* Wa St. Human Rights Comm., Appellant V. City Of Seattle Housing Authority, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WASHINGTON STATE HUMAN
RIGHTS COMMISSION, presenting
the case in support of the complaint
filed by CARMEN ROMERO,
Appellant,
v.
HOUSING AUTHORITY OF THE CITY
OF SEATTLE,
Respondent.
No. 82877-1-I
DIVISION ONE
OPINION PUBLISHED IN PART
SMITH, A.C.J. — Carmen Romero relinquished her Section 8 housing
subsidy under circumstances that she claims were less than voluntary because
her disabilities prevented her from fully understanding the consequences. The
Washington State Human Rights Commission (HRC) brought this action against
the Seattle Housing Authority (SHA), requesting a reasonable accommodation of
Romero’s disabilities in the form of a reinstatement of her housing voucher. The
Superior Court dismissed HRC’s complaint on SHA’s CR 12(b)(6) motion.
We conclude that SHA is subject to the requirements of the Washington
Law Against Discrimination (WLAD), ch. 49.60 RCW, because it provides
services in connection with real estate transactions. And because HRC
sufficiently alleged that Romero may have needed an accommodation to afford
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No. 82877-1-I/2
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her an equal opportunity to access housing, the court erred by dismissing HRC’s
complaint. Accordingly, we reverse.
FACTS
SHA administers a Section 8 Housing Choice Voucher program providing
rent subsidies to low-income tenants in Seattle.1 SHA issued a Section 8
voucher to Romero beginning in January 2012.
In May 2017, Romero began an e-mail exchange with Katherine Wiles, an
SHA employee, about Romero’s plan to move to Florida. Romero told Wiles that
it was her understanding that she could not transfer her voucher out of state and
would need to reapply in Florida. She asked Wiles about the process for giving
up her voucher, and asked for confirmation that she could not transfer her
voucher to St. Augustine, Florida. Wiles told Romero she could not transfer her
voucher because there was no housing authority in the zip code Romero
provided, and gave Romero a “Voluntary Program Exit” form. Romero signed the
form on June 19, 2017, and wrote on the form, “I am moving to Florida (Palatka).
I gave [Wiles] the zip code however there is no housing authority office with the
zip[ ]code I provided.” But the zip code that Romero provided is in fact served by
the Palatka Housing Authority.
One week later on June 26, Romero e-mailed Wiles, providing a new zip
code where she was living and asking if Wiles could transfer her paperwork to
1 The facts are taken from the allegations in HRC’s complaint. “When
reviewing the denial of a CR 12(b)(6) motion, we presume that the complaint’s
factual allegations are true.” Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 827
n.1, 355 P.3d 1100 (2015).
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No. 82877-1-I/3
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that zip code’s housing authority office. Wiles responded that Romero could not
reverse the voluntary relinquishment of her voucher.
Romero, who had moved to Florida to pursue a job opportunity, later
learned that the opportunity was in fact a sex trafficking scheme. Romero was
able to avoid the scheme and returned to Seattle on July 4, 2017, where she had
difficulty obtaining stable housing.
On January 26, 2018, Romero submitted a request to SHA for a
reasonable accommodation of her disabilities in the form of a voucher
reinstatement. Romero has Post Traumatic Stress Disorder, Bipolar Depression,
Generalized Anxiety Disorder, Panic Disorder, and learning disabilities that
impact her decision making ability, comprehension, and ability to process
directions. In her request, she attached a letter from her psychiatric mental
health provider, who explained that Romero “needed to be given detailed
information in order to understand the consequences of her actions and that she
benefitted from in-person interaction in order to comprehend information at the
same level as someone without her disability.”
SHA denied Romero’s request on June 16, 2018 and denied her appeal
on November 27, 2018. Romero has faced housing insecurity as a result.
PROCEDURAL BACKGROUND
After her SHA appeal was denied, Romero timely filed a complaint with
the U.S. Department of Housing and Urban Development (HUD), which later
referred the complaint to HRC. In March 2021, HRC initiated a complaint against
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No. 82877-1-I/4
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SHA in Superior Court, alleging a violation of the WLAD. HRC alleged that SHA
has an administrative plan that provides for “Special Issuance Vouchers,” which
can be issued outside of the waiting list including as an accommodation for a
person with a disability, and that Romero’s requested accommodation was
therefore reasonable.
SHA moved for judgment on the pleadings under CR 12(b)(6), alleging
that the issuance of Section 8 vouchers was not a “real estate transaction”
subject to the WLAD, that SHA did not fail to reasonably accommodate Romero,
and that HRC’s complaint was untimely. It attached copies of Romero’s program
exit form and some of the e-mail correspondence that had been referenced in the
complaint. Along with its response, HRC attached documentation of Romero’s
complaint to HUD. SHA then conceded that the request was timely. With its
reply, SHA also submitted copies of its website showing that the voucher waitlist
was closed at the time that Romero requested reinstatement of her voucher. The
court granted SHA’s motion, and HRC appeals.
ANALYSIS
HRC contends that the court erred by considering facts outside of the
pleadings and by granting SHA’s motion to dismiss. We conclude that the court
did not err by considering attachments to the parties’ briefing, that SHA is subject
to the WLAD in its role as a voucher administrator, and that HRC adequately
pleaded a discrimination claim. Therefore, we reverse.
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No. 82877-1-I/5
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Standard of Review and Consideration of Facts Outside of Pleadings
We review orders on CR 12(b)(6) motions de novo. Trujillo v. Nw. Tr.
Servs., Inc., 183 Wn.2d 820, 830, 355 P.3d 1100 (2015). “All facts alleged in the
complaint are taken as true, and we may consider hypothetical facts supporting
the plaintiff's claim.” FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings,
Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014). “Dismissal based on failure to
state a claim is appropriate only if we conclude, beyond a reasonable doubt, that
the plaintiff cannot prove any set of facts consistent with the complaint which
would justify recovery.” Byrd v. Pierce County, 5 Wn. App. 2d 249, 256-57, 425
P.3d 948 (2018). Therefore, a CR 12(b)(6) motion should be granted “ ‘sparingly
and with care’ and, as a practical matter, ‘only in the unusual case in which
plaintiff includes allegations that show on the face of the complaint that there is
some insuperable bar to relief.’ ” Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d
206 (2007) (internal quotation marks omitted) (quoting Hoffer v. State, 110 Wn.2d
415, 420, 755 P.2d 793 (1984)).
HRC challenges the court’s consideration of various factual assertions and
exhibits submitted by SHA. Generally, on a CR 12(b)(6) motion, if “matters
outside the pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment . . . and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by
rule 56.” CR 12(b)(7). However, “ ‘[d]ocuments whose contents are alleged in a
complaint but which are not physically attached to the pleading may . . . be
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No. 82877-1-I/6
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considered in ruling on a CR 12(b)(6) motion to dismiss.’ ” Trujillo, 183 Wn.2d at
827 n.2 (second alteration in original) (quoting Rodriguez v. Loudeye Corp., 144
Wn. App. 709, 726, 189 P.3d 168 (2008)). Furthermore, the court “may take
judicial notice of public documents if their authenticity cannot be reasonably
disputed” without converting the motion to a motion for summary judgment.
Rodriguez, 144 Wn. App. at 725-26. Finally, “where the ‘basic operative facts
are undisputed and the core issue is one of law,’ the motion to dismiss need not
be treated as a motion for summary judgment.” Trujillo, 183 Wn.2d at 827 n.2
(quoting Ortblad v. State, 85 Wn.2d 109, 111, 530 P.2d 635 (1975)).
Here, SHA attached two documents to its motion to dismiss: Romero’s
May 30, 2017 e-mail to Wiles and Romero’s Voluntary Program Exit form. These
were referenced in HRC’s complaint and were therefore appropriately considered
by the trial court. The other documents submitted by the parties were not
referenced in the complaint, but the parties alleged that the court could take
judicial notice of them as matters of public record: a July 19, 2019 HUD letter
referring Romero’s complaint to the Seattle Office for Civil Rights, an October 28,
2019 letter informing Romero that HRC was considering her complaint, and
copies of SHA’s public information website. The trial court did not specify that it
took judicial notice of these exhibits, and it is somewhat unclear whether it
considered them at all.2 Nonetheless, we conclude that the court did not err to
2 The court’s order specified that it considered:
1. Defendant's Motion for Judgment on the Pleadings Pursuant
to CR 12(h)(6) and supporting Declaration:
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No. 82877-1-I/7
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the extent it considered these exhibits and that its consideration of these
documents does not transform the motion to a motion for summary judgment.
Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 845, 347 P.3d 487
(2015) (“Although the record does not indicate whether the trial court did in fact
take judicial notice of these documents, the court's consideration of the
documents was appropriate in this CR 12(b)(6) motion. . . . Because Jackson
cannot challenge the authenticity of these readily available public documents, the
trial court did not err in taking judicial notice of these documents.”).
Real Estate Transactions and Services
The first issue is whether SHA engages in “real estate transactions” or
“services in connection therewith” when it administers Section 8 vouchers, such
that it is subject to the requirements of the WLAD under RCW 49.60.222. We
conclude that it does.
“The primary goal in statutory interpretation is to ascertain and give effect
to the intent of the Legislature.” Nat’l Elec. Contractors Ass’n, Cascade Chapter
v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999). We begin by examining the
2. Plaintiff’s Opposition to the Motion for Judgment on the
Pleadings Pursuant to CR 12(b)(6), including
3. Defendant's Reply to Plaintiffs Opposition to the Motion for
Judgment on the Pleadings Pursuant to CR 12(b)(6), including
; and
4. the records and files herein.
(Emphasis added.) The conspicuous omissions in items 2 and 3 seem to
suggest that the court did not consider the attachments to those filings, while
item 4 indicates that the court did consider those attachments. The hearing
transcript does suggest that the court read the attachments although it did not
refer to them specifically.
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No. 82877-1-I/8
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plain meaning of the statute, which is discerned from the ordinary meaning of the
language at issue and the context of the statute and statutory scheme in which
that language is found. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516,
526, 243 P.3d 1283 (2010). “In undertaking a plain language analysis, we avoid
interpreting a statute in a manner that leads to unlikely, strained, or absurd
results.” Burns v. City of Seattle, 161 Wn.2d 129, 150, 164 P.3d 475 (2007). We
may not add words to a statute and must construe it in a way that gives effect to
all the language within the statute. Lake, 169 Wn.2d at 526. “A statute is
ambiguous only if susceptible to two or more reasonable interpretations, but a
statute is not ambiguous merely because different interpretations are
conceivable.” Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005).
“Where a statute is ambiguous, section headings enacted as a part of the act
may assist in determining legislative intent, but they do not control the plain
meaning.” Matter of Estate of Ray, 15 Wn. App. 2d 353, 362, 478 P.3d 1126
(2020), review denied sub nom. Stine v. Dep't of Revenue, 197 Wn.2d 1009, 484
P.3d 1264 (2021). “If the statute is unambiguous after a review of the plain
meaning, the court’s inquiry is at an end.” Lake, 169 Wn.2d at 526.
The provisions of the WLAD “shall be construed liberally for the
accomplishment of [its] purposes,” which are to protect the “public welfare,
health, and peace of the people.” RCW 49.60.010, .020. Under the WLAD, the
“right to be free from discrimination because of . . . any sensory, mental, or
physical disability . . . is . . . a civil right.” RCW 49.60.030(1).
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No. 82877-1-I/9
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RCW 49.60.222(1)(b) specifically prohibits “discriminat[ion] against a person in
the terms, conditions, or privileges of a real estate transaction or in the furnishing
of facilities or services in connection therewith” on the basis of a disability. “Real
estate transaction” is defined as “includ[ing] the sale, appraisal, brokering,
exchange, purchase, rental, or lease of real property, transacting or applying for
a real estate loan, or the provision of brokerage services.” RCW 49.60.040(22).
Discrimination under this chapter also specifically includes a “refus[al] to make
reasonable accommodation in rules, policies, practices, or services when such
accommodations may be necessary to afford a person with the presence of any
sensory, mental, or physical disability . . . equal opportunity to use and enjoy a
dwelling.” RCW 49.60.222(2)(b).
We conclude that the plain language of the statute includes the
administration of Section 8 vouchers in its prohibition on discrimination. “Real
estate transactions” are defined to include rentals of real property, and the
provision of a subsidy for such a rental is a service that enables, and is therefore
connected to, this transaction. Therefore, at the very least, issuing a Section 8
voucher is a “service[ ] in connection” with a real estate transaction under
RCW 49.60.222(1)(b).3 Similarly, the issuance of a Section 8 voucher affects a
3 The parties both advocate for their interpretation in the context of the
section heading for RCW 49.60.222: “Unfair practices with respect to real estate
transactions, facilities, or services.” This heading appears to have been created
by the Code Reviser, as it was not included in the original act, and it is therefore
not useful to our statutory interpretation. LAWS OF 1969, 1st Ex. Sess., ch. 167,
§ 4; State v. Lundell, 7 Wn. App. 779, 782 n.1, 503 P.2d 774 (1972) (“Section
headings which appear in RCW have three derivations: (1) they are placed there
by the Code Reviser, (2) they are placed there by the legislature but there is a
specific provision in the statute that section headings do not become a part of the
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No. 82877-1-I/10
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person’s “opportunity to use and enjoy a dwelling” under RCW 49.60.222(2)(b)
by enabling access to the dwelling in the first place.
We note that this interpretation is in line with Washington precedent, which
has construed RCW 49.60.222 to apply to a broad range of situations.
McFadden v. Elma Country Club, 26 Wn. App. 195, 201, 613 P.2d 146 (1980)
(grant of membership in a country club was a real estate transaction where
membership was a prerequisite to the use and possession of a home on the
club’s property—RCW 49.60.222 was intended to “cover every possible real
property transaction without exception” (quoting Wash. State Human Rights
Comm’n, Declaratory Ruling No. 9, 1 Wash. Human Rights Rep. IC-11 (1974)));
Williams-Batchelder v. Quasim, 103 Wn. App. 8, 14-15, 19 P.3d 421 (2000)
(analyzing WLAD reasonable accommodation claim in the context of the denial of
a day care home license). This interpretation is also in line with federal
precedent holding that virtually identical language in the Fair Housing
Amendments Act of 1998 (FHAA), Title 42 U.S.C., requires Section 8 voucher
administrators to make reasonable accommodations. See 42 U.S.C. §
3604(f)(3)(B) (requiring “reasonable accommodations in rules, policies, practices,
or services, when such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling,” with identical language to
RCW 49.60.222(2)(b) except where italicized); Marquis v. City of Spokane, 130
act, or (3) they are placed in the original act by the legislature without any limiting
provisions. It is only in the latter instance that section headings become an
integral part of the law and are useful in statutory interpretation.”).
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No. 82877-1-I/11
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Wn.2d 97, 109, 922 P.2d 43 (1996) (“In construing the [WLAD], we have
sometimes looked for guidance to cases interpreting equivalent federal law.”);
Burgess v. Alameda Hous. Auth., 98 Fed. Appx. 603, 606 (9th Cir. 2004)
(unpublished) (holding plaintiff adequately stated a claim under 42 U.S.C.
§ 3604(f)(3)(B) that housing authority failed to reasonably accommodate her by
denying approval of a voucher extension); Lihosit v. San Diego Hous. Comm'n,
06CV1149 J (BLM), 2006 WL 7354096, at *4 (S.D. Cal. Dec. 29, 2006) (court
order) (plaintiff had standing under 42 U.S.C. § 3604(f)(3)(B) based on claim that
housing authority failed to reasonably accommodate him in reducing housing
subsidy from a two-bedroom voucher to one-bedroom voucher). Therefore, we
conclude that RCW 49.60.222 prohibits SHA from discrimination in the issuance
of housing vouchers, and requires SHA to reasonably accommodate people with
disabilities.
A majority of the panel having determined that only the foregoing portion
of this opinion will be printed in the Washington Appellate Reports and that the
remainder shall be filed for public record in accordance with RCW 2.06.040, it is
so ordered.
Reasonable Accommodation
HRC contends that given the WLAD’s applicability to SHA, the court erred
by concluding that HRC failed to state a claim for reasonable accommodation.
We agree.
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No. 82877-1-I/12
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To state a claim under the WLAD, HRC was required to show that
(1) Romero had a sensory, mental, or physical disability and that (2) SHA refused
to make a reasonable accommodation that was (3) necessary to afford Romero
“equal opportunity to use and enjoy a dwelling.” RCW 49.60.222(2)(b). The
facts alleged in the complaint are sufficient to establish, and SHA does not
dispute, that Romero has a disability. The issues are whether the
accommodation that SHA refused to make was reasonable and whether it was
necessary for Romero to have an equal opportunity to use and enjoy a dwelling.
First, we cannot conclude as a matter of law that Romero’s requested
accommodation is unreasonable. See Trujillo, 183 Wn.2d at 830 (dismissal
under CR 12(b)(6) is appropriate if a claim is legally insufficient even under
plaintiff’s proposed hypothetical facts). “An accommodation is reasonable, and
therefore required, if it does not cause a ‘fundamental alteration in the nature of a
program’ or ‘undue financial and administrative burdens.’ ” Josephinium
Associates v. Kahli, 111 Wn. App. 617, 623, 45 P.3d 627 (2002) (quoting Groner
v. Golden Gate Gardens Apts., 250 F.3d 1039, 1044 (6th Cir. 2001)). The
question of whether an accommodation is reasonable is highly fact-specific and
requires the fact finder to balance the burdens imposed on the accommodating
party and the benefits imposed on the tenant. Josephinium, 111 Wn. App. at
623-24 (referring to the FHAA but noting that “Washington Law imposes the
same prohibitions and requirements” and analyzing both laws). In its complaint,
HRC specified that the accommodation Romero was requesting was a
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No. 82877-1-I/13
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reinstatement of her voucher. It alleged that SHA’s administrative plan provides
for “Special Issuance Vouchers,” which SHA may issue outside of the public
waiting list in response to specific situations, including “as an accommodation for
a person with a disability.” Drawing all reasonable inferences in HRC’s favor, this
implies that reissuing a voucher to Romero would not fundamentally change the
nature of the program or cause undue burdens to SHA.4 Trujillo, 183 Wn.2d at
830.
SHA disagrees, contending that federal regulations require it to issue
vouchers only to applicants on the waitlist, Romero was not on the waitlist, and
SHA’s waitlist was closed at the time that Romero requested the
accommodation. But federal regulations provide that in closing the waitlist, a
housing authority may either “stop accepting new applications, or may accept
only applications meeting criteria adopted” by the authority. 24 C.F.R.
§ 982.206(c). The regulations also do not appear to address reinstatement of a
housing voucher, which was Romero’s requested accommodation. We are
therefore not convinced that, as a matter of law, Romero’s requested
accommodation was necessarily legally foreclosed. SHA also contends that the
accommodation was impossible as a matter of fact, but this assertion requires
evidence about SHA’s budget that is not part of the record and would not be
4 Furthermore, SHA’s counsel stated at oral argument that there probably
was a situation in which SHA would allow someone to rescind their program exit
form if they could show that the exit was involuntary. Because Romero has
alleged that her exit was involuntary, rescinding her program exit form would
seem to be in a reasonable realm of possibility for SHA.
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No. 82877-1-I/14
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properly before us on a CR 12(b)(6) motion. Moreover, counsel for SHA
indicated at oral argument that exceptions are sometimes made to various rules
concerning eligibility and applications for vouchers. Given the deferential
standard of review, we cannot conclude beyond a reasonable doubt that
Romero’s requested accommodation is unreasonable.5
We also conclude that HRC sufficiently pled that an accommodation was
necessary to afford Romero an equal opportunity to use and enjoy a dwelling.
HRC’s complaint alleges that Romero’s mental health disabilities made it difficult
for her to comprehend the consequences of giving up her voucher in Seattle
without clear, detailed, accurate, and in-person communication, and that because
she did not receive this communication, her exit from the program was not
voluntary. The court could reasonably infer from these allegations that if not for
her disability, Romero would still have a voucher. Thus, we conclude that HRC
has sufficiently pleaded the third element, that is, that some accommodation is
required for Romero to have an equal opportunity to use and enjoy a dwelling as
someone without a disability. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 148 n.4,
94 P.3d 930 (2004) (noting in the employment context that plaintiff “must show
only a medical nexus between the disability and the need for any
5 For the first time on appeal, SHA included new portions of its
administrative plan in its brief to contend that the accommodation was
unreasonable. However, SHA “does not even address RAP 9.11,” which restricts
appellate consideration of new evidence on review in addition to the normal
judicial notice standard. Spokane Research & Def. Fund v. City of Spokane, 155
Wn.2d 89, 98-99, 117 P.3d 1117 (2005). Therefore, we do not consider this
evidence.
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accommodation” (emphasis added)), abrogated on other grounds by Mikkelsen
v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017).
SHA contends that there is no nexus between Romero’s disability and her
requested accommodation because her health provider only referenced
accommodations like providing Romero with detailed information and in-person
interactions to comprehend information. However, the allegation is that because
Romero did not receive these accommodations when she was exiting the
program in 2017, she was not able to make a voluntary choice to exit the
program. Under these facts, Romero’s requested accommodation in 2018 would
put her in the same position that she would be in if she was not disabled. This is
a sufficient nexus between the disability and Romero’s requested
accommodation.6
SHA also contends that it had no duty to accommodate Romero because
she was not a participant or applicant in the program at the time she requested
an accommodation. The authority it cites does not support this position. See
Josephinium, 111 Wn. App. at 629-30 (not addressing whether landlord’s duty to
accommodate continued to date of actual eviction, but noting that “presumably a
landlord may not escape an obligation to accommodate merely by serving a
notice to vacate.”). RCW 49.60.222 makes no such limitation, and indeed makes
6 We note that SHA’s argument to the contrary relies on an employment
discrimination case. Riehl, 152 Wn.2d at 94. But the requirements for
reasonable accommodation in the employment context are stricter than in other
contexts and refer specifically to documentation showing a link between a
disability and the person’s ability to perform the job. RCW 49.60.040(7)(d).
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No. 82877-1-I/16
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references to discrimination in the negotiation or issuance of real estate services.
RCW 49.60.222(1)(j). While SHA certainly does not have a duty to issue a
voucher to every disabled voucher applicant, it does have a duty to reasonably
accommodate applicants to put them on equal footing with non-disabled
applicants. This may include assisting individuals with filling out forms in the
application process, an accommodation that SHA makes “all the time.” In
Romero’s case, it is possible that this includes reissuing her voucher. We
therefore conclude that HRC adequately pleaded its claim that SHA failed to
reasonably accommodate Romero.
We reverse.
WE CONCUR:
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