United States District Court, W.D. Washington, Seattle
S. Zilly United States District Judge.
MATTER comes before the Court on plaintiff's
counter-motion for summary judgment, docket no. 17. Having
reviewed the motion and all relevant filings, the Court
enters the following Order.
Fair Housing Center of Washington (“Fair
Housing”), alleges that defendants Frederick
Breier-Scheetz and Breier-Scheetz Properties, LLC
(“Breier-Scheetz Properties”) employ a facially
neutral occupancy restriction policy that results in a
disparate, adverse impact on persons based on their familial
status in violation of the Fair Housing Act, the Washington
Law Against Discrimination, and the Seattle Municipal Code.
Mr. Breier-Scheetz is an owner and manager of defendant
Breier-Scheetz Properties, LLC (“Breier-Scheetz
Properties”), which owns and operates the Granada
Apartments (“Granada”) located on Capitol Hill.
Decl. of Frederick Breier-Scheetz, docket no. 39, ¶ 2.
The Granada is a 96-unit apartment building comprised of
fifty-seven 425 square-foot studios, six 560 square-foot
studios, and thirty-three one bedroom apartments.
Id. The policy at issue in this lawsuit is both
undisputed and straightforward: Breier-Scheetz Properties
will only rent studio apartments at the Granada to single
occupants. Answer, docket no. 9, ¶ 4.12.
discovered the occupancy policy after it performed
“fair housing testing” in 2012 and 2013. During
such testing, individuals trained by plaintiff pose as
prospective tenants and typically operate in pairs: one
tester poses as a member of the protected class while the
other represents the control group. Decl. of Christa Lenssen,
docket no. 19, ¶¶ 6-8. In connection with the
Granada, two pairs of testers, one set in November of 2012
and another in October of 2013, confirmed that defendants
were not renting studio apartments at the Granada to more
than one occupant. Complaint, docket no. 1, Ex A, 9-10; Decl.
of Tester 152, docket no. 21, ¶ 4; Decl. of Tester 401,
docket no. 22, ¶ 8; Decl. of Tester 405, docket no. 23,
February of 2014, plaintiff filed a complaint against
defendants with the United States Department of Housing and
Urban Development (“HUD”). Decl. of Jesse Wing,
docket no. 18, Ex. 2, 14-16. Through a work-sharing agreement
with HUD, see Id. at 17-18, the Seattle Office for
Civil Rights investigated the complaint, Complaint, Ex. A at
9-15. The Seattle Office for Civil Rights determined that
there was “reasonable cause to believe” that
defendants' policy violated section 804(a) of the Fair
Housing Act and section 14.08.040(A) of the Seattle Municipal
Code. Complaint, Ex. A at 15. Plaintiff filed the instant
action on June 16, 2016. Complaint, docket no. 1.
Court should grant summary judgment if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is material if
it might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). While “all justifiable inferences”
are to be drawn in favor of the non-moving party,
id. at 255, when the record, taken as a whole, could
not lead a rational trier of fact to find for the non-moving
party, summary judgment is warranted. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citations omitted).
Fair Housing Act-Disparate Impact Discrimination
804(a) of the Fair Housing Act, 42 U.S.C. § 3604(a),
prohibits refusing “to sell or rent after the making of
a bona fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a dwelling
to any person because of race, color, religion, sex,
familial status, or national origin.” 42
U.S.C. § 3604(a) (emphasis added). The Washington Law
Against Discrimination and the Seattle Municipal Code
likewise prohibit any person from refusing to engage in a
real estate transaction based on “families with
children status, ” see RCW 49.60.222(1)(a),
and “parental status, ” see SMC
14.08.020 and 14.08.040(A)(1), respectively. When
interpreting the WLAD in connection with claims of
discrimination in housing, Washington courts look to federal
interpretations of the Fair Housing Act's discrimination
provisions. See Tafoya v. State Human Rights
Com'n, 177 Wn.App. 216, 224 (2013).
establish a prima facie case of discrimination under a theory
of disparate impact, a plaintiff must show (1) the occurrence
of outwardly neutral practices; that (2) result in “a
significantly adverse or disproportionate impact on persons
of a particular type produced by the defendant's facially
neutral acts or practices.” Pfaff v. U.S. Dept. of
Housing and Urban Development, 88 F.3d 739, 745 (9th
Cir. 1996). Once a plaintiff establishes a prima facie case,
a presumption of illegality arises and the burden shifts to
the defendant to articulate a legitimate, non-discriminatory
business reason for the challenged policy. See Fair
Housing Council of Orange County, Inc. v. Ayres, 855
F.Supp. 315, 318 (C.D. Cal. 1994) (citing United States
v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992)).
Defendants concede that plaintiff has established a prima
facie case of disparate impact discrimination through the
statistical evidence presented in in the declaration of
plaintiff's expert Dr. Guest, Supplemental Response,
docket no. 38, 2:7-9, and instead submit that issues of
material fact concerning defendants' alleged legitimate,
non-discriminatory reasons for the numerical occupancy
restriction precludes summary judgment in favor of plaintiff.
liability mandates the removal of policies that create
artificial, arbitrary, or unnecessary barriers for members of
a protected class. See Texas Dept. of Housing and
Community Affairs v. Inclusive Communities Project,
Inc., 135 S.Ct. 2507, 2522 (2015). Accordingly, proof of
a legitimate non-discriminatory business reason sufficient to
rebut a prima facie case of disparate impact discrimination
requires a private defendant to proffer a business necessity
sufficiently compelling to justify the challenged practice
and show that the policy was the least restrictive means to
that end.See FairHousing Congress v.
Weber, 993 F.Supp. 1286, 1292 (C.D. Cal. 1997); see
also Ayres, 993 F.Supp. at 318-19. In evaluating a
defendant's proffered business justification, subjective
judgments are insufficient to rebut a plaintiff's prima
facie case absent objective evidence in support of those
judgments. See Gashi v. Grubb & Ellis Property
Management Services, Inc., 801 F.Supp.2d 12, 16 (D.
Conn. 2011) (noting that courts generally ...