United States District Court, D. Colorado
SAMUEL K. GILES, Plaintiff,
ALTO PARTNERS, LLLP, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
Brooke Jackson United States District Judge
housing discrimination lawsuit, defendant Alto Partners, LLLP
moves for summary judgment. ECF No. 67. For the reasons
stated herein, the motion is GRANTED.
K. Giles, an African-American individual, rents an apartment
in Terrace Gardens Apartments that is owned and operated by
the Adams County Housing Authority (“ACHA”). ACHA
provides subsidized housing for qualified residents of Adams
County as part of the Low Income Housing Tax Credit Program
(“LIHTC”). In October 2017 ACHA informed Terrace
Gardens residents that they might be displaced by
construction of a new housing development on the site.
However, they could apply to relocate to another new
development called Alto Apartments and avoid any future
displacement. Alto Apartments is owned by defendant Alto
Partners LLLP (“Alto”) and operated by ACHA. Alto
and ACHA appeared and are represented together, so I refer to
them collectively as defendant.
Giles applied and designated unit #215 as his unit of choice,
but his application was not accepted. For housing complexes
participating in LIHTC, ACHA generally must determine that
applicants' income falls between a certain maximum and
minimum. ECF No. 67-21. Mr. Giles, who is
self-employed, completed his initial application and
submitted a number of documents. ACHA told Mr. Giles that
they could not verify that he had the minimum required income
and requested additional documents, some of which Mr. Giles
provided, some of which he chose not to provide. ACHA
eventually denied Mr. Giles' application, citing
inability to verify that he met the income requirements. ECF
Giles filed this lawsuit on February 26, 2018, seeking to
prevent defendants from leasing or selling unit #215. In his
Amended Verified Complaint he asserts seven claims for
relief: (1)-(4) violations of the Fair Housing Act of 1968,
brought under Title VIII of the Civil Rights Act of 1968; (5)
breach of contract; (6) breach of the covenant of good faith
and fair dealing; and (7) unlawful and unfair housing
practices under Colo. Rev. Stat. § 24-34-502. ECF No.8.
All of Mr. Giles' claims ultimately incorporate and
depend on his allegation that ACHA discriminated against him
because of his race, and that their reasons for denying his
application were pretexts for racial discrimination.
Court held a hearing on Mr. Giles' request for a
temporary restraining order or preliminary injunction
preventing defendants from leasing or selling unit #215. The
request was denied. ECF No. 13. On appeal the Tenth Circuit
affirmed the denial, finding that Mr. Giles had not
demonstrated a “clear and unequivocal right to
relief.” Giles v Alto Partners, LLLP, 762
Fed.Appx. 505, 509 (10th Cir. 2019) (unpublished). Among
other things the court noted that Mr. Giles had been a tenant
at Terrace Gardens for years without incident, and that Alto
stated in court that it will accept Mr. Giles'
application when a unit opens, provided that he qualifies.
Giles also filed two additional suits, one in the Adams
County District Court and the other in this district, seeking
the same equitable relief. On April 20, 2018 defendants filed a
motion to dismiss Mr. Giles' complaint claiming it was
precluded by Mr. Giles' voluntary dismissal of his second
and third lawsuits. ECF No. 20. This Court found that though
Mr. Giles' voluntary dismissal operated as an
adjudication on the merits, this did not preclude Mr.
Giles' original claim. ECF No. 37.
defendant has moved for summary judgment. They argue that
there is evidence that Mr. Giles was not financially
qualified for residence in Alto Apartments, and that he has
presented no evidence other than conclusory statements
showing that his application was denied for discriminatory or
pretextual reasons. ECF No. 67.
may grant summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party has the burden to show that there is an absence
of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The nonmoving party must “designate specific facts
showing that there is a genuine issue for trial.”
Id. at 324. A fact is material “if under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
material fact is genuine if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The Court
will examine the factual record and make reasonable
inferences therefrom in the light most favorable to the party
opposing summary judgment. Concrete Works of Colo., Inc.
v. City and Cty. of Denver, 36 F.3d 1513, 1517 (10th
Giles has brought five out of seven of his claims under the
Fair Housing Act (FHA). 42 U.S.C.A. § 3601. The Tenth
Circuit evaluates FHA discrimination claims under the
three-part McDonnell Douglas analysis. Asbury v.
Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)). Though McDonnell was an employment
discrimination case, courts apply the McDonnell
standard to claims under other statutory antidiscrimination
laws. See, e.g., Boykin v. KeyCorp, 521 F.3d 202,
213 (2d Cir. 2008); Miller v. Poretsky, 595 F.2d
780, 795 (D.C. Cir. 1978); Asbury, 866 F.2d at 1279.
the McDonnell standard the plaintiff must first
offer proof of a prima facie case of discrimination.
Id. The burden then shifts to the defendant to show
that the refusal to rent or negotiate was motivated by
legitimate, non-racial considerations. Id. Then the
burden shifts back to the plaintiff to show that these
reasons were pretextual. Id. At this third step, to
avoid summary judgment, the plaintiff need only show that
“there is a genuine dispute of material fact” as
to whether the “proffered reason for the challenged
action is pretextual.” Randle v. City of
Aurora, 69 F.3d 441, 451 (10th Cir. 1995) (applying
McDonnell to employment discrimination).
pretext a plaintiff has several options open to him. First,
he may demonstrate that the proffered reason for the action
is factually false. DePaula v. Easter Seals El
Mirador, 859 F.3d 957, 970 (10th Cir. 2017). Second, he
may demonstrate that “discrimination was a primary
factor” in the defendant's decision. Id.
This can often be achieved “by revealing weaknesses,
implausibilities, inconsistencies, incoherences, or
contradictions” in the defendants' proffered reason
“such that a reasonable fact finder could deem the
employer's reason unworthy of credence.”
Id. Finally the plaintiff may also show pretext by
demonstrating that the defendant “acted contrary to
written company policy, an unwritten company policy, or a
company practice.” Id.
from the FHA Mr. Giles has two other claims. He claims
defendant's discrimination breached the Land Use
Restriction Agreement between Alto Partners and Colorado
Housing and Finance Authority (CHFA). He also claims
defendant violated the Colorado Unfair Housing Practices Act.
Colo. Rev. Stat. § 24-34-502. As the Tenth Circuit
noted, because these claims are predicated on discriminatory
housing practices, they depend on Mr. Giles' allegations
of race-based discrimination and need not be addressed
separately from the FHA claims.
raises three arguments in its motion: (1) Mr. Giles'
housing application was denied because ACHA could not verify
that he met the minimum income requirements; (2) Mr.
Giles' refusal to produce his 2017 tax returns and profit
and loss statement justifies his denial, and that once the
documents were produced, they showed he was not
income-qualified for Alto Apartments, and (3) Mr. Giles has
presented no evidence of race-based discrimination. ECF No.
67. The first two arguments address defendant's burden to
show their action has a legitimate, non-racial justification.
The third argument attempts to counter Mr. Giles' claim
that these reasons are pretextual.
Mr. Giles' Application Was Denied Because ACHA Could
Not Verify His Income Met the Minimum Income
claims that ACHA neutrally applied their income verification
requirements to Mr. Giles' application. ECF No. 67. ACHA
relies on a manual published by the Colorado Housing and
Finance Authority (CHFA) for LIHTC administrators in order to
help them comply with the Land Use Restriction Agreement and
the IRS Code. Low-Income Housing Tax Credit Compliance Manual
(“CHFA Compliance Manual”). To comply with IRS
Code, the CHFA Compliance Manual requires LIHTC
administrators to get third-party verification of
applicants' income. CHFA Compliance Manual, § 3.18.
Compliance Manual § 3.18(B), “Self-Employment
Income, ” lists what self-employed applicants must
provide for third-party income verification. The list
includes a “Certification of Income for Self-Employed
Persons” form, a “business plan summary, ”
“year-to-date profit and loss statement, ” and
applicant's “most recent federal tax return,
” including IRS forms 1040 and Schedule C. CHFA
Compliance Manual § 3.18(B). § ...