                                                                            FILED
                                                                       Mar 30 2020, 9:00 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Craig E. Beougher                                          GREGORY L. WILSON, SR.
Eric C. Welch                                              Curtis T. Hill, Jr.
Welch & Company, LLC                                       Attorney General
Muncie, Indiana
                                                           Natalie F. Weiss
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana
                                                           Doneisha Posey
                                                           Indiana Civil Rights Commission
                                                           Indianapolis, Indiana
                                                           ATTORNEY FOR APPELLEE
                                                           SHELLEY LINDER
                                                           Martin R. Shields
                                                           Attorney at Law
                                                           New Castle, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Douglas Furbee,                                            March 30, 2020
Furbee Properties, LLC,                                    Court of Appeals Case No.
Furbee Properties I, LLC,                                  19A-PL-1756
Appellants-Defendants,                                     Appeal from the
                                                           Delaware Circuit Court
        v.                                                 The Honorable
                                                           Marianne L. Vorhees, Judge
Gregory L. Wilson, Sr. in his                              Trial Court Cause No.
Official Capacity as Executive                             18C01-1805-PL-44




Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                              Page 1 of 16
      Director of the Indiana Civil
      Rights Commission,
      Appellee-Plaintiff

              and

      Shelley Linder,
      Appellee-Intervenor



      Vaidik, Judge.



                                           Case Summary
[1]   This case involves an apartment tenant’s request for an emotional-support

      animal. The tenant lived at an apartment with a no-pet policy. The tenant

      asked the landlord if she could have an emotional-support animal and provided

      a letter from a licensed family and marriage therapist, which said that the tenant

      had a disability and needed an emotional-support animal to help alleviate her

      symptoms. The letter, however, identified no disability or symptoms. The

      landlord requested more information from the tenant, and when the tenant did

      not provide the requested information and instead brought the animal into her

      apartment, the landlord evicted her. The Indiana Civil Rights Commission

      filed a complaint against the landlord, arguing that it failed to accommodate the

      tenant’s request for an emotional-support animal in violation of the Indiana

      Fair Housing Act. The landlord sought summary judgment, arguing that it did

      not have enough information to evaluate the tenant’s request for an

      Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020      Page 2 of 16
      accommodation because the therapist’s letter failed to identify the tenant’s

      disability. The trial court denied summary judgment, and the landlord now

      appeals.


[2]   Before a landlord makes a decision about a tenant’s request for an

      accommodation, it can conduct a “meaningful review” to determine whether

      the accommodation is required; this review includes requesting documentation

      and opening a dialogue. Here, when the landlord asked the tenant for more

      information, the tenant did not respond. By not giving the landlord

      information about her disability and disability-related need for the animal, the

      tenant caused a breakdown in the process. Without this basic information, the

      landlord could not meaningfully review the tenant’s request for an emotional-

      support animal. We therefore reverse the trial court and remand with

      instructions for the court to enter summary judgment in favor of the landlord.



                             Facts and Procedural History
[3]   On October 12, 2016, Shelley Linder (“Tenant”) entered into a rental lease with

      Furbee Properties, LLC (“Landlord”), for an apartment in Muncie.1 According

      to the lease, Tenant agreed “[n]ot [to] allow dogs, cats or other animals or pets

      on the premises.” Appellants’ App. Vol. II p. 27. In addition, the lease




      1
       Furbee Properties I, LLC, and Douglas Furbee are also defendants. For simplicity, we refer to all three
      defendants as “Landlord.”

      Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                              Page 3 of 16
      provided that if a pet was discovered on the leased premises, Landlord could

      charge a $500 fine and evict Tenant. Id. at 33.


[4]   Approximately five months later, on March 28, 2017, Tenant asked Landlord if

      she could have an emotional-support animal. Tenant gave Landlord the

      following letter from Monique Snelson, LMFTA:




      Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020    Page 4 of 16
      Linder’s App. Vol. II p. 27.2

[5]   On April 11, Landlord sent Tenant a letter stating that in order for it to

      determine whether the accommodation would be allowed, it needed

      “additional information,” as Tenant’s letter did “not provide all of the details

      necessary to make a reasonable decision.” Appellants’ App. Vol. II p. 43.

      Landlord asked Tenant for the following information:

               [P]lease specify the number of sessions you had with Monique
               Snelson and an approximation of how long each session lasted.
               We will also need to know your disability. Without providing
               any specific details regarding your disability, please advise us of
               the disability so that we can make an informed decision.


      Id. Landlord also enclosed a letter it planned to send to Snelson once Tenant

      gave her consent. The letter asked Snelson to provide the following

      information:

               1. The nature of the mental or physical impairment that is
               disabling, including a reference to the DSM 5 description of the




      2
        Landlord suggests that Snelson’s letter is “consistent with bogus prescription letters that are readily
      available on the internet.” Appellants’ Br. p. 19. Our legislature addressed this concern when it enacted
      Indiana Code chapter 22-9-7 effective July 1, 2018 (after the events in this case). Specifically, Indiana Code
      section 22-9-7-12 provides that it is a Class A infraction for a health-service provider to “verif[y] an
      individual's disability status and need for an emotional support animal without adequate professional
      knowledge of the individual’s condition to provide a reliable verification” or “charge[] a fee for providing a
      written verification for an individual’s disability status and need for an emotional support animal” without
      providing another service to the individual.



      Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                                 Page 5 of 16
              condition and a statement of what major life activity this
              disability interferes with.


              2. Was a physical examination conducted of your patient?


              3. Did you interview the patient in person?


              4. How many sessions did you have with the patient and
              approximately how long was each session?


              5. A statement from you indicating that you conducted an
              examination of the patient appropriate for the diagnosis of the
              mental impairment in question under the professional guidelines
              applicable to a Licensed Clinical Social Worker and as described
              in the DSM 5.


              6. Please provide a photocopy of your license.


      Id. at 44. Landlord asked Tenant to “sign the consent on the bottom of the

      page” so it could speak to Snelson. Id. Tenant neither provided the additional

      information to Landlord nor signed the consent so that Landlord could talk to

      Snelson. As a result, Landlord took no action on Tenant’s request for an

      emotional-support animal.

[6]   In August 2017, Tenant brought the cat into her apartment. On August 4,

      Landlord charged Tenant a fine for having the cat in her apartment and told her

      she had seven days to remove the cat. Tenant did not remove the cat. On

      August 31, Landlord told Tenant that if she didn’t remove the cat within seven

      days, she would face further fines or actions. Tenant kept the cat in her


      Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020      Page 6 of 16
      apartment until December, when she was evicted. Later that month, Tenant

      filed a complaint with the Indiana Civil Rights Commission.

[7]   In July 2018, the Civil Rights Commission, on behalf of Tenant, filed a

      complaint against Landlord in Delaware Circuit Court.3 The complaint alleged

      “discrimination on the basis of disability and handicap in violation of the

      Indiana Fair Housing Act, IC 22-9.5-1-1 et seq.” Id. at 11. Specifically, the

      complaint alleged that Landlord failed to grant Tenant a reasonable

      accommodation. Landlord moved for summary judgment, arguing it did not

      have enough information to evaluate Tenant’s request for an accommodation

      because Snelson’s letter “failed to identify the Tenant’s disability” and “did not

      state what major life activity was impaired.”4 Id. at 59. Following a hearing,

      the trial court denied summary judgment. The court recognized that a landlord

      may meaningfully review a tenant’s request for an accommodation. However,

      the court found that Landlord’s questions (such as how many times Tenant and

      Snelson met, how long the visits were, and whether a physical examination

      occurred) “exceeded the reasonable inquiry to which [it was] entitled.” Id. at

      159.




      3
          Tenant filed a motion to intervene as plaintiff, which the trial court granted.
      4
        The Civil Rights Commission filed a motion in opposition to Landlord’s motion for summary judgment
      and designated several documents, including Tenant’s medical records from Dr. Keith Dinklage, M.D.
      (which reflect that she suffers from anxiety), and records from Snelson. Appellants’ App. Vol. II pp. 79-106.
      However, it is undisputed that these records were not provided to Landlord before the eviction. Accordingly,
      they have no bearing on the issue in this case.

      Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                               Page 7 of 16
[8]    This interlocutory appeal now ensues.5



                                   Discussion and Decision
[9]    Landlord contends that the trial court erred in denying its motion for summary

       judgment. We review motions for summary judgment de novo, applying the

       same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014). That is, “The judgment sought shall be rendered forthwith if the

       designated evidentiary matter shows that there is no genuine issue as to any

       material fact and that the moving party is entitled to a judgment as a matter of

       law.” Ind. Trial Rule 56(C).

[10]   Under the Indiana Fair Housing Act (IFHA), it is unlawful to discriminate

       based on disability. Ind. Code § 22-9.5-5-5. The IFHA borrows heavily from

       the federal Fair Housing Act (FHA), with many parallel provisions and similar

       language. Ind. Civil Rights Comm’n v. Cty. Line Park, Inc., 738 N.E.2d 1044, 1048

       (Ind. 2000). Indeed, the first section of the IFHA declares that its purpose is

       “[t]o provide rights and remedies substantially equivalent to those granted

       under federal law.” Ind. Code § 22-9.5-1-1. When interpreting the FHA,

       federal courts look to policy statements from the United States Department of

       Housing and Urban Development (HUD) and the United States Department of

       Justice (DOJ). See Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d



       5
        Tenant and the Civil Rights Commission have each filed an appellee’s brief. For simplicity, we refer to the
       appellees’ arguments as Tenant’s argument.

       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                               Page 8 of 16
       1277, 1286 n.3 (11th Cir. 2014). Consequently, we look to federal statutes,

       federal cases, and policy statements in resolving the issue in this case.

[11]   Under federal law, to prevail on a failure-to-accommodate claim, a plaintiff

       must establish: (1) the plaintiff is a person with a disability within the meaning

       of the FHA6; (2) the plaintiff requested a reasonable accommodation for the

       disability; (3) the requested accommodation was necessary to afford the plaintiff

       an opportunity to use and enjoy the dwelling; and (4) the defendant refused to

       make the accommodation. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1225-

       26 (11th Cir. 2016); Bhogaita, 765 F.3d at 1285. Under the FHA, disability

       means “a physical or mental impairment which substantially limits one or more

       . . . major life activities.” 42 U.S.C. § 3602(h)(1); 24 C.F.R. § 100.201.

       “Physical or mental impairment” includes any “mental or psychological

       disorder, such as . . . emotional or mental illness.” 24 C.F.R. § 100.201(a)(2).

       “Major life activities” means “functions such as caring for one’s self, performing

       manual tasks, walking, seeing, hearing, speaking, breathing, learning and

       working.” Id. at (b).




       6
         The FHA refers to discrimination based on “handicap” rather than “disability.” See 42 U.S.C. § 3604(f).
       Disability scholars, however, generally prefer the term “disability” to “handicap,” and the Americans with
       Disabilities Act (ADA) reflects that preference. Bhogaita, 765 F.3d at 1285; see also Joint Statement of HUD
       and DOJ, Reasonable Accommodations Under the Fair Housing Act at 1 (May 17, 2004),
       https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf.
       [https://.cc/X67C-T7ES] As other courts have done, we treat the terms interchangeably and elect to use
       “disability.”

       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                               Page 9 of 16
[12]   We begin by pointing out that Landlord doesn’t dispute the first three elements

       of Tenant’s failure-to-accommodate claim. See Appellants’ App. Vol. II p. 61.

       That is, Landlord doesn’t dispute that Tenant is disabled or that the Tenant

       requested a reasonable and necessary accommodation. Indeed, Landlord notes

       it “routinely approve[s]” requests for emotional-support animals. Appellants’

       Br. p. 22. Instead, Landlord argues that it was not given enough information to

       meaningfully review Tenant’s request for an accommodation and therefore

       cannot be found to have refused her request, which is the fourth element.

[13]   As both parties acknowledge on appeal, the FHA does not demand that

       housing providers immediately grant all requests for accommodation. Bhogaita,

       765 F.3d at 1285-86. Once a housing provider knows of a person’s request for

       an accommodation, the provider can make a final decision, “which necessarily

       includes the ability to conduct a meaningful review” to determine whether the

       FHA requires the requested accommodation. Id. at 1286 (quotation omitted).

       This review includes “request[ing] documentation or open[ing] a dialogue.” Id.

       at 1287; Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996).

       Generally, housing providers “need only the information necessary to apprise

       them of the disability and the desire and possible need for an accommodation.”

       Bhogaita, 765 F.3d at 1287. “In most cases, an individual’s medical records or

       detailed information about the nature of a person’s disability is not necessary

       for this inquiry.” Joint Statement of HUD and DOJ, Reasonable Accommodations

       Under the Fair Housing Act at 14 (May 17, 2004),

       https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_stat

       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020       Page 10 of 16
       ement_ra.pdf. [https://.cc/X67C-T7ES] Certain impairments, including

       impairments that support a request for an emotional-support animal, may not

       be observable. HUD Notice, Assessing a Person’s Request to Have an Animal as a

       Reasonable Accommodation Under the Fair Housing Act at 9 (Jan. 28, 2020),

       https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-

       2020.pdf. [https://perma.cc/QE5C-767U] In these cases, the housing provider

       may request information regarding “both the disability and the disability-related

       need for the animal.” Id. However, “[h]ousing providers are not entitled to

       know an individual’s diagnosis.”7 Id.


[14]   Failing to make a timely determination after meaningful review amounts to a

       constructive denial of the requested accommodation, as an indeterminate delay

       has the same effect as an outright denial. Bhogaita, 765 F.3d at 1286. In

       assessing whether a constructive denial has occurred, “courts often consider

       whether the delay was caused by the defendant’s unreasonableness,

       unwillingness to grant the requested accommodation, or bad faith, as opposed

       to mere bureaucratic incompetence or other comparatively benign reasons.”

       Bone v. Village Club, Inc., 223 F. Supp. 3d 1203, 1214 (M.D. Fla. 2016). As the

       Seventh Circuit has explained in the ADA context:

               [N]either party should be able to cause a breakdown in the
               process for the purpose of either avoiding or inflicting liability.



       7
        We acknowledge that saying a landlord is entitled to know a tenant’s disability but not diagnosis might
       cause some confusion. However, because Snelson’s letter does not provide a diagnosis or disability and the
       parties don’t make any argument about the difference, we need not address this issue.

       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020                            Page 11 of 16
               Rather, courts should look for signs of failure to participate in
               good faith or failure by one of the parties to make reasonable
               efforts to help the other party determine what specific
               accommodations are necessary. A party that obstructs or delays
               the interactive process is not acting in good faith. A party that
               fails to communicate, by way of initiation or response, may also
               be acting in bad faith. In essence, courts should attempt to
               isolate the cause of the breakdown and then assign
               responsibility.


       Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).


[15]   Here, the designated evidence shows that Snelson’s letter—the only

       documentation that Tenant gave Landlord to support her request for an

       emotional-support animal—provides that Tenant “meets the definition of

       disability”; however, it identifies no disability. Snelson’s letter also provides

       that Tenant “has certain limitations regarding coping with symptoms that stem

       from her disability.” Again, the letter identifies no limitations or symptoms of

       the “disability.” Landlord, at the very least, was entitled to know Tenant’s

       disability and disability-related need for the animal. See, e.g., Bhogaita, 765 F.3d

       at 1287; HUD Notice, Assessing a Person’s Request to Have an Animal as a

       Reasonable Accommodation Under the Fair Housing Act at 9. Accordingly,

       Landlord was justified in trying to open a dialogue with Tenant and requesting

       more information from her.


[16]   Tenant, however, claims that she didn’t respond because Landlord’s requests

       “went far beyond what it was permitted to ask.” Civil Rights Comm’n Br. p.

       16; see also Linder’s Br. p. 11 (“[T]he Landlord’s request for medical

       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020          Page 12 of 16
       documentation regarding the Tenant’s mental health exceeded the legally

       permissible boundaries.”). In other words, Tenant asserts that Landlord was

       being unreasonable, causing a breakdown in the process. In making this

       argument, Tenant claims that the facts in this case are “strikingly similar” to the

       facts in Bhogaita. Civil Rights Comm’n Br. p. 17.


[17]   In Bhogaita, the homeowner brought into his condo a dog that exceeded the

       condominium association’s weight limit for pets. When the condominium

       association demanded that the homeowner remove the dog in May 2010, the

       homeowner responded by giving the condominium association three letters

       from his psychiatrist, which stated that he was treating the homeowner for

       “[a]nxiety related to military trauma,” his condition “limit[ed] his ability to

       work directly with other people, a major life activity,” and his dog alleviated his

       symptoms. Bhogaita, 765 F.3d at 1282. In August, the condominium

       association sent the homeowner a request for more information, and the

       homeowner did not respond. In November, the condominium association sent

       the homeowner another request and said that if the homeowner did not respond

       by December 6, it would demand that he remove the dog from his condo.

       Thereafter, the homeowner filed a complaint with HUD and sued in federal

       court. The district court granted partial summary judgment to the homeowner,

       finding that the psychiatrist’s three letters supplied “sufficient information” and

       that the condominium association’s delay, as “evidenced by escalating requests

       for information, amounted to a constructive denial” of the homeowner’s

       request for an accommodation. Id. at 1283.


       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020       Page 13 of 16
[18]   The condominium association appealed the district court’s grant of partial

       summary judgment to the homeowner on the refusal-to-accommodate element.

       The Eleventh Circuit explained that the condominium association’s “critical

       inquiries” were whether the homeowner’s PTSD amounted to a qualifying

       disability and whether the dog alleviated the effects of the disorder. Id. at 1287.

       The court said that the psychiatrist’s letters, which were provided to the

       condominium association before it requested additional information, contained

       all the information it needed to make a determination. Id. at 1286. That is, the

       letters “described the nature and cause of [the homeowner’s] PTSD diagnosis,

       stated that [the homeowner] was substantially impaired in the major life activity

       of working, and explained that the dog alleviated [the homeowner’s]

       symptoms.” Id. at 1286-87. Accordingly, the court concluded that the

       condominium association’s request for additional information “exceeded that

       essential for [its] critical inquiries” and affirmed the district court’s grant of

       partial summary judgment to the homeowner. Id. at 1287.


[19]   This case easily differs from Bhogaita. In Bhogaita, the condominium

       association knew the homeowner’s disability and disability-related need for the

       animal but nevertheless requested more information from the homeowner.

       Here, however, Landlord did not know Tenant’s disability or disability-related

       need for the animal when it requested additional information. This difference

       between the cases is critical.




       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020           Page 14 of 16
[20]   Nevertheless, Tenant points out that some of the information the condominium

       association requested in Bhogaita is similar to what Landlord requested in this

       case. Specifically, Landlord asked Tenant for three pieces of information:

               [P]lease specify the number of sessions you had with Monique
               Snelson and an approximation of how long each session lasted.
               We will also need to know your disability. Without providing
               any specific details regarding your disability, please advise us of
               the disability so that we can make an informed decision.


       Appellants’ App. Vol. II p. 43. Even assuming that Landlord’s questions about

       the number of sessions Tenant had with Snelson and an approximation of how

       long each session lasted were overbroad, the question about Tenant’s disability

       was not. Tenant could have told Landlord her disability and chosen not to

       answer the other two questions. Tenant, however, did nothing. The

       overbreadth of some of the questions did not absolve Tenant from providing the

       required information. The same can be said about Landlord’s proposed letter to

       Snelson. Again, even assuming that Tenant rightfully did not give consent

       because she believed many, if not all, of the questions to Snelson were

       overbroad, this still did not absolve Tenant from providing the required

       information. Neither party should be able to cause a breakdown in the process

       for the purpose of either avoiding or inflicting liability. See Beck, 75 F.3d at

       1135. “A party that fails to communicate, by way of initiation or response, may

       be acting in bad faith.” Id. Here, Tenant did not respond at all to Landlord,

       causing a breakdown in the process. Without information about Tenant’s

       disability and disability-related need for the animal, Landlord could not

       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020            Page 15 of 16
       meaningfully review Tenant’s request for an emotional-support animal. We

       therefore reverse the trial court and remand with instructions for the court to

       enter summary judgment in favor of Landlord.


[21]   Reversed and remanded.


       Mathias, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-1756 | March 30, 2020      Page 16 of 16
