morning your honor or and i'd like to reserve three minutes of my time for rebuttal if i may even deign on behalf of the appellant's in this case we presented to you the issue of whether the mcdonnell douglas analysis of circumstantial evidence applies to reasonable accommodation claims under the fair housing act the district court in this case applied mcdonnell douglas to analyze the facts this was improper and it resulted in error big donald douglas is a method of assessing circumstantial evidence of intent where intent is a necessary element of the claim and there is no direct evidence of intent of vailable to the pla it's one method there are others approving an unlawful motive from circumstantial evidence in contrast a reasonable accommodation claim does not require intent to be proved as an element of the claim this is because the language of the fair housing act as well as the other laws of rehabilitation act the as this court has said creates an affirmative duty to act by the housing provider in response to requests for accommodation intent is irrelevant so long as the request meets certain criteria the landlord the housing provider whoever insurance company lender has a duty to act on that the elements of a successful reasonable accommodation claim do not include any discriminatory animus now what judge trotter did in this case has been done before by district court judges around the country and in every single one of those cases case held that the district court erred by applying mcdonnell douglas to a reasonable accommodation plan unlike other traditional discrimination claims reasonable accommodation claims do not require that the action be motivated by a discriminatory animists the court there said quote we join our sister circuits and hold that mcdonnell douglas burton shifting is not applicable to reasonable accommodation cases and then it went on to say you know several circuits for that proposition all of which of course we've included in our brief in this court in the sixth circuit in this court said that that was inappropriate instead the analysis should have focused on the reasonableness of the accommodation requested in that case the court went on to find that the plaintiffs request for leave was not reasonable but at least it applied the appropriate analysis this court has handled decided at least three significant reasonable accommodation cases under the record with all due respect it's her mistake the the defendant filed the motion for summary judgment they didn't rely upon mcdonnell douglas they relied on the overlook case which set forth elements for reasonable accommodation we filed briefs we said there was a different case but it was reasonable modification case but as we say essentially the same elements and we said if it is a reasonable accommodation case then fine overlook applies no one suggested that there should be any mcdonnell douglas analysis or there shouldn't be any confusion because there wasn't in it but the lawyers you know didn't bother to raise it yes yes it would it would be like you what was like no we don't have to say don't review this for abuse of discretion we've already told you how to review it and we hope that you will do so so i don't know how she got mistaken it is true if you if you look at the body of jurisprudence from the six circuit on fair housing it's quite vast and the vast majority of them apply mcdonnell douglas but there are race cases you know or some other protected category they're not disability reasonable accommodation cases now smith in the league i want to draw attention to the smith and we case also somewhat of an older case ninety six but in that that's a fair housing case the plaintiffs are presented both an intent case beaver city of taylor rather intended to discriminate against disabled people and a reasonable accommodation case on the intent case this court's the intent claim fails there is no evidence of an intent to discriminate because of disability dismissed the case on the reasonable accommodation claim this court said plaintiff wins the liability was affirmed the evidence the stamp list the essential elements of the claim how can you reconcile that with judge trotters opinion in this case with unli basically got it right if the claim is an intent to discriminate because of disability you go through the mcdonnell douglas analysis if the claim is simply reasonable accommodation you don't party address the issue of the appropriate analysis i beg to differ just not been argued over look we argued twin brooke but we said we can live with overlook and that you know a they could have either said you know you're right judge progress analysis was wrong but we should still win because there's no evidence of reasonableness or denial which is what they argued before her in the first place they chose not to do that they chose to say she was right there's no evidence of intent and therefore we win so they never briefed the the other issues of the of the factual issues the judge charger went through but the answer is yes they've they've put all of their their bet the  mcdonnell douglas analysis now i want to before run out of time i want to just make clear that there's no misunderstanding about the choices in community because i think that was mentioned in the response brief and perhaps by judge tro choices i'm very familiar with the choice of case it was my case i get it here your and a half ago if you read the court of appeals in in the choices case you will see nothing in there about reasonable accommodation that's because that claim was and in the district court there was no analysis by this court of the reasonable accommodation claim and choices if you go back if you need to go back and read the briefs you can read the briefs we did not argue reasonable accommodation up here  we did have a reasonable accommodation can't claim in the trial court judge rice dismissed it not under a mcdonnell douglas analysis he just said we couldn't meet the necessary element for reasonable compensation claim and  frankly you know we decided to just let that lie and we appealed soley the intent claim in the choices case and that's all that this court had before judge cited a couple of other decisions from this circuit or in this circuit two of this court's decisions meant services princeton square and lindsay versus yates those are both race cases they apply mcdonnell douglas of course they did there was no reasonable accommodation possibility there because there weren't disability cases she also cited ward versus dickens a western district of kentucky case from two thousand and twelve i would simply point out that the plaintiff in that case was pro se there were no advocates there were no attorneys representing the plaintiff and i submit that was just wrongly decided to the extent that it relied upon mcdonnell douglas we've cited other cases in our brief from other circuits that are fair housing act cases claiming based upon reasonable accommodation caved claims gabler lapid oral bryant woods floor in four different circuits in none of those analyses of the plaintiff's claims is mcdonnell douglas even mentioned it because it's not relevant no one brought it up because intent is not a relevant provision  briefing how that the halas parents had no independent standing on their own to assert a claim under the reasonable accommodation provisions that was without the benefit of any briefing she did not cite there no less  right now i did not raise it the other side argued that we didn't have any provable damages because they said emotional distress had to be done by an expert which we disagree with as a matter of fair housing act and that there were no economic losses well whether there on that issue she didn't cite any decisions from this circuit all of which hold it hold standing under circumstances like this she seemed to focus on the parental aspect but the hamada case which is also from this circuit the plaintiffs there were parents of the children it was a familial status discrimination case and the aunt of a young man who was less than eighteen and the court found they had standing so i think the court has to address that issue as good morning gary wilkinson i represent the just been homeowners association in this case first i would like to focus the court if i could i think there's some sleight of hand with this argument about intent and distinction between reasonable accommodation cases and race cases  reasonable modification case not a reasonable accommodation case but i don't think that that matters in this case the issue is what is the correct standard for discrimination cases housing discrimination this court has decided using a particular standard race discrimination cases this court has decided use in a particular standard the district court in this case used the correct standard  problematic to import a disk and in an analytical crying war that is designed to apply to determine whether there's been intentional discrimination into the context of either a reasonable accommodation or reasonable modification while i would only disagree with the court to the extent that i don't think that the mcdon how based on the mcdonnell douglas standard is a way of considering the elements of a car the fact just me and the final thing you're looking at been considered in the decision made by the decision maker in this case the homeowners association not not necessarily that that's their only reason and a close reading of this court's own cases says that that's direct evidence therefore you skip the mcdonnell douglas three level approach and go straight to is the modification or commendation requested a reasonable one if they can prove that that is a reasonable modification request reasonable accommodation request then you skip to and shift the burden to the defendant to say it places an undue burden on our own us but you've got to yet they are first do when we don douglas itself has a burden shifting aspect to it if there is no direct proof in this case there is not the decision maker considered in this case a disability in its decision with regard to in this case a requested modification then the only way that the point of can make their case is they have to prove but indirect or circumstantial evidence that they i did not and part of my argument before the court started asking questions was a report of my statement of the court was thank goodness judge drugger did her own research because i think both an research and here's what i found based on six circuit cases and there or a number of them including the ones cited by the point of in their brief the mo nec case has about eight pages of discussion about the mcdonnell douglas analysis the difference in the monad case is that there was a direct proof that the employer considered this gentleman to disability therefore you skip the mcdonnell douglas approach and go straight to reasonable accommodation undue burden in the groaner case it was in mid it in conceded and agreed by both sides that the decision maker there of the apartment complex considered mr groaners disability in their decision to evict him so there was no need for the mcdonnell douglas well i don't know that that's true mo net may have had some discussion of that i don't think the groaner did groener was a straight reasonable accommodation case facts of that case being mr groner was severely mentally disabled he liked to scream and yell and slam doors his neighbor at the apartment didn't like that and asked that something be done over a period of time and they tried several solutions none of them worked and so the apartment chose to evict him he proposed as a reasonable accommodation will move me someplace else in the court found well that's not really reasonable because your neighbor wherever you end up not going like it either along with several other things so mr groner did not prevail in that case let me so let's revisit if there is no direct evidence of consideration of discrimination or of consideration in this case of the disability then you have to go through three step down douglas analysis can the point of prove a promise facie case if so the burden shifts to the defendant to show a legitimate nondiscriminatory reason for its decision if the defendant can do that absolute truth all right so in in this case just took over look here's what you need to make a problem facing case the plaintiffs twin brooke here's what you need to make a promise case and she applied the overbrook case which was the most difficult way to make the problem facing case and said even assuming all that the point of makes a promise facie case which shifted the burden to the just not been homeowners association to show a little legitimate nondiscriminatory reason for its decision which it did it backing up its covenants rules and restrictions it's maintaining the standards of the neighborhood  the architectural design elements of the neighborhood and the judge said even though the homeowners association was fastidious and in this case used the wor to their application of the rules there was nothing about the way they applied those rules nothing about the way that they and was the request for a modification that changed once they lowered that it was supposed to be for the house's children there was nothing in the record that indicated that there was a pretext of any and in fact mr hollis testified at his deposition that he didn't think that the board considered the disability in making its decision therefore it's our position that the analysis stops at that point point it's cannot make a promise facie case and therefore can't show the pretext and therefore the analysis stops that's what judge driver did we think she did the analysis correctly we think that her ruling was correct and we asked the court to affirm the rulin  just just a few points your honor it if mcdonnell douglas is not about intent then what's the point of the pretext part of the analysis it's all about intent and the reason it is applied is because in traditional discrimination cases intent is something that has to be proven that's why applies in the reasonable  cases you don't need any kind of inferences and if mr wilkinson wants to argue you know we needed to go through mcdonnell douglas because there's no evidence because there's no direct evidence  direct evidence we had evidence of a refusal we have evidence of a request judge trotter found that the request was reasonable at least reasonable enough to submit to a jury that there was all direct evidence there was no circumstantial inferences that had to be demonstrated so even in that analysis of mcdonnell douglas mcdonnell douglas doesn't apply what do you think of the idea of using the mcdonnell douglas burden shifting not  just slightly modified what do you think of using that mound well i would rather recast your your point and what i would agree with is that there is burden shifting that is appropriate in reasonable accommodation cases but it is not and the element of intent in most reasonable accommodations once the plaintiff has shown the necessary elements reasonable us etc disability request denial and so forth there is a shift in the burden for the defendant to show that the request in the course is the courts are a little bit different on this either it's unreasonable under the circumstances of that individual setting or that it imposes an undue burden on the defendant to make the accommodation that's a shifting burden ok and it's in it's up to the defendant to articulate what is the burden and show evidence of it if they do then your issues are joined you go to a jury trial but the shifting is not  intent issue it's the issue of the element necessary elements of the case and and the defense to it and i just want to sort of close up by by pointing out the reason why intent i really not appropriate is this when congress passed the fair housing act as well as the rehabilitation act and the it found that discrimination against people with disabilities is not usually the result of evilness or malicious animists towards people with disabilities it's in the congressional record so it's because a benign neglect there are barriers that exist or there are barriers that must come down and that's why they added this special provision in the act thirty six zero four f three which says discrimination shall be defined to include a refusal to take certain action accommodations modifications and actual actual construction intent was not congress's radar for those types of claims because that was not the problem that it was seeking to address thank you thank you in case there is some notice