Diversity – Does it Matter in the Legal Profession?

Standard

Many hands of all different colors are outstretched and overlapping

By: Matthew Dietz

The Florida Bar is fully committed to the enhancement of diversity within the Bar, the legal profession, legal education, and in the justice system, and affirms its commitment toward a diverse and inclusive environment with equal access and equal opportunity for all.

–The Florida Bar Board of Governors, May 2010

On June 23, 2015, the Supreme Court issued their ruling in Fischer v. University of Texas at Austin, Case No. 14-981, upholding race conscious admissions policies at the University of Texas, as long as it is only a factor in a holistic review as a means of obtaining the educational benefits that flow from student body diversity.     Justice Kennedy issued a muted opinion from the Court touting the benefits of diversity and quoted from a prior decision stating:

[T]he compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” … As this Court has said, enrolling adverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”

Diversity also promotes the image of impartial justice, knowing that lawyers and judges that have the panoply of cross-racial, and cross-cultural experiences will not have deep seated stereotypes or prejudices against persons because of who they are, what they believe, or what they look like. However, the diversity within the Florida Bar and the Florida Judiciary does not reflect the population of Florida. If one looks at the statistics of the Florida lawyers and judiciary, as compared to the population of Florida, it is elemental why it is important to ensure that diversity is encouraged to ensure the appearance of justice and the destruction of stereotype.

Category Percent lawyers in Florida[1] Percent Judges in Florida[2] Percent in Jud. Nominating Commission[3] Percent Population in Florida[4]
White/Caucasian 83 84.1 86 55.3
Hispanic 10 8.9 9 24.5
African American/Black 3 6.7 4 16.8
Asian/Pacific Islander 1 .3 2.9
Other Race/Ethnicity 3 2.5
LGBT 3 3.5
Persons with Disabilities 2 13.1

Why does it matter for persons with disabilities?

In an interview, Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.[1]

 

Mr. Trump has stereotyped a judge solely because of his ancestry and a stereotype that the judge may not be in line with his views.  With a person with a disability, each lawyer, juror, and the judge carries with them a lifetime of stereotypes and misconceptions about persons with disabilities. Most of them start with….”I once had a friend that had a family member that…”  Accordingly, the person’s whole perception of disability is built around the abilities of one person, or, even worse, what people see on television.  So essentially, there is the myth of the “super-crip” or the incapacitated person.

The “supercrip” as superhuman that is lauded by the able-bodied as the inspirational person who “overcame” their disability.   If you have a disability in one area, then you more than make up for it in all other ways. If you are blind, you can identify a person’s footfalls; if you are deaf, you can read lips from two miles away; if you are autistic, you are a mathematical savant.  It is “inspirational” for a person who has a disability to be successful in society, when, in truth, persons with disabilities do not need to act as tools to inspire, but just to live.

On the other hand, the incapacitated person, who is not able to be productive and is essentially invisible is as common.  The person who is shuttered in a nursing home and neglected because society does not provide access.  Society considers these folks “better off” where they can be taken care of, as they have nothing to contribute to society.

Both of these stereotypes are pernicious.

So, as a trial lawyer for a disability related claim, the most difficult part is dealing with these stereotypes and educating my colleagues in the legal profession that people with disabilities are people, just like them.  We all need assistance at one time or another, just like them.  We all need accommodations at one time or another, and we all have something to contribute.

But, when there is two percent of lawyers who have disabilities, a negligible number of judges with disabilities, and no active recruitment of persons with disabilities in law schools, it’s difficult to say to my clients that this judge or lawyer has ever had contact with a deaf person or a blind person.  In every single one of my cases involving a deaf person regarding not being able to get an interpreter for a critical situation in his or her life, the deposition of that deaf person usually includes a detailed description of how a deaf person uses a videophone, drives, or other daily living activities.

So, when Justice Kennedy states educational diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”  The same concept includes disability, and disability related stereotypes and attitudinal barriers against stereotypes must be broken down.

[1] http://www.wsj.com/articles/donald-trump-keeps-up-attacks-on-judge-gonzalo-curiel-1464911442

[1]2015 Florida Bar Membership Opinion Survey –  In December 2015, The Florida Bar sent an online survey link to a random sample of 3,078 in-state and out-of state, eligible members. By the cut-off date of December 30, the Bar had received 1,074 completed questionnaires, for a response rate of 35%. This response rate is acceptable for this type of lengthy online survey. https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/4ECB247149A8546C85257F41007B6479/$FILE/2015%20Membership%20Opinion%20Survey%20-%20Final%20Report.pdf?OpenElement

[2] The Florida Bar President’s Special Task Force to Study Enhancement of Diversity  in the Judiciary and on the JNC’s, found at https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/A4E41688279C883585257CE1004A0B9E/$FILE/Appendices%20to%20Task%20Force%20Report.pdf?OpenElement

[3] http://www.floridabar.org/TFB/TFBPublic.nsf/WNewsReleases/4F2B3E1B6C00CB3785257C8B00671B0B?OpenDocument

[4] US Census Quick facts for Florida information, found at  https://www.census.gov/quickfacts/table/DIS010214/12.

For Disability Statistics – ACS Disability Statistics 2010-2014, found at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S1810&prodType=table

For LGBT statistics – http://www.lgbtmap.org/equality_maps/profile_state/10

 

IS HEALTH CARE ONLY FOR THE “ABLE BODIED”?

Standard

Mr. Larry McDowell presented to our office for a consultation on the afternoon of Thursday, March 17, 2016. When Mr. McDowell arrived, he needed to be guided by holding on to someone in order to get places in the office; he will need to bring someone with him who can assist him in walking as it is a liability for the office staff to physically guide him themselves. Mr. McDowell will also need assistance in going over treatment, signing paperwork, and etc.

 We Apologize for Any Inconvenience.

(Actual copy of letter)

When Larry McDowell went to Affordable Dentures in West Palm Beach, Florida, to have a dental procedure on March 17th, there was no reason that he could possibly believe that he wouldn’t be able to get the same services as anybody else.  But once Mr. McDowell reached the front desk, he was directed to follow someone to the examination room. Mr. McDowell then said, “I’m blind, could you help to where I’m going?” The employee at the desk said nothing. Once a member of the office staff arrived, Mr. McDowell asked for assistance to the examination room – Mr. McDowell asked to hold her elbow.

She said, “No. We can’t help you unless you have someone to help you. We can’t treat you unless you bring someone to assist you.” Mr. McDowell then asked to speak to the dentist. When Mr. McDowell asked where the dentist was, the employee replied that he was in surgery and would be there for the next two hours.  A patient who was watching the interaction told Mr. McDowell, “No he’s not. He’s standing right there.” After the patient’s remark, the employee said to Mr. McDowell, “The dentist doesn’t want to speak to you today.”

Mr. McDowell requested Affordable Dentures to email a copy of written reason to his sister, and they sent the above letter.   It was then while Mr. McDowell was waiting in the office, an employee approached him and informed him he could not wait inside the office any longer and must leave, since the dentist would not be seeing him today—with the knowledge that Mr. McDowell had taken public transportation.

 Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.

 Martin Luther King, Jr.

Larry McDowell’s needs were basic human needs, and the outright denial of such services based solely on his disability transforms him, in the eyes of this medical provider, into a human who is not worthy of basic services.  Mr. McDowell is a man who has transformed his life to assist others.  He is a member of the National Federation of the Blind and is currently the  President of the Braille Club of Palm Beach County.  The Braille Club of Palm Beach County organizes social activities and weekly meeting among the blind and visually impaired community in Palm Beach. In his free time, Mr. McDowell seeks to live an ordinary life filled with friends and outings.

“Aside from the public health issues that most racial/ethnic minorities face, minorities with disabilities experience additional disparities in health, prejudice, discrimination, economic barriers, and difficulties accessing care as a result of their disability—in effect, they face a “double burden.”[1]   “Disability-based discrimination in health care is illegal under the Americans with Disabilities Act and will not be tolerated,” said Eve L. Hill, Deputy Assistant Attorney General for the Civil Rights Division at the Department of Justice. “All types of health care providers – from hospitals to nursing homes, from surgeons to general practitioners – all across the country – need to provide equal access to people with disabilities, including people who are deaf…, the time for compliance is now.”[2]

Notwithstanding the fact that the ADA is over 25 years old, it is common-place that medical professionals, who are dedicated to the health of their patients, are too often dismissive of their patient’s disability-related needs.  Most discrimination against persons with disabilities are not so blatant and ignorant as what occurred with Mr. McDowell.  Some of the issues which serve as barriers to persons with disabilities include inaccessible physical environments, and inflexible policies and procedures that, for example, assume that everyone must be able to independently fill out forms, undress unaided, transfer to high examination tables, and communicate in spoken English to receive standard health care services.[3]

The failure to provide accommodations and an accessible environment will, at the least, lead to health care disparities, and at the worst, lead to injury and death.

The most common issue at Disability Independence Group is doctors and hospitals that refuse to provide sign language interpreters for people who are deaf. Instead these professionals choose to communicate in English by writing notes or using technology that fails to work accurately and timely.  This leads to miscommunication and does not allow the deaf patient to have the full opportunity for medical choice as any hearing person would expect. This failure to communicate leads to misdiagnosis, failure to take the appropriate medicines, and continued illness.  When it comes to psychiatric treatment, it often exacerbates the symptoms. Other issues that often arise are as follows:

  • Medical professionals often ignore persons with disabilities and speak to their family member or caretaker, solely because of the assumption that the person with a disability cannot fully grasp the issues regarding their care and treatment.
  • Doctor’s offices and hospitals do not always have medical equipment such as a wheelchair-accessible weight scale or a height-adjustable exam table. Due to barriers, individuals with disabilities are less likely to get routine preventative medical care than people without disabilities.[4]
  • Further, despite universal precautions, health care providers may still be hesitant to treat patients who are HIV positive or live with AIDS.

However, the main issue is the fact that because of the difficulties that persons with disabilities encounter, such persons are less likely to receive needed health care.  According to a Disability Healthcare Access Brief published by the Disability Rights Education and Defense Fund, 19% of people with disabilities reported that they did not receive medical care needed in the previous year, compared to 6% of non disabled persons.[5]

People with disabilities tend to be in poorer health and to use health care at a significantly higher rate than people who do not have disabilities.  Larry McDowell is not a statistic, but instead a blatant example of an issue which needs to be addressed.  Equality in health care is not a benefit, but a basic right.

The Cuddle Effect

Standard

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.

Litigation: When the denial of a reasonable accommodation leads to tragedy

Standard

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.

Fired Because of Cancer

Standard

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.”

Litigation: Pledger v. SAS Transportation

Standard

By: Matthew Dietz

Litigation – Pledger v. SAS Transportation

Jeff and Suzanne Pledger love to go on cruises. Jeff is blind and Mr. Pledger and his guide dog Joelle he uses a guide dog named Joelle. As an advocate for persons with visual impairment, Jeff is the past President of Verizon’s Disabilities Issues Awareness Leaders (DIAL), which provides support and resources to Verizon’s employees with disabilities. As part of his accomplishments, he was part of the task force to develop the 1996 Telecommunications Act. This Act provided many benefits to people with disabilities. For example, this work force was instrumental in developing cell phones that are easier to use by people who have low vision and hearing loss.

Jeff and Suzanne have been on a number of cruises, and on January 13, 2014, they flew into the Ft. Lauderdale Airport for a five day cruise departing out of the Port of Miami. Prior to the flight, the Pledgers contacted SAS Transportation, Inc. for transportation to the cruise ship and, as a courtesy, they disclosed to the transportation company that there would be a service dog included in the requested trip.

The owner of the transportation services declined the transportation request because there is no room on the vehicle for a service dog and it would make other passengers uncomfortable. He suggested they would need to arrange a private shuttle.  The Pledgers attempted to educate the owner of SAS regarding the Americans with Disabilities Act and state statutes requiring equal access to individuals with disabilities with service dogs, but the owner would not bend, and wrote back:

“I respectfully decline your request as my vans are not set for animals even service dogs and with how heavily reserved we are and the vans being full it is not in the best interest of my vehicle to transport your request. I apologize but I do have the choice if I decide to turn down a request especially if I feel the situation is uncomfortable for all of my passengers. There is just no room for a dog in the shuttle vans because our vans are full and the vans have no extra room for a dog.”

The Pledgers requested assistance from Disability Rights Florida, Florida’s federally-mandated protection and advocacy system that provides legal and other services to persons with disabilities. An advocate reached out to the owner and attempted to educate on the requirements of the ADA, but again was ignored.

On June 17, 2014, Disability Independence Group joined Disability Rights Florida to sue SAS Transportation on behalf of Jeffrey Pledger to ensure that SAS Transportation would not discriminate against persons who use service dogs, and just four months later, obtained a settlement agreement that ensured adequate policies, training, and notice to customers that SAS was going to allow persons with service dogs to travel in their vehicles.

11th Circuit Decision in Bhogaita v. Altamonte Heights Condominum

Standard

 

The Trial Team

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

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_
Nos. 13-12625; 13-13914
_
D. C. Docket No. 6:11-cv-01637-GAP-DAB
AJIT BHOGAITA,
Plaintiff – Appellee,
versus
ALTAMONTE HEIGHTS CONDOMINIUM ASSN., INC.,
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.
I. BACKGROUND
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
activity?
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
considered.)
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
YOURSELF ACCORDINGLY.” (R. 35-5 at 25.)

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
damages.
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.

II. ISSUES
(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
FHA.
(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.

III. STANDARDS OF REVIEW
“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
1276.

IV. DISCUSSION
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
http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (last visited August 7, 2014) (“Joint
Statement”).
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
accommodation.
B. Bhogaita offered sufficient evidence to show he has a disability within the meaning of the
FHA.
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
(1999).

 

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
activities”).
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
necessary.
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.
AFFIRMED.
Case: 13-12625 Date Filed: 08/27/2014 Page: 25 of 25