944 F.3d 370 (2nd Cir. 2019), 15-1823-cv, Francis v. Kings Park Manor, Inc.

Docket Nº:15-1823-cv
Citation:944 F.3d 370
Opinion Judge:LOHIER, Circuit Judge:
Party Name:Donahue FRANCIS, Plaintiff-Appellant, v. KINGS PARK MANOR, INC., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant.
Attorney:Sasha Samberg-Champion (Yiyang Wu, John P. Relman, on the brief), Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiff-Appellant. Melissa Corwin (Stanley J. Somer, on the brief), Somer, Heller & Corwin LLP, Commack, NY, for Defendants-Appellees. Vanita Gupta, Principal Deputy Assistant Attor...
Judge Panel:Before: POOLER, LIVINGSTON, and LOHIER, Circuit Judges. Livingston, Judge Debra Ann Livingston, Circuit Judge:
Case Date:December 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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944 F.3d 370 (2nd Cir. 2019)

Donahue FRANCIS, Plaintiff-Appellant,

v.

KINGS PARK MANOR, INC., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant.

No. 15-1823-cv

United States Court of Appeals, Second Circuit

December 6, 2019

Argued: April 7, 2016

Final Submission: November 22, 2016

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of New York (Spatt, J.)

Sasha Samberg-Champion (Yiyang Wu, John P. Relman, on the brief), Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiff-Appellant.

Melissa Corwin (Stanley J. Somer, on the brief), Somer, Heller & Corwin LLP, Commack, NY, for Defendants-Appellees.

Vanita Gupta, Principal Deputy Assistant Attorney General, Jennifer Levin Eichhorn, Sharon McGowan, Thomas Chandler, United States Department of Justice, Civil Rights Division, Washington, DC; Tonya T. Robinson, Acting General Counsel, Michelle Aronowitz, Deputy General Counsel for Enforcement and Fair Housing, Kathleen Pennington, M. Casey Weissman-Vermeulen, Alexandria Lippincott, U.S. Department of Housing and Urban Development, Office of General Counsel, Washington, DC, for Amicus Curiae United States of America.

Susan Ann Silverstein, AARP Foundation Litigation, Washington, DC, for Amicus Curiae AARP.

Before: POOLER, LIVINGSTON, and LOHIER, Circuit Judges.

OPINION

Livingston, Judge dissents by separate opinion.

LOHIER, Circuit Judge:

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Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 ("FHA" or "Act"), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope. We therefore vacate the judgment of the United States District Court for the Eastern District of New York (Spatt, J. ) dismissing Donahue Francis’s claims under the FHA and analogous New York State law, as well as his claims under 42 U.S.C. § § 1981 and 1982, and remand for further proceedings. As for Francis’s challenges to the District Court’s dismissal of his other claims, we affirm.

BACKGROUND

1. Facts

The allegations in Francis’s complaint, which we assume to be true, see Morales v. City of New York, 752 F.3d 234, 236 (2d Cir. 2014), tell a story that remains too common today. "Having lived in inner city urban communities during earlier parts of his life," and "in search of a better housing situation," in 2010 Francis signed a rental lease agreement with defendant Kings Park Manor Inc. ("KPM").1 He soon moved into an apartment unit of a complex owned by KPM and managed by co-defendant Corrine Downing (together with KPM, the "KPM Defendants"). After several uneventful months, Francis’s next-door neighbor, Raymond Endres, began to subject Francis to what can only be described as a brazen and relentless campaign of racial harassment, abuse, and threats.

The specific allegations are as follows. See Joint App’x 11-17. In February 2012 Francis heard Endres say "Jews, fucking Jews," while standing in front of their

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apartments.2 Endres then called Francis, who is black, a "fucking nigger."3 On March 3, Endres approached Francis’s open front door and said "damn fucking Jews," then looked at Francis and said "fucking asshole." On March 10, Francis overheard Endres and another tenant discussing Francis "in derogatory terms." The following day, Endres approached Francis’s open front door and repeatedly called him a "nigger," then stated, "fucking nigger, close your god-darn door, fucking lazy, god-damn fucking nigger." On March 20, Francis repeatedly called Francis a "nigger" in the parking lot of the apartment complex. By this point, Francis understandably "felt afraid, anxious, and unwelcome." On May 14, Endres yelled "fuck you" in front of Francis’s front door; the following day, Endres approached Francis, who was leaving his apartment, and said, "keep your door closed you fucking nigger." On May 22, Endres told Francis, "I oughta kill you, you fucking nigger." On August 10, Endres called Francis a "fucking nigger" and a "black bastard." Finally, on September 2, 2012, Endres stood at Francis’s open front door and photographed the interior of Francis’s apartment.

From the start of Endres’s several-month campaign of harassment, Francis, "fear[ing] for his personal safety," contacted the police and the KPM Defendants to complain. His first call to the police on March 11 prompted Suffolk County Police Hate Crimes Unit officers to visit the KPM apartment complex, interview witnesses, and warn Endres to stop threatening Francis with racial epithets. That day Francis also filed a police report, and a police officer told the KPM Defendants about Endres’s conduct. The KPM Defendants did nothing.

In May 2012 Francis called the police again and filed another police report. This time, by letter dated May 23, 2012, Francis notified the KPM Defendants directly about Endres’s racist conduct between March and May 2012. The letter "report[ed] ... Endres for racial harassment, [and] for making racial slurs directly to [Francis]." It also provided contact information for the Suffolk County police officers responsible for investigating Endres. Again, the KPM Defendants failed to do anything at all, even as little as respond to Francis’s letter.

Endres’s conduct persisted. His escalating racial threats to Francis finally prodded the Suffolk County Police Department to arrest Endres for aggravated harassment in violation of New York Penal Law § 240.30. On August 10, 2012, Francis sent a second letter. It informed the KPM Defendants that Endres continued to direct racial slurs at Francis and "anti-semitic, derogatory slurs against Jewish people." It also disclosed that Endres had recently been arrested for harassment.

Endres’s attempt to photograph Francis’s apartment on September 2 was apparently the last straw. Francis contacted the police and the following day sent the KPM Defendants a third and final letter complaining about Endres’s continued racial harassment. After receiving the letter, KPM advised Downing "not to get involved," and the KPM Defendants declined to respond or follow up, even though they had "intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the

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law." Joint App’x 19-20. As a result, Endres remained a tenant at the apartment complex.

The complaint alleges that the KPM Defendants not only failed to investigate or attempt to resolve Francis’s complaints of racial abuse but, to the contrary, allowed Endres to live at the complex through January 2013 without reprisal. That month, Endres’s lease expired and he moved out of his apartment. A few months later, in April 2013, Endres pleaded guilty to harassment in violation of New York Penal Law § 240.26(1). That same month, the State court entered an order of protection prohibiting him from contacting Francis.

2. Procedural History

In June 2014 Francis sued the KPM Defendants and Endres, claiming primarily that they violated § § 3604 and 3617 of the FHA,4 the Civil Rights Act of 1866, 42 U.S.C. § § 1981, 1982, and that the KPM Defendants violated § 296(5) of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296(5), which bars housing discrimination in New York. Francis also sued the KPM Defendants and Endres for negligent infliction of emotional distress and for violating NYSHRL § 296(6) by aiding and abetting a violation of NYSHRL § 296(5), the KPM Defendants for breach of contract and breach of the implied warranty of habitability under New York State law, and Endres for intentional infliction of emotional distress. The District Court entered a default judgment against Endres, who never appeared. The KPM Defendants moved under Rule 12(b)(6) to dismiss the claims against them for failure to state a claim. The District Court granted that motion except as to Franciss implied warranty of habitability claim, which Francis voluntarily withdrew and the District Court dismissed. The District Court then granted partial final judgment in favor of...

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