S.C. §§ 3602(h)(1),(2),(3); 24 C.F.R. §
100.201;
United States v. Forest Dale, Inc. et al., C.A. No. 3-92-CV-1029-H,
Memorandum
Opinion and Order at 3 (N.D. Tx. December 2, 1992).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
Section 804(f)(3)(B) of the Fair Housing Act requires a landlord to
make
reasonable accommodations in its rules, policies, practices and services to
enable handicapped persons an equal opportunity to use and enjoy an
apartment.
"Reasonable accommodation" as used in element five means changing
a
rule that applies generally so as to make it less burdensome on the
handicapped
individual. In order for the defendants to establish that accommodation
was
unreasonable, they must show that providing the Gregorys a designated
parking
space would have caused defendants to fundamentally alter the nature of
their
housing program or would have imposed undue financial burdens upon the
defendants.
If you find that defendants failed to provide a reasonable
accommodation that would have allowed the Gregorys the equal opportunity to
use
and occupy a dwelling, then you must find that the defendants discriminated
against the Gregorys in the rental of an apartment.
AUTHORITY: 42 U.S.C. �(f)(3)(B); 24 C.F.R. 𨲼.202 (a)(b)(c);
24
C.F.R. 𨲼.204; 54 Fed. Reg. 3245; H.R. Rep.No. 711 - 100th Cong.,
2d
Sess. 25-30 (1988); 134 Cong. Rec. H15,667 (June 22, 1988)(statement of
Rep.
Coelho); School Board v. Arline, 480 U.S. 273, 284-288, n. 17 (1986);
Southeastern Community College v. Davis, 442 U.S. 397 (1979); Brennan v.
Stewart, 834 F.2d 1248 (5th Cir. 1988); Majors v. Housing Authority of
DeKalb
County, 652 F.2d 454 (5th Cir. 1981).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
RESPONDEAT SUPERIOR - CORPORATION ACTS THROUGH ITS EMPLOYEES
The parties have (stipulated) (presented evidence) that: defendant
Gorman
Towers, Inc. is a corporation; defendants Powell Sanders and Sam (Chip)
Sexton,
III are members of the Board of Gorman Towers, Inc.; Rental Management
Company
is a corporation owned by defendants Sam Sexton and Donna Sexton, and Sam
Sexton,
Jr. is its President; and Sue Watson is employed by Rental Management, Inc.
A corporation may act only through its officers, agents or
employees.
Thus, an officer, agent or employee of a corporation may bind the
corporation by
his or her acts and statements made while acting within the authority
delegated
to him or her by the corporation, or within his or her duties as an
officer,
employee or agent of the corporation.
A corporation and its chief officer are responsible for the
discriminatory acts of their employees or agents if such acts are within
the
scope of the employees' duties. This is true even if the corporation
instructs
its employees or agents not to discriminate. Thus, if you find that Sue
Watson
and/or Donna Sexton engaged in discriminatory acts against the Gregorys and
the
acts occurred within the scope of their normal job duties, then you must
also
find Rental Management Company and its president, Sam Sexton, Jr., liable
for
discriminating against the Gregorys. In addition, Gorman Towers, Inc.,
Powell
Sanders, and Sam (Chip) Sexton, III are directly liable for discrimination
on the
basis of handicap if you determine that officers of the company implemented
and
maintained a policy which discriminated on the basis of handicap.
Finally, Sue Watson is directly liable for discrimination on the
basis
of handicap if she directly participated in or authorized any allegedly
discriminatory acts directed toward the Gregorys.
AUTHORITY: Northside Realty Associates v. United States, 605 F.2d 1348,
1354
(5th Cir. 1979); Dillon v. AFBIC Development Corp., 597 F.2d 556 (5th Cir.
1979); United States v. Reddoch, 467 F.2d 897 (5th Cir. 1972); City of
Chicago
v. Matchmaker, C.A. No. 91-2491 & 91-3861 (7th Cir. 1992); Clark v.
Universal
Builders, Inc., 501 F.2d 324, 339-40 (7th Cir.), cert. denied, 419 U.S.
1070
(1974); United States v. Youritan Construction Co., 370 F. Supp. 643, 649
(D.
Cal. 1973), aff'd in part, remanded on other grounds, 509 F.2d 623 (9th
Cir.
1973); United States v. Real Estate Development Corp., 347 F. Supp. 776
(N.D.
Miss. 1972); Marr v. Rife, 503 F.2d 735 (6th Cir. 1976) (agency
relationship is
a matter of federal law); Saunders v. General Services Corp., 659 F. Supp.
1042,
1059 (E.D. Va. 1987); Harrison v. Otto G. Heinzeroth Mtg. Co., 430 F. Supp.
893,
896-7 (N.D. Ohio 1977); United States v. L & H Land Corp., Inc., 407 F.
Supp.
576, 580 (S.D. Fla. 1976).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
The duty to make "reasonable accommodations" obligates the building
management to reserve a parking space for mobility-impaired tenants near
that
tenant's apartment. The accommodation is necessary to afford the
mobility-impaired tenant an equal opportunity to use and enjoy a dwelling.
AUTHORITY: 24 C.F.R. § 100.204(b), Shapiro v. Cadman Towers, Inc., slip
op.
No. 654 (2nd Cir. March 21, 1995); affirming Shapiro v. Cadman Towers, Inc.,
844
F. Supp. 116, 122 (E.D.N.Y. 1994).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
If you find that plaintiff has proved each of the six elements
previously
described to you, you must find that defendant violated the Fair Housing
Act,
unless you find that the accommodation requested—that is the request of
a
designated parking space—was not reasonable. Defendants have the burden
of
proving by a preponderance of the evidence that what the Gregorys requested
was
not reasonable.
AUTHORITY: HUD v. Ocean Sands, Inc., HUDALJ 04-90-0232-1, slip op. at 15
(1993)
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
In order to find that the defendants violated the Fair Housing Act, you
do
not have to find that the Gregorys' request for a parking space was denied
because any of the defendants was prejudiced against people with handicaps,
or
had a bad motivation.The Fair Housing Act may be violated not only by
blatant,
intentional acts of discrimination, but by thoughtlessness and indifference.
The
Act was intended to bring about the removal of architectural barriers that
limit
a person's access to a particular dwelling.
AUTHORITY: H.R. Rep. 100-711, Fair Housing Amendments Act of 1988, House
Committee on the Judiciary (June 17, 1988); Alexander v. Choate, 469 U.S.
287
(1985); Elliott v. City of Athens, 960 F.2d 975, 978 (11th Cir.), cert.
denied,
1132 S.Ct. 376 (1992); HUD v. Ocean Sands, Inc., HUDALJ 04-90-0231-1, slip
op.
at 15 (1993).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
In certain circumstances, the Fair Housing Act entitles handicapped
persons
to preferential treatment. The Fair Housing Act does not require the
defendant
to allow a person who is not handicapped to be afforded accommodations such
as
reserved parking. If the defendant had permitted the Gregorys to have a
designated parking space, it would not have had to allow other residents to
have
reserved parking spaces unless their circumstances were similar. Therefore,
even
if you believe that it was reasonable for defendants not to allow tenants
generally to have reserved parking spaces, you should not decide for that
reason
that the accommodation requested by the Gregorys was not reasonable.
AUTHORITY: Oxford House, Inc. v. Town of Babylon, 819 F. Supp. 1179, 1186
n.11
(E.D.N.Y. 1993); Majors v. Housing Authority of DeKalb County, 652 F.2d 454,
458
(5th Cir. 1981); Parish of Jefferson v. Allied Health Care, Inc., C.A. No.
91-1199, 1992 WL 142574 at *5 (E.D. La, June 10, 1992)
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
REQUEST FOR DESIGNATED PARKING SPACE
If a mobility impaired tenant requests a parking space near his unit
be
reserved for him so he will not have to walk very far to get to his
apartment,
it is a violation of the law for the owner or manager of the apartment to
refuse
to make this accommodation. Without a reserved space, the tenant might be
unable
to live in the apartment at all, or, when he has to park in a space far from
his
unit, might have great difficulty getting from his car to his apartment
unit.
The accommodation therefore is necessary to afford the tenant an equal
opportunity to use and enjoy a dwelling. The accommodation is reasonable
because
it is feasible and practical under the circumstances.
24 C.F.R. § 100.204(b).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO.
OFFER OF ALTERNATIVE PLAN BY DEFENDANTS
If you find that Robert Gregory's request for a designated parking
space
was reasonable, you must find that the defendants violated the Fair Housing
Act
by not granting it, regardless of whether they offered him an alternative
plan.
Pursuant to the Act, the defendants are obligated to approve a request by a
handicapped tenant unless it is proven that the tenant's proposal is
unreasonable. The defendants cannot simply reject the tenant's request and
press
for acceptance of an alternative plan of their own choosing.
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. ___
Whether or not Gorman Towers was in compliance with the Rehabilitation
Act
is irrelevant to whether they violated the Fair Housing Act by denying
Robert
Gregory a reasonable accommodation. That is, even if you find that HUD
conducted
inspections and determined that Gorman Towers complied with the
Rehabilitation
Act, that would not excuse them from a violation of the Fair Housing Act.
These
are separate statutes, and defendants have a legal duty to obey both of
them.
AUTHORITY: HUD v. Jankowski Lee & Associates, HUDALJ 05-93-0517-1, slip op.
at
6 n.8, June 30, 1995.
See Donnovan v. Cunningham, 716 F.2d 1455 (5th Cir. 1983), cert. denied, 467
U.S.
1251 (1984), for analogous principal that action by U.S. not barred by
prior
private litigation.
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. ___
The evidence has shown that Gorman Towers is a building inhabited by a
number of elderly and mobility-impaired individuals. Still, defendants
must
reasonably accommodate each individual tenant, and cannot simply make
accommodations that would satisfy the average tenant.
AUTHORITY: See 42 U.S.C. § 3604(f).
PLAINTIFF'S PROPOSED JURY INSTRUCTION NO. ___
The Fair Housing Act requires that each handicapped person be
reasonably
accommodated so as not to be deprived of an opportunity equal, so far as
that is
possible, to that of the non-handicapped to use and enjoy a dwelling.
Handicapped persons are entitled to accommodations which, to a reasonable
degree,
make them no more a prisoner in their own home than others who are not
handicapped.
AUTHORITY: Shapiro v. Cadman Towers, Inc., 844 F. Supp. at 119 n.2.
United States v. Freer, 864 F. Supp. 324, 326 (W.D.N.Y. 1994)
[cited in
Civil Rights Resource Manual 60]
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