Metropolitan Fair Housing Council of Oklahoma, Inc et al v. Feiock et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
METROPOLITAL FAIR HOUSING 	)
COUNCIL OF OKLAHOMA, INC., 	)
JAMES MCNAMEE, and MARTA 	)
MCNAMEE, 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. CIV-23-115-GLJ
)
FRANK FEIOCK AND GLENNA 	)
FEIOCK, both d/b/a Rockford Garden 	)
Apartments, 	)
)
Defendants. 	)
ORDER
This matter is before the Court on a partial motion for summary judgment as to one
claim out of several lodged by Plaintiffs Metropolitan Fair Housing Council of Oklahoma,
Inc., James McNamee, and Marta McNamee. Defendants Frank and Glenna Feiock, doing
business as Rockford Garden Apartments, move for partial summary judgment as to
Plaintiffs’ failure-to-accommodate claim under the Federal Fair Housing Act (“FHA”), 42
U.S.C. § 3601 and Oklahoma’s Fair Housing Law, 25 Okla. Stat. § 1451 et seq. For the
reasons set forth below, the Court finds that Defendants Motion for Partial Summary
Judgment and Brief in Support [Docket No. 27] is granted.
I. 	PROCEDURAL HISTORY
Plaintiffs filed their Complaint on April 3, 2023. Docket Nos. 1-2. On December
8, 2023, Defendant moved for partial summary judgment [Docket No. 27] as to Plaintiffs’
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FHA claim and Oklahoma’s identical state law provision, alleging Defendants’ failure to
accommodate.
Plaintiffs’ Complaint allegations focus on the landlord/tenant relationship between
Plaintiffs James and Marta McNamee and Defendants Frank and Glenna Feiock. Plaintiffs’
Complaint enumerates three claims: (i) “discriminatory housing practices,” in violation of
the FHA, (ii) “unlawful housing practices” in violation of the Oklahoma Fair Housing
Law,1 25 Okla. Stat. § 1452, and (iii) a state-law negligence claim “by want of ordinary
care of skill in the management of their property[.]” See Docket No. 27, pp. 10-11, ¶¶ 37-
42. 	Plaintiffs’ Complaint alleges all three claims by all three Plaintiffs against both
Defendants, 	without 	further 	clarification. 	For 	each, 	Plaintiffs 	simply 	assert 	that
“Defendant” or “Defendants” violated these laws. 	“At minimum, [R]ule 8(a) requires a
comprehensible, ‘short and plain’ statement of the claim(s) sufficient to give the opposing
party reasonable and fair notice of the basis of the complaint.” Abdelsamed v. Colorado,
6 Fed. Appx. 771, 772 (10th Cir. 2001). 	Moreover, Plaintiffs’ Complaint fails to clearly
specify what violations they are alleging for each statute and law.2 A motion to dismiss or
for more definite statement, pursuant to Fed. R. Civ. P. 12, would have been well taken
here, although the narrower issue before the Court here is not precluded by this failure.
The Court proceeds on the substance of the issues related to the partial motion for summary
judgment, and is able to do so here because the parties appear to agree that the only claims
1 Plaintiffs identified the statute by two different titles (one correct and one incorrect), but cited
the correct statute, in their Complaint. See Docket No. 2, p. 11.
2 For instance, violations of the FHA alone can include, inter alia, discrimination, failure-to-
accommodate, and retaliation under various provisions.
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at issue are Plaintiffs’ failure-to-accommodate claims under the FHA and Oklahoma Fair
Housing Law.
In any event, Plaintiffs, and perhaps Defendants, appear under the impression that
other, separate claims under the FHA, and perhaps Oklahoma statutory and common law,
remain. 	The nature of the remaining claims is unclear to the Court, although the Court
notes that Plaintiffs only enumerated one federal claim.3 	See Docket No. 2, pp. 10-11,
¶¶ 37-42. 	Counsel is thus cautioned that the present form of Plaintiffs’ Complaint is
improper, and each claim should have been clearly and separately set forth to prevent
misunderstandings such as this. 	See, e.g., Park v. TD Ameritrade Tr. Co., 2010 WL
4608225, at *2 (D. Colo. Nov. 5, 2010) (“[A]s a structural matter, the Title VII Complaint
is deficient because it purports to assert multiple claims for relief within each ‘Claim for
Relief.’ . . . This format, which is repeated in Claims Three, Four, and Six, is improper
under Rule 8 of the Federal Rules of Civil Procedure.”). Future failure of this sort could
result in dismissal of some or all of a Plaintiff’s claims.
II. 	SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the record shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
3 Ordinarily, the Court would decline to exercise supplemental jurisdiction after all federal claims
had been resolved. 	See Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009),
(“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has original jurisdiction.”) (citing 28 U.S.C.
§ 1367(c)); Smith v. City of Enid By and Through Enid City Commission, 149 F.3d 1151, 1156
(10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should,
decline to exercise jurisdiction over any remaining state claims.”).
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Fed. R. Civ. P. 56(a). 	A genuine issue of material fact exists when “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show
the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986), with the evidence taken in the light most favorable to the non-moving party,
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party asserting that
a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
III. 	FACTUAL BACKGROUND
The undisputed facts reflect that Plaintiffs James and Marta McNamee entered into
a six-month lease agreement on October 2, 2020, for an apartment unit owned by landlord
Frank Feiock. See Docket No. 27, p. 2, ¶¶ 1-2 & Ex. 2. Six-month leases were standard
for this apartment unit/complex. Id. The lease itself required no notice of termination from
Defendants; rather, the lease would automatically convert into a month-to-month tenancy
at the expiration of the six-month term, identified as March 31, 2021. Id., ¶ 3 & Ex. 2, p.
1. On March 12, 2021, the apartment manager delivered to the McNamees a Notice that
the lease would be terminated on April 2, 2021, and that they had thirty days, until May 3,
2021, to vacate the apartment. The Notice was signed by “Frank Feiock, Owner.” Id., Ex.
3. 	Defendants agree, for purposes of this motion, that Plaintiffs are individuals with
disabilities under applicable law. Id., p. 4, ¶ 10.
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On March 24, 2021, a representative from Plaintiff Metropolitan Fair Housing
Council of Oklahoma, Inc. (“MFH”) phoned the apartment complex on behalf of Plaintiffs
McNamee to make a verbal request to allow the McNamees to stay that the apartment
complex. 	The apartment manager, Kellie White, memorialized this in an email to Frank
Feiock, in which she noted Marta McNamee had represented that James McNamee had
stage 4 cancer, was in the end stages of life, and it was “not a good time for them to move.”
Id., Ex. 4. 	Ms. White stated she declined the verbal request because she was “not
authorized to make that decision,” but that she provided an email address and agreed to
relay any request in writing to the Owner. Id. Defendants interpret the verbal request, and
Plaintiffs do not challenge this interpretation, as a request for a six-month renewal of the
lease. Id., p. 3, ¶ 5; Docket No. 35, p. 4, ¶ 5.
That same day, MFH sent a written letter to the apartment complex signed by
attorney Ge’Andra Johnson (Plaintiffs’ counsel), with “Attention” directed to Frank Feiock
as the Owner. Docket No. 27, Ex. 5. In it, MFH made a formal request for a “reasonable
accommodation” on behalf of the McNamees, stating that James McNamee is covered as
a disabled person under the FHA. In support, MFH cited an unspecified illness in which a
move would be “difficult and disruptive, and may worsen or exacerbate his disability.” Id.
MFH then requested a lease renewal for a one-year term. Id. The only formal request was
therefore the request for a “one-year double-lease-term renewal request,” which Plaintiffs
never withdrew or modified. Docket No. 27, p. 4, ¶ 7. Plaintiffs vacated the apartment on
April 1, 2021. Id., ¶ 9; Docket No. 35, p. 4, ¶ 9.
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Plaintiffs dispute: 	(i) how to calculate the number of days of notice given by the
March 12, 2021 Notice, and (ii) characterizing the events surrounding the termination
and/or renewal of the lease term. 	Defendants allege they provided 52 days of notice to
Plaintiffs to vacate, while Plaintiffs allege the March 12, 2021 Notice provided only two
days of notice, because Defendants were bound by an April 30, 2021 move-out date since
the Notice was provided March 12, 2021 (the lease ended March 31, 2021, and the tenants
were legally allowed to stay until April 30, 2021; therefore, a move-out date of May 3
provided only two days’ notice, by Plaintiffs’ calculations). It is not contested, however,
that the McNamees received Notice on March 12, 2021 that the lease was being terminated
April 2, 2021, and that the Notice gave them until May 3, 2021 to vacate the premises.
Additionally, Defendants assert that Plaintiffs never made a request for a lease renewal or
extension of the lease, and Defendants were not legally obligated to provide an extension.
Plaintiffs contend that they were not required to make such a request because, by the terms
of the lease, the tenancy converted to a month-to-month basis upon the expiration of the
six-month term. 	The Court has no facts before it relating to the reason the McNamees’
lease was terminated.
IV. 	DEFENDANTS’ PARTIAL MOTION FOR SUMMARY JUDGMENT
A. Defendant Glenna Feiock
Defendants Frank and Glenna Feiock point out in their partial motion for summary
judgment that the McNamees’ lease agreement was entered solely with Frank Feiock d/b/a
Rockford Garden Apartments, and Plaintiffs do not dispute this. See Docket No. 27, p. 2,
¶ 1 n.1; Docket No. 35, p. 3, ¶ 1. Furthermore, neither the disputed nor undisputed facts
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mention Glenna Feiock in relation to any failure-to-accommodate claim. 	As Plaintiffs
appear to agree, there is no genuine issue of material fact as to Glenna Feiock’s
involvement, and the Court therefore finds that Defendants’ partial motion for summary
judgment is granted as of right to Ms. Feiock. 	The Court declines to opine what, if any,
claim(s) remain against Ms. Feiock at this time.
B. Failure-to-Accommodate.
“The Tenth Circuit has not expounded on the disability portion of a failure to
accommodate claim under the Fair Housing Acts[,]” Haws v. Norman, 2017 WL 4221064,
at *5 (D. Utah Sept. 20, 2017), so district courts in this Circuit have looked to other Circuit
Courts for how they have addressed these issues. 	Under the FHA at 42 U.S.C.
§ 3604(f)(3)(B),4 	the 	required 	elements 	of 	a 	failure-to-accommodate 	claim 	“are:
(1) plaintiff is handicapped within the meaning of the FHA; (2) defendants knew or
reasonably should have known of the plaintiff's claimed disability; (3) plaintiff requested
an accommodation of his disability that was necessary to afford him an equal opportunity
to use and enjoy the dwelling; (4) the requested accommodation was reasonable; and
(5) defendants refused to make the requested accommodation.” 	Adam v. Andmark White
Lakes Apartments, LLC, 2024 WL 836959, at *6 (D. Kan. Feb. 28, 2024) (citing Ngiendo
v. Univ. Partners, LLC, 2021 WL 5038780, at *3 (D. Kan. Oct. 27, 2021) (citing Arnal v.
Aspen View Condo. Assoc., Inc., 226 F. Supp. 3d 1177, 1183 (D. Colo. 2016) (citing Dubois
v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006)).
4 25 Okla. Stat. § 1452(A)(16)(b) is substantially identical to the language in the FHA. The Court
applies the FHA analysis to this state law claim.
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“[T]he thrust of a reasonable accommodation claim is that a defendant must make an
affirmative change in an otherwise valid law or policy.” Bangerter v. Orem City Corp., 46
F.3d 1491, 1501-1502 (10th Cir. 1995). 	Defendants do not challenge here that the
McNamees are handicapped5 within the meaning of the FHA, nor that Defendants were
aware of the disabilities, and Defendants agree they refused to make the requested
accommodation. Elements three and four are thus the only two in dispute here, i.e., whether
the requested accommodation was necessary and reasonable.
“Accommodations required under the Act must be both reasonable and necessary
to afford the handicapped individual an equal opportunity to use and enjoy a dwelling.”
Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001) (citing
Smith & Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 795-796 (6th Cir. 1996)
(holding that the city had violated the Fair Housing Act by failing to allow adult foster care
homes to operate in areas zoned for single-family neighborhoods).
Necessary. 	“The 	mere 	fact 	that 	a 	handicapped 	person 	makes 	a 	request 	for
accommodation does not mean that the accommodation is necessary, and a defendant must
be given a reasonable opportunity to review the request for accommodation and determine
if the accommodation is necessary under the FHA.” 	Backus v. Tulsa Greenbriar I, LLC,
2022 WL 1913006, at *3 (N.D. Okla. June 3, 2022) (citing Arnal, 226 F. Supp. 3d at 1186).
5 The preferred term here is “disability,” but the Court tracks the statutory language here for
consistency purposes. See, e.g., Storr v. Marik, 2013 WL 6577374, at *3 n.5 (N.D. Ill. Dec. 10,
2013) (“Although the term ‘handicap’ has been replaced by the less pejorative term ‘individual
with a disability’ in the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) and other
legislation, the ‘handicap’ label continues in the Fair Housing Act and will be used in this
opinion.”).
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“[T]he object of the statute’s necessity requirement is a level playing field in housing for
the disabled.” Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917,
923 (10th Cir. 2012). 	However, the Tenth Circuit “emphasized” that while “‘the [FHA]
requires accommodations necessary to ensure the disabled receive the same housing
opportunities as everybody else, it does not require more or better opportunities.’”
Courage to Change Ranches Holding Co. v. El Paso Cnty., Colorado, 73 F.4th 1175, 1205
(10th Cir. 2023) (quoting Cinnamon Hills, 685 F.3d at 923). 	The Tenth Circuit also
“explicitly rejected” the proposition that an accommodation is “necessary if it [simply]
ameliorates the effects of the disability.” Haws, 2017 WL 4221064, at *6 (citing Cinnamon
Hills, 685 F3d at 924) (quotation omitted).
It is undisputed that the requested accommodation, a one-year renewal of the lease,
was not available to other nondisabled residents who were only entitled to six-month
leases. Plaintiffs also provided no evidentiary support for the necessity of a renewed lease
of that length. Plaintiffs do not dispute Defendants’ assertion that a standard lease with the
Rockford Garden Apartments was for a term of six months. 	Thus, the McNamees
requested an accommodation that was not an equal housing opportunity, but a better one.
See Courage to Change, 73 F.4th at 1205 (“Soaring Hope did not seek an equal housing
opportunity 	to 	its 	counterparts, 	but 	a 	better 	opportunity.”) 	(comparing 	42 	U.S.C.
§ 3604(f)(3)(B), with Cinnamon Hills, 685 F.3d at 923). Additionally, despite Plaintiffs’
unsupported assertion that they needed a one-year lease because James McNamee appeared
to be at the end stages of his life, Mr. McNamee remains a party to the case to this day
(three years later). Indeed, James and Marta McNamee vacated the apartment on April 1,
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2021, thirty-two days before their required move-out date. And while there is some
evidence that the McNamees were living out of their vehicle following this move,
Defendants submitted documents attached to the Reply suggesting Plaintiffs chose this
course of action despite being given homelessness support and housing resources,
including a hotel option, from the Veteran’s Administration. See Docket No. 38, Exs. 1-
2.6 	There 	is 	thus 	no 	evidence 	that 	a 	one-year 	lease 	renewal 	was 	a 	necessary
accommodation.
Reasonable. “An accommodation is reasonable under the FHA when it imposes no
fundamental alteration in the nature of the program or undue financial or administrative
burdens.” Arnal, 226 F. Supp. 3d at 1185-1186 (citing Giebeler v. M & B Associates, 343
F.3d 1143, 1157 (9th Cir. 2003)). However, “Plaintiff cites no authority, and the Court is
aware of none, holding that a holdover tenant can remain on a property indefinitely due to
a physical handicap.” Ngiendo, 2021 WL 5038780, at *5 (citing Salisbury v. City of Santa
Monica, 998 F.3d 852 (9th Cir. 2021) (holding the FHA applies to rentals only when the
rental arrangement is supported by adequate consideration)).
Furthermore, Plaintiffs’ response suggests that an “interactive dialogue” for a
shorter lease term (30, 60, or 90 days) might have resulted in an earlier resolution of this
case. 	The Court agrees with the District of Colorado that “[t]his seems to concede
Plaintiff’s written accommodation requests were not reasonable. And the undisputed
6 Defendants submit they were only able to include this documentation in their Reply, citing
Plaintiffs delays in providing discovery in this case. 	See Docket Nos. 24, 42. 	Although not
determinative for this decision, the Court cites this evidence here as further support for the lack of
necessity here.
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material facts do not address any purported accommodation requests Plaintiff made orally.”
Criner v. Ppf Amli 10020 Trainstation Circle, LLC, 2023 WL 6551516, at *16 (D. Colo.
Sept. 26, 2023) (“Moreover, the operative inquiry is not Plaintiff's purported flexibility.
Rather, ‘[a]n accommodation is reasonable under the FHA when it imposes no fundamental
alteration in the nature of the program or undue financial or administrative burdens.’”)
(quoting Arnal, 226 F. Supp. 3d at 1185-1186 (internal citation omitted)); see also Keys
Youth Servs., Inc. v. City of Olathe, KS, 248 F.3d 1267, 1276 (10th Cir. 2001) (“Common
sense dictates that when a defendant possesses a legitimate nondiscriminatory reason for a
housing decision, a plaintiff’s requested accommodation must substantially negate the
defendant's concern in order to be considered reasonable.”). There is thus no evidence that
a one-year lease renewal was a reasonable accommodation in this case.
V. 	CONCLUSION
Because the requested accommodation was neither necessary nor reasonable, the
Court finds that Defendants Motion for Partial Summary Judgment and Brief in Support
[Docket No. 27] is hereby GRANTED. Plaintiffs’ claim for failure to accommodate under
the FHA and Oklahoma Fair Housing Law are therefore dismissed.
IT IS SO ORDERED this 8th day of April, 2024.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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