Dixon v. Silva-Markham Partners et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-01558-NYW-SBP
JENNIFER DIXON,
Plaintiff,
v.
SILVA-MARKHAM PARTNERS and
KOELBEL & Co.,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
Plaintiff Jennifer Dixon brings this action for claims under the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq., and Colorado law against defendants Silva-Markham
Partners (“SMP”) and Koelbel & Co. (“Koelbel”) (collectively, “Defendants”). This matter is
before the court for a recommendation on Ms. Dixon’s Motion for Summary Judgment, ECF
No. 45 (“Plaintiff’s Motion”), and Defendants’ Motion for Judgment on the Pleadings, or in the
alternative, Summary Judgment, ECF No. 56 (“Defendants’ Motion”), after both were referred
pursuant to 28 U.S.C. § 636(b)(1). ECF Nos. 47, 57.
For the following reasons, the court respectfully RECOMMENDS that Defendants’
Motion be granted and Plaintiff’s Motion be denied.
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BACKGROUND
I. 	Undisputed Material Facts
Although Defendants seek judgment on the pleadings under Rule 12(c), they have
alternatively moved for judgment under Rule 56. Because both Defendants and Ms. Dixon have
tendered materials for consideration outside of the pleadings, the court evaluates both Motions
under Federal Rule of Civil Procedure 56. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under Rule 56.”).
The court finds the following facts undisputed for purposes of the Motions:1
A. 	Move-In and Attempted Transfer to a Two-Bedroom Unit
Ms. Dixon suffers from an autoimmune disease that causes cognitive impairment and
renders her disabled such that she must use a cane or wheelchair to ambulate. See ECF No. 64-1.
Because of her condition, Ms. Dixon is helped by a live-in aide, and for the relevant period, Ms.
Dixon’s aide was her daughter Cesca. See ECF No. 64-5 at 5.2 During the relevant period here,
Ms. Dixon received a housing voucher from the Colorado Division of Housing (“Division of
1 This statement includes material facts that are properly supported by the asserting party and not
opposed in the manner required by Federal Rule of Civil Procedure 56(c). The court accepts as
true all material facts asserted and properly supported in the Motions. Fed. R. Civ. P. 56(e)(2)
(“If a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed
for purposes of the motion[.]”); Beard v. Banks, 548 U.S. 521, 527 (2006) (“[B]y failing
specifically to challenge the facts identified in the defendant’s statement of undisputed facts, [the
plaintiff] is deemed to have admitted the validity of the facts[.]”).
2 For simplicity, the court refers to Ms. Dixon’s daughter as “Cesca” throughout this
recommendation.
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Housing”) that subsidized her rent. Declaration of Vivian Markham,3 ECF No. 62-1 (“Second
Markham Decl.”) ¶ 7; see also ECF No. 64-4 (voucher). The Colorado Coalition for the
Homeless (“CCFH”) administered the voucher and helped Ms. Dixon maintain her eligibility.
See ECF Nos. 64-3; 64-12; 64-13. Although Ms. Dixon’s voucher was for a two-bedroom unit,
see ECF No. 64-4, in April 2019, Ms. Dixon and her daughter moved into a one-bedroom
apartment at the Ash Street Apartments (“Ash Street”) because no two-bedroom units were
available at the time. See Declaration of Vivian Markham, ECF No. 56-1 (“First Markham
Decl.”) ¶ 2.
Koelbel is a managing member of the limited liability company that owns Ash Street, an
affordable housing complex located in Denver, Colorado. ECF No. 62 at 1 (describing Koelbel
as the “managing member of the LLC that owns Ash Street”). During the relevant timeframe,
SMP managed Ash Street. Second Markham Decl. ¶ 3. Ash Street offers affordable housing as
part of its participation in a tax-credit program administered by the state of Colorado. Id. ¶ 5.
When Ms. Dixon moved into Ash Street, she had an agreement with the then-property manager
that Ms. Dixon and her daughter would remain in a single-bedroom unit for one year and then
transfer to a two-bedroom apartment. Id. ¶¶ 9-10. As that one-year mark approached, Ms. Dixon
spoke with Norma Duran—an SMP employee who replaced Ash Street’s previous property
manager—about two-bedroom units that would be available for Ms. Dixon and her daughter to
transfer into. Id. ¶ 11. Duran responded that she personally no longer approved transfers between
units but told Ms. Dixon that she could take the issue to Duran’s manager. ECF No. 65-2 at 1.
3 Vivian Markham is a co-owner and chief operating officer of SMP. Second Markham Decl. ¶ 2.
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Ms. Dixon then discussed the issue with Duran’s manager, who did not object to a transfer. ECF
No. 65-2 at 1.
In April 2020, Duran, Ms. Dixon, and her daughter met to begin the transfer process.
Second Markham Decl. ¶ 12. While discussing the transfer paperwork, issues arose regarding
whether to report Cesca’s income and whether to include her on the new lease. See id. ¶¶ 13-17.
SMP says that it inquired into Cesca’s income because it was required to report income on the
application for the new unit as part of the tax program. Id. ¶¶ 15-16. SMP indicated that it could
omit Cesca’s income if it reported that she was a full-time student. Id. ¶ 13. Ms. Dixon countered
that Cesca’s income and student status were immaterial because Cesca was her live-in aide. Id.
¶ 14. During this conversation, SMP informed Ms. Dixon that a live-in aide could not be a
leaseholder under program regulations and explained the potential consequences if Cesca were
not on the new lease. Id. ¶¶ 17-19, 21-23; see also ECF No. 62-2 (email from SMP compliance
director explaining that, per regulations, a live-in aide cannot be on a lease).
During this meeting, Duran also mentioned an outstanding balance on Ms. Dixon’s
account. Second Markham Decl. ¶ 24. In February 2020, the Division of Housing increased the
amount of rent Ms. Dixon was responsible for, effective April 2020. Id. ¶¶ 25-26; ECF No. 62-3
(February 27, 2020 letter from Division of Housing). This change was the result of CCFH
renewing Ms. Dixon’s voucher eligibility with Cesca’s income on the application. Second
Markham Decl. ¶ 30; ECF No. 62-4 at 1-2 (email from Caleb Lightfoot, a case manager at
CCFH, explaining the reason for the increase). Emails between CCFH and SMP suggest that
Cesca’s income was included because Ms. Dixon had not timely submitted paperwork to the
Division of Housing requesting that Cesca be classified as a live-in aide as a reasonable
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accommodation. Second Markham Decl. ¶ 31; ECF No. 62-4 at 1-2. To correct the outstanding
balance, Duran set up a payment plan to give Ms. Dixon time to pay off the balance and to fix
the underlying issue with the Division of Housing. Second Markham Decl. ¶ 32; ECF No. 62-5
(February 20, 2020 letter from Duran to Ms. Dixon regarding payment arrangement); see also
ECF No. 62-4 at 2. To address that underlying issue—i.e., getting approval from the Division of
Housing to have Cesca as a live-in aide—Ms. Dixon was told that she would need to prepare
reasonable accommodation paperwork. Second Markham Decl. ¶ 34; ECF No. 62-4 at 2.
On April 14, 2020, CCFH sent paperwork to Ms. Dixon, which consisted of a request to
add Cesca as a live-in aide and a request for reasonable accommodation from the Division of
Housing. ECF No. 64-6 at 1, 3. Ms. Dixon filled out her portions of both forms and then sent the
documents to Duran for her initials on the request for a live-in aide. Second Markham Decl. ¶ 36;
ECF Nos. 64-3 at 3; 64-13 at 1. Ms. Dixon asked Duran to forward both forms to CCHF after she
had affixed her initials. ECF No. 64-13 at 1.
On May 5, 2020, SMP emailed Ms. Dixon, asking whether she wanted to renew her lease
on her current one-bedroom unit or move forward with a transfer to a two-bedroom apartment.4
ECF No. 62-9. SMP explained that it would keep the two-bedroom unit available for another ten
days and that the decision whether to renew or transfer rested with Ms. Dixon and whether the
Division of Housing would approve a two-bedroom unit. ECF No. 62-9. On May 11, 2020, the
Division of Housing informed Ms. Dixon that it properly included Cesca’s income in Ms.
Dixon’s voucher application and refused to reduce Ms. Dixon’s share of the rent. ECF No. 62-8.
On May 19, 2020, Ms. Dixon renewed her lease on the one-bedroom unit, with Cesca as a
4 In the alternative, SMP offered to let Ms. Dixon out of her lease penalty-free. ECF No. 62-9.
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leaseholder. Second Markham Decl. ¶ 43; ECF No. 62-11. In September 2020, the Division of
Housing corrected Ms. Dixon’s share of the rent after it reclassified Cesca as a dependent due to
her status as a full-time student. Second Markham Decl. ¶ 46; ECF No. 62-10 (“Lease”).
B. 	Other Conduct by SMP Staff
On April 15, 2020, Duran faxed a packet of information to Ms. Dixon’s physician, a Dr.
Schiavoni, transmitting a request that Dr. Schiavoni execute certain reasonable accommodation
paperwork to enable Ms. Dixon to obtain a two-bedroom apartment at Ash Street. ECF No. 64-5
(“SMP Accommodation Form”). On the fax cover sheet to Dr. Schiavoni’s office, Duran wrote:
Id. at 1. Two documents were attached to the cover sheet. The first was a three-page SMP
“Request for a Reasonable Accommodation” form, which explained that Ms. Dixon’s
reasonable-accommodation request was to “add a live in Aide to her lease contract”—hence, the
need for a two-bedroom apartment. Id. at 2. The accommodation paperwork also included a sheet
to be filled out by Dr. Schiavoni. Id. at 4 (requesting information including, “[i]n your
professional opinion, does the resident/applicant need the accommodation or modification
requested to have the same opportunity that a non-disabled individual has, to use and enjoy the
apartment/community?”). On the SMP accommodation form, Duran wrote that Ms. Dixon could
not sign the SMP accommodation form. Id. at 2 (explaining that, “due to the Corona virus-19,
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our office is closed and residents are unable to sign documents”). However, Duran included with
the packet a separate “Request for Reasonable Accommodation” form from the Division of
Housing, which had been signed by Ms. Dixon the same day:
Id. at 5. On that Division of Housing form, Ms. Dixon authorized the Division to contact Dr.
Schiavoni, “who can verify the disability and the need for the requested reasonable
accommodation.” Id.
Ms. Dixon was unaware that Duran faxed these documents to Dr. Schiavoni, including
the Division of Housing form, id. at 1, and did not learn of this fact until on or about April 29,
2020. ECF No. 64-11 at 1-2. Ms. Dixon further claims that at some point between April 29 and
June 19, 2020, Duran had called her and said that her doctor reported that she “was fine, didn’t
need an aide, and could take care of [her]self.” ECF No. 64-11 at 1. On June 19, 2020, Ms.
Dixon reported to Vivian Markam that Duran had attempted to access her confidential medical
information without her consent and that Duran had contacted Ms. Dixon’s physician and made
the comment that Ms. Dixon did not need accommodation. Id.
From July to September 2020, SMP pressed Ms. Dixon about her unpaid rent,
notwithstanding her explanations concerning the issue with Cesca’s income. See ECF No. 65
at 4; see also ECF Nos. 64-9 (August 2020 emails between Tiffani Thomas, Regional Property
Manager for SMP, and Ms. Dixon); 64-13 at 8 (July 30, 2020 rent balance due notification).
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Sometime in February 2021, Duran entered Ms. Dixon’s unit using a master key, bumping Ms.
Dixon when she opened the door and causing her to fall. ECF No. 65-2 at 4. In July 2021, a
maintenance worker entered Ms. Dixon’s unit using a master key and entered her unit without a
mask, even though a sign on her door stated that she was immunocompromised. Id. at 2-4.
C. 	The State Court Case
On September 20, 2020, Ms. Dixon filed suit against SMP in Denver County Court. Case
No. 2020C00685 (“State Case”). The complaint in the State Case alleged:
All claims listed began after requesting to be transferred to a 2 bedroom apt. (as
stipulated on our choice voucher). We rent from SMP. The landlord began making
harassing phone calls at the beginning of April, the calls included harassing
statements about my illness. Our rights to privacy were violated; HIPAA laws were
violated; our rights to be transferred to a larger apartment were violated based on
my disability.
My daughter and I were repeatedly harassed and threatened about money that we
did not owe; the landlord also attempted to gain access to my medical records via a
release form that belonged to CCFH.
ECF No. 56-2 at 1-2 (cleaned up). SMP and Ms. Dixon engaged in mediation and, in an
agreement signed by Ms. Dixon on January 25, 2021, agreed to settle all the claims between the
two. ECF No. 56-5 (“Settlement Agreement”). The State Case was dismissed with prejudice on
February 12, 2021. Order re: Stipulation for Dismissal With Prejudice, ECF No. 56-4.
D. 	Ms. Dixon’s Departure and SMP’s Retention of her Security Deposit
After the State Case was settled and dismissed, Ms. Dixon and Cesca vacated their
apartment on August 6, 2021. ECF No. 62-12 (August 6, 2021 email from “Ash Manager”
noting that “Unit 223 has turned in keys today”). Defendants did not return Ms. Dixon’s $450
security deposit because it was used to cover the cost of cleaning and removing items from the
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apartment. First Markham Decl. ¶ 17; August 16, 2021 Final Account Statement, ECF No. 56-8
(“Final Account Statement”) (listing “additional charges” and “payments after move-out,”
including payment for trash-hauling and “large item pick-up” in the amount of $661.00); see also
ECF No. 62-13 (photographs depicting condition of Dixon’s apartment after her moveout,
including food in the refrigerator and freezer and numerous large and small items strewn
throughout the apartment). SMP attempted to mail the Final Account Statement to Ms. Dixon,
but because she did not provide a forwarding address, it was sent to her Ash Street address. First
Markham Decl. ¶¶ 16-19; Final Account Statement at 2; ECF No. 62-12 at 1 (statement by “Ash
Manager” that Ms. Dixon had left no forwarding address).
II. 	Procedural History
Ms. Dixon filed this lawsuit on June 22, 2022, and was granted leave to proceed in forma
pauperis under 28 U.S.C. § 1915. ECF Nos. 1; 3; 5. After permitting several amendments, the
court accepted Ms. Dixon’s Second Amended Complaint, ECF No. 19, as the operative pleading
and ordered service on Defendants. ECF No. 20. In the Second Amended Complaint, Ms. Dixon
brings claims for discrimination under § 36045 of the Fair Housing Act; a “hostile housing
environment” under § 3617 of the FHA6; and violation of Colorado Revised Statute § 38-12-103,
which governs returns of security deposits by landlords. ECF No. 19 at 5-6.
5 Ms. Dixon also references §§ 3602, 3605, and 3606 of the FHA. These provisions are
inapplicable or do not provide a cause of action and so the court construes the first claim as a
claim for disability discrimination under § 3604. See § 3602 (defining terms under FHA); § 3605
(addressing discrimination in the sale of residential housing); § 3606 (addressing discrimination
in brokerage services).
6 The court understands Ms. Dixon’s reference to 24 U.S.C. § 3617, ECF No. 19 at 6, to be a
scrivener’s error.
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In their respective Motions, both sides seek judgment in their favor. For the reasons that
follow, the court recommends that Defendants’ Motion be granted. On the record before the
court, Ms. Dixon fails to demonstrate the existence of a genuine dispute of material fact—as to
any of her claims—that would preclude entry of summary judgment in favor of Defendants.
LEGAL STANDARD
“Summary judgment is proper if, viewing the evidence in the light most favorable to the
non-moving party, there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Peterson v. Martinez, 707 F.3d 1197, 1207 (10th Cir. 2013). But
“[t]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original)). Put another way, “[t]o
survive a motion for summary judgment, the nonmoving party must show more than ‘[t]he mere
existence of a scintilla of evidence in support of the [nonmoving party’s] position . . . there must
be evidence on which the jury could reasonably find for the [nonmoving party].’” N.M.
Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., 994 F.3d 1166,
1171-72 (10th Cir. 2021) (cleaned up) (quoting Anderson, 477 U.S. at 252). A fact is “material”
if it pertains to an element of a claim or defense. Anderson, 477 U.S. at 248. Whether there is a
“genuine issue” as to a material fact depends on “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52; accord SEC v. GenAudio Inc., 32 F.4th 902, 920
(10th Cir. 2022).
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“[O]nce the movant has made a showing that there is no genuine dispute of material fact,
the non-moving party must ‘make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.’” SEC
v. Thompson, 732 F.3d 1151, 1157 (10th Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)). “For dispositive issues on which the [nonmovant] will bear the burden of proof
at trial, [the nonmovant] must ‘go beyond the pleadings and designate specific facts so as to
make a showing sufficient to establish the existence of an element essential to [his] case in order
to survive summary judgment.’” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)
(cleaned up) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)); see also May
v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (“Once the moving party has identified a lack
of a genuine issue of material fact, the nonmoving party has the burden to cite to specific facts
showing that there is a genuine issue for trial.”) (quotation omitted).
The nonmovant “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084
(10th Cir. 2006) (quoting Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196
(10th Cir. 2005)). “To defeat a motion for summary judgment, [the nonmovant’s] evidence,
including testimony, must be based on more than mere speculation, conjecture, or surmise.” Self
v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Bones v. Honeywell Int’l, Inc., 366 F.3d
869, 875 (10th Cir. 2004)). “Unsubstantiated allegations carry no probative weight in summary
judgment proceedings.” Id. (quoting Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir.
1992)); accord Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th Cir. 2003)
(“Conclusory allegations that are unsubstantiated do not create an issue of fact and are
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insufficient to oppose summary judgment.”) (quotation omitted). And “[w]hen opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
In applying the above principles, this court is mindful that Ms. Dixon proceeds pro se and
thus affords her papers and filings a liberal construction. Smith v. Allbaugh, 921 F.3d 1261, 1269
(10th Cir. 2019). But the Court cannot and does not act as her advocate, United States v. Griffith,
928 F.3d 855, 864 n.1 (10th Cir. 2019), and applies the same procedural rules and substantive
law to Plaintiffs as to a represented party. See Requena v. Roberts, 893 F.3d 1195, 1205
(10th Cir. 2018); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
I. 	Defendants’ Motion for Summary Judgment
The undisputed facts show that Defendants are entitled to judgment in their favor on both
the FHA and state-law claims.
A. 	FHA Claims
1. 	Threshold Issues
The court first takes up Defendants’ arguments that Ms. Dixon’s FHA claims are marked
by three fatal threshold defects: (1) Ms. Dixon has provided no evidence demonstrating
Koelbel’s direct involvement in the facts giving rise to Ms. Dixon’s claims, (2) Ms. Dixon
released her FHA claims in the Settlement Agreement in the State Case and, in any event, (3) the
FHA claims are time-barred. Defendants’ Motion at 14-17. The undisputed material facts
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demonstrate that some, but not all, aspects of the FHA claims are barred by the Settlement
Agreement or the applicable statutes of limitations.
a. 	Vicarious Liability of Koelbel
Defendants have elected to present no specific affirmative evidence concerning Koelbel.
See Defendants’ Motion at 5-7 (Statement of Undisputed Material Facts). Instead, they argue that
there is no evidence linking Koelbel to any of the events underlying Ms. Dixon’s claims, and this
lack of direct involvement means that any claim against Koelbel must fail for that reason alone.
Id. at 13, passim; Reply at 3. However, Defendants have asserted in their briefing that SMP
managed Ash Street and that “Koelbel is a managing member of the LLC that owns Ash Street,”
Defendants’ Motion at 1—in other words, it is clear from the record that Koelbel owns Ash
Street.
Viewing this ownership interest in a light most favorable to Ms. Dixon, as the court must
on summary judgment, Peterson, 707 F.3d at 1207, it indicates the existence of a principal-agent
relationship between Koelbel and its property manager SMP. Therefore, even if Koelbel had no
direct interactions with Ms. Dixon, it nevertheless may be vicariously liable for any violation of
the FHA committed by its agents: SMP and its employees. See Meyer v. Volley, 537 U.S. 280,
285 (2003) (“It is well established that the [Fair Housing] Act provides for vicarious liability.”);
id. at 282 (finding that the FHA imposes “liability without fault . . . in accordance with
traditional agency principles”). The court therefore declines to recommend that judgment be
granted in favor of Koelbel based on its supposed lack of knowledge about Ms. Dixon and her
disability.
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b. 	Claims Barred by the Settlement Agreement in the State Case
Recall that the effective date of the Settlement Agreement in the State Case between Ms.
Dixon and SMP was January 21, 2021. Defendants assert that the release in the Settlement
Agreement entirely bars the FHA claims against both SMP and Koelbel. Two provisions in the
Settlement Agreement are pertinent to the court’s analysis. First:
Jennifer Dixon, on behalf of herself, her assigns, and successors-in-interest, does
hereby fully and forever completely release, acquit, and discharge Silva-Markham
Partners, its assigns, owners, employees, agents, subcontractors, successors,
predecessors, representatives, attorneys, and any and all insurers . . . , and each of
their employees, officers and directors, from any and all claims, demands, losses,
damages, written contracts, costs attorney’s fees, actions, causes of actions, liens,
and liabilities of whatever kind and nature, whether known or unknown, suspected
or claims, which arise from, are directly or indirectly related to, are connect with,
or caused by the subject matter of the Action.
Settlement Agreement § 3.1. Second:
Through this Agreement, and in consideration of the payment made to Jennifer
Dixon on behalf of Silva-Markham Partners as set forth below, Jennifer Dixon
intends to and does fully and finally resolve any and all past, present, or future
claims, demands, losses, damages, costs, attorney’s fees, actions, causes of action,
and liabilities of whatever kind and nature, whether known or unknown, suspected
or claimed, investigated or not investigated, which arise from, or are directly or
indirectly related to the claims and defenses as alleged in the Action. All terms of
this Agreement are to be construed so that their meaning will effectuate this intent.
Id. § 1.2 (emphasis added).
Under Colorado law,7 “[a] release is the relinquishment of a claim to the party against
7 The Section 10.5 of the Settlement Agreement provides that it “shall in all respects be
interpreted, enforced, and governed by and under the law of the State of Colorado.” “Colorado
courts typically apply the law chosen by the Parties in the choice-of-law provisions to govern
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whom such claim was enforceable.” McCracken v. Progressive Direct Ins. Co., 896 F.3d 1166,
1172 (10th Cir. 2018) (quoting CMCB Enters., Inc. v. Ferguson, 114 P.3d 90, 96 (Colo. App.
2005) (internal quotation marks omitted)). “Once a claim is released, the release bars the injured
party from seeking further recovery.” Id. (quoting CMCB Enters., 114 P.3d at 96) (internal
quotation marks omitted). Questions about the scope or enforceability of a release are governed
by “general contractual rules of interpretation and construction.” Bunnett v. Smallwood, 793 P.2d
157, 159 (Colo. 1990). Colorado courts interpret releases “so as to effectuate the manifest
intention of the parties,” Neves v. Potter, 769 P.2d 1047, 1053 (Colo. 1989), recognizing that
“[p]ublic policy favors the settlement of disputes, provided they are fairly reached.” Davis v.
Flatiron Materials Co., 511 P.2d 28, 32 (Colo. 1973). Construing the Settlement Agreement in
light of these operative legal principles, the release is not quite as broad as Defendants would
have it.
First, the Settlement Agreement does not cover Koelbel. By its terms, the Agreement is
between Ms. Dixon and SMP only, see § 1.3, and there is nothing in the Agreement indicating
that Koelbel—SMP’s principal—can avail itself of the protections of the Settlement Agreement.
See Settlement Agreement § 10.3 (“This Agreement shall be binding upon and shall inure to the
benefit of the predecessors, subsidiaries, successors, assigns, parties, agents, officers, employees,
associates, legal representatives, heirs, executives, and/or administrators of each of Jennifer
Dixon and Silva-Markham Partners.”). Defendants do not argue that Koelbel falls into any of the
their contractual rights,” Warner v. Nutrien, Ltd., No. 18-cv-01615-CMA-NYW, 2018 WL
6528137, at *2 (D. Colo. Dec. 12, 2018) (citations omitted), and so the court will apply Colorado
law in evaluating the scope and enforceability of the release in the Settlement Agreement.
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categories of persons or entities entitled to claim protection under the Settlement Agreement,
which does not reference the term “principal”; indeed, they do not address the issue of whether
Koelbel is covered by the Agreement at all. See generally Defendants’ Motion; see also Reply.
With that omission, and based on the clear language of the Settlement Agreement, the court
cannot find, on this record, that the Settlement Agreement released any claim Ms. Dixon may
have against Koelbel.
Second, the court agrees that, by executing the Settlement Agreement, Ms. Dixon
released any claims against SMP for conduct that occurred on or before January 21, 2021, the
effective date of the Agreement. The release is broad, with Ms. Dixon agreeing to give up her
right to pursue claims “of whatever kind and nature, whether known or unknown, suspected or
claimed, investigated or not investigated, which arise from, or are directly or indirectly related to
the claims and defenses as alleged in the [State Case].” Settlement Agreement § 1.2. The conduct
alleged both here and in the State Case clearly falls within the scope of the release; Ms. Dixon’s
claims in both cases are premised on the same alleged harassment and discrimination by SMP
and Duran. Compare ECF No. 56-2 (complaint in State Case), with Second Amended complaint.
There are, however, two exceptions. Construing Ms. Dixon’s papers very liberally, and
affording them the maximum possible deference and credit, she refers in this case to two
potential bases for her FHA claims that post-date the Settlement Agreement: in February 2021,
Duran entered Ms. Dixon’s apartment and when she opened the door it bumped into Ms. Dixon
on or near a recent surgery site and also in July 2021, SMP sent an “unmasked man into
Plaintiff’s home without notice and without knocking and instructing him to do so.” ECF No. 65
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(“Plaintiff’s Response”) at 6.8 In purporting to “resolve any and all . . . future claims” that Ms.
Dixon may have, see Settlement Agreement § 1.2 at 1, the release in the Settlement Agreement
effectively operates as an exculpatory waiver for intentional and reckless future conduct. Such
exculpatory agreements are not enforceable under Colorado law. See, e.g., Rhino Fund, LLLP v.
Hutchins, 215 P.3d 1186, 1192 (Colo. App. 2008), as modified on denial of reh’g (Dec. 24,
2008) (“We have found no Colorado cases, and Hutchins has cited only a handful of cases from
other jurisdictions, upholding or enforcing exculpatory clauses that permit parties to be
completely absolved of their intentional, fraudulent, or reckless acts.”); Chadwick v. Colt Ross
Outfitters, Inc., 100 P.3d 465, 468 (Colo. 2004) (recognizing that “an exculpatory clause
releasing the defendant ‘from all liability for any future loss’ applies only to simple negligence
and will not be construed to release the defendant from injury resulting from intentional or
reckless misconduct) (quoting Murphy v. N. Am. River Runners, Inc., 412 S.E.2d 504, 511 (W.
Va. 1991)). In an abundance of caution, and bearing in mind Ms. Dixon’s pro se status, the court
assumes that the entries into Ms. Dixon’s apartment in February and July 2021 were not covered
by the Settlement Agreement and takes both into account in evaluating whether there is a
genuine issue for trial in regards to Ms. Dixon’s claim against SMP.
c. 	Time-Barred Claims
Defendants argue that, even if not released in the Settlement Agreement, Ms. Dixon’s
8 As Defendants correctly observe, the latter allegation is not pled in the Second Amended
Complaint. See Reply at 9 n.3. However, in light of Ms. Dixon’s pro se status, and bearing in
mind its obligation to “view[] the evidence in the light most favorable to the non-moving party,”
Peterson, 707 F.3d at 1207, the court will consider the incident concerning a maintenance
worker entering Ms. Dixon’s apartment without a protective face mask.
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FHA claims are barred under the two-year statute of limitations governing such claims.
Defendants’ Motion at 16-17; § 3613(a)(1)(A) (“An aggrieved person may commence a civil
action in an appropriate United States district court or State court not later than 2 years after the
occurrence or the termination of an alleged discriminatory housing practice . . . .”).
As a preliminary matter, the court rejects Defendants’ argument that the two-year
limitations period must be measured from November 6, 2023, the date Ms. Dixon filed the
Second Amended Complaint, as opposed to June 22, 2022, the date she initiated this lawsuit. See
Reply at 9. It is readily apparent that the two iterations of the pleading share both a legal and
factual nexus. In the original pleading, as in the Second Amended Complaint, Ms. Dixon makes
clear that she brings claims under the FHA and Colorado Revised Statute § 38-12-103. See ECF
No. 1 at 4. The factual allegations in support of those claims are functionally identical in both
pleadings: the issues concerning a transfer from a one- to a two-bedroom apartment; Ms. Dixon’s
encounters with Duran; and the alleged failure by SMP to return her security deposit. See id.
The Second Amended Complaint thus readily satisfies the requirements for “relating
back” to the original complaint set forth in Federal Rule of Civil Procedure 15(c)(1), which
governs the relation back of amendments. See Fed. R. Civ. P. 15(c)(1)(B) (“An amendment to a
pleading relates back to the date of the original pleading when . . . the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading[.]”); see also, e.g., Driscoll v. City & Cnty. of Denver, No. 21-
CV-02866-PAB-NRN, 2024 WL 4346356, at *5 (D. Colo. Sept. 30, 2024) (“Amendments will
generally relate back if they ‘amplify the facts previously alleged, correct a technical defect in
the prior complaint, assert a new legal theory of relief, or add another claim arising out of the
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same facts.’”) (quoting Benton v. Bd. of Cnty. Comm’rs, No. 06-cv-01406-PSF-MEH, 2007 WL
4105175, at *3 (D. Colo. Nov. 14, 2007), aff’d, 303 F. App’x 625 (10th Cir. 2008)). This
conclusion is consistent with the purpose of the relation-back doctrine: “to balance the interests
of the defendant protected by the statute of limitations with the preference expressed in the
Federal Rules of Civil Procedure . . . for resolving disputes on their merits.” Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 550 (2010) (citations omitted).
Furthermore, Ms. Dixon filed the Second Amended Complaint at the specific direction of
the undersigned judicial officer. See ECF No. 18 (October 6, 2023 Order Directing Plaintiff to
file Second Amended Complaint). As often happens during the screening process for litigants
proceeding in forma pauperis, the court rejects multiple pleadings from a plaintiff before
ordering service of a complaint—a process that may take several months. As the record
confirms, that is exactly what happened here. The court declines to countenance a statute-of-
limitations argument that would have the effect of punishing a litigant for reasons largely out of
her control, particularly where no binding precedent requires that result.
The statute of limitations thus is correctly measured from June 22, 2022, the date on
which Ms. Dixon filed this lawsuit, rendering untimely any claims based on discrete acts of
discrimination that predated June 22, 2020. To salvage claims that accrued before that date, Ms.
Dixon appears to invoke the continuing violation doctrine, see Plaintiff’s Response at 6
(referencing the “continuing wrongs” doctrine), but the continuing violation theory of
discrimination “is not permitted for claims against discrete acts of discrimination[.]” Davidson v.
Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003) (citing Nat’l R.R. Passenger Corp. v.
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Morgan, 536 U.S. 101, 114 (2002)).9 In sum, to the extent that Ms. Dixon asserts claims
predicated on discrete acts of alleged discrimination that occurred before June 22, 2020, those
claims are barred by the statute of limitations.
2. 	Assessment of the Claims
The court next evaluates the substance of Ms. Dixon’s FHA claims, as cabined by the
foregoing threshold limitations on their scope, to determine whether any genuine issue of
material fact requires a trial. The court finds that there is no such issue as to any claim.
a. 	§ 3604 Discrimination Claims
Ms. Dixon contends that Defendants violated her rights under § 3604 of the FHA, which,
as relevant here, prohibits discrimination in the rental of dwellings based on the renter’s
handicap disability. § 3604(f). As a general matter, a plaintiff alleging discrimination under the
FHA may bring three types of claims: “(1) intentional discrimination claims (known as disparate
treatment claims); (2) disparate impact claims; and (3) claims alleging a defendant refused to
make reasonable accommodations for [her] handicap.” Barwick v. Broadway Lofts, LLC, No. 21-
cv-01394-LTB-GPG, 2022 WL 4295336, at *5 (D. Colo. May 23, 2022) (citing Reinhart v.
Lincoln Cnty., 482 F.3d 1225, 1229 (10th Cir. 2007)). Additionally, a plaintiff may proceed
under the theory that a defendant created a hostile housing environment. See Jackson v. Park
9 As will be discussed in more detail below in connection with Ms. Dixon’s FHA harassment
claim, “the continuing violation doctrine ‘applies when the plaintiff’s claim seeks redress for
injuries resulting from a series of separate acts that collectively constitute one unlawful act, as
opposed to conduct that is a discrete unlawful act.’” Herrera v. City of Espanola, 32 F.4th 980,
993 (10th Cir. 2022) (emphasis in original) (quoting Hamer v. City of Trinidad, 924 F.3d 1093,
1098 (10th Cir. 2019)). Under those circumstances, a plaintiff may recover for discriminatory
acts so long as one of the predicate acts occurred within the statute of limitations. See id. (citing
Morgan, 536 U.S. at 118).
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Place Condominiums Ass’n, Inc., 619 F. App’x 699, 703 (10th Cir. 2015). Drawing all
inferences from the record in favor of Ms. Dixon, the court construes her pleading as attempting
to bring claims under § 3604 for failure to accommodate, intentional discrimination on the basis
of her disability, and hostile housing environment. Second Amended Complaint at 5-6.10
Failure to accommodate. The failure-to-accommodate aspect of Ms. Dixon’s FHA claims
is time-barred (and, to the extent the claim is brought against SMP, additionally barred by the
release in the Settlement Agreement).
The purported failure to accommodate hinges on Ms. Dixon’s asserted need for a two-
bedroom apartment, and the record reveals no genuine dispute that this matter was resolved in May
2020—two months outside the limitations period for discrete incidents of discrimination. The
undisputed facts show that, on May 5, 2020, SMP sent the following email to Ms. Dixon:
[W]e still have the two bedroom held for you and your daughter. From your [sic]
operations point of view, it does not matter if you stay in the 1-bedroom or transfer
to the 2-bedroom. The required paperwork is the same for either unit. I believe the
office is waiting for direction for you or your housing case manager to approve the
2-bedroom? It comes down to what you feel most comfortable in and if the 2-
bedroom is approved by [the Division of] housing. The office staff has no part in
that decision.
We will hold the 2-bedroom until May 15th in the event you want to change your
mind. If we do not hear from you by May 15th we will assume you have passed
and release the apartment to another family.
10 The Second Amended Complaint makes no mention of a disparate impact claim, and the court
discerns no basis in the record to conclude that “a specific policy caused a significant disparate
effect on a protected group.” See Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City,
685 F.3d 917, 922 (10th Cir. 2012) (quoting Reinhart, 482 F.3d at 1229) (internal quotation
marks omitted).
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ECF No. 62-9 (May 5, 2020 email from Holly Jackson at SMP to Dixon) (emphasis added). On
May 11, 2020, the Division of Housing informed Ms. Dixon that it would not adjust her portion
of the rent after it found that it properly included Cesca’s income. ECF No. 62-8 (May 11, 2020
letter from Colorado Department of Local Affairs, Division of Housing to Dixon). After that,
“Ms. Dixon informed Silva-Markham that she would stay in a one-bedroom, and renewed her
lease May 19, 2020, with Cesca listed as a leaseholder and a full-time student, not a live-in aide.”
Second Markham Decl. ¶ 43; ECF No. 62-11 (lease agreement signed by Dixon and Cesca on
May 19, 2020).
These facts, which Ms. Dixon has not disputed, confirm that the issue concerning a two-
bedroom apartment was wrapped up in May 2020, with Ms. Dixon making the choice to remain
in a one-bedroom unit because the Division of Housing declined to increase her rent subsidy. Not
only does the undisputed record establish that the event falls outside the two-year statute of
limitations period, but it further demonstrates that Ms. Dixon cannot establish an essential
element of a failure-to-accommodate claim: that either Defendant here refused to provide the
two-bedroom accommodation she desired. Arnal v. Aspen View Condo. Ass’n, Inc., 226 F. Supp.
3d 1177, 1183 (D. Colo. 2016) (listing five elements of a claim for discrimination under the FHA
for failure to accommodate, including “that defendants refused to make such accommodation”)
(citation omitted).11 Rather, the factual record permits no dispute that Ms. Dixon did not receive
11 The other elements of an FHA failure-to-accommodate claim are: “(1) that the plaintiff or [her]
associate is handicapped as defined by the FHA; (2) that the defendant knew or reasonably
should have known of the claimed handicap; (3) that accommodation of the handicap may be
necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling;
[and] (4) that the accommodation is reasonable[.]” Arnal, 226 F. Supp. 3d at 1183.
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a two-bedroom apartment because the Division of Housing would not alter Ms. Dixon’s share of
the rent. Neither does it admit of any dispute that SMP (or Koelbel) “ha[d] no part in that
decision.” ECF No. 62-9.
For these additional reasons, both Koelbel and SMP are entitled to summary judgment on
any failure-to-accommodate claim.
Intentional discrimination/disparate treatment. Neither does a genuine dispute of
material fact prevent entry of summary judgment on any intentional discrimination claim Ms.
Dixon may be attempting to raise under the FHA.
The facts in the record show that the only possible bases for this claim are that Duran
attempted to access Ms. Dixon’s medical records in April 2020; that SMP communicated with
Ms. Dixon regarding her outstanding rent balance in the July to September 2020 timeframe; and
that SMP personnel entered her apartment two times, in February 2021 and July 2021. Here,
again, the court must acknowledge as a starting point, first, that any intentional discrimination
claim based on the April 2020 medical-records-access issue (against either Defendant) is time-
barred, and, second, that the medical-records and rent-related complaints are barred by the
release in the Settlement Agreement to the extent Ms. Dixon attempts to bring a claim against
SMP for that conduct. Therefore, the focus of the analysis here is on the rent (as to Koelbel only)
and apartment-entry issues.
To make out a prima facie disparate treatment claim, Ms. Dixon must show that “(1) she
is a member of a protected class; (2) she was denied a rental relationship or otherwise treated
differently in the terms, conditions, or privileges of her rental relationship or in the provision of
services or facilities to her as a tenant; and (3) the different treatment was, at least in part,
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because of her [protected status].” McDaniel v. N. Range Crossings, No. 21-cv-01997-NYW-
KLM, 2023 WL 4872497, at *10 (D. Colo. Feb. 6, 2023), recommendation adopted sub nom.
McDaniel v. N. Range Crossings, & Dominium Mgmt. LLC, 2023 WL 4872412 (D. Colo. Feb.
24, 2023) (citing Wilson v. Guardian Mgmt., LLC, 383 F. Supp. 3d 1105, 1108 (D. Or. 2019)).
The alleged discriminatory treatment must be attributable to the named defendants. Id. (citing
Cox v. Phase III, Invs., No. CIV.A. H-12-3500, 2013 WL 3110218, at *10 (S.D. Tex. June 14,
2013)). Additionally, disparate treatment claims brought under the FHA are analyzed under the
burden-shifting framework articulated in McDonnell-Douglas. Id. (citing Cinnamon Hills,
685 F.3d at 919; Ashbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989)).
There is no doubt that Ms. Dixon is a member of a protected class. But she has brought
forth no direct evidence showing that she was treated differently from any other tenant at Ash
Street because of her protected class. The indisputable contents of the emails sent by Tiffani
Thomas, the Regional Property Manager for SMP, in August and September 2020 reflect nothing
more than a business purpose to ascertain the precise amount of rent that Ms. Dixon owed—Ms.
Dixon does not dispute that she did owe at least some back rent—and to work with Ms. Dixon to
ensure payment. ECF No. 64-9. No inference of discriminatory purpose can be drawn from these
emails, but rather a willingness by Ms. Thomas to help Ms. Dixon, conveyed in a professional
manner. Id. at 3 (stating that Thomas would “be looking into the past due amount allegedly
owed”); id. at 1 (informing Dixon that her amount due was less because SMP had received notice
of a payment error from the Division of Housing). Nothing in the emails indicates that Ms.
Thomas would have approached the issue of delinquent rent differently with any other tenant,
disabled or not, and Ms. Dixon has provided no evidence concerning any non-disabled tenant
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who received more favorable treatment when their rent was overdue. See, e.g., Reinhart,
482 F.3d at 1229 (“A disparate-treatment claim requires proof of ‘differential treatment of
similarly situated persons or groups[.]’”) (quoting Bangerter v. Orem City Corp., 46 F.3d 1491,
1501 (10th Cir. 1995)). Neither is there any evidence demonstrating that Ms. Dixon was ever
denied a rental relationship with SMP; she left of her own volition nearly a year later, in August
2021 (without providing forwarding contact information to SMP). First Markham Decl. ¶ 17;
Final Account Statement.
The record reveals no genuine dispute about these matters. Likewise, Ms. Dixon does not
come forward with any direct evidence showing that she was treated differently from any other
tenant at Ash Creek, or denied a rental relationship, because of her protected class in connection
with two incidents in which an SMP staff member entered her apartment, or denied a rental
relationship on these grounds. First, these were isolated occurrences—one in February 2021 by
Duran and the other in July 2021 by the maintenance worker—and Ms. Dixon has presented no
evidence showing that other residents at Ash Creek (disabled or non-disabled) were not subject
to similar occasional entries into their apartments by SMP staff members. Indeed, Ms. Dixon’s
Lease specifically allowed such entries:
Resident shall allow Owner access to the Premises and Owner shall have the right
to reenter the Premises at all reasonable times for any legitimate or necessary
purpose which owner determines in its sole discretion . . . . Owner shall always
have the right the reenter the Premises without notice, with Resident’s consent or
request. Absent consent or request from Resident, Owner may reenter with notice
when practical, and without notice when impractical . . . . Owner may reenter
regardless of whether Resident is present by duplicate key . . . .
Lease § 25. Here, the undisputed evidence in the record shows that Duran entered Ms. Dixon’s
apartment to change furnace filters, see Second Markham Decl. ¶ 62, and there is nothing in the
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record demonstrating that the maintenance worker entered the apartment for any other reason
than to perform maintenance work.
Similarly, Ms. Dixon has not presented sufficient circumstantial evidence showing that
these reasons for SMP’s actions—either concerning her overdue rent or SMP personnel entering
her apartment—were pretextual. See Cinnamon Hills, 685 F.3d at 919 (recognizing that “the
familiar McDonnell Douglas burden shifting scheme originally spawned in the Title VII arena
but long since equally entrenched in the FHA” context) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). A thorough review of the record reveals that the only potential
evidence of pretext is Duran’s purported comment to Ms. Dixon, made sometime between April
29 and June 19, 2020, that she “was fine, didn’t need an aide, and could take care of [her]self.”
ECF No. 64-11 at 1. A single comment is typically insufficient to demonstrate pretext. See, e.g.,
Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (collecting cases).
Furthermore, Duran was not involved in SMP’s rent-collection efforts, and nearly a year passed
between Duran’s comment and the first entry into her apartment and more than a year before the
second entry. Regardless, the Tenth Circuit has recognized that even “close temporal proximity,”
while “a factor in showing pretext, yet is not alone sufficient to defeat summary judgment.”
Annett v. Univ. of Kansas, 371 F.3d 1233, 1240 (10th Cir. 2004). Duran’s single, isolated
comment does not create a triable issue on whether Defendants’ reasoning is pretextual.
Having presented insufficient facts to discredit these explanations, the court finds that
Ms. Dixon has failed to demonstrate a genuine issue of material fact regarding her claims of
unlawful discrimination related to her disparate treatment claim predicated on efforts to collect
overdue rent or SMP personnel entering her apartment.
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Hostile housing environment. To pursue an FHA discrimination claim based on a hostile
housing environment, a plaintiff must show that (1) the plaintiff is a member of a protected class;
(2) the challenged conduct was unwelcome; (3) the challenged conduct was based on the
plaintiff’s protected characteristic; (4) the challenged conduct was sufficiently severe or
pervasive to alter the plaintiff’s living conditions and create an abusive environment; and (5) the
defendant knew or should have known about the harassment. Ngiendo v. Pep-KU, LLC, No. 18-
4127-SAC-TJJ, 2019 WL 3430570, at *3 (D. Kan. July 30, 2019), aff’d, 825 F. App’x 577
(10th Cir. 2020) (citing Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 861
(7th Cir. 2018)); see also Jackson, 619 F. App’x at 703 (explaining that the Tenth Circuit has
looked to hostile-work-environment decisions for guidance in assessing claims of a hostile
housing environment). “Applied to housing, a claim is actionable when the offensive behavior
unreasonably interferes with use and enjoyment of the premises.” Honce v. Vigil, 1 F.3d 1085,
1090 (10th Cir. 1993).
Because hostile environment claims are subject to the continuing violation doctrine, see,
e.g., Davidson, 337 F.3d at 1183, for purposes of the claim against Koelbel, the court considers
all of the conduct raised by Ms. Dixon: (1) Duran’s attempt to access Ms. Dixon’s medical
records; (2) Duran’s comment regarding Ms. Dixon’s need for accommodation; (3) Defendants’
attempts to collect past rent; and (4) the two entries into Ms. Dixon’s apartment. As for SMP, the
scope of the claim is limited to the two entries into Ms. Dixon’s apartment in February and July
2021 that post-dated the Settlement Agreement. Even considering the full scope of the allegedly
harassing conduct, Ms. Dixon has failed to present evidence sufficient to create a triable issue on
the severe-or-pervasive prong of the hostile environment analysis. Therefore, the court focuses
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its analysis on that element of the claim.
First, the undisputed facts show that the alleged harassment was not pervasive. The
events occurred over the course of more than a year, sometimes with months between the acts of
purported harassment. See, e.g., Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365-66
(10th Cir. 1997) (finding that five separate incidents of sexually-oriented, offensive comments
over a sixteen-month span did not qualify as pervasive); Al-Kazaz v. Unitherm Food Sys., Inc.,
594 F. App’x 460, 462 (10th Cir. 2014) (holding that three isolated comments were insufficient
to establish pervasiveness) (citation omitted). Ultimately, Ms. Dixon has not presented evidence
demonstrating that her living situation was “permeated with discriminatory intimidation, ridicule,
and insult.” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998) (cleaned up,
citation omitted).
Second, the summary judgment record admits of no dispute concerning the absence of
conduct rising to the level of “severe” under established Tenth Circuit precedent. Rather, the
undisputed facts expose the fundamentally benign nature of the handful of incidents of alleged
harassment at issue here. Ms. Dixon points to no evidence indicating that Defendants’ attempts
to collect her overdue rent were in any way threatening, or that the two entries into her apartment
by Duran and the maintenance worker were inconsistent with the terms of her Lease authorizing
access by SMP personnel. The undisputed evidence concerning the purported attempt to access
Ms. Dixon’s medical records shows that Duran sought the information because Ms. Dixon was
trying to obtain “a transfer to a two-bedroom apartment.” SMP Accommodation Form at 1. In
that context, if Duran erred in speaking to Ms. Dixon’s physician about her need for a live-in
aide, Duran’s mistake—never repeated, according to the undisputed facts—does not evince the
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level of threatening or humiliating conduct required to create a triable issue on the severity prong
of the hostile work environment analysis. Tenth Circuit authority makes clear that evidence of
conduct more egregious than this was insufficient to preclude summary judgment on a hostile
environment claim. See, e.g., Throupe v. Univ. of Denver, 988 F.3d 1243, 1253-55 (10th Cir.
2021) (affirming summary judgment against a college professor who did not raise a triable issue
of fact concerning severity or pervasiveness, where his hostile work environment claim was
based on “a handful of occurrences: the spreading of rumors about his relationship with a
student, being subjected to a Title IX investigation, receiving the written warning, being assigned
a less desirable teaching schedule, and being yelled at by [a superior] on at least one occasion”)
(cleaned up); Morris v. City of Colorado Springs, 666 F.3d 654, 667-68 (10th Cir. 2012)
(affirming summary judgment on a hostile work environment claim against a registered nurse
who alleged that a surgeon flicked her on the head, threw bloody tissue at her during surgical
procedures, and yelled at her and berated her work with comments like “get you’re a**in gear,”
and finding that these incidents “could not reasonably be viewed as threatening or severe”).
As this authority emphasizes, the Tenth Circuit has “found conduct sufficiently severe to
overcome summary judgment in only particularly threatening or humiliating circumstances.”
Throupe, 988 F.3d at 1255 (citing Morris, 666 F.3d at 667) (describing instances where we have
found the element of severity met, including assault and the physical groping of body parts)
(emphasis added). Ms. Dixon points to no evidence that would allow a reasonable jury to find
Defendants’ conduct rose to the requisite level of severity. For these reasons, in addition to the
threshold defects identified above, Defendants are entitled to summary judgment on Ms. Dixon’s
hostile housing environment claim.
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b. 	§ 3617 Retaliation Claim
Ms. Dixon does not mention the word “retaliation” in her papers, but she does invoke
§ 3617 of the FHA, which makes it “unlawful to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or
on account of his having aided or encouraged any other person in the exercise or enjoyment of,
any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” See Second
Amended Complaint at 6. However, the court all inferences from the record in Ms. Dixon’s favor
and therefore countenances the existence of a retaliation claim premised on her requesting an
accommodation for a live-in aide—the only protected activity discernible from the record. See
Arnal, 226 F. Supp. 3d at 1188; see also § 3604(f).
To prove a retaliation claim under the FHA, Ms. Dixon must show “(1) she is a protected
individual under the FHA, (2) she was engaged in the exercise or enjoyment of her fair housing
rights, (3) the defendants coerced, threatened, intimidated, or interfered with the plaintiff on
account of her protected activity under the FHA, and (4) the defendants were motivated by an
intent to discriminate.” Hatfield v. Cottages on 78th Cmty. Ass’n, No. 21-4035, 2022 WL
2452379, at *8 (10th Cir. July 6, 2022) (citation and internal quotation marks omitted). Notably,
§ 3617 cannot be used “for trivial or isolated disputes.” Id. (citation omitted) (observing that the
Seventh Circuit has held “[i]nterference is more than a quarrel among neighbors or an isolated
act of discrimination”). Instead, “there must be conduct ‘that a person of normal fortitude would
view as coercive, intimidating, threatening, or interfering with the exercise of her protected right
under the FHA.’” Id. (citations omitted).
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Here, the undisputed material facts do not show that Defendants “coerced, threatened,
intimidated, or interfered with” Ms. Dixon’s attempt to obtain an accommodation. Id. Instead,
those facts—even viewed in the light most favorable to Ms. Dixon—show that Duran’s actions
were geared toward attempting to promote Ms. Dixon’s request “to add a live-in Aide to her
lease contract.” SMP Accommodation Form at 2. Duran sent Ms. Dixon’s reasonable
accommodation paperwork to Dr. Schiavoni, noting that Duran appreciated the physician’s
“expediency as [Ms. Dixon] has applied for a transfer to a two bedroom apartment.” Id. at 1. If
Duran overstepped her bounds in sending the physician the signed release Ms. Dixon had
submitted to the Division of Housing, id. at 2, 5, the undisputed facts show this was done to
expedite, not interfere with, the accommodation process in light of the closure of SMP’s offices
because of the pandemic. And Ms. Dixon also has presented no evidence demonstrating that the
comment Duran made to Ms. Dixon via phone—that Ms. Dixon’s physician had said she did not
need a live-in aide—was ever conveyed to the personnel at the Division of Housing, who were
charged with assessing Ms. Dixon’s accommodation request.
Duran also worked with Ms. Dixon to correct the outstanding balance on her rent,
including setting up a payment plan, which was hindering approval by the Division of Housing.
Later, Ms. Thomas worked with Ms. Dixon in August and September 2020 to figure out Ms.
Dixon’s outstanding rent balance. Similarly, the entries into Ms. Dixon’s apartment, by Duran in
February 2021 when she came in to change furnace filters and by the maintenance worker in July
2021—both of which long post-dated the wrap-up of the reasonable-accommodation process in
May 2020—indicate no interference with the accommodation process. If Duran and the
maintenance worker behaved in a manner not perfectly pleasing to Ms. Dixon, there is no dispute
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that both of them were in fact authorized to enter her apartment pursuant to the terms of her
lease.
Neither do any of these undisputed material facts show that “[D]efendants were
motivated by an intent to discriminate.” Hatfield, 2022 WL 2452379, at *8. Ms. Dixon points to
no evidence showing that she treated differently from any other resident of Ash Street in terms of
how SMP would have communicated about an accommodation request; how SMP would have
handled back-due rent; or how SMP would have entered a resident’s apartment pursuant to its
authority under the terms of the Lease. Rather, the undisputed factual record reveals these to be
“trivial or isolated disputes” that no “person of normal fortitude would view as coercive,
intimidating, threatening, or interfering with the exercise of her protected right under the FHA.’”
Id.
In short, there is no genuine dispute as to material fact as to Ms. Dixon’s FHA claims
under § 3617, and thus Defendants are entitled to judgment as a matter of law.
* 	* 	*
Based on the identified threshold defects, and Ms. Dixon’s failure to demonstrate a
genuine dispute as to any material fact on the remaining aspects of any FHA claim against either
Koelbel or SMP, the court respectfully RECOMMENDS that Defendants’ Motion be granted.
B. 	State-law Claim
1. 	Lack of Jurisdiction
28 U.S.C. § 1367(a) authorizes a federal court to assert jurisdiction—commonly referred
to as supplemental jurisdiction—over state-law claims when those claims “form part of the same
case or controversy” as federal-law claims and share a “common nucleus of operative fact.”
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United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). But even when supplemental
jurisdiction is available, a court is not required to exercise jurisdiction if
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction,
or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
§ 1367(c). Relevant here is § 1367(c)(3). Upon dismissal of all federal claims, a court weighing
whether to exercise supplemental jurisdiction must consider whether “the nature and extent of
pretrial proceedings, judicial economy, convenience, and fairness would be served by retaining
jurisdiction.” Anglemyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995) (citation and
internal quotation marks omitted). The district court’s decision whether to retain supplemental
jurisdiction is “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009).
When a case has not proceeded to trial, a court ordinarily should decline to exercise
supplemental jurisdiction after dismissing all federal claims. See, e.g., United States v. Botefuhr,
309 F.3d 1263, 1273 (10th Cir. 2002) (“[W]e have held that, absent [a showing that the parties
have expended a great deal of time and resources], a district court should normally dismiss
supplemental state law claims after all federal claims have been dismissed, particularly when the
federal claims are dismissed before trial.”) (citations omitted); See also Royal Canin U. S. A.,
Inc. v. Wullschleger, 604 U.S. 22, 32 (2025) (noting that for each of the scenarios laid out in
§ 1367(c), “the court may (and indeed, ordinarily should) kick the case to state court”) (emphasis
added).
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Therefore, if United States District Judge Wang adopts the recommendation to grant
summary judgment in favor of Defendants on Ms. Dixon’s FHA claims, the undersigned
recommends that the court then decline to exercise supplemental jurisdiction over Ms. Dixon’s
state-law claim.
2. 	Judgment on the Merits
If Judge Wang determines that summary judgment should be denied to Defendants on
either FHA claim, the court should grant summary judgment to Defendants on the state law
claim.
Colorado law requires that a landlord return a security deposit to a tenant within 30 days
of the tenant moving out. Colo. Rev. Stat. § 38-12-103(1). However, if there is “actual cause” to
retain any portion of the deposit, the statute requires a landlord to provide a written statement to
the tenant explaining the reasons why that portion of the deposit was not returned. Id. A landlord
has complied with this requirement if they have mailed the statement to the tenant’s last-known
address. Id.
Here, it is undisputed that Defendants retained Ms. Dixon’s $450 security deposit. The
Final Account Statement, ECF No. 56-8, shows that Ms. Dixon vacated her unit while still owing
$120 in rent. Additionally, the Statement shows that Defendants spent $841 repairing Ms.
Dixon’s apartment and removing items that she had left behind, many of which are depicted in
the photographs of the apartment following Ms. Dixon’s departure. See ECF No. 62-13. Ms.
Dixon does not contest the accuracy of the Final Account Statement or that the photos accurately
depict her unit as she left it. Additionally, in an August 8, 2021 email, Ms. Dixon admitted that
she had been unable to remove everything from her apartment. ECF No. 56-7.
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While Ms. Dixon claims not to have received the Final Account Statement, § 38-12-
103(1) does not require actual receipt by a tenant. The plain text of that provision states that a
landlord need only mail the written statement to the tenant’s last-known address. Here,
Defendants have presented evidence showing that Ms. Dixon never provided a forwarding
address, making her address at Ash Street her last-known address. First Markham Decl. ¶¶ 16-19;
see also ECF No. 62-12 at 1. Ms. Dixon has provided no evidence to the contrary. Defendants
also have provided unrefuted evidence showing that they sent the Final Account Statement to
Ms. Dixon’s Ash Street address within thirty days of departure. Final Account Statement at 2.
Consequently, the undisputed factual records confirm that Defendants complied with
§ 38-12-103(1) and are entitled to summary judgment on Ms. Dixon’s claim.
II. 	Plaintiff’s Motion
Having concluded that Defendants are entitled to summary judgment on all of Ms.
Dixon’s claims, the court recommends that Ms. Dixon’s competing motion for summary
judgment be denied.
CONCLUSION
Consistent with the reasons set forth above, the court respectfully RECOMMENDS that
Defendants’ Motion for Summary Judgment, ECF No. 56, be granted and Ms. Dixon’s Motion
for Summary Judgment, ECF No. 45, be denied.12
12 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
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DATED: February 21, 2025 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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