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Douglas v. Kriegsfeld Corp.

May 13, 2004; Opinion vacated August 6, 2004

EVELYN DOUGLAS, APPELLANT,
v.
KRIEGSFELD CORPORATION, APPELLEE.



Appeal from the Superior Court of the District of Columbia (LT-50733-01) (Hon. Neal E. Kravitz, Trial Judge)

Before Schwelb and Ruiz, Associate Judges, and Ferren, Senior Judge.

The opinion of the court was delivered by: Senior Judge Ferren.

Argued December 3, 2003

Dissenting opinion by Associate Judge SCHWELB at p. 36.

This case presents the question under the federal Fair Housing Act (and related District of Columbia regulations) whether the trial court erred in denying a tenant the opportunity to defend her landlord's action for possession by claiming discrimination - more specifically, the landlord's failure to provide a "reasonable accommodation" - based on her alleged "handicap" (mental impairment). We rule for the tenant and thus reverse and remand for a new trial.

I.

On August 23, 2001, Kriegsfeld Corporation (landlord) served Evelyn Douglas (tenant) - a beneficiary of federally subsidized "Section 8" housing who was current with her rent - with a thirty-day notice to "cure or quit" for violation of her covenant to "maintain the apartment in clean and sanitary condition." Later, at trial, the landlord presented evidence that the apartment had a foul odor emanating into the rest of the building; that the toilet was frequently filled with feces and urine; and that garbage, rotting food, and dirty laundry were strewn about. An exhibit to the tenant's earlier, unsuccessful motion for summary judgment confirmed that as a result of this situation the landlord's representative, Ms. Deborah Reid, had referred the tenant to St. Elizabeths Hospital for a psychiatric evaluation.

The tenant neither cleaned up the premises nor vacated the property, and the landlord accordingly filed an action for possession on November 30, 2001. Through counsel, the tenant filed a timely answer and asked for a jury trial. Her answer included a general denial, a challenge to the validity of the notice to cure or quit, and a defense of discrimination under the federal Fair Housing Act. She also proffered a defense and counterclaim under the D.C. Human Rights Act (not at issue on appeal).

Soon thereafter, on February 5, 2002, counsel for the tenant sent a letter to the Director of the Department of Consumer and Regulatory Affairs (DCRA) "requesting a reasonable accommodation under the Federal Fair Housing Act" for a "disability (mental)," namely a "mood disorder," that affected the tenant's ability to keep the apartment "safe and sanitary." Counsel added: The "District of Columbia Government is prepared to assist her with cleaning the apartment." DCRA never took action.

On February 20, 2002, two weeks after his letter to DCRA, counsel for the tenant wrote counsel for the landlord "requesting a reasonable accommodation in complying with provisions of [the tenant's] lease." In this letter - filed with the trial court as Exhibit 2 to the tenant's motion for summary judgment and discussed in counsel's supporting memorandum - counsel stated, more specifically:

Ms. Douglas suffers from a mood disorder (mental illness). She is on SSI disability. She has been assigned a case worker with the District of Columbia government and she is an outpatient at a city operated mental health/substance abuse clinic.

. . . The District of Columbia government has advised me that they are prepared to assist her with her problems because it is their opinion as well that Ms. Douglas would benefit from intervention and a reasonable accommodation.

According to counsel for the tenant's uncontradicted assertion in the trial court, landlord's counsel - who has acknowledged receipt - never responded to this letter.

Later, at a pretrial conference, the court asked for briefs on the question whether the tenant should be permitted to present her discrimination defense based on the landlord's failure to make a "reasonable accommodation" of her alleged mental disability. Thereafter, *fn1 the trial court denied the tenant's motion for summary judgment, and on the day set for trial, June 17, 2002, the court heard testimony and argument on the reasonable accommodation issue outside the presence of the jury. The trial court conducted this hearing primarily to find out whether the tenant's proffered "mental health experts" were qualified to testify, and whether their testimony would support a finding that the tenant's mental illness caused her to leave the apartment in an unclean, unsanitary condition - the factual predicate required for a "reasonable accommodation" defense.

After the tenant's proffered experts had testified, but before the trial court ruled, the landlord's counsel acknowledged to the court that counsel for the tenant (presumably sometime after his letter of February 20) had requested, as an accommodation, a stay of eviction that would permit an agency of the D.C. government to "clean up" the apartment. The landlord's counsel further acknowledged: "I did not specifically talk to [tenant's counsel] about that until a couple of weeks ago," around the first of June 2002, "when I told him that his proposal simply lacked any specifics for us to really make an evaluation on." Landlord's counsel added his opinion that tenant's counsel "had no authority to speak for the

D.C. government,"and thus could not assure that the apartment would be cleaned or, if so, how long it would stay that way. Earlier in the proceeding, landlord's counsel had stated his bottom-line position, communicated to tenant's counsel on June 14, three days before trial: "We are willing to allow Ms. Douglas to stay in the unit through the end of August, the beginning of September, but the landlord would definitely request possession of the unit after a period of time" - whether the apartment was clean or not.

The court was troubled that no one at the hearing had asked the tenant's experts, who were in a position to know, exactly "what the possibilities [were] for Adult Protective Services to do cleaning of this apartment." Whereupon counsel for the tenant proffered that the District government had a fund for paying contractors to clean apartments for the disabled, and that his expert was in a position to use this fund to help the tenant. Counsel made clear, however - and the court appeared willing to accept - that the District government would not incur the cleaning expense without assurance that the tenant could remain in her apartment as long as it stayed clean; the District would not restore the apartment merely for the landlord's benefit. Accordingly, it was clear to everyone that the tenant was seeking, as a "reasonable accommodation," a stay of eviction for a period long enough for the District government to clean the premises and thus cure the tenant's breach of the lease. Significantly, moreover, counsel for the tenant was unequivocal in conceding that if the requested delay, coupled with government intervention, "didn't work out" -meaning that if the apartment became filthy again either because the tenant (after counseling) failed to change her ways, or because the government failed to continue its cleaning services on the tenant's behalf - the landlord would have an acknowledged remedy, eviction. According to counsel, a reasonable accommodation, once given, need not be repeated if the tenant or her government protector failed to comply with its terms. In short, the tenant was asking for one brief extension of the "cure" period under the lease, and no more, based on a proffered mental illness that allegedly had caused her to foul the premises unremittingly.

The trial court, after hearing evidence and argument, saw the point clearly and questioned the landlord's bottom-line position:

[T]his case almost sounds to me like it's resolvable if the government could make assurances that would satisfy the plaintiff. I mean, I don't want to put the plaintiffs in an awkward position. . . . [T]hey have their right to a trial and they have waited now for several months until today's trial date as well. And I don't want to speak for them; but it sounds like they feel sorry for the defendant, too, and if they could just - if they could be assured that this place was going to be clean and not posing a danger to other tenants that they might be willing to let this go, or at least to see what happens. . . .

[I]f the place really got cleaned up, and there was some assurance - some reasonable assurance that it was going to be maintained - these people [i.e, the landlord's representatives] don't have any - they're not out for blood. I mean, I don't think - I don't know, the client [representative of the landlord] is nodding with me as if she agrees.

I don't have the sense that [the client representative of the landlord is] anxious to see this poor woman out on the street homeless. Everybody knows that if she gets evicted in this case, it's not going to be very easy for her to get another apartment through the Section 8 Program or otherwise.

. . . I'm just trying to figure out whether there is a way to resolve this case without the need to - without the need to move someone who might not have to be moved in order to satisfy both parties.

And there have been these statements made that the Adult Protective Services can provide the services that the landlord presumably would think were necessary, but won't, because the case is pending. But I mean, if that's the only impediment to Adult Protective Services going in there and doing the cleaning, both initially and on an ongoing basis, presumably they could [be] disabused of the erroneous view that they shouldn't act while the case is pending. I mean, why not?

[I]f counsel for the landlord said, look, yes, the case would still be pending, we would agree to such stay for some period of time just to see how things go, but I want to tell you if the place is brought up to an acceptable condition and if you keep it there, you know, we're okay with that, why would [the District government] have a problem with that? (Emphasis added.)

. . . I can understand why, hypothetically, [District government representatives] don't want to send three people in there for two days and clean it up and then have the defendant evicted the next week. But if they have every reason to believe that their work would not be for naught, I would hope that they're not so tied up in bureaucratic concerns that that would make it impossible.

. . . I guess in some respects we would have to speculate as to whether [the tenant] would allow these folks in to clean her apartment.

To the court's final observation the tenant's counsel replied: "[I]t might take a little bit of effort, it might not take one day, it might take a whole week or two weeks or something like that."

The trial court adjourned the hearing after announcing that it would rule the next morning on the tenant's proffered defense "if we are going to trial." There was no settlement, however. The following day, the court ruled by oral opinion that the tenant could not present a "reasonable accommodation" defense. The jury then heard an essentially defenseless case and found for the landlord (the tenant subsequently was evicted). The tenant appeals from the trial court's ruling that barred her discrimination defense and from the court's order upon the jury verdict that resulted in her eviction. *fn2

II.

The trial court rejected the tenant's disability discrimination defense "for several reasons," each of which the court found "independently sufficient" for its ruling. First, said the court, the tenant's "request for an accommodation" - which was "extremely vague" -came too late, several months after the landlord had served the thirty-day notice to cure or quit and filed the lawsuit. The court acknowledged that it had "equitable authority" to grant relief when a lease violation had not been eliminated during the thirty-day "cure period." But it would not exercise that authority here because of the tenant's "apparent refusal to allow people to come into the apartment to do any cleaning" and her resulting failure to cure the lease violation even before trial.

Second, the court opined, the premises were "a direct threat for the health and safety of others who live in the building." Thus, "almost" as a matter of law under the Fair Housing Act "no accommodation would be reasonable."

Third, for lack of qualified "expert testimony," the court found the tenant's evidence insufficient to demonstrate that she "had a mental disability," and that this disability "caused her not to maintain her apartment in a clean and sanitary condition." The trial court conceded that testimony from "a psychiatrist or a clinical psychologist" was not necessary; a qualified "social worker or mental health specialist" could suffice. But in the court's judgment, although each of the tenant's two witnesses was a mental health professional with the D.C. government, neither was qualified by "education or experience" to "render an opinion" on either the disability or the causation issue.

III.

A.

Before addressing the trial court's analysis, we believe it will be useful to outline the regulatory scheme that governs this case. First, the Federal Housing Act, as amended in 1988, prohibits a landlord from discriminating (among others) against a tenant of a dwelling because of the tenant's "handicap." A "handicap" is defined to include a "mental *fn3 impairment" and even applies to someone who is merely "regarded as having such an impairment," whether impaired or not. "Discrimination" includes not only specified acts *fn4 by a landlord that overtly deny equal treatment, but also a landlord's "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." In sum, actions based on a landlord's perception of mental *fn5 impairment, not only on the reality of it, can give rise to actionable discrimination; and discrimination can be found even in a landlord's failure to offer a tenant assistance, not merely in affirmative acts of rejection.

The District of Columbia Human Rights Act employs virtually the same language as that found in the federal Fair Housing Act, substituting the word "disability" for "handicap" while incorporating verbatim the federal wording for discrimination based on "a refusal to make reasonable accommodations" for the disabled. The Human Rights Act and related *fn6 regulations also specify prohibited acts for which a discrimination complaint may be filed with the D.C. Office of Human Rights. However, neither the Act nor the regulations supply *fn7 criteria or procedure for determining whether a tenant has sought, and the landlord failed to make, a "reasonable accommodation." Such a procedure is found, nonetheless, in regulations adopted pursuant to a Stipulated Agreement of September 30, 1997 between the District of Columbia and the United States Department of Justice and administered by the District's Department of Consumer and Regulatory Affairs (DCRA). Under these DCRA regulations, *fn8 when a tenant requests a "reasonable accommodation" (not further clarified), DCRA may grant, grant with "specified conditions," or deny the request. The DCRA Director is given forty-five days (subject to exceptions not relevant here) in which to make a "final decision" in writing, failing which "the request shall be deemed granted" as a "final decision of the District of Columbia government." *fn9

The landlord argues that these D.C. Regulations pertain only to "D.C. Government" housing, not to "private landlords." The issue thus raised is a difficult one. Some of the language of the regulations themselves arguably applies only to public housing, and indeed the federal government, by insisting that the District adopt suitable regulations, would seem to have primary interest in accommodations in federally-subsidized housing. On the other hand, the federal Fair Housing Act's "reasonable accommodation" requirement applies to private as well as public housing, and DCRA could well serve as a facilitator of reasonable accommodations by brokering a dialogue between tenant and landlord to that end. As elaborated below, however, a resolution of this issue is not necessary to decision, and thus we leave the answer to another day.

Finally, both the federal Fair Housing Act and the D.C. Human Rights Act also contain an important limitation. Neither "requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." *fn10

Although the D.C. Human Rights Act virtually tracks the federal Fair Housing Act insofar as the "reasonable accommodation" requirement is concerned, the tenant has proceeded on appeal exclusively under the federal statute, perhaps because the available legal authority is federal case law. We note, however, the virtual congruence of the local and federal statutes in the respect at issue.

B.

We turn, then, to the trial court's first ruling: that the discrimination defense is barred because the tenant's "extremely vague" request for a reasonable accommodation - presented months after the landlord had served the notice to cure or quit and filed suit - came too late. The trial court is wrong here. In the first place, the tenant's requested accommodation - a brief stay of eviction to permit the District government to clean the apartment, as it had reportedly agreed to do, was not "extremely vague." The landlord's representative testified that he understood what was wanted, and the trial court's comments at the end of the hearing before trial revealed that the court was clear about it as well. Furthermore, counsel for the tenant had requested a "reasonable accommodation" by letter of February 20, 2002, which the landlord's counsel declined to answer. At some point thereafter the landlord's counsel learned, more specifically, what accommodation the tenant was seeking: a brief stay of eviction. But landlord's counsel acknowledged at the hearing that his client had been unwilling to engage in discussions with the tenant's representative until early June 2002 -discussions which at any time after February 20 presumably could have brought whatever additional precision to the request was necessary for the landlord to evaluate the tenant's position. Under all the circumstances, therefore, we can perceive no vagueness, let alone vagueness attributable to the tenant, and the trial court clearly erred in finding otherwise.

Next, as to the timing issue itself, under the Fair Housing Act unlawful discrimination occurs whenever "a dwelling is 'denied' to a renter because of that renter's handicap." *fn11 Under federal case law interpreting that provision, a denial is deemed to occur during the entire period before a tenant is "actually evicted," not merely during the shorter cure period specified in the notice to cure or quit. A "reasonable accommodation" defense, therefore, *fn12 is available at trial, before a judgment of possession has been entered, if the other requirements of the defense are met.

To support its ruling that the tenant's request for accommodation had come too late, the trial court relied on our Grubb decision for equitable authority to deny the tenant relief. *fn13 Grubb, however, was a local law decision addressing a notice to cure or quit unaffected by a Fair Housing Act defense. It has no application to the timing issue under federal law. Furthermore, Grubb itself noted that a "relevant factor in determining whether forfeiture [of a lease] should be ordered is the presence or absence of 'fair dealing' by the landlord." *fn14 That landlord factor was not considered when the trial court relied on Grubb to deny the tenant's discrimination defense on grounds of timing. More specifically, the trial court ignored the fact that between February 20 and early June 2002 - a period longer than three months - the landlord's counsel refused to respond to the tenant's counsel. (Accordingly, our colleague's complaint, post at 41, that the tenant's apartment remained filthy "for a protracted period and after a suit for possession had been instituted" cannot be deemed the fault of a tenant whose counsel was trying, proactively, to take curative steps that the landlord was ignoring.) Absent a vagueness or a timing issue, therefore, the question remains: was the tenant entitled on the facts of record to defend on the landlord's refusal to make a "reasonable accommodation"?

C.

The court said "no" for a second reason: that this case came within the statutory exception that cancels a landlord's obligation to offer a reasonable accommodation when the tenancy constitutes "a direct threat to the health or safety of other individuals." Contrary *fn15 to the trial court's understanding, however, federal courts construing the Fair Housing Act have held - and we agree - that this exception does not come into play until after an effort for accommodation has been made and the court has determined, through a probing factual inquiry, that no reasonable accommodation could ameliorate the situation sufficiently to protect the health, safety, and property of others. As one court has succinctly put it, *fn16 "accommodation of an individual's handicap must be attempted before denial of the benefits of federal legislation." Here, however, the landlord never attempted an accommodation, *fn17 and yet the trial court held - "almost" as a matter of law - that the requested accommodation, even if attempted, could not save the situation for the tenant and others in the building. With all respect, we believe that in denying the very possibility of an effective accommodation, the trial court ruled prematurely that the "health and safety" exception barred the tenant's defense.

We would agree that, unless the requested accommodation gave adequate assurance that the apartment would be cleaned up promptly - and offered a reasonable prospect for its staying clean - the health and safety exception would likely justify the tenant's eviction. In this case, however, the trial court did not give "accommodation" the required try - a curious decision in light of the court's own clear recognition, at the end of the hearing before trial, that the government's willingness to keep the premises clean would be a complete answer to the landlord's concerns. So what turned the trial court around?

The court was influenced by its perception of the tenant's "apparent" refusal to allow others to help with the cleaning - a perception influenced, perhaps, by the fact that the tenant had been eluding counsel and had not shown up for trial. As a result of this perception, in *fn18 applying the "health and safety" exception, the court concluded "almost" as a matter of law that accommodation would not work. The court's hedging language - not raised to the level of a concrete finding of fact - theoretically left room for further inquiry into accommodation, especially because (as we shall see below) the tenant was a subject of ongoing Adult Protective Services (APS) intervention, in addition to being the client of an attentive lawyer. Furthermore, the court itself acknowledged that "we would have to speculate as to whether [the tenant] would allow these folks in to clean her apartment" (emphasis added) - hardly a finding that she would not do so. Finally, after the pretrial hearing, the court never questioned counsel's proffer that the District government would clean the apartment if the court granted the requested stay. And yet the court did not go further. In its ruling, the court concluded to a virtual certainty that no reasonable accommodation was realistically available. In doing so, the court did not understand how thoroughly a tenant's request for accommodation must be explored - first by the landlord, then by the court - before a forfeiture order is lawful.

Once a tenant requests a "reasonable accommodation" for a handicap, such as mental impairment, federal law obliges the landlord to "open a dialogue" with the tenant, eliciting more information as needed, to determine whether the requested accommodation is feasible and offers a reasonable possibility of curing the lease violation. In this case, for example, *fn19 the tenant sought a brief stay of eviction to allow an agency of the D.C. government, APS, to clean the premises. According to the tenant's proffer, APS had agreed to do so if (but only if) the eviction was put off and the cleaning assuredly would benefit the tenant, not just the landlord. Presumably, too, the stay was to have remained in effect as long as the tenant was keeping the premises clean, either because counseling channeled her behavior toward a reasonably sanitary pattern of housekeeping or, more likely in this case, because the District government continued to clean for her as it was accustomed to doing for the disabled. If these efforts were successful, the law would allow the tenant to stay in her apartment. But if the efforts failed - as tenant's counsel himself conceded - the tenant could not forestall eviction any longer, given the statutory "health and safety" exception under discussion.

Here, then, is the point: until a landlord makes a good faith, reasonable effort at accommodation, upon request, after learning of a tenant's mental impairment, the landlord's continued pursuit of a pending action for possession is a discriminatory act under the Fair Housing Act and the D.C. regulations that implement it. In this case, however, despite the trial court's own common-sense observation that the landlord would be completely protected if it agreed to a brief stay (extending the "cure" period) while the District government cleaned the premises, the court never connected that observation with its analysis of the Fair Housing Act. That is, the court never perceived the full meaning of the "reasonable accommodation" requirement. It failed to recognize that, before the "health and safety" exception could be invoked, the landlord had a legal duty to "open a dialogue" with counsel for a mentally impaired tenant, not merely a practical responsibility to pursue a settlement for the parties' mutual benefit. Accordingly, as a consequence of its incorrect belief that the "health and safety" exception could be invoked without concrete findings on the "dialogue" issue, or even on the "tenant cooperation" issue - findings which the trial court never made - the court's reliance on that exception to justify the eviction was premature and thus a clear error of law.

Our dissenting colleague rejoins by saying that the "reasonable accommodation" defense, as formulated by the tenant, is unavailable as a matter of law because it does not fit the traditional understanding of "accommodation." Several federal courts, he notes, have said: "'Reasonable accommodation' means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual." The Fair *fn20 Housing Act itself, however, defines discrimination more broadly as "a refusal to make reasonable accommodations" not only in "rules" but also in "policies, practices, or services," language broad enough to embrace an extraordinary variety of landlord actions *fn21 that surely covers a brief extension of the "cure or quit" period at issue here. Such extension after a tenant violates a lease covenant may not be the kind of accommodation requested -and required - for most handicaps. But the Fair Housing Act requires reasonable accommodation of "mental illness," which, unlike many handicaps, inherently reflects varied, unusual behaviors that will require unique responses - limited, of course, to reasonable ones -- if the statutory purpose of "accommodation" is to be effectuated. Here, in any event, the tenant asks for waiver of a "generally applicable" rule/policy/practice, namely "relaxation or bending"of the rigid "cure or quit" timetable in a standard apartment lease, in order to make the cure period (in our dissenting colleague's words) "less onerous for the person claiming to be handicapped." In our view, this request by the tenant meets the statutory test *fn22 for "reasonable accommodation."

It is interesting to note, moreover, that the tenant's requested accommodation would be considerably less burdensome on the landlord and the other tenants than the typical accommodation recognized in the case law - for example, allowance of pets and priority parking, contrary to the landlord's standard lease/rule/policy. Here, the tenant seeks only a brief stay of eviction, not the typically requested "relaxation or bending" of a rule for the entire term of the tenant's lease. Contrary to the scene our colleague paints, the tenant seeks only time to clean the apartment - to cure the lease violation - not the right to keep the apartment filthy to the detriment of others.

D.

We turn, finally to the merits of the tenant's discrimination defense. Everyone agrees that, in cases such as this where there is no direct evidence of discrimination, the court must employ the burden-shifting approach outlined in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (interpreting Title VII of the Civil Rights Act of 1964). Under this *fn23 approach, as adapted to the reasonable accommodation issue under the Fair Housing Act, the tenant must first establish a prima facie case of discrimination by demonstrating that (1) she suffered from a "handicap" (or "disability"), (2) the landlord knew or should have known of the disability, (3) an accommodation of the disability was necessary to permit the tenant's use and enjoyment of her apartment, and (4) the landlord refused to grant a reasonable accommodation. Once a prima facie case is established, the burden shifts to the landlord *fn24 to "articulate some legitimate, nondiscriminatory reason" for seeking eviction. If the *fn25 landlord makes that showing, the burden then shifts back to the tenant to demonstrate that the landlord's reason was a pretext for discrimination. At all times, however, the ultimate *fn26 burden of persuasion as to discrimination remains with the tenant. *fn27

We recall first - although the trial court did not address the point - that in response to D. C. regulations, the tenant filed a request for a "reasonable accommodation" with DCRA. Counsel's letter stated that the tenant needed an accommodation for a "disability (mental)," specifically a "mood disorder," affecting her ability to keep her apartment "safe and sanitary," and that the "District of Columbia Government [was] prepared to assist her with cleaning the apartment." DCRA failed to respond within forty-five days and thus, argues the tenant, should be deemed to have granted the request on behalf of the District of Columbia government. Assuming, solely for the sake of argument, that these D.C. *fn28 regulations apply here, and that the tenant's request was sufficiently detailed to trigger DCRA's obligation to respond, we need not consider the implications of DCRA's failure to do so. No one questions the propriety of resolving the matter in Superior Court without participation by DCRA. Furthermore, no one disputes that the tenant has, as much as possible, exhausted any applicable administrative remedy. Finally, as we shall explain below, the tenant prevails on the merits without need to rely on DCRA. Accordingly, we need not resolve the DCRA issue - including the applicability of the cited regulations - that the tenant posits.

Now to the facts. Contrary to the trial court, we conclude that the tenant established a prima facie case satisfying the four McDonnell-Douglas criteria. As to the first of these - a required showing that the tenant suffered from a "handicap" (or "disability") - the court concluded that the quality of the testimony establishing the tenant's mental impairment and its effect on the maintenance of her apartment was deficient, because the witnesses were not sufficiently expert to opine on the subject. Eschewing the need for a psychiatrist or psychologist, the trial court observed that a "social worker or mental health specialist" could supply the requisite expert testimony. In acknowledging that possibility, moreover, the court was aware that the tenant's witnesses, James Sutton and Damon Byrd, were employed full time as mental health professionals by the District of Columbia government. Sutton, who had a masters degree in "mental health," had been a supervisor with the District's Emergency Psychiatric Response Division for sixteen years, with personal experience making psychiatric assessments and ordering involuntary civil commitments. Byrd had been a social worker with the District's Adult Protective Services Unit for three years, with experience investigating abused, neglected, self-neglected, and disabled adults. Both had daily, on-the-job experience with diagnosing persons as mentally ill, and each had had multiple encounters with the tenant, whom Byrd had visited sixteen times. In court, Sutton and Byrd each testified that, in his opinion, the tenant was mentally ill, and that this illness, exacerbated by heavy dependence on alcohol, substantially limited her ability to care for her apartment. *fn29 The trial court refused, nonetheless, to grant any credence to these appraisals. We believe that the court's ruling, on this particular record, was "manifestly erroneous." *fn30

It is not entirely clear whether the court was saying that individuals with Sutton's and Byrd's training and experience were not qualified to opine on "mental impairment" under the Fair Housing Act, or was saying merely that the two witnesses, while perhaps generally qualified for this purpose, did not impress the court enough to justify crediting their testimony in this particular case. A careful reading of the trial court opinion, however, conveys the strong impression that the court was saying the former, because it persisted in noting that these witnesses were unqualified to offer opinions as to the tenant's particular "diagnosis," including analysis of specific symptoms of the "mood disorder" ascribed to the tenant in the report of a St. Elizabeth's Hospital psychiatrist who had assessed her.

In our opinion, the court's requirement of expert testimony to explain a particular diagnosis of mental illness sets the bar too high for establishing the existence of "mental impairment" under the Fair Housing Act. "Mental impairment" is a generic term that incorporates multiple diagnoses and, on occasion, is susceptible to identification by lay individuals even less trained and experienced than Sutton and Byrd. Indeed, persuasive case law firmly establishes that lay persons - while not competent to offer specific diagnoses -can be qualified to testify generally as to whether a person is suffering from mental illness. *fn31 No more than that - no specific diagnosis - is required for a finding of mental impairment under the Fair Housing Act. *fn32

Nor, in this particular case, is much expertise required to show that the tenant's mental impairment, combined with alcohol abuse, was a contributing cause of the unsanitary condition of her apartment. We agree with the trial court that, in general, "[t]here are plenty of people who have mental disabilities who can keep their apartments clean," and that "there are plenty of people who don't have mental disabilities who don't keep their apartments clean." But, on this record, it is not readily apparent what explanation there might be - other than mental illness and alcohol abuse - for the tenant's filthy apartment.

It is important to note that under the Fair Housing Act, in a provision common to antidiscrimination statutes, a tenant suffers a "handicap," for purposes of establishing a *fn33 prima facie case, if the landlord merely perceives or regards the tenant as having a handicap - whether she has one in fact or not - and then discriminates (including refusal to make a reasonable accommodation) solely on the basis of that unconfirmed perception. Neithamer, 81 F. Supp. 2d at 4-5 (citing Fair Housing Act, 42 U.S.C. § 3602 (h)(3); see supra note 4 and accompanying text). This emphasis on the landlord's perception of mental illness, for example, rather than on the established reality of it, is further (albeit indirect) evidence of a legislative policy that proof of a diagnosed subset of mental illness is not required before a landlord can be found to have discriminated on the basis of such handicap. In this case, counsel for the tenant proffered expert testimony that his client was mentally ill, rather than simply relying on the landlord's mere perception of the tenant's illness (e.g, through Ms. Reid's referral of the tenant to St. Elizabeths Hospital) to satisfy the first requirement of a prima facie case. This reliance on the evidence that Messrs. Sutton's and Byrd's observations could provide, therefore, should not be seen as diminishing, rather than establishing, the tenant's claimed impairment.

The tenant's expert mental health specialist, James Sutton, testified that the Department of Mental Health's Comprehensive Psychiatric Emergency Services (CPES) had wanted to "bring [the tenant] in involuntarily" for civil commitment but did not have sufficient proof "that she was in imminent danger to herself or others." Sutton noted that the tenant "didn't see anything wrong"with her apartment, insisted that "she didn't have a mental health problem," and "was waiting for money to be coming from the Navy." In Sutton's opinion the tenant "was suffering from some paranoia and some delusions." He added that he had referred her to a CPES psychiatrist, who had reported that she "was alcohol dependen[t] and that she suffered from mood disorder, NOS." Sutton described his understanding of a mood disorder but could not explain the term "NOS" (not otherwise specified). In light of all the foregoing, Sutton had tried to impress on the tenant the urgency of cleaning her apartment, and had told her that in any event "she would have to appear in court." To which she had replied: "Jesus is going to take care of it." Sutton was convinced, accordingly, that there was "a relationship between" the tenant's "mental illness" and "alcohol" abuse and the "deplorable" state of her apartment.

The tenant's other expert, Damon Byrd, the social worker with Adult Protective Services, described the tenant's appearance on one occasion as "half naked" and "completely exposed," with "heavy makeup" that was "caked up and smeared on her face." Byrd added that the tenant "was in delusional or paranoia behavior" while claiming that "she was in the Navy" and "waiting to receive her money." He testified that her "insight and judgment" were "poor," and that "[s]he did not completely understand the hazards of the apartment situation." In answer to a direct question from the court, Byrd replied, "Do I think she has a mental illness, yes," adverting to his observations of her "erratic behaviors on numerous occasions" and a diagnosis of her "mood disorder" by Dr. Henerian of the Comprehensive Psychiatric Emergency team. The court then asked Byrd: "Is a failure to maintain an apartment or other living space in a clean and sanitary way . . . a typical symptom of mood disorder or is it just an example of a failure or inability to exercise good judgment"? Byrd replied:

Actually, the connection lies pretty much, in my opinion, with the alcohol. Half the time she's not sober. So if she spends half her time drinking, she's not able to effectively clean her apartment, notwithstanding the fact that the apartment is rodent and rat infested. That doesn't help the situation. So I would say, a ...


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