Source: Montana Law Week

The Shea Law Office represented a property management company against a disability discrimination suit. Below is write up from Montana Law Week.

Geoffrey Angel practices disability and discrimination law. The Baxter Hotel in Bozeman has 7 floors. The 1st floor, mezzanine level, and 2nd floor (really the 3rd floor) are comprised of commercial units which house businesses that are open to the public. The top 4 floors each contain 5 residential units. Angel has owned a residential unit in the Baxter since before 2005 and is a member of the Baxter Homeowners’ Association.

In 11/05 he entered into a lease with Claude Matney for office space on the 2nd floor. During the time he maintained his office there he had no employees. The Baxter was built in 1929. There is a single elevator and stairway from the ground floor to the commercial and residential floors. The stairway is narrow and has turns. The only way persons in wheelchairs or utilizing a walker can access the upper floors is via the elevator. Between 2/08 and 1/09 the stairway from the lobby to the 2nd floor remained unlocked. In 1997 the Association amended the declarations to require that the lobby entrance be locked during Thanksgiving, Christmas, and non-business hours and the elevator locked at all times. It remained unlocked during business hours until 2/1/08. At the time Angel moved his office into the Baxter and for sometime before that the elevator was closed to general passenger use at the recommendation of City inspectors because it needed repairs. The Association instructed building manager Michelle Lindahl (High Street Properties), to inform unit owners that beginning 2/1/08 the elevator would be restricted at all times. She posted a notice around the building. Residents could access the elevator any time with their swipe key cards, and in 1/09 a time clock was installed that would keep it unlocked 8 a.m. to 5:30 p.m. and the by-laws were amended to require that it remain unlocked on the mezzanine and 2nd floors 8-5:30. In 3/08 Angel filed an HR complaint against the Association and High Street alleging discrimination by failing to provide reasonable accommodation for disabled persons by failing to keep the elevator open during business hours. He subsequently moved his office to his residence on Babcock which had been occupied by college students.

Angel, because he practices discrimination law, has standing under the MHRA to pursue this claim as an aggrieved party — anyone who can demonstrate a specific personal and legal interest as distinguished from a general interest and who has been or is likely to be specially and injuriously affected by a violation of the HRA. §49-2-101(2). Angel requested a reasonable accommodation for his clients; while the stairwell remained open, his suggested accommodation that it remain unlocked during business hours was reasonable. Had Baxter done nothing to resolve the issue, it is possible the HO might have found a violation of the reasonable accommodation statute. However, it did finally undertake a reasonable accommodation by installing the time clock and altering the by-laws to require that the elevator remain unlocked during business hours. The real question is whether the delay was so great that it amounted to a failure to accommodate. Terrell (11th Cir. 1998); Selenke (10th Cir. 2001).

The substantial evidence is that the Association acted in good faith. It was bound by law to work with Angel to reach an accommodation and was clearly willing to do so. However, he was essentially unwilling to engage in any dialogue about an appropriate accommodation. His response to the Association was in essence “my way or the highway.” He could have had input into board meetings as to the accommodation but failed to do so. The board spent at least 6 meetings going through the issue of the locked elevator and appropriate means of resolving the conflicting interests that the unit owners had presented (one owner’s complaint that the elevator needed to be restricted in accordance with the by-laws v. Angel’s and Matney’s concerns that it must remain open at all times during business hours). Angel’s primary argument that the board did not act in good faith is essentially that it was in the “back pocket” of David Loseff who owns several of the commercial units, whose motive in shutting down the elevator was allegedly to control ownership of the commercial space. However, the board’s decision came about as a result of a unit owner’s complaint that the by-laws were not being followed and after discussions about security. The decision to restrict access was not dictated by Loseff and was clearly not a power grab by him. Moreover, it does not appear that the decision to implement a time clock and change the by-laws was merely a belated attempt to avoid the consequences of illegal conduct, but was arrived at after careful consideration of legitimate factors such as the competing interests of the unit owners and alternatives to accommodate disabled persons. The greatest concern for the HO is the 9 months it took to arrive at the decision to install the time clock. (Installing it took 1 day after it was ordered.) However, it was not simply a matter of the board up and deciding one day to install a time clock. Over that time it only met at most 8 or 9 times. It had to deal with competing interests among the unit owners, at least one of whom complained that the elevator was not being locked in conformity with the by-laws, and then try to strike a balance between those interests. And then there was the question of the by-laws which required that the elevator remain secured at all times. To even begin implementing Angel’s suggested accommodation the board would have to change the by-laws. Further, although his suggested accommodation was reasonable, it was not necessarily the one the board had to implement. Certain members did not agree with Angel that restricting the elevator to swipe key card use violated the public accommodation statute. Under other circumstances Angel’s decision to move out of the Baxter might have convinced the HO that an undue delay had occurred. However, his decision to move was due to his inability to be in control of the situation. When he moved into the Baxter and then for almost a year the elevator was not available to his disabled clients because it was shut down for safety concerns, undercutting his argument that client access via the elevator was critical to his business, and the building he moved into also suffered from lack of disabled access and despite conducting his business from it for 10 months he has yet to obtain an estimate for constructing a wheelchair ramp. Weighing all the factors, the time between restricting the elevator and implementing the time clock solution did not constitute a delay of such length that it amounted to a failure to accommodate.

In any event, even if Baxter Homeowners violated the public accommodations statute, High Street, as its agent, has no liability to Angel. His argument that it “aided and abetted” the property owner to violate the HRA is not persuasive. The common law rule is that an agent cannot be held liable for aiding and abetting the principal when acting in its official capacity on behalf of the principal. Fiol (Cal. 1996). The California Fair Housing Act contains the identical aiding & abetting provision as in the MHRA. While the MHRA is broad, there is nothing in it indicating intent to abrogate the common law rule. However, the fact that an agent cannot conspire with the principal while acting in its official capacity on behalf of the principal does not insulate an agent from the consequences of its own tortious conduct. 3 AmJur Agency §298. The HO has found no Montana HR case that addresses this issue. However, Pelton (NY 2006) held that the property manager owed no duty to the charging party for its nonfeasance under discrimination law. Angel presented no substantial evidence that High Street’s conduct was anything more than following its duty to the Baxter Homeowners’ Association.

Judgment for Defendants; complaint dismissed.