response to summary judgment
PLAINFIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Lorraine Saint Pierre responds to Defendants’ Motion for Summary Judgment in a case claiming disability discrimination with its instruments of retaliation, namely harassment, maltreatment, quid pro quo, SLAPP actions, etcetera.
1, The boundaries of Summary judgment motions, rule 56 of Federal Procedure have been delineated in a number of cases. “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” the court rules in Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986). It goes on to state that only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Could a reasonable jury find that Plaintiff ‘s case has merit per Saint Pierre’s response to Defendants’ motion for summary judgment, is the operative question posed by Plaintiff’s Response.
2, In First National Bank of Arizona v. Cities Service Co., the court stated, “We observed further that “[i]t is true that the issue of material fact required by Rule 56(c) to be present to entitle2 a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” The Adickes v. S.H. Kress & Co. court in reversing lower court points out that the moving parties’ submissions had not foreclosed the possibility of the existence of certain facts from which “it would be open to a jury ... to infer from the circumstances[.]”
3, Two facts must be acknowledged before the examination of Defendants’ motion:
a) Saint Pierre lived in Camden, Maine at Applewood Apartments, whose agent was also Preservation Management Inc., for three years. She then moved to Portland for its public transportation system. Management at Applewood gave her excellent references on moving to Northfield Green.
b) All of the evidence presented by Landlord’s agent, Preservation Management Inc. save for the lease and a document from the ESHA Air Quality Study, have been created by the agent itself.
4, Discrimination occurs when the disabled person is punished, denigrated, denied, because of that impairment. The impairment becomes a tool that is used to subjugate her. Plaintiff Saint Pierre has severe hearing impairment and is allergic to mold which places her in a protected class. Defendants have chosen to focus their motion on, 1, the narrow efforts, or lack of, that Landlord NFG Housing Partners provided to accommodate her disabilities. An agreement may be reached to accommodate each other that may not grant the disabled person’s request but offers some palliative assistance. In this case none was offered or entertained. Agent’s allegiance was to Landlord. There was no incentive for it to make such offers. Defendants second approach was to cast Saint Pierre as a disobedient, willful person unable to follow rules and she was evicted for her own doings.
HEARING IMPAIRMENT:3
5, As noted in her response to Defendants’ Undisputed Facts p. 3, ¶ 15) 24 days after move-in Plaintiff is issued a noise complaint violation, and this continues on a regular basis. In a letter to Landlord she notes that she has been issued three complaints in one week, (ex.19, Complaint). The Noise is music she listens to on her daily 45 minute workout. Rock and roll? It is Erik Satie’s “Once Upon a Time in Paris,’ soft, reflective piano sounds she exercises to. She bought herself ear buds for the music and a laptop computer to use in her bedroom away from complainant’s shared wall to resolve the situation. Plaintiff has no television. Her efforts made no difference; the complaints continued. Agent’s primary objective was to punish her disability, and whatever other arrangement it had with complainant. It will not identify who that person is. Call the police says Residence Coordinator Akerlind who exhibited an untoward interest in the matter and urged complainant to call the police if Plaintiff’s noise disturbed her when Agent was not present (ex. 22, Complaint). The police came and left immediately when they learned of her impairment.
6, Two months later, noise complaints still being issued, Akerlind issues her trick permission for the gazebo and Plaintiff takes Agent to court. Through the discovery process, she discovers that none of the noise complaints issued are in her file. But there is an Akerlind document in it which states that another tenant has informed her that she intends to poison Plaintiff’s cat. Saint Pierre’s cat became seriously ill and died. Akerlind did nothing to stop the tenant from fulfilling her threat, did not report it to the authorities, but she did want to make sure that Plaintiff knew about it by placing the information in requested file. She has also told everyone about the suit Plaintiff brought against management.
7, Agent retaliates against Plaintiff for filing the gazebo case, (Saint Pierre is given permission to have a gazebo in the yard, then it is rescinded) by seeking the first eviction. One of their complaints is the noise violations which had not been in her file. In its ruling, the eviction court (Dkt 61-9 p. 3-4 footnote 8, 9, 10 noted that Agent had known all along that Plaintiff was hearing impaired; it was not convinced of witness testimony concerning the noise complaints, and in its comments about the gazebo did point out about Agent p.4, ¶ 3 that “the evidence and testimony at trial suggested a wide range of continuing practices . . . as well as confusion among the tenants as to what was, and was not, permitted.” One could not rely on Agent rules. What’s more, rules were applied for some but not others.
8, Defendants’ Background, her obligations, first paragraph, page two of motion have been well and thoroughly answered in Plaintiff’s Response to Undisputed Facts and need not be repeated here.
9, In paragraph two of Defendants’ motion they claim ignorance of her hearing disability, that Vice President Green rejected her request for specific accommodation was not feasible because it would require a fundamental alteration in PMI’s operations at Northfield Green. It is a nonresponse. There is no information that would lead one to understand why the request cannot be fulfilled. No company performing that type of work is consulted, no evidence is produced. Geoff Green, contrary to his assertion that she provide more information so that he could work with her, never made such an offer or anything remotely connected to providing assistance in finding a solution was ever offered. As is evident from the fax Plaintiff’s audiologist sent him he received that information in November of that year. This is not an error on his part, he lied. For the Maine Human Rights Commission hearing he stated that Saint Pierre never sent him the information needed for him to make a decision about her request.
10, What follows in the last paragraph of page 4 has been well answered in Plaintiff’s Response to Defendants’ Undisputed Facts in paragraph 12 and 13 of page 3 in which Defendants are trying to finesse the situation as somehow resolved. “No noise complaints were lodged by other residents against Ms. Saint Pierre after this.” There never were other complainants, beside those of Tenant inapartment 12, in spite of the fact that there were tenants on both side of her unit, one facing her unit and one above.
*Be it noted there were no more noise violation complaints after the lost eviction. They had not served their purpose.
ALLERGY TO MOLD:
11, Plaintiff filed with the Court an affidavit (Dkt. 55-1) requesting information for a loan NFG took out with a bank in Boston, Massachusetts and for work performed by Zachau Construction Company at building 147 of Northfield where Plaintiff’s unit was situated. She spoke with Adam Routhier, who was in charge of work project at 147. They performed work to alleviate the mold problem. Mr. Routhier is on Saint Pierre’s list of witnesses she plans to call to give testimony attrial.
12, On page 5, ¶ 3 Ms. Saint Pierre’s second request for accommodation, tacitly made: Defendants seem to think that her request to eradicate the mold is an accommodation, and treats it as such. It is not. It is a demand per Title 14, §6021, Maine’s Warranty of Habitability to eradicate the mold and its spores, both, that make tenants sick. Throughout exchanges with Landlord’s agentthere occurred the so-called Dance of the Mold and its Spores. (see p. 4, ¶ 17 of Response to Defendants’ Undisputed Facts.) In their response to her notice of succumbing to the effects of mold, they offer to have a company measure her apartment’s air quality to test for mold. Air quality tests measure spore content, not the mold. Plaintiff seeks a clean test that would give a true reading and some indication on the size of the mold colony. It will mean housing her in another unit for a few days to shut off her air purifying units and closing the apartment. They refuse. They are not interested in obtaining a clean test.
13, Landlord did not want to acknowledge there was mold on the premises. One had to maneuver around the mold spore test. For Landlord to offer any accommodation was a tacit acknowledgement of the presence of mold. Therefore, it was important that Plaintiff keep her apartment door closed so as not to alert other tenants of the possibility of mold in their building. She was routinely issued violations because she kept her door partially open when the mold count was high. The open door was a reasonable accommodation per FHA §100.204, and as the HUD lease p.4, ¶ 14 Rules: states that rules, “are reasonably related to safety, care and cleanliness of the building, and the safety, comfort and convenience of the tenants[.] Per FHA§ 100.500Discriminatory effect is prohibited.
14, In paragraph 21 of Plaintiff’s Response to Undisputed Facts she responds adequately to the false statement given by Maintenance Supervisor Quitog (Dkt. 61-13). Defendants presently adding that Saint Pierre refused to allow him entry to her home. At no time has Plaintiff refused to allow Agent’s request to examine her home for mold. What she did not want was a test insured to
deliver a false measure of the spores in her unit.
15, 4. The two flooding incidents in Ms. Saint Pierre’s apartment; No one can possibly know if Ms. Saint Pierre’s sink overflowed unless they were there. Most of what is stated as fact concerning the “flooding incidents” are rife with such bald-face statements with absolutely no evidence to support it. Response to Undisputed facts p. 6-8, ¶ 26, 27, 28 adequately responds to Defendants’ assertion. This fact from Defendants’ motion is not rightly a material fact except for6 the incidence in which Agent came to her apartment while she was sleeping, hearing aid off, and took advantage of her disability and using it as a tool to gather evidence by taking pictures of the wet carpet, and then wrote up as many violations as they thought feasible to evict her, FHA§ 100.600(i)(C)(c)
16, 5. Ms. Saint Pierre’s third request for accommodation, p.8: The Dance of the Mold and its Spores includes steps in which one never connects the two and one never acknowledges the first. The emergency room doctor at Maine Med did not direct Landlord to measure for mold spores and wipe up whatever the test indicates covers surfaces with vinegar water and hepa filter vacuum. No, what the doctor states is, “[Y]our landlord should evaluate for potential mold.” However your symptoms could get worse if the mold does (sic)not evaluated properly.” Emphasis added. If one does not eradicate the mold there will always be spores that make one sick. Response to Undisputed facts p. 9, ¶ 31, 32, 33 adequately responds to Defendants’ assertion.
17, Points 34, 35, 36, 37, 38 of Defendants’ Undisputed Facts (see Response to Undisputed facts p. 9-10, ¶ 26, 27, 28) Geoff Green makes a statement about the ventilation system at Northfield. It is meaningless.. Has he researched how a ceiling fan would help or hinder the existing system? he offers no evidence for it or the reason for his refusal. CEO Jenkinson adds that Northeast Test Consultants, Plaintiff’s Indoor Air Quality Assessment team, did not recommend adding a ceiling fan for the bathroom, therefore she won’t. NTC have added a photo of the empty hole where a fan should be, along with other photos of the problems but it is ignored.
ARGUMENT
THE HEARING IMPAIRMENT:
18, Many noise complaints were issued to a person who could not possibly assess or know what was too loud for the neighbor. She was being punished over and over again for her disability. It.was not her fault, it was not her problem, but theirs. Should one punish someone in a wheelchair because they can’t walk? Below are some facts concerning Plaintiff’s disability and FHA statutes that interdict Agent’s behavior:
Be it known that Saint Pierre went out of her way to accommodate complainer to no avail.
§100.50(5) - A person may not be evicted for their impairment.
§100.400(b)(2) - Eviction court cast doubt on complainer’s accusations; some appeared to be false. and then there is Agent urging police involvement for Saint Pierre’s disability. She is promoting an expansion of the problem in her efforts to silence Plaintiff, to make trouble. Complainer is not blameless in this situation and appears to have been in a quid pro quo arrangement with Akerlind.
§100.600 - Why were the noise complaints not in her file when she sought them out and then offered at eviction? Because they were used as a tool to intimidate and subjugate Plaintiff and could be used or not as needed. They created a hostile environment.
§100.400(5) - The eviction was initiated because Plaintiff filed suit to prevent Agent from dismantling her gazebo. This is acknowledged by Defendants’ attorney who states that the eviction was primarily about the gazebo. That she dared take them to court, that she insisted they stop harassing her for her disability was why they sought to evict her. Saint Pierre was a troublemaker, a person who would make trouble for them. The gazebo permission was a setup by RS Coordinator Akerlind. It is she who gathered tenants in her office and gossiped about Plaintiff. It is she who wrote up the complaints about Plaintiff that played no role in tenants lives, that did not interfere with their residency. Saint Pierre was being threatened.
§100.400(5) - The noise complaints stopped when they were no longer of any use to Agent. The eviction was over and was decided in her favor. No other noise complaint was ever issued afterward; they had not accomplished their purpose. But several days after eviction was decided in her favor, Plaintiff was visited by Police and Fire personnel. Agent had called 911 to come and check on her because she might be hurt in her apartment. Personnel for both departments did not believe Agent and a report was issued by the fire department on this abuse of emergency services. Agent sought to intimidate her.
§100.600 - Akerlind’s handling of the threat to Plaintiff’s cat is an act of malice from a person whose mandate from HUD is to be of service to the seniors at Northfield. She is interdicted from assuming any sovereignty over residents. She created a hostile environment for the tenants. The threatening tenant was not spared either; she believed that what she told Akerlind was protected. Now everyone knew she had threatened to kill someone’s cat.
THE ALLERGY TO MOLD
19, Below is some of the evidence of Defendants’ perfidy that Plaintiff has brought to this Court in Complaint exhibits 37, 38, and 39. There are also the exhibits in the Stipulated Record (Dkt. 59- ¶ ¶ 3, 5, 6, 7, 8, 9, and 13 - attorney fees for withholding rent deposit, Title14, §6033.)
PMI INCIDENT REPORTS, VIOLATIONS, EDICTS, EXCHANGES
2019 (37)
20,
3.4.19 Assistant Manager Farr: Linda Moody complains playing music
too loud. Report written by Farr
JULY 14, 2019 TENANT FILES A SUIT IN STATE COURT, “GAZEBO”
7.29.19 Patricia Cameron: I witnessed Lorraine Saint Pierre in unit 14 taking
pictures of other tenants’ yards – Report written by RS Coordinator Akerlind
11.3.19 Patricia Cameron: Mentally challenged residents [Saint Pierre] are
allowed to continue doing whatever they want without repercussion, Report
written by Akerlind.
2020 (38)
21,
JANUARY 8, 2020 SUCCOMBS TO FIRST ALLERGIC REACTION
1.16.20 Windows open with fans in them. Report written by Cynthia Nock.
1.31.20: Lorraine has mold reaction, rejects Med-Cu offer for hospital visit. Report written by Sheilah Pires, office.
1.31.20 Informed by tenant Cynthia Nock that Saint Pierre leaves window open. Report written by Chris Conant, maintenance crew.9
2.11.20 Fabricated account. Report written by Nock and RS Coor. Akerlind
5.1.20 Not wearing mask; no such PMI rule at that time. Report written by Sheilah Pires, office.
5.11.20 Exercising in common area. Report written by tenant Wanda Sue St.Peter.
5.11.20 Exercising in common area. Report written by unnamed person.
5.14.20 Lifting weights in common area. Report written by Sheilah Pires, office.
5.18.20 Police are summoned because Tenant has plastic chair in yard, altering the grounds. Report written by Vice President Green, PMI.
7.13.20 Fabricated report by RS Coor. Akerlind and Patricia Cameron.
10.23.20 Fabrications. Report written by Cynthia Nock.
12.31.20 Rob Young, ceiling fan making noise, & Plaintiff reply
2021 (39)
22,
2.3.21 Surveillance camera purchase; management enters her unit when
Tenant is out.
3.1.21 Letter to management about fan, The red hair troublemaker (Saint Pierre.) Report
written by Rob Young.
3.12.21 PMI abuse of service 911 call sent police and fire dept to Plaintiff’s home. Report written
by Fire dept.
4.9.20 Reinstalling my garden, email with photo of previous year’s set-up. Is
offered a 2’ x 4’ box already in use; see other gardens (8)
APRIL 21, 2021 FILES DISCRIMINATION COMPLAINT WITH MAINE HUMAN
RIGHTS COMMISSION
7.21.21 Maintenance, manager enters tenant apt while she sleeps to gather
evidence and take photos
7.21.21 Failure to allow landlord or agent to enter premises, violation
7.21.21 Damage to unit or common area, violation
7.29.21 Slamming door complaint, upper management (see ex. 19, email to
manager 4th graph about Plaintiff sealing the door against noise.)10
8.17.21 Place in file, emails exposing complaint system; were not placed in file.12
10.1.21 Password, won’t give Tenant password, Resident Computer Access
10.7.21 Unit inspection, as per previous years; Manager Rivera blocks
Tenant’s email.
OCTOBER 14, 2021 FILES DISCRIMINATION SUIT IN U.S. DISTRICT COURT
10.17.21 Tenant blocks upper management emails
10.26.21 Keeps door open; (because of mold) violation
10.27.21 Manager creates scene, refuses to let inspector check her unit
10.27.21 Failure to allow landlord or agent to enter premises violation
12.14.21 SERVED EVICTION NOTICE
The above list does not include results for the year 2022
23, It is fair to say that Plaintiff was living in a hostile environment in which tenants were encouraged to report on each other on a quid pro quo arrangement. Saint Pierre was intimidated, maltreated; the harassment is intimately tied to her court actions, to her mold complaints.. Were others receiving the same treatment? They were not. Persons like Plaintiff are made to leave and those who remain have learned to maneuver within the system. Saint Pierre’s problem was that Landlord could not abide her allergy to mold, and she knew she was digging herself deeper and deeper in trouble with the company. There no choice, her left kidney had doubled in size from mold spore deposits in it. She was in trouble and needed help. She did everything she could to alleviate her situation washing the building’s outside walls when Agent refused, shoveling the snow away from the front of her apartment, getting herself three air purifiers, a dehumidifier. Having been exposed to mold in a number of circumstances, she can attest that the mold in building 147 of Northfield is a serious problem and an expensive one to eradicate.
CONCLUSION:
Whether the factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply in this case. There is something fundamentally wrong in the arrangement between Landlord and Agent that has produced the behavior analyzed in thisResponse. Landlord washed its hands of tenant responsibilities (ex. 20, Complaint) as required (see24 CFR 884.118 Responsibilities of the Owner and CFR § 886.127(b)(2 Lease requirement:Required and prohibited provisions)
Plaintiff, in the system set by NFG, is a pawn to its agent. She has no right to know who her accusers are, is not permitted a response to allegations against her, is expected to follow rules that are detrimental to her health. She is placed at the mercy of tenants who are encouraged to report on her doings. Agent retaliates against her when she seeks help through the courts to stop the discrimination that placed her in an unjust situation. Preservation Management Inc. operates in 27 states and per the policies they promulgate they create much unnecessary turmoil and grief. This is no small matter. Although this case is premised on disability discrimination a strong component of this discrimination is based on the denial of basic rights entitled to all. And for these reasons this case must be allowed to go forward.
Dated: December 9, 2022
Respectfully submitted,