Francis v. Kings Park Manor, Inc.

• Decision Date: 25 March 2021
• Docket Number: August Term 2020,No. 15-1823-cv,15-1823-cv
• Citation: 992 F.3d 67
• Parties: Donahue FRANCIS, Plaintiff-Appellant, v. KINGS PARK MANOR, INC., and Corrine Downing, Defendants-Appellees, and Raymond Endres, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

992 F.3d 67

Donahue FRANCIS, Plaintiff-Appellant,

v. KINGS PARK MANOR, INC., and Corrine Downing, Defendants-Appellees,andRaymond Endres, Defendant.

No. 15-1823-cv

August Term 2020

United States Court of Appeals, Second Circuit.

Argued En Banc: September 24, 2020

Decided: March 25, 2021

Sasha Samberg-champion (John P. Relman, Yiyang Wu, on the brief), Washington, D.C., for Plaintiff-Appellant.

Frank W. Brennan (Stanley J. Somer, Paul A. Bartels, on the brief), Uniondale, NY, for Defendants-Appellees.

Debo P. Adegbile (Stephanie Simon, on the brief), New York, NY, Amicus Curiae in support of Plaintiff-Appellant.

Alexander V. Maugeri, Deputy Assistant Attorney General (Eric S. Dreiband, Assistant Attorney General, Thomas E. Chandler, Attorney, U.S. Department of Justice; J. Paul Compton, Jr., General Counsel, Timothy J. Petty, Deputy General Counsel, U.S. Department of Housing and Urban Development, on the brief), Washington, D.C., for the United States of America, Amicus Curiae in support of neither party.^†

Before: Livingston, Chief Judge, Cabranes, Pooler, Katzmann, Chin, Lohier, Carney, Sullivan, Bianco, Park, Nardini, Menashi, Circuit Judges.^*

Chin, Circuit Judge, joined by Pooler, Katzmann, Lohier, and Carney, Circuit Judges, filed an opinion dissenting in part and concurring in part.

Lohier, Circuit Judge, joined by Pooler, Katzmann, Chin, and Carney, Circuit Judges, filed an opinion dissenting in part and concurring in part.

José A. Cabranes, Circuit Judge:

The principal question presented to the en banc Court is the following: Does a plaintiff state a claim under the Fair Housing Act of 1968 ("FHA")¹ for intentional discrimination by alleging that his landlord failed to respond to reports of race-based harassment by a fellow tenant? On the record before us, we answer this question in the negative. As persuasively explained by our dissenting colleague on the panel, we think landlords typically do not, and therefore cannot be presumed to, exercise the degree of control over tenants that would be necessary to impose liability under the FHA for tenant-on-tenant harassment.²

It is undisputed that the FHA, a landmark civil rights statute, makes it unlawful for a public or private landlord intentionally "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling ... because of race, color, religion, sex, familial status, or national origin."³ There is thus no question that a landlord may be liable under the FHA for intentionally discriminating against a tenant based on race. But after more than five decades of experience in applying this important statute, our Court adopted a rule that would make landlords responsible under the FHA not only for their own affirmative discriminatory acts, but also for failing to respond to tenant-on-tenant discriminatory harassment. Although framed in terms of intentional discrimination, the panel majority's decision effectively established a landlord's positive duty under the FHA to police the conduct of tenants in their relations with each other.

We ordered rehearing of this appeal en banc , which took place in September 2020. It was the most recent chapter in a case that began in 2014, when Plaintiff-Appellant Donahue Francis filed a complaint (the "Complaint") in the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge ) against his landlord, Kings Park Manor, Inc. ("KPM"); Corinne Downing, KPM's property manager (with KPM, the "KPM Defendants"); and a fellow tenant, Raymond Endres.⁴

I. BACKGROUND

In ruling on a motion to dismiss, we "must take all of the factual allegations in the complaint as true."⁵ According to the Complaint, at all relevant times, Francis, a Black man, rented and lived in an apartment at Kings Park Manor, a residential complex in Suffolk County, New York, owned and operated by KPM. [A.18] On approximately eight occasions between February and September of 2012, Endres, Francis's neighbor and fellow tenant, verbally attacked and otherwise attempted to intimidate Francis, including by racist insults and at least one death threat. On March 11, 2012, Francis reported Endres to the Suffolk County police, who in turn informed KPM of the reported events. Francis himself did not mention Endres to the KPM Defendants at this time, however, and several months later, on May 1, 2012, Francis renewed his lease without comment. In total, Francis wrote three certified letters to KPM, in which he recounted Endres's behavior, the police's involvement, and Endres's arrest for aggravated harassment in August 2012. Francis does not allege, nor do any of the exhibits to his Complaint show, that he ever requested any action by KPM. Francis alleges that KPM did not at any point investigate or intervene; in fact, Francis claims that KPM's owners expressly directed Downing, their property manager, "not to get involved."⁶ When Endres's lease expired in January 2013, five months after he was arrested, Endres vacated his apartment. He pleaded guilty to a charge of harassment in April 2013.

Francis's Complaint asserted claims of racial discrimination against all defendants under the FHA, Section 1 of the Civil Rights Act of 1866, as amended and codified at 42 U.S.C. §§ 1981⁷ and 1982,⁸ and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq ., as well as a common-law claim of negligent infliction of emotional distress. The Complaint also included a breach-of-contract claim against the KPM Defendants and a claim against Endres for intentional infliction of emotional distress.

In August 2014, the KPM Defendants moved to dismiss all of Francis's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). In March 2015, the District Court denied the motion as to Francis's breach-of-contract claim but otherwise granted it, dismissing Francis's other claims against the KPM Defendants.⁹ Judgment entered on May 5, 2015, and Francis timely appealed.

A divided panel of this Court issued an opinion on April 5, 2019, with Judge Livingston dissenting.¹⁰ The panel majority affirmed the dismissal of Francis's claims for negligent infliction of emotional distress but reversed the dismissal of his discrimination claims. On December 6, 2019, the panel majority and dissenter filed revised opinions.¹¹ Rehearing en banc was ordered and oral argument took place in September 2020.

II. DISCUSSION

"[W]e review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6)."¹² In assessing the complaint, we "accept all factual allegations as true, and draw all reasonable inferences in the plaintiff's favor."¹³ Nonetheless, conclusory allegations are not entitled to the assumption of truth, and a complaint will not survive a motion to dismiss unless it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."¹⁴

I. Housing Discrimination Under the FHA ¹⁵

The FHA makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race ...."¹⁶ When, as here, a plaintiff brings a claim under the FHA that does not rest on direct evidence of landlord discrimination, we analyze the claim under the familiar McDonnell Douglas burden-shifting framework first developed in Title VII cases.¹⁷ Plaintiffs have specific, "reduced" pleading burdens in cases subject to the McDonnell Douglas analysis.¹⁸ For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he "[1] is a member of a protected class, ... [2] suffered an adverse ... action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent."¹⁹

We conclude that the factual allegations in Francis's Complaint do not suffice to carry his modest burden.²⁰ Although Francis has claimed that he is a member of a protected class, his Complaint lacks even "minimal support for the proposition" that the KPM Defendants were motivated by discriminatory intent.²¹ The Complaint alleges, in a conclusory fashion, only that the "KPM Defendants have intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law."²² But because the Complaint does not provide enough information to compare the events of which Francis complains to the KPM Defendants’ responses to other violations, there is no factual basis to plausibly infer that the KPM Defendants’ conduct with regard to Francis was motivated by racial animus.²³

To hold that Francis has plausibly pleaded discriminatory intent on these facts would be to indulge the speculative inference that "because the KPM Defendants did something with regard to some incident involving some tenant at some past point," racial animus explains the failure to intervene here.²⁴ Francis does not allege that the KPM Defendants regularly intervened in other disputes among tenants, much less that it had a practice of addressing tenant-on-tenant harassment when the matter did not involve an African American victim and a white harasser. Francis's vague allegation that the "KPM Defendants have intervened against other tenants ... regarding non-race-related violations of their leases" could refer to efforts to collect rent, stop unauthorized subletting, or remedy improper alterations to the rental premises. Only untethered speculation supports an inference of racial animus on the part of the KPM Defendants. We decline to engage in such speculation.²⁵

In an apparent attempt to avoid the obligation to plead facts that plausibly support an inference that the KPM Defendants were motivated by racial animus, Francis asserts that his allegations establish that the KPM Defendants intentionally discriminated against him under a deliberate indifference theory of liability. This theory of...