PHA Not Liable for Disability Discrimination

Facts: A resident's lease required the resident, when notified, to prepare her unit for treatment by an exterminator and to provide the PHA with access to the unit for that purpose. In February 2010, the PHA advised the resident and others that the building would be treated for bedbugs. Shortly after, the resident gave the PHA a letter from her doctor advising that as a result of her physical problems, the resident “should not be exposed to sprays or similar chemicals from exterminators in her unit.” In response, the PHA scheduled an inspection of her unit to determine if she had any infestation of bedbugs and, if so, how best to deal with it in light of her condition.

The PHA didn’t schedule any treatment for her unit. But the resident advised the PHA that the scheduled date for the inspection wasn’t good and, as a result, another day should be selected. The PHA treated all of the other units in the building as scheduled, but didn’t inspect or treat the resident’s at any time.

The resident’s attorney then wrote to the PHA and requested a reasonable accommodation, specifically noting that the resident would agree to give access to inspect her unit and upon confirmation that there were no bedbugs, exterminators wouln’t apply chemicals to her unit. The letter also requested that she be permitted to deduct from her monthly rent any costs incurred for hotel stays for any time the resident is required to stay away from her unit.

In September 2010, the PHA tried to inspect but not treat the resident's unit. She refused to allow access, and the PHA served her with a “Notice to Cease” but took no other action against her. Instead, the PHA repeatedly advised her that it stood ready and willing to work with her to find ways to ensure that her unit could be inspected and, if needed, treated for any infestations without exposing her to chemicals.

In December 2010, the resident filed a complaint with the state’s Division on Civil Rights (DCR), alleging that the PHA committed discrimination by denying her request for a reasonable accommodation for her chronic severe migraine attacks. The DCR investigated her allegations and ultimately issued a finding of “no probable cause.” The resident then appealed.

Ruling: A New Jersey appeals court upheld the DCR’s finding.

Reasoning: The court was satisfied that the DCR’s finding of no probable cause wasn’t an abuse of discretion, because there was nothing to indicate that the PHA took any retaliatory action against the resident because of her disability or otherwise. The record showed that the DCR investigator spent 40 hours interviewing witnesses and analyzing documents before making his recommendation. The investigation concluded that the PHA agreed not to treat the resident’s unit as she requested and further determined that she refused to allow access to her unit even though it was only to determine what action, if any, needed to be taken to treat her unit and, if so, what accommodations could be made.

• Drummer v. Newark Housing Authority, March 2014