Just when you though all the 2022 bad news was behind you, on December 20, 2022, the MCAD issued its Decision in MCAD, Joshua Fortin and Nicole Evangelista v. Martin Green Properties, LLC, Martin Green and Hang Ngo a/k/a Ngo Hang. (Although this case arose in an apartment setting, the law applied in the Decision is exactly the same for a condominium.) The facts seemed straightforward. Evangelista, a tenant in a building owned by Ngo, had a disabled boyfriend, Fortin, who was diabetic. Fortin had a dog, Sam whom Fortin believed could detect a drop in his BSL (blood sugar level) when Fortin was sleeping and wake him up. The apartment building had a No Dog Policy.[1] After learning about Sam, the Property Manager (Green) served Evangelista Notices to Terminate the Tenancy, allegedly for failure to pay rent on time. Forty-nine pages later, Green and Evangelista were awarded $30,000 in emotional distress, $20,000 to Evangelista and $10,000 to Fortin and a total of $17,000 in civil fines was assessed against Green, Martin Green Properties, LLC, and Ngo for violations of M.G.L.c.151B §4 (the anti-discrimination in housing statute) which took place between February 22, 2017 and March 24, 2017.
On or about May 28, 2016, Green received an email from another tenant complaining about an “interaction with Fortin and Sam.” Green spoke with Evangelista and told her that Sam had to leave. Evangelista took that to mean that if Sam did not leave, she would be evicted. Fortin and Sam moved out. In 2017 they moved back in because Evangelista said that there were other dogs in the building and the policy was not being enforced against them. A “whiplash causing” series of communications took place between Evangelista and Green over the next few days. On February 22nd, Green told Evangelista that the dog was not allowed and “instructed” her to leave the apartment because of the No Dogs Policy. On February 23rd Evangelista emailed Green that she had a certificate showing that Sam was a registered service animal although the certificate was never shown to him. (While the Hearing Officer did not give this a great deal of attention, the Certificate was obtained from the Internet.) Within minutes of being informed about the “Certificate”, for reasons that were not really clear, Green emailed to Evangelista the HUD/DOJ “Joint Statement on Reasonable Accommodations”, followed by another email stating that he had information that landlords can have a No Dog Policy. Although Green tried to call Evangelista, she emailed him that all communications concerning either rent or the dog should be in writing. Green then hand delivered a Notice to Terminate to Evangelista, which he then emailed to her the next day. On February 26th Green sent an additional email to Evangelista stating that if he did not receive confirmation that she had received the Notice to Terminate he would hire a sheriff where upon Evangelista promptly emailed Green that she had received it.
Of significance to the ultimate holding in this case was that Green did not ask any of the following questions:
- Why did Fortin need the dog? Was he disabled?
- What kind of help did the dog provide to Fortin.
- Where was the documentation identifying Sam as a service dog?[2]
After a lengthy discussion of the law of principal and agent (i.e. Ngo was the principal and Green was his agent) it was found that they had discriminated against Evangelista and Fortin. The Hearing Officer found that Ngo, the principal, could not delegate observance of housing laws to Green and that Green’s actions were within the scope of his authority.
In short, the owner and the management company were found joint and severally liable for discrimination based on failure to engage in interactive dialogue and failure to make the requested accommodation. Fortin was awarded $10,000 and Evangelista was awarded $20,000 for emotional distress to be paid joint and severally by Ngo, Green and the management company.[3] Additionally civil penalties were assessed, $7,500 against Green individually, $5,000 against the management company and $5000 against Ngo along with other non-monetary sanctions
While there is no hint of what the outcome would have been had Green engaged in an interactive dialogue. Would Green, et al, have been found liable for discrimination? Would the dollar amount of the award have been reduced? The interactive dialogue certainly would have undercut a substantial portion of the Hearing Officer’s reasoning in reaching the conclusion that Evangelista and Fortin had been discriminated against.
While there is much to disagree with in this case (and an appeal has been filed), 49 pages and $47,000.00 later, the takeaway is brief: If you are not granting an accommodation, it is critical to engage in an interactive dialogue no matter what you may think of that request.
[1] After the Complaint was filed with the MCAD, Ngo reversed his No Dog Policy.
[2] Regardless of any documentation, real or not, the Hearing Officer found that even if Sam were not a service dog Fortin provided emotional support to Fortin. “Although Sam did not actually detect drops in Fortin’s BSL or actually alert Fortin to such, Fortin believed that Sam did and relied upon Sam to do that while Fortin was sleeping, albeit in a placebo like manner, Sam provided emotional support to Fortin … .”
[3] The discrimination against Evangelista was “associational” because of her relationship with Fortin.
For a copy of the Decision [CLICK HERE].
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