Freedom's Path at Dayton v. Dayton Metropolitan Housing Authority

                   IN THE UNITED STATES DISTRICT COURT 
                    FOR THE SOUTHERN DISTRICT OF OHIO 
                             WESTERN  DIVISION 
 DAYTON VETERANS                 . 
 RESIDENCES LIMITED 
 PARTNERSHIP, d/b/a 
 FREEDOM'S PATH AT DAYTON,      . 
             Plaintiff, 
                                         Case No.  3:16-cv-466 
       Ys
                                          JUDGE WALTER H.  RICE 
 DAYTON METROPOLITAN 
 HOUSING AUTHORITY d/b/a 
 GREATER DAYTON PREMIER 
 MANAGEMENT 
             Defendant. 

         DECISION AND ENTRY OVERRULING DAYTON METROPOLITAN 
           HOUSING AUTHORITY'S MOTION  FOR RECONSIDERATION 
                                 (DOC.  #69) 

     On March 25, 2019, the Court issued a 55-page Decision and  Entry 
Overruling in Part and Sustaining in Part Defendant Dayton Metropolitan Housing 
Authority’s Motion for Summary Judgment.'  It granted summary judgment to 
Defendant on Plaintiff’s claims of intentional discrimination and disparate 
treatment,  but found that genuine issues of material fact precluded summary 

'   Dayton Metropolitan Housing Authority (“DMHA”)  does business as Greater 
Dayton Premier Management (“GDPM”).  The parties use these two terms 
interchangeably, as will the Court. 

judgment on Plaintiff's “reasonable accommodation” claims under the Americans 
with Disabilities Act (“ADA”) and  Fair Housing Act (“FHA”).  Doc.  #65. 
      Five months later, on August 23, 2019, the Dayton Metropolitan Housing 
Authority (“DMHA") filed a Motion for Reconsideration of that Decision and  Entry, 
Doc.  #69.  For the reasons set forth below, the Court OVERRULES that motion in 
its entirety. 

l.      Relevant Background 
      All relevant facts are set forth in the Court’s March 25, 2019,  Decision and 
Entry,  Doc.  #65, and will not be repeated here. 

ll.     Motions for Reconsideration 
     The Federal Rules of Civil Procedure do not specifically provide for motions 
for reconsideration.  Motions for reconsideration are often treated as motions to 
alter or amend a judgment under Federal Rule of Civil  Procedure 59(e),  if filed 
within 28 days after the entry of judgment.  In this case, however, because no 
final judgment has been entered,  Rule 59(e) is inapplicable.  See Russell v.  GTE 
Gov't Sys.  Corp.,  141  F. App’x 429, 436  (6th Cir.  2005)  (holding that because 
there was no final judgment when the court entertained the motion for 
reconsideration,  Rule 59(e) did not apply). 
     Nevertheless,  “[d]istrict courts have authority both under common law and 
[Federal Rule of Civil  Procedure]  54(b) to reconsider interlocutory orders and to

reopen any part of a case before entry of final judgment.”  Aodriguez v.  Tennessee 
Laborers Health &  Welfare Fund, 89 F. App’x 949, 959 (6th Cir.  2004).  See a/so 
Am.  Civil Liberties Union of Ky.  v. McCreary Cty., Ky., 607 F.3d 439, 450 (6th 
Cir.  2010)  (noting that where the district court has not yet entered final judgment, 
it is “free to reconsider or reverse its decision for any reason.”). 
      Typically, however, courts will reconsider an interlocutory order only when 
there is “(1) an intervening change of controlling law;  (2) new evidence available; 
or (3) a need to correct a clear error or prevent manifest injustice.”  Louisville/ 
Jefferson Cty. Metro Gov't v.  Hotels.com,  L.P.,  590  F.3d 381,  389 (6th Cir. 
2009)  (quotation omitted).  “Motions for reconsideration are not intended to re- 
litigate issues previously considered by the Court or to present evidence that could 
have been raised earlier.”  Northeast Ohio Coalition for Homeless v.  Brunner,  652 
F, Supp.  2d 871,  877 (S.D.  Ohio 2009). 

lil.    Analysis 
      In this case,  DMHA cites to no intervening change of controlling law and no 
evidence that was not available prior to the close of briefing on the motions for 
summary judgment.  Neither does DMHA’s Motion for Reconsideration allege that 
reconsideration is necessary to correct clear error or prevent manifest injustice. 
Not until  DMHA filed its Reply in Support of its Motion for Reconsideration did it 
argue that reconsideration is necessary to correct a clear error or prevent manifest 
injustice.  Arguments raised for the first time in a reply brief need not be

addressed.  NetJets Large Aircraft,  Inc.  v.  United States, 80 F.  Supp.  3d 743,  765 
(S.D.  Ohio 2015).  Moreover,  DMHA’‘s belated argument that the Court committed 
“clear error” is severely undermined by the fact that it, without any explanation, 
waited five months to move for reconsideration.  Standing alone, these defects 
constitute sufficient grounds for overruling DMHA’‘s motion. 
      For the sake of completeness, the Court will briefly address DMHA’s 
arguments.  DMHA challenges, on two grounds, the Court's ruling that genuine 
issues of material fact preclude summary judgment on the question of whether the 
verbal and written communications that took place in December of 2015 between 
Craig Taylor (the consultant working for Communities for Veterans) and Jennifer 
Heapy (GDPM's Executive Director) were sufficient to put GDPM on notice that 
Freedom's Path was requesting an accommodation under the ADA or FHA, or 
whether the need for such accommodation under those statutes was obvious at 
that time.  See Doc.  #65,  PagelD#2158. 
     A.     Nexus 
     First,  DMHA argues that there was no nexus between the requested 
accommodation and the disabled status of any tenant.  DMHA argues, for the first 
time, that Plaintiff has identified no individual tenant of the proposed new 
Freedom's Path development who is actually disabled.  Although DMHA now 
argues that this is an essential element of Plaintiff's prima facie case,  requiring 
judgment in DMHA’'s favor,  it offers no explanation for failing to raise this issue in 
its summary judgment motion.  In the Decision and Entry, the Court noted that

“GDPM does not dispute that many of the prospective tenants of Freedom’s Path 
are disabled, and it can be inferred from the record that GDPM was aware of this 
fact as early as December of 2015.”  Doc.  #65, PagelD#2149. 
      Even if DMHA had not waived this argument by failing to raise it in a timely 
manner,  Plaintiff correctly points out that,  because the housing units were not yet 
constructed, no prospective tenants could be specifically identified by name. 
Nevertheless, evidence shows that DMHA knew that the housing units were 
intended for veterans, many of whom were qualified persons with disabilities.  In 
fact, this was the whole point of the proposed development—to provide disabled 
and  homeless veterans with  “permanent supportive housing”  in close proximity to 
the Veteran’s Administration's Medical Campus.  Under these circumstances, 
Plaintiff's inability to identify individual prospective tenants is not fatal to the 
reasonable accommodation claim. 
     The requested accommodation at issue in this case is a modification of 
DMHA’s Administrative Plan to include a prior competition as a permissible method 
of selecting project-based vouchers.  If this requested accommodation had been 
granted in a timely manner, GDPM could have applied for Veterans Affairs 
Supportive Housing  (“VASH”) project-based vouchers on Plaintiff’s behalf.  This 
would have allowed Plaintiff to move forward with the proposed development. 
     DMHA maintains,  however, that it simply enforced a facially-neutral policy, 
the result being that a// prospective tenants of Freedom’s Path, disabled and non- 
disabled veterans alike, were burdened in the same manner and to the same

degree; no one has access to Freedom's Path as a  place to live.  DMHA argues 
that, because disabled individuals were not uniquely burdened by application of the 
policy,  Plaintiff's reasonable accommodation claim fails as a matter of law. 
      Given that DMHA did not raise this issue in its motion for summary 
judgment, the Court will not consider it now.  It is well-settled that “parties cannot 
use a motion for reconsideration to raise new legal arguments that could have been 
raised before a judgment was issued.”  Roger Miller Music, Inc.  v.  Sony/ATV 
Publ'g, 477  F.3d 383, 395  (6th Cir.2007). 
      B.     Date of Earliest Request for Accommodation 
      DMHA next argues that there is no genuine issue of material fact concerning 
whether the communications that took place between Taylor and  Heapy in 
December of 2015 constituted a request for a reasonable accommodation.  It 
argues that Plaintiff’s own conduct demonstrates that Plaintiff did not believe that 
these communications constituted such a request.  In fact,  Plaintiff did not make 
this argument until it filed its reply brief in support of its motion for summary 
judgment.  DMHA notes that Plaintiff's Complaint cites only to the September 2, 
2016, letter as the date of the requested accommodation.  Doc.  #1, PagelD#7.  So 
does a May  1, 2018,  letter sent to GDPM’s counsel in connection with settlement 
discussions.  Doc.  #69-1, PagelD#2178.  DMHA argues that the Court failed to 
take this into consideration in its Decision and  Entry. 
     Plaintiff argues that,  under Fed.  R.  Evid. 408, the contents of the May  1, 
2018,  letter cannot be considered.  That Rule provides as follows:

      (a) Prohibited Uses.  Evidence of the following is not admissible--on 
      behalf of any party--either to prove or disprove the validity or amount 
      of a disputed claim or to impeach by a  prior inconsistent statement or 
      a contradiction: 
            (1) furnishing, promising, or offering--or accepting, promising to 
            accept, or offering to accept--a valuable consideration in 
            compromising or attempting to compromise the claim; and 
            (2) conduct or a statement made during compromise 
            negotiations about the claim--except when offered in a criminal 
            case and when the negotiations related to a claim by a public 
            office in the exercise of its regulatory, investigative, or 
            enforcement authority. 
      (b) Exceptions. The court may admit this evidence for another 
      purpose, such as proving a witness's bias or prejudice, negating a 
      contention of undue delay, or proving an effort to obstruct a criminal 
      investigation or prosecution. 
Fed.  R.  Evid. 408.  DMHA maintains that the letter is offered not as evidence of 
liability, but as evidence of Plaintiff's subjective state of mind,  relevant to the 
question of whether Plaintiff,  in fact, requested an accommodation earlier than 
September 2,  2016. 
     The Court finds that consideration of the May  1, 2018, letter is barred  by 
Rule 408.  The key remaining issue in this case is whether Taylor’s 
communications with  Heapy in December of 2015 constituted a request for a 
reasonable accommodation.”  DMHA is offering the May  1, 2018, letter,  “a 
statement made during compromise negotiations about the claim,” to disprove the 
validity of this claim. 

2   At that time, Taylor suggested that GDPM amend its Administrative Plan to 
remove the obstacles at issue; he also offered to provide examples of relevant 
language used by other public housing authorities.  Doc.  #40-12, PagelD#959.

      Even if the Court were to consider the allegations in the Complaint and the 
statement made in the May  1,  2018, letter, genuine issues of material fact still 
exist.  Taylor testified that, although he made no specific oral or written request 
for a  “reasonable accommodation” prior to September 2, 2016,  “everything was to 
accommodate the need to house homeless and disabled vets.”  Doc.  #43-11, 
PagelD#1501.  GDPM was fully aware that the project could not move forward 
without the requested modification to the Administrative Plan. 
      For the reasons discussed  in the Decision and Entry, the Court continues to 
believe that,  based on the evidence presented, a reasonable jury could find that the 
December of 2015, communications between Taylor and Heapy were sufficient to 
put GDPM on notice of the need for a reasonable accommodation under the FHA or 
the ADA. 

IV.    Conclusion 
      For the reasons outlined above, the Court OVERRULES Defendant's Motion 
for Reconsideration,  Doc.  #69. 

Date:  November  12,  2019                 LP  gees 
                                   WALTER H.  RICE 
                                   UNITED STATES DISTRICT JUDGE