David Sutton, Jr. v. Robert S. Piper

The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District*
of Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0530n.06
File Name: an.06
No. 08-2377
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID SUTTON, JR.,
Plaintiff-Appellant,
v.
ROBERT S. PIPER ET AL.,
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
M E M O R A N D U M
O P I N I O N
BEFORE: GILMAN and McKEAGUE, Circuit Judges; and SARGUS, District Judge.*
PER CURIAM. David Sutton, Jr., acting pro se, appeals a grant of summary judgment in
favor of the defendants on his claims of disability and race discrimination under the Fair Housing
Amendments Act, 42 U.S.C. § 3604 (“FHAA”), and the Americans with Disabilities Act, 42 U.S.C.
§ 12182. Having carefully considered the parties’ briefs on appeal, the record of the proceedings
below, and the applicable law, we are not persuaded that a lengthy opinion is necessary.
Sutton applied for an apartment at defendant Freedom Square, Ltd., a tax-subsidized
apartment complex. Freedom Square received tax credits for renting a number of its units to
individuals who were sixty-two years or older or who were fifty-five years or older with a disability.
When Sutton applied for an apartment, he was fifty-five years of age and claimed he was disabled.

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Defendant Mary O’Brien, the apartment manager, ran a check of Sutton’s credit. The
apartment complex required a minimum credit score of 160. Sutton’s credit score initially came
back at 67; a subsequent score came back at 59. Based on the low credit score, the apartment
complex rejected his application. (The apartment complex also cited to a criminal background report
of Sutton, but Sutton disputed the accuracy of the report and the defendants concede that there was
some confusion about the accuracy of that report.)
In response, Sutton initially suggested that he place into escrow three months’ advanced rent.
If his rent was “not paid through” the vouchers that he received under the federally-funded housing
program, then the apartment complex would have the right to draw funds from the escrow account
and Sutton would agree to vacate the apartment upon thirty days’ notice. ROA 624. After twelve
months, Sutton would be released from these restrictions and any escrow funds would be returned
to him. Later, Sutton suggested “the use of a co-signor or other alternative arrangements” as a
reasonable accommodation to him. ROA 625. The apartment complex declined and this lawsuit
ensued.
Upon de novo review, we agree with the district court that summary judgment in favor of the
defendants was proper. While we affirm for many of the same reasons set forth by the district court,
Sutton v. Freedom Square Ltd., No. 07-14897, 2008 WL 4601372, at *3-8 (E.D. Mich. Oct. 15,
2008) (unpublished), we briefly highlight several additional points. The FHAA requires
accommodation of a person’s disability when “the rule in question, if left unmodified, hurts
handicapped people by reason of their handicap, rather than by virtue of what they have in common
with other people, such as a limited amount of money to spend on housing.” Wis. Cmty. Servs. v. City

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Although it is hardly clear from the record, we assume arguendo that Sutton was disabled1
prior to February 2006, when he first applied for residency at Freedom Square.
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of Milwaukee, 465 F.3d 737, 749 (7th Cir. 2006) (internal quotation marks and ellipsis omitted,
emphasis in original). Stated a different way, “the FHAA’s accommodation requirement is limited
only to lowering barriers to housing that are created by the disability itself.” Id. at 749 n.5. If a
disabled person is able to satisfy this “necessity-causality” element, then the housing entity must
make a reasonable accommodation to that person and such accommodation could include some sort
of economic-financial component. Id. at 749; see also Howard v. City of Beavercreek, 276 F.3d 802,
805-06 (6th Cir. 2002) (“When analyzing whether an accommodation is required under this Act, the
three operative elements are ‘reasonable,’ ‘equal opportunity’ and ‘necessary.’”).
A review of Sutton’s credit report confirms that his poor credit history resulted from his own
financial mismanagement and not his disability. There is no question that his income was limited1
throughout the relevant time period—he indicated on his application that between his son and him,
the two had annual income below $27,950. Yet, even though his combined family income was quite
modest, he had a rather high outstanding credit balance of almost $24,000, with approximately
$10,500 of that past due. Of the twenty or so items listed on his credit report, only three were listed
as paid; most were delinquent or sent to collection. One of the paid accounts was an auto loan
through Mercedes-Benz Financial for $29,820. The auto loan was the largest account listed on the
report and was paid off over sixty-one months. Sutton had negative credit items both before and
after opening up and paying off that auto loan, confirming that his credit problems did not start after

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he had paid off that loan. Sutton could have afforded to keep current on some, most, or even all of
his other accounts had he gone with a less expensive mode of transportation.
Even if his disability resulted in an inability to work, thereby resulting in low income that in
turn caused him problems with his poor credit, Sutton also had to show that relaxing the minimum
credit requirement was a reasonable accommodation to him. Again, a review of his credit history
confirms that the requested accommodation was not reasonable. Sutton took out his Mercedes-Benz
loan in January 2002 and it remained open for just over five years. During this time, Sutton opened
several housing-related accounts, including ones for power and an apartment. Each of these accounts
was sent to collections, including $4,971 on an account originating from The Lakes Apartments. The
only inference to be drawn is that Sutton chose to pay off his Mercedes-Benz loan but not his
housing-related debts.
Sutton relies in support on the Ninth Circuit’s decision in Giebeler v. M&B Associates, 343
F.3d 1143 (9th Cir. 2003). In that case, Giebeler sought accommodation for his disability from an
apartment complex. Before he became disabled, he had worked and earned an adequate income.
After he became disabled, he supported himself through social-security disability and housing
assistance. Giebeler had a consistent record of promptly paying his rent before and after his
disability and “his credit record contained no negative notations.” Id. at 1145. However, his
disability and housing assistance was not sufficient to meet the apartment complex’s minimum
required income. Based on her income and an “unblemished credit record” (including paying off
the mortgage on the home she lived in for twenty-seven years), Giebeler’s mother did satisfy the
standards, so he offered to have her cosign the lease. Id. at 1145, 1158. The apartment complex

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declined, citing its policy against cosignors. Id. at 1145. The Ninth Circuit concluded that the
plaintiff had shown that his requested accommodation was reasonable on the particular facts of the
case and that the defendant had failed to show that the accommodation would cause it to suffer
undue hardship. Id. at 1158.
Sutton’s situation differs materially from that of Giebeler’s. Both persons had low income,
but Sutton also had a very poor credit history while Giebeler’s was good as was his mother’s.
Importantly, Sutton had a history of making timely payments on a relatively large auto loan while
defaulting on housing-related expenses, including apartment rent. Sutton has pointed to nothing in
the record to suggest that his proffered-but-unidentified cosignor had the kind of solid credit that
Giebeler’s mother had. His assertion in his appellate brief that his cosignor had “a good credit
history,” Appellant’s Br. at 9, is without citation to the record and the letter in which he made the
offer does not include anything about the cosignor’s credit history, see ROA 625-26. Finally,
Sutton’s poor credit history involving housing-related expenses also undercuts the reasonableness
of his suggested escrow arrangement, which would have lasted only one year.
Accordingly, for these reasons as well as those set forth by the district court, Sutton, 2008
WL 4601372, at *3-8, we AFFIRM summary judgment in favor of the defendants.

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