The Cuddle Effect


By: Matthew Dietz

fluffy orange cat named Cuddles
Cuddles, the Persian cat, was worth a million dollars to Izak Teller and his wife, Barbara. Because of Cuddles, they were rejected from the ability to live in a fully renovated unit overlooking the Intercostal in Palm Beach, and bought a less desirable unit that they were required to renovate. The matter settled, and the Tellers received a settlement of $275,000 to vindicate their rights under the Fair Housing Act. This equates to an amount that is worth twice of Cuddles’ weight in gold.

Cuddles was Barbara’s emotional support animal. For over 20 years, Barbara suffered from spinal injury which caused her extreme pain and limited her mobility. This caused her significant pain, depression and anxiety. She found that having Cuddles reduced her anxiety and depression, and lessened her reliance on psychotropic medication. In 2011, Izak Teller was diagnosed with stage three colon cancer, and while recovery from stage three cancer is difficult, with the support of Cuddles, Izak pulled through and was cured.

In 2011, Izak and Barbara wanted to live at the Cove, a luxury apartment in Palm Beach. The apartment was fully renovated and move-in ready, with a cabana. It was the deal of a lifetime and too good to pass up, but it had a no pets rule. Izak and Barbara contracted for the apartment and advised the condominium association, as they had done in previous apartments, that Cuddles was Barbara’s support animal, and permitted under the Fair Housing Act. Cuddles did not leave the apartment, and as demonstrated above, slept for much of the day. He was a house cat.

However, an owner, an attorney from New York, who lived on the same floor said no. She did not want Cuddles, and since she was allergic to cats, if Cuddles was allowed to move in, then she was going to sue. The Cove Condominium Association was in a difficult position – between a cat and a New York lawyer. The condominium sided with their resident under threat of a lawsuit and said no to the Tellers. The Tellers lost the deal and bought a condominium without a cabana in Palm Beach, and spent a considerable sum renovating the condominium. Izak Teller did much of the renovation himself, despite being treated for stage four cancer, but they still were with Cuddles.

While the Cove was in an unenviable position – between a house cat and a New York lawyer— the Fair Housing Act requires a housing provider to make reasonable accommodations in no pet rules when it is necessary to afford the person an equal opportunity to use and enjoy a dwelling. The only defense a housing provider can have is if the accommodation would be a fundamental alteration of the housing provider’s programs or services or if it would be an undue financial or administrative burden. There is no determination of whether the housing provider intentionally discriminated based on the person’s disability.

The neighbor who threatened to sue admitted to exposing herself to cats, cat dander and cat hair when she visits a friend’s apartment and when a friend who owns a cat visits her in her home. The neighbor takes an antihistamine which alleviates her symptoms and she has not had adverse side effects. As such, Cuddles the Cat would not have an undue burden to her or any other resident of the Cove Association. However, even if the neighbor was highly allergic to cats, the Tellers explained that Cuddles is a house cat, and that because each apartment had an individual air condition unit that is separate from the building air conditioning, the cat hair or dander would not affect any other tenant. Further, the cat will be brought to the unit in a closed carry case and will stay in the unit with Mrs. Teller; and any allergist would not be able to testify with reasonable medical certainty that the board member’s allergies could be affected under these circumstances.

On or about February 28, 2012, Plaintiffs filed a complaint with the Palm Beach County Office of Equal Opportunity (“OEO”) and the U.S. Department of Housing and Urban Development (“HUD”) related to this matter. On October 26, 2013, the Palm Beach County Office of Equal Opportunity and HUD issued a finding of Cause against The Cove. Subsequently, the Disability Independence Group, and the law offices of Herb M. Milgrim. P.A. brought an action on behalf of the Tellers in Palm Beach Circuit and obtained a $275,000 settlement through mediation.

In November, Cuddles passed away after her own illness, and he will be fondly remembered by all who knew her.

Fired Because of Cancer


By: Matthew DietzGregorio Reyes

Gregorio Reyes was hired in October 2007, as the Regional Sales Manager for the Caribbean for IDEX in the Fluid and Metering Segment. IDEX is a three billion dollar corporation that specializes in fluid and metering technologies, health and science technologies, dispensing equipment, and fire, safety and other diversified products.

Since he was hired, Gregorio’s role as Regional Manager was to manage the business through distribution for IDEX companies that were represented throughout the Caribbean region.Reyes with two guys

In November 2010, Gregorio was diagnosed with Stage III colon cancer, hospitalized, and underwent surgery. Immediately thereafter, Gregorio reported to his supervisor, Christopher Clarke, what had transpired and that it would be a lengthy recuperation process. Gregorio told Mr. Clark that he required chemotherapy starting in January, with a total of 12 bi-weekly sessions. The process, barring any complications, would take from 6-8 months.

At that time, IDEX appeared to be supportive. Prior to his leaving IDEX in January of 2011, Mr. Clarke advised John Boland, Mr. Clarke’s direct supervisor and Vice President that Gregorio Reyes was the person who was best suited to replace him based on Mr. Reyes’s experience and product knowledge; and Mr. Reyes had cancer. But Mr. Boland did not take Mr. Clarke’s recommendation and hired Raul Aguilar to replace Mr. Clark.

During this time, Gregorio did not stop working, and he loved his job and relationships that he built with his customers. He did not ask for family and medical leave time, and he did not ask for short term disability. During the chemotherapy, Gregorio had to be hospitalized due to complications with blood clots in his left leg. At this time, he advised his new supervisor, Raul Aguilar, that the chemotherapy would be pushed back an additional month and that he would not be able to travel in any form during his chemotherapy.

Gregorio continued to work. Mr. Aguilar spoke to Gregorio and asked him to work even while he was in the midst of chemotherapy treatments, and the exact nature and prognosis of Mr. Reyes was discussed with both Mr. Aguilar and John P. Boland, on several occasions. Gregorio was asked direct questions about his illness and the treatment. On several occasions Raul Aguilar asked about the names of the medications that were being used for his chemotherapy and the type of procedures being used. He also inquired about Gregorio’s blood cell count and the time it would take for a full recovery. Upon being asked again, Gregorio told Raul he should contact his doctor if he needed further clarification, or if he preferred, Gregorio could ask for a letter from her explaining his condition. On April 6, 2011, Gregorio received an email from John Boland asking “I’m curious on your cancer diagnosis – I suspect you have a non-small cell variety and are Stage III” . Gregorio was also asked whether his health would prohibit him from continuing to work in the future. Gregorio continued to work, even during critical stages of his condition, and aspired to grow IDEX even more.

After his regimen of Chemotherapy was completed, Gregorio began traveling again, and made several trips from August 2011 to November 2011.

Without notice or cause, Gregorio was discharged on December 8, 2011. When asked why, Gregorio was advised that it was not due to his performance at all, but instead, due to a restructuring of the region. As one of the top producers, Gregorio was shocked as it did not make sense why his position would be cut. Gregorio made it clear that he was interested in moving to keep his job, as most of his career involved relocating for jobs, and travelling for my job. Gregorio was ignored. Gregorio Reyes came to Matthew Dietz of Disability Independence Group to assist him in enforcing his rights as a person with a disability.

Gregorio Reyes filed a complaint with the EEOC, and the EEOC found cause that he was subject to discrimination. On July 27, 2015, on the day after the 25th Anniversary of the Americans with Disabilities Act, the Equal Employment Opportunities Commission filed suit on behalf of Gregorio Reyes. Robert Weisberg, regional attorney for EEOC’s Miami Office, stated, “A longtime employee who continues to successfully perform his or her job responsibilities should not be fired because he has been diagnosed with a medical condition such as cancer. The ADA prohibits such conduct, and EEOC takes seriously its responsibility to enforce the law.”

11th Circuit Decision in Bhogaita v. Altamonte Heights Condominum



The Trial Team

Ajit Bhogaita, Kane the Dog, Aaron Bates, Esq. and Matt Dietz, Esq.

Nos. 13-12625; 13-13914
D. C. Docket No. 6:11-cv-01637-GAP-DAB
Plaintiff – Appellee,
Defendant – Appellant.

Appeals from the United States District Court for the Middle District of Florida

(August 27, 2014)
Before ED CARNES, Chief Judge, DUBINA, and SILER,* Circuit Judges.
* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit Court of
Appeals sitting by designation.
Case: 13-12625 Date Filed: 08/27/2014 Page: 1 of 25

Case: 13-12625 Date Filed: 08/27/2014 Page: 2 of 25

DUBINA, Circuit Judge:
Appellee Ajit Bhogaita persuaded a jury that Appellant Altamonte Heights Condominium Association,
Inc., (“the Association”) violated the disability provisions of the Federal and Florida Fair
Housing Acts, 42 U.S.C. § 3604(f)(3)(b) (“FHA”) and Fla. Stat. § 760.23(9)(b), respectively, when
it enforced its pet weight policy and demanded Bhogaita remove his emotional support dog from his
condominium. The jury awarded Bhogaita $5,000 in damages, and the district
court awarded Bhogaita more than $100,000 in attorneys’ fees. The Association appealed both the
judgment entered on the jury’s verdict and the award of attorneys’ fees. We consolidated the
appeals and now affirm.
A. Factual History
The Association is a non-profit homeowner’s association for a condominium complex located in
Altamonte Springs, Florida. Bhogaita is a United States Air Force veteran who suffers from
post-traumatic stress disorder (“PTSD”) that developed after a sexual assault he endured during his
military service.
In 2001, Bhogaita bought a condominium unit managed by the Association and subject to its rules.
Among those rules, the Association prohibited occupants from keeping dogs weighing more than
twenty-five pounds. In 2008, Bhogaita acquired a dog, Kane, that exceeded the weight limit. Though
no medical professional prescribed the dog initially, Bhogaita’s psychiatric symptoms improved with Kane’s
presence, so much so that Bhogaita began to rely on the dog to help him manage his condition. He
kept the dog for the next two years.
On May 4, 2010, the Association demanded that Bhogaita remove Kane from his unit, pursuant to the
weight limit. Bhogaita responded by providing the first of three letters from Dr. Shih-Tzung Li,
his treating psychiatrist, explaining that the dog was an emotional support animal. The first
letter, written on May 7, read in relevant part:
Due to mental illness, Mr. Bhogaita has certain limitations regarding social interaction and coping
with stress and anxiety. In order to help alleviate these difficulties, and to enhance his ability
to live independently and to fully use and enjoy the dwelling unit, I am prescribing an emotional
support animal that will assist Mr. Bhogaita in coping with his disability.

(R. 36-6 at 2.)1 In the second letter, sent days later, Dr. Li added specific information about
the dog. He wrote that Bhogaita “has a therapeutic relationship with this specific dog, Kane. As an
emotional support animal, Kane serves to ameliorate otherwise difficult to manage day to day
psychiatric symptoms in Mr. Bhogaita.” (R. 36-6 at 3.)
In July, the Association responded by sending Bhogaita its first request for additional information
regarding his disability and the need for accommodation. Specifically, it asked him:


1. What is the exact nature of your impairment? How does it substantially limit a major life
2. How long have you been receiving treatment for this specific impairment?
3. How many sessions have you had with Dr. Li?
4. What specific training has your dog received?
5. Why does it require a dog over 25 pounds to afford you an equal opportunity to use and enjoy
your dwelling?
(R. 36-7 at 2 (numbering added).)
Bhogaita responded later that month by providing a third letter from Dr. Li, in which the doctor
indicated the nature and cause of the disability for the first time: He was treating Bhogaita for
“Anxiety related to military trauma.” (R. 36-6 at 4.) Dr. Li explained further:
. . . [Bhogaita’s condition] limits his ability to work directly with other people, a major life
activity. Currently he has been hired to perform
technical support work from home. He is able to work with the assistance of his emotional support
animal. Otherwise his social interactions would be so
overwhelming that he would be unable to perform work of any kind.
I am familiar with the therapeutic benefits of assistance animals for people with disabilities such
as that experienced by Mr. Bhogaita. Upon request, I would be happy to answer other questions you
may have concerning my recommendation that Mr. Bhogaita have an emotional
support animal. Should you have additional questions, please do not hesitate
to contact me. (R. 36-6 at 4.)
Shortly thereafter, Bhogaita also sent a response to the Association in which he answered the
Association’s questions in turn. Bhogaita identified his diagnosis and incorporated by reference
Dr. Li’s third letter to explain how his PTSD “affects major life activities.” (R. 35-5 at 17.) He
also claimed an additional disability related to five knee surgeries and two separate knee injuries arising from his military
service and stated that Kane “provides mobility assistance to compensate” for those injuries. (R.
35-5 at 17.)
After receiving Dr. Li’s three letters and learning of Bhogaita’s knee problems, the Association
sent Bhogaita a second request for information on August 17, 2010. The Association’s second letter
stated, in relevant part:
1. Please list each individual disability that you feel your pet is required for in order for you
to offset the effects of those individual disabilities. Originally you claimed one disability, now
you are claiming another disability. Please list all related disabilities.
2. Please provide documentation from a medical professional(s) that clearly
supports that you have any of the disabilities noted above, disabilities that substantially limit a
major life activity, and that you are in need of a trained “support animal” that exceeds the 25
pound weight limit for that disability. Please include contact physician information as well.
(Note: You have already provided documentation regarding your claim related to mental health
issues; however, your psychiatrist has not indicated that you need an oversized pet for this
disability. This should be clarified by him if you want the exception for this particular condition
3. If you add names of any additional medical professional(s) from your original submission only of
Dr. Li, please include how many sessions you have had with those additional physicians similar to
the information you provided regarding your sessions with Dr. Li.
4. Please provide all information related to the professional training your pet has successfully
completed regarding the assistance you claim he/she is required to offer you as a support animal.
This requested information shall include the type of training the pet received specific to the
disability, the dates of training, the location of training, names and contact name of the
trainer(s), and copies of any certificates of successful completion.
(R. 36-8 at 2-3 (numbering added).)

Nearly two and a half months passed, during which time Bhogaita did not respond. On November 3,
2010, the Association sent a third request for information, this time requesting a sworn statement
from Dr. Li to include “specific facts”:
1. “[D]etail[ing] the exact nature of [Bhogaita’s] alleged mental disability”;
2. Listing the treatment he was receiving, including “a list of all medications, the number of
counseling session per week, etc.”;
3. Explaining “how the diagnosis was made”;
4. Listing “the total number of hours and sessions of mental health treatment
. . . received from the psychiatrist”;
5. Disclosing how long Dr. Li had been treating Bhogaita as well as how long Bhogaita had been in
treatment generally;
6. Answering whether Bhogaita’s “condition is permanent or temporary”;
7. Listing treatments “prescribed . . . moving forward”;
8. Describing “how the mental disability substantially limits [Bhogaita’s]
major life activities”; and
9. Explaining why a smaller dog would not sufficiently provide Bhogaita
“an equal opportunity to enjoy his unit.”
(R. 35-5 at 24.) Additionally, the Association sought documentation on “the individualized
training” the dog received, including dates, contact information for the trainer, and copies of any
certifications. (R. 35-5 at 24.) That letter went on to state that Bhogaita was to respond by
December 6, and if he did not, the letter would “serve as the Association’s formal demand for
[Bhogaita] to remove any dogs over 25 lbs from [his] unit no later than December 10, 2010.” (R.
35-5 at 25.) If Bhogaita failed to comply, the Association said it would “be forced to file for
Arbitration.” (R. 35-5 at 25.) It instructed Bhogaita, “PLEASE GOVERN

Rather than responding, Bhogaita filed a complaint with the United States Department of Housing and
Urban Development (“HUD”) and the Florida Commission on Human Relations (“the Commission”). He
claimed that the Association’s conduct amounted to a failure to make a reasonable accommodation in
violation of the disability provisions of the Federal and Florida Fair Housing Acts. In January
2011, HUD and the Commission issued findings of cause against the Association. Accordingly, the
Association agreed to allow Bhogaita to keep Kane.
B. Procedural History
In October 2011, Bhogaita brought suit. On the Association’s motion, the district court dismissed
Bhogaita’s claim of disability discrimination brought under
42 U.S.C. § 3604(f)(2), while his reasonable accommodation claim, under § 3604(f)(3) and analogous Florida law, survived.
After discovery, the parties filed cross motions for summary judgment. Though the district court
denied the Association’s motion for summary judgment, it granted Bhogaita’s motion in part, finding
that Dr. Li’s letters supplied “sufficient information,” and concluding that the Association’s
indeterminate delay, evidenced by escalating requests for information, amounted to a constructive
denial of Bhogaita’s request. Bhogaita v. Altamonte Heights Condo.
Ass’n, Inc., No. 6:11-cv-1637, 2012 WL 6562766, at *7 (M.D. Fla. Dec. 17, 2012).


The district court reasoned that the demand that Bhogaita remove his dog “if he did not provide
[the Association] with information it was not entitled to receive” amounted, as a matter of law, to
a constructive denial of the request for accommodation. Id. Accordingly, the district court granted
summary judgment in favor of Bhogaita on the refusal to accommodate element only.
A two-day jury trial followed. Because of the partial grant of summary judgment, the jury did not
consider whether the Association had refused Bhogaita’s request for accommodation. After
presentation of the evidence, the jury returned a verdict in favor of Bhogaita: It found that
Bhogaita was disabled and requested an accommodation for his disability, that the accommodation was
necessary and reasonable, and that Bhogaita suffered damages because of the Association’s refusal
to accommodate. It awarded Bhogaita $5,000 in compensatory damages but declined to award punitive
There were a number of post-trial motions. The district court denied the Association’s motions for
judgment as a matter of law and for a new trial, where the Association raised the same arguments it
raises here. The district court also denied Bhogaita’s motion for a permanent injunction, as the
Association had already agreed to allow Kane to remain. Finally, the court ordered the Association
to pay $127,512 in attorneys’ fees, almost $70,000 less than the sum Bhogaita’s lawyers sought. The
Association timely appealed.

(1) Whether the district court properly granted partial summary judgment to
Bhogaita on the refusal-to-accommodate element.
(2) Whether there was sufficient evidence for the jury to find that Bhogaita has a disability that
substantially limits a major life activity.
(3) Whether there was sufficient evidence to support the conclusion that
Bhogaita’s requested accommodation was necessary.
(4) Whether the district court erred in its jury instructions with respect to the
(5) Whether the district court abused its discretion in allowing Bhogaita’s dog to remain in the
courtroom as a demonstrative exhibit.
(6) Whether the district court erred in its award of attorneys’ fees.

“We review a district court’s grant of summary judgment de novo, viewing the record and drawing all
factual inferences a light most favorable to” the non- moving party. Mazzeo v. Color Resolutions
Int’l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014); see also Sunbeam Television Corp. v. Nielsen
Media Research, Inc.,
711 F.3d 1264, 1270 (11th Cir. 2013) (applying the same standard when reviewing
a partial grant of summary judgment). A court must grant summary judgment “if

the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Likewise, we review the denial of judgment as a matter of law de novo, and disturb the jury’s
verdict only when there is no material conflict in the evidence, such that no reasonable person
could agree to the verdict reached. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1275 (11th
Cir. 2008).
Our review of jury instructions is simultaneously de novo and deferential. Id. at 1276. “We review
jury instructions de novo to determine whether they misstate the law or mislead the jury to the
prejudice of the objecting party” but give the district court “wide discretion as to the style and
wording employed.” Id. We “reverse only where we are left with a substantial and ineradicable
doubt as to whether” the district court properly guided the jury. State Farm Fire & Cas. Co. v. Silver Star
Health & Rehab., 739 F.3d 579, 585 (11th Cir. 2013) (internal
quotation marks omitted).

We review evidentiary rulings for abuse of discretion. Fid. Interior Constr., Inc. v. Se.
Carpenters Reg’l Council of the United Bhd. of Carpenters & Joiners of Am., 675 F.3d 1250, 1258
(11th Cir. 2012). Likewise, “[w]e review the award of attorney’s fees and costs for an abuse of
discretion,” examining underlying questions of law de novo and those of fact for clear error.
Goldsmith, 513 F.3d at

The FHA prohibits discriminating against a person on the basis of a “handicap,”2 or a disability,
by refusing to make reasonable accommodations when necessary to afford the person equal opportunity
to use and enjoy a dwelling. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 6, 102
Stat. 1619 (codified at 42 U.S.C. § 3604(f)(3)(B)). The FHA and the Florida Fair Housing
Act are substantively identical, and therefore the same legal analysis applies to each. Loren v.
Sasser, 309 F.3d 1296, 1299 n.9 (11th Cir. 2002).
A successful failure-to-accommodate claim has four elements. To prevail, one must prove that (1) he
is disabled within the meaning of the FHA, (2) he requested a reasonable accommodation, (3) the
requested accommodation was necessary to afford him an opportunity to use and enjoy his dwelling,
and (4) the defendants refused to make the accommodation. Schwarz v. City of Treasure Island, 544
F.3d 1201, 1218-19 (11th Cir. 2008).
A. Bhogaita was entitled to partial summary judgment on the refusal-to- accommodate element.

2 The FHA refers to discrimination based on “handicap” rather than disability. 42 U.S.C.
§ 3604(f). Disability scholars, however, generally prefer the term “disability” to handicap, and
the Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended
at 42 U.S.C. §§ 12101–12213) (“ADA”), reflects that preference. For this reason, we treat the
terms interchangeably and elect to use “disability” and the preferred possessive construction. See
Giebeler v. M&B Assocs., 343 F.3d 1143, 1146 n.2 (9th Cir. 2003) (using the terms interchangeably
and stating the same rationale for doing so); Michelle A. Travis, Impairment as Protected Status: A
New Universality for Disability Rights, 46 GA. L. REV. 937 (2012) (referring throughout to persons
“with disabilities” rather than “disabled persons”).

The Association argues the district court erred when it granted partial summary judgment,
precluding the jury from considering whether the Association denied Bhogaita’s requested
accommodation. The FHA does not demand that housing providers immediately grant all requests for
accommodation. Schwarz, 544 F.3d at 1219 (“‘[T]he duty to make a reasonable accommodation does not simply spring from the
fact that the handicapped person wants such an accommodation made.’” (quoting Prindable v. Ass’n of
Apt. Owners, 304 F. Supp. 2d 1245, 1258 (D. Haw. 2003), aff’d sub nom. DuBois v. Ass’n of Apt. Owners,

453 F.3d 1175 (9th Cir. 2005))). Once a provider knows of an individual’s request for
accommodation, the provider has “‘an opportunity to make a final decision . . ., which necessarily
includes the ability to conduct a meaningful review’” to determine whether the FHA requires the
requested accommodation. Id. (quoting Prindable, 304 F. Supp. 2d at 1258).
The failure to make a timely determination after meaningful review amounts to constructive denial
of a requested accommodation, “as an indeterminate delay has the same effect as an outright
denial.” Groome Res. Ltd. v. Parish of Jefferson,234 F.3d 192, 199 (5th Cir. 2000). The Joint Statement of two federal agencies

counsels similarly: “An undue delay in responding to a reasonable accommodation request may”
constitute a failure to accommodate. Department of Justice and HUD, Joint Statement on Reasonable
Accommodations at 11 (May 17, 2004), available at (last visited August 7, 2014) (“Joint
Bhogaita requested an accommodation in May 2010. More than six months later, when he filed a
complaint with HUD and the Commission, the Association had not responded to his request except to
request additional information and to indicate that if Bhogaita failed to provide that information,
the Association would file for arbitration. The Association insists that its deliberative process
was ongoing and that its requests were only meant to help it discern whether Bhogaita had a
disability requiring accommodation. To assess whether the partial grant of summary judgment was
error, we ask whether a reasonable fact finder could have concluded–based on the record
evidence–that the Association was still undertaking meaningful review.
We answer that question in the negative. The Association produced no evidence at the summary
judgment stage to support its contention that it had not constructively denied Bhogaita’s request.
Neither Bhogaita’s silence in the face of requests for information the Association already had nor
his failure to provide information irrelevant to the Association’s determination can support an inference that the
Association’s delay reflected an attempt at meaningful review.
Dr. Li’s three letters,4 all submitted to the Association before its August 17

letter, contained the information the Association needed to make a determination: They described
the nature and cause of Bhogaita’s PTSD diagnosis,5 stated that Bhogaita was substantially impaired
in the major life activity of working, and explained that the dog alleviated Bhogaita’s symptoms.
Though Dr. Li’s letters identified a cognizable disability and explained the necessity of
accommodation, the August 17 request sought the same information already provided. Bhogaita’s
failure to respond to that request cannot support the Association’s position because the
Association possessed all the information essential to its determination.
Likewise, Bhogaita’s failure to respond to the November 3 request for information cannot support an
inference that the Association was still undertaking meaningful review. That it is “incumbent upon”
a skeptical defendant “to request documentation or open a dialogue” rather than immediately
refusing a requested accommodation, Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 895 (7th

4 Though the Association offered evidence at trial suggesting that the letters were copied-
and-pasted form letters, a fact that might have created a credibility question, it produced no such
evidence at the summary judgment stage.
5 It is of no moment that Bhogaita’s own July letter to the Association mentioned his knee problems
for the first time and without supporting medical documentation. If the Association
had all the essential information to make a determination regarding one disabling condition–
PTSD–it did not need proof of an additional disability.

Cir. 1996), does not entitle a defendant to extraneous information. Generally, housing providers
need only the information necessary to apprise them of the disability and the desire and possible
need for an accommodation. See, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010)
(holding in a reasonable accommodation claim brought under the ADA that employers need “enough
information to know of both the disability and desire for an accommodation” (internal quotation
marks omitted)); Joint Statement at 14 (counseling that, “[i]n most cases, an individual’s medical
records or detailed information about the nature of a person’s disability is not necessary for”
determining whether an accommodation is required).
The Association’s critical inquiries were whether Bhogaita’s PTSD amounted to a qualifying
disability and whether Kane’s presence alleviated the effects of the disorder. Cf. Schwarz, 544
F.3d at 1226 (holding that an accommodation is necessary under the FHA when it addresses the needs
the disability creates). The November 3 letter requested, in addition to the pertinent information
it already had thanks to Dr. Li’s letters: “additional information regarding Bhogaita’s treatment,
medications, and the number of counseling sessions he attended per week; details about how the
diagnosis was made; whether the condition was permanent or temporary; and ‘details of the
prescribed treatment moving forward.’” Bhogaita, 2012 WL 6562766, at *7 (quoting R. 35-5 at 24).

The requested information exceeded that essential for the Associations’ critical inquiries. On the
record before it, the district court was correct in declining to hold Bhogaita’s silence in the
face of the last two letters against him and in determining that the Association had not pointed to
evidence from which a jury could find that the Association had denied his request for a reasonable
B. Bhogaita offered sufficient evidence to show he has a disability within the meaning of the
A person has a disability under the FHA if, among other things, he has “a physical or mental
impairment which substantially limits one or more of such person’s major life activities.” 42
U.S.C. § 3602(h). The parties agree that Bhogaita suffers suffers from a physical or mental
impairment, and they agree that working is a major life activity. They depart company, however, on
whether Bhogaita’s impairment substantially limited his ability to work. When considering what it
means for an impairment to limit substantially one’s ability to work, we
find cases interpreting and applying the ADA relevant.

When interpreting the pre-ADAAA definition of “disability,” a definition virtually identical to the
FHA’s definition of “handicap,” the Supreme Court of the United States concluded that an impairment
substantially limits one’s ability to work only where it renders a person “unable to work in a
broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2151


We apply the same interpretation here because of the similarity between the pre- amendment ADA and
the FHA. Compare 42 U.S.C. 12102(2)(A) (2008) (defining disability, with respect to an individual,
as “a physical or mental impairment that substantially limits one or more of the major life
activities of such an individual”) with 42 U.S.C. § 3602(h)(1) (defining “handicap” as “a physical
or mental impairment which substantially limits one or more of such person’s major life
Bhogaita presented ample evidence at trial to show that his PTSD left him unable to work in a broad
class of jobs. Bhogaita’s own testimony revealed his belief that colleagues persecuted him, a
belief that made it practically impossible for him to work outside his home. Dr. Li’s letters
stated that Bhogaita’s condition “limits his ability to work directly with other people” and that
social interactions had the tendency to be so overwhelming for Bhogaita, they could possibly render
him “unable to perform work of any kind.” For one to gain remuneration of any
sort one must engage, at a minimum, with either a superior or a customer, and most jobs require
much more. To note that the cloistered laboratory scientist occasionally presents his research to
others and that the warehouse stocker takes some direction from supply managers is to acknowledge
that the sales clerk, the teacher, and the construction foreman, for example, interact
significantly and almost constantly. Certainly jobs requiring significant social interaction amount to a broad class.
Viewing the evidence in the light most favorable to the jury’s verdict and drawing all inferences
in its favor, a reasonable jury could agree to the verdict reached. See Goldsmith, 513 F.3d at 1275
(“We will reverse only if the facts and inferences point overwhelmingly in favor of one party, such
that reasonable people could not arrive at a contrary verdict.” (internal quotation marks
omitted)); Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007) (explaining that when
considering a renewed motion for judgment as a matter of law, the court does not review the jury’s
findings except to consider whether there was sufficient evidence to support them). The district
court did not err in denying judgment as a matter of law on the disability element.
C. Bhogaita produced evidence supporting the conclusion that the requested accommodation was
A successful FHA accommodation claim requires that the accommodation sought be “necessary to afford
[the claimant] equal opportunity to use and enjoy” the relevant dwelling. 42 U.S.C. §
3604(f)(3)(B). “The word ‘equal’ is a relative term that requires a comparator to have meaning.”
Schwarz, 544 F.3d at 1226. Under the FHA, the comparator is a person without a disability, and an
accommodation extends an equal opportunity when it addresses the needs the

disability creates. Id. Thus, a “necessary” accommodation is one that alleviates the effects of a
disability. Id. The jury was properly instructed to that effect. (R.
131 at 9 (explaining that to prove necessity, Bhogaita had to “show, at a minimum, that the
accommodation affirmatively enhances [his] quality of life by ameliorating (or reducing) the
effects of his disability”).)
Some other arrangement, such as having a lighter-weight dog permitted by the Association’s policy,
might similarly alleviate Bhogaita’s symptoms, and evidence of such could be relevant to the
reasonableness determination, which asks whether the requested accommodation “is both efficacious
and proportional to the costs to implement it.” Oconomowoc Residential Programs v. City of
Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). It is not, however, relevant to the necessity determination,
which asks whether the requested accommodation ameliorates the disability’s effects. Schwarz, 544
F.3d at 1226. Both necessity and reasonableness are required, id. at 1218-19, but in this appeal,
the Association does not raise the issue of reasonableness with respect to Bhogaita’s requested
accommodation. For that reason, we do not engage in the “highly fact-specific” reasonableness
inquiry, which would require a balancing of the parties’ needs. Oconomowoc, 300 F.3d at
784. The question we address is a different, more limited one: whether Bhogaita offered sufficient
evidence that having the dog would affirmatively enhance his quality of life by ameliorating the
effects of his disability.

Bhogaita produced evidence from which a reasonable fact finder could conclude that his dog
alleviated the effects of his PTSD. Specifically, Dr. Li’s letters said that Kane assists Bhogaita
“in coping with his disability,” (R. 36-6), and “ameliorate[s]” Bhogaita’s “psychiatric symptoms,”
(R. 36-7), and that without the dog, Bhogaita’s “social interactions would be so overwhelming that he would be unable
to perform work of any kind.” (R. 46-6 at 2.) In sum, the letters directly support the jury’s
verdict: The requested “accommodation was necessary to afford [Bhogaita] an opportunity to use and
enjoy the dwelling.” (R. 131 at 1.) D. The jury instructions do not warrant reversal.
The Association argues that the district court erred in its jury instructions, identifying in one
case language that it should not have included and in another language the Association says it
should have. Neither amounts to reversible error.
We examine jury instructions in context, considering “the allegations of the complaint, the
evidence presented, and the arguments of counsel when determining whether the jury understood the
issues or was misled.” Gowski v. Peake, 682 F.3d
1299, 1315 (11th Cir. 2012). So long as the “instructions, taken together, properly express the law
applicable to the case, there is no error even though an isolated clause may be inaccurate,
ambiguous, incomplete or otherwise subject to criticism.” State Farm Fire & Cas. Co., 739 F.3d at
585 (internal quotation marks omitted).


First, the court’s instruction on “major life activities” was not overbroad in listing, among other
examples, “interacting with others and essential capabilities necessary for working in a broad
class of jobs” to explain that term. Considering the record as a whole, the instruction was sound.
The court listed ten activities not as a comprehensive anthology but as an illustration of what it
meant to be “of central importance to daily life as distinguished from tasks associated with a
particular job.” (R. 130 at 8.) It then directed the jury’s attention to the issues before it by
clarifying that Bhogaita “alleged that his impairment substantially limited [his] ability to work
and interact with others.” (R. 130 at 8.) The court did not tell the jury it could or should
consider the other activities listed.
Moreover, even if we assumed the inclusion of “interacting with others” in the instructions was
technically incorrect, there was unlikely any prejudice to the Association. Badger v. So. Farm
Bureau Life Ins. Co., 612 F.3d 1334, 1339 (11th Cir. 2010) (“We will not disturb a jury’s verdict
unless the charge, taken as a whole, is erroneous and prejudicial.” (internal quotation marks
omitted)). In closing argument, Bhogaita’s counsel focused on Bhogaita’s ability to interact with others as it
related to his working, rather than as an independent activity. The court devoted thirteen lines of
text in its jury instructions to what it meant for an impairment to limit substantially one’s
ability to work and never mentioned interacting with others separately from working with others.
“Our practice is not to nitpick the instructions for minor defects.” Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1283 (11th Cir. 2008). Reversing based on the inclusion of “interacting with others” would
require one to assume that the jury concluded that Bhogaita’s PTSD substantially impaired his
ability to interact with others but not his ability to work in a broad range of jobs, such as those
requiring significant social interaction. That is a speculative assumption and, based on the
evidence and argument, an unlikely one. Therefore, the instruction does not warrant reversal.
Nor does the court’s refusal to give the Association’s requested necessity instruction require
reversal. The Association insists the instruction was incomplete because it did not refer to
Bhogaita’s “use[] and enjoy[ment]” of his unit. (R. 121 at 2.) But establishing an accommodation’s
necessity requires only proof the accommodation “address[es] the needs created by the handicap,”
Schwarz, 544 F.3d at 1226, and the instruction given properly expressed that principle. (R. 130 at 9 (“To prove
that the desired accommodation is necessary, [Bhogaita] must show, at a minimum, that the
accommodation would affirmatively enhance [his] quality of life by ameliorating (or reducing) the
effects of his disability.”).) It affirmatively required the jury to find “an identifiable
relationship, or nexus, between the requested accommodation and [Bhogaita’s] disability.” (R. 130
at 9.)
Moreover, based on the contents of the letters the Association concedes it received from Bhogaita
and Dr. Li, no reasonable fact finder could conclude that

the Association was unaware of Bhogaita’s asserted need for an accommodation. Because nothing
supported the Association’s theory it lacked knowledge, it was
not error for the court to refuse to instruct the jury on that theory. Ad-Vantage Tel. Directory
Consultants, Inc. v. GTE Directories Corp., 849 F.2d 1336, 1349 (11th Cir. 1987) (holding that a
trial court must instruct the jury on a litigant’s theory of the case only if the litigant makes a
proper request and “there is any competent evidence to support the theory”).
E. In allowing the dog to remain in the courtroom, the court did not abuse its discretion.
The Association insists the dog’s presence in the courtroom and at Bhogaita’s side during his
testimony was unfairly prejudicial, as it suggested that Bhogaita required the dog at all times,
and that this prejudicial effect substantially outweighed any probative value the dog may have had.
See Fed. R. Evid. 403 (permitting courts to “exclude relevant evidence” if the danger of “unfair
prejudice” substantially outweighs its probative value). The district court hearing this case
concluded otherwise, but that is the nature of the broad discretion granted to trial courts
determining evidentiary matters. Gray ex rel. Alexander v. Bostic,
720 F.3d 887, 893 (11th Cir. 2013) (explaining that the abuse of discretion
standard implies a range of choices). And this discretion is particularly broad with respect to
Rule 403 determinations. Sprint/United Mgmt. Co. v. Mendelsohn, 552

U.S. 379, 384–85, 128 S. Ct. 1140, 1145 (2008). A district court abuses its discretion to admit
relevant evidence when its decision rests on a clearly erroneous fact-finding, “an errant
conclusion of law, or an improper application of law to fact.” Fid. Interior Constr., Inc., 675
F.3d at 1258 (internal quotation marks omitted). Nothing suggests that the district court’s
decision allowing the dog to remain present as a demonstrative exhibit rested on any of the three.
F. The district court did not err in awarding attorneys’ fees.
The FHA allows a prevailing party to recover reasonable attorneys’ fees and costs. 42 U.S.C. §
3613(c)(2). “[A] ‘prevailing party’ is one who has been awarded some relief.” Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 121 S. Ct. 1835, 1839
(2001). Bhogaita’s award of $5,000 in compensatory damages represents relief, and, despite the
Association’s insistence otherwise, was not nominal. See Farrar v. Hobby, 506 U.S. 103, 108, 113 S.
Ct. 566, 571 (1992) (noting that an award of one dollar was nominal); Black’s Law Dictionary 447
(9th ed. 2009) (defining
“nominal damages” as “[a] trifling sum awarded when a legal injury is suffered but there is no
substantial loss or injury to be compensated”). Thus, he is entitled to reasonable fees and costs.
We do not consider whether the amount of fees awarded was an abuse of discretion, as the
Association contends only that Bhogaita should have been awarded no fees at all.
Because we conclude from the record that there is no merit to any of the
arguments the Association makes in this appeal, we affirm the judgment entered on the jury’s
verdict and the district court’s order awarding Bhogaita attorneys’ fees.
Case: 13-12625 Date Filed: 08/27/2014 Page: 25 of 25

Litigation – Vindicating a right to an administrative option – McGuire v. Peabody Hotel

Kevin McGuire

Kevin McGuire

Florida now recognizes that when a person is not treated equal because of his or her disability,– this is discrimination, and is actionable under the Florida Civil Rights Act.

In 1968, at the age of seven years old, Kevin McGuire, was hit by a drunk driver and was paralyzed from the neck down. By 1970, McGuire regained the use of his upper body but remained paralyzed from the waist down. Since the accident, he is required to use a wheelchair for mobility. Kevin’s business consists of advising clients on how to make sure that their projects and different venues comply with the disability access requirements. In the course of his business, he was contacted by the Orlando Magic to ensure that their arena complied with the disability access requirements.

Kevin’s office made a reservation, in advance, to stay for two nights at the Peabody Orlando, a Peabody Hotel Group hotel, in Orlando, Florida. At the time the reservation was made with Peabody Hotel staff, Kevin asked for a wheelchair accessible room.On or about June 14, 2010, between two and three AM, Kevin McGuire arrived at the Peabody Hotel. There was only one hotel representative available to check-in guests. Even though Kevin requested an accessible room, it did not have a room available with a roll-in shower. Instead, they sent Kevin to three different rooms which they claimed were accessible. Kevin was brought to one room, which did not have a wheelchair accessible bathroom. He was then brought to a second room. The second room did not have a wheelchair accessible bathroom either. After being escorted to a third room that did not have a wheelchair accessible bathroom, Kevin was upset. Since he was unable to use any of the rooms, he had no choice but to leave the hotel property and was forced to find lodging at another hotel at Three AM in the morning.

May 27, 2011, Kevin filed a Public Accommodations Complaint of Discrimination with the Florida Commission on Human Relations. In its defense, the hotel did not dispute any of McGuire’s allegations, but attributed the failure to have accessible features due to the ongoing renovations to the hotel, but despite Mr. McGuire’s inconvenience, they were now fully Americans with Disabilities Act (ADA) compliant, and if Mr. McGuire chose to return to the hotel, he would have a different experience. The Peabody Hotel expressed regret at the “inconvenience” that Mr. McGuire experienced.

Instead of attempting to conciliate the case, the FCHR decided to dismiss Mr. McGuire’s claims based upon a lack of jurisdiction. The FCHR acknowledged that the Peabody Hotel is a “public accommodation” under the Florida Civil Rights Act, and also found that Mr. McGuire had to leave the Peabody Hotel as no rooms were accessible to a person with a mobility impairment due to the lack of an accessible shower. However, the FCHR denied Mr. McGuire all relief due to the following statement:

All assertions relate to design, construction and accessibility. The Florida Commission on Human Relations does not have jurisdiction to enforce the ADA. Additionally, as to any issues concerning the alleged failure to provide a room meeting the petitioner’s criteria, it is unrefuted that the Respondent made all efforts possible under the circumstances to accommodate the demands, to no avail.

As a result, the case was dismissed. On January 10, 2012, Kevin McGuire appealed the FCHR’s finding to the appeals court.

The appeals court reversed and in a published decision, McGuire v. Peabody Hotel Grp., 99 So. 3d 984 (Fla. Dist. Ct. App. 2012), found that the existence of architectural barriers in a hotel constituted discrimination, as defined by the Florida Civil Rights Act, as such barriers may deny Mr. McGuire “by denying him the full and equal enjoyment of the hotel’s goods, services, facilities, privileges, advantages, and accommodations guaranteed by section 760.08.

Last year, Kevin founded a new business, “It’s called Able Road,” he said. “It’s a Yelp-like, Angie List-like, Zagat-like website and apps that allows you to rate interview and comment on any property, pretty much in the world, from a hearing site, cognitive mobility perspective.” For more information, go to

Guardianship – Part 2


Florida is one of the few states that has developed a process specifically designed to meet the needs of persons with DEVELOPMENTAL DISABILITIES—in Florida that process is GUARDIAN ADVOCATE. There are a few differences between GUARDIAN ADVOCATE and GUARDIANSHIP as I described in last month’s newsletter. First, Guardian Advocacy is limited to persons with at least one of five developmental disabilities as defined in Chapter 303, Florida Statutes.
They are out of the statute exactly, “retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that manifests before the age of 18 and that constitutes a substantial handicap that can be reasonably be expected to continue indefinitely”. Another important component is the person’s ability to make decisions. The standard is “an individual in need of guardian advocacy must lack SOME BUT NOT ALL the decision making ability to complete some or all of the tasks necessary to care for themselves, their property and or estate”. These distinguish this option from a standard Guardianship. There are advantages to a Guardian Advocacy if you meet the requirements. The law does not require a determination of incapacity. This is one of the main reasons that this is a less restrictive option for some folks. Also there is no requirement that the guardian advocate be represented by an attorney unless for a special reason the Court requires it or if the advocate is delegated any rights as to property other than being the representative payee for governmental benefits. For those reasons this is usually a less expensive, less intrusive option than guardianship. If you have any questions please call us at DIG (305) 669-2822 or email Sharon at

A six year old’s fight to have his seizure dog at school.




Disability Independence Group filed a federal lawsuit against the Broward School Board, alleging the district discriminated against Anthony Merchante, a first grader, for imposing too many barriers to bringing his service dog to his elementary school. Anthony Marchante lives with cerebral palsy and is highly prone to seizures. His medium-sized terrier service dog, Stevie, alerts others to oncoming convulsions and helps calm the boy by licking his face. Anthony’s mother, Monica Alboniga said the district at first denied Stevie access to Nob Hill Elementary in Sunrise this year, demanding that she provide liability insurance for the dog and additional vaccinations that did not exist. Stevie was prescribed by Anthony’s neurologist at Miami Children’s Hospital and is part of Anthony’s treatment protocol. In order to be a service animal, the dog must have a temperament that allows it to stay focused on its job. Any dog that would be a direct threat to others would not be a suitable service animal. There cannot be insurance requirements or other conditions that a governmental entity or a public accommodation can place on a service animal. When Anthony’s mom initially brought this matter to the press and requested help and obtained publicity, the school board relented, and allowed Anthony to go to school with his service animal. Then, the School Board shifted tactics and demanded that Monica provide a handler for the dog since the child was not capable of doing so. Monica was required to go school every day just to care for Stevie but she was not allowed to help her son with any other activities. As a service animal, Stevie is trained to stay with Anthony and is constantly tethered to Anthony’s wheelchair, and does not eat or poop during the school day. Since it is legally required under Florida and Federal law, the Broward School Board is allowing the seizure alert and protect dog, but refuses to include the dog in Anthony’s care plan, and maintains that it has no duty to provide a handler for the dog as it disagrees with the medical prescription of Anthony’s neurologist. The Board maintains that caring for the service animal is a “personal service” of which it has no duty. However, as a child with a disability, the school board provides services from feeding to toileting for Anthony, but it considers tethering and untethering a dog from Anthony’s wheelchair is a “personal service” that is more of a burden than feeding or toileting Anthony. Further, even though Stevie was prescribed by Anthony’s neurologist, the School Board contends that this prescribed service is not necessary. However, Anthony’s care plan includes the insertion of a Diastat suppository in the event that Anthony has a seizure, but not the services performed by the dog.
Ms. Alboniga’s suit, filed last month, claims the district is violating the Americans with Disabilities Act and The Rehabilitation Act by implementing excessive procedural hurdles. She’s asking the district to amend its policies and ensure that she and Anthony are not forced to fight this matter throughout the rest of Anthony’s schooling, which may last until he is 23 years old.



All cases are dependent on many factors that may or may not be present in all cases. As such, results may not be typical. You may not have as beneficial a result.

A veteran is permitted his support animal in his home

The Trial Team

Ajit Bhogaita, Kane the Dog, Aaron Bates, Esq. and Matt Dietz, Esq.

Litigation: Bhogaita v. Altamonte Springs Condominium Assoc.   

Ajit Bhogaita is a United States Air Force veteran who, like hundreds of thousands of other veterans, suffers from post-traumatic stress disorder (“PTSD”) As a result of his PTSD, Mr. Bhogaita attempted to take his own life, and then medicated with anti-depressants for his chronic depression and anxiety. Because of this disability, he has difficulty sleeping and is unable to form close personal or professional relationships. In 2008, Mr. Bhogaita received a dog, a pit-bull terrier named Kane.  For the first time in years, Mr. Bhogaita could sleep and the dog alleviated his anxiety and depression to the extent that he stopped seeking continual and emergency treatment for his disability.

While his condominium association realized that Kane weighed more than the 25 pound limit, it did not seek to enforce its limitations until 2010. When he received a letter stating that he was violating the pet rules, Bhogaita informed the association that he had a disability and needed an accommodation. When there were threats of further acts, it caused Mr. Bhogaita to panic, and he went back to his doctors at the Veteran’s Administration Medical Center and received letters from his psychiatrist who was familiar with the use of service animals and emotional support animals by veterans. Mr. Bhogaita wrote three letters to the condominium association verifying Mr. Bhogaita’s mental illness and need for Kane, the support dog. This did not satisfy the association, and the association and its lawyer demanded detailed information regarding Mr. Bhogaita’s mental health history, cause, treatment, and future treatment. Mr. Bhogaita said no.

Under the Fair Housing Act, a housing provider is not entitled to unnecessary and detailed medical or psychological information to determine whether a resident has a disability or whether the resident needs an emotional support animal. Matthew W. Dietz, Litigation Director of Disability Independence Group, and Aaron C. Bates, Esq. successfully represented Mr. Bhogaita in trial, and now the case in before the Eleventh Circuit Court of Appeals.

Currently, there are over 180,000 veterans with PTSD who served our country in Afghanistan and Iraq. For all these veterans do for our country, it is obscene that housing providers do not permit an accommodation in rules that will provide
considerable support to ameliorate a veteran’s suffering. It has long been established that the emotional connection between a person and an animal promotes release of oxytocin from the pituitary gland, thus serves to alleviate symptoms of depression and anxiety. It is a simple, beneficial and effective alternative to medication. One of the major goals of the Disability Rights movement is that each person with a disability has the right to self-determination – free from the patriarchal attitudes of the “able-bodied”. We are proud to be able to assist Mr. Bhogaita in allowing him the freedom and the ability to integrate into and live in our society.