HEIDI RODRIGUEZ, individually and as parent and natural guardian of the minor child, A.R., and JUAN RODRIGUEZ, individually and as parent and natural guardian of the minor child, A.R., Plaintiffs-Appellants,
VILLAGE GREEN REALTY, INC., d/b/a Coldwell Banker Village Green Realty, and BLANCA APONTE, Defendants-Appellees. [*]
Argued September 12, 2014.
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Appeal from the United States District Court for the Northern District of New York. No. 11-cv-1068 -- Thomas J. McAvoy, Judge.
Heidi and Juan Rodriguez, parents of minor child A.R., brought suit for disability discrimination under the Fair Housing Act, 42 U.S.C. § 3601 et seq. (" FHA" ), against Village Green Realty, Inc., a real estate agency, and Blanca Aponte, its agent. The United States District Court for the Northern District of New York (McAvoy, J.) granted summary judgment for the defendants. We hold that the district court erred because there was sufficient evidence presented that A.R. qualifies as disabled under the FHA. We also hold that the FHA's prohibition against statements that " indicate[ ] any preference, limitation, or discrimination based on . . .handicap," 42 U.S.C. § 3604(c), may be violated even if the subject of those statements does not qualify as disabled under the FHA. Finally, we hold that the " ordinary listener" standard is not applicable to claims under 42 U.S.C. § 3604(d) for misrepresenting the availability of housing.
Accordingly, we VACATE the judgment of the United States District Court for the Northern District of New York and REMAND.
SASHA M. SAMBERG-CHAMPION (Michael G. Allen and Timothy M. Smyth, on the brief), Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiffs-Appellants.
ARI I. BAUER (Paul S. Ernenwein, on the brief), Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY, for Defendants-Appellees.
Cathy A. Simon and Thomas H. Prouty, Troutman Sanders LLP, Washington, DC; Megan K. Whyte de Vasquez, Washington Lawyers' Committee for Civil Rights and Urban Affairs, Washington, DC, for the Epilepsy Foundation, Autism National Committee, the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities, National Council on Independent Living, Judge David L. Bazelon Center for Mental Health Law, the Disability Rights Education & Defense Fund, National Disability Rights Network, and AARP as amici curiae in support of Plaintiffs-Appellants.
Before: LIVINGSTON and DRONEY, Circuit Judges, and NATHAN, District Judge.[**]
DRONEY, Circuit Judge :
Plaintiffs-Appellants Heidi and Juan Rodriguez, parents of minor child A.R., brought suit for disability discrimination under the Fair Housing Act, 42 U.S.C. § 3601 et seq. (" FHA" ), against Defendants-Appellees Village Green Realty, Inc., a real estate agency, and Blanca Aponte, its agent. The plaintiffs allege, inter alia, that the defendants (1) made housing unavailable on the basis of disability in violation of 42 U.S.C. § 3604(f)(1); (2) provided different terms, conditions, and privileges of rental housing on the basis of disability in violation of 42 U.S.C. § 3604(f)(2); (3) expressed a preference on the basis of disability in violation of 42 U.S.C. § 3604(c); and (4) misrepresented the availability of rental housing on the basis of disability in violation of 42 U.S.C. § 3604(d). The United States District Court for the Northern District of New York (McAvoy, J. ) granted summary judgment for the defendants on these claims. This appeal followed.
We hold that the district court erred because there was sufficient evidence presented that A.R. qualifies as disabled under the FHA. We also hold that the FHA's prohibition against statements that " indicate[ ] any preference, limitation, or discrimination based on . . . handicap," 42 U.S.C. § 3604(c),
may be violated even if the subject of those statements does not qualify as disabled under the FHA. Finally, we hold that the " ordinary listener" standard is not applicable to claims under 42 U.S.C. § 3604(d) for misrepresenting the availability of housing. Accordingly, we VACATE the judgment of the district court and REMAND.
I. Factual Background
Plaintiffs Heidi and Juan Rodriguez are the parents of minor child A.R. who has Autism Spectrum Disorder and epilepsy. This suit under the Fair Housing Act arose from text messages about A.R. sent to Heidi Rodriguez by defendant Blanca Aponte, a real estate agent.
The Rodriguez family had rented a single family home on a month-to-month basis for two years on property located in Saugerties, New York. The property was owned by Donnie Morelli and included two single family homes and twenty-eight acres. Some time in 2010, the property was listed for sale with defendant real estate agency Village Green Realty, Inc. Defendant Aponte served as the listing agent.
On January 20, 2011, Aponte left a letter at the Rodriguez home informing them of Morelli's intention to sell the property to Mansour Farhandian. The letter stated that Farhandian would be willing to continue to rent to the Rodriguez family, but under certain modified terms, including an increased rent, and asked the Rodriguezes to inform Aponte whether they agreed to the new terms. If not, the letter stated, they would have to vacate the premises by March 15, 2011. The Rodriguezes did not immediately inform Aponte as to whether they accepted the new terms.
On January 23, 2011, Morelli entered into a purchase agreement with Farhandian; the agreement anticipated a closing in early March. In order to facilitate the anticipated sale, Aponte continued to try to contact the Rodriguezes to determine whether they intended to accept the new lease terms. She texted Ms. Rodriguez on January 25 and February 4 inquiring about a response to the letter, but Ms. Rodriguez did not respond.
On February 6, 2011, A.R. suffered two grand mal seizures. Ms. Rodriguez called Morelli from the hospital to inform him about the seizures and tell him that it was " not the time" for her and Mr. Rodriguez to be negotiating with Aponte. J.A. 146. The next day, Aponte texted Ms. Rodriguez: " Hi Please respond to my notices! If you have an attorney please have them get in touch w me," J.A. 230, to which Ms. Rodriguez replied: " Please call Donnie [Morelli] for an update." Id. Aponte wrote back: " Will do." Id. 
This began the exchange of text messages from February 7 to 23 that are the principal subject of this action. On February 7, Aponte wrote to Ms. Rodriguez that she had " [j]ust spoke[n] w[ith] Donnie
[Morelli]" and that, " [w]hile [they were] both sympathetic to [Ms. Rodriguez's] situation," Morelli was selling the property and Aponte would " be proceeding with legal action to remove you from [the] premises." Id. After several exchanges regarding scheduling a time for Aponte to inspect the Rodriguezes' home, Ms. Rodriguez stated,
We are not leaving. Where do you want us to go with a sick child? . . . Why do you keep on harassing and insisting that we move? . . . When you were told of my daughter being sick we weren't asking for free rent or anything of the sort. Just to be understood and left alone to deal with her medical issues without being bothered by you asking us to leave our home.
J.A. 231. Aponte replied that she had " not asked you to leave" but that she had received no response from the Rodriguezes about the new owner's rental terms. Id. In reply, Ms. Rodriguez complained about the " poorly maintained icy road" near the home and questioned how vehicles could get up the road " [o]r better yet an ambulance for my daughter if needed." Id. Aponte responded,
This has nothing to do with what we were just speaking about[.] Fact is that if I can get up and down emergency vehicles should be able to as well. This has been an unusually cold and snow filled Winter. So maybe you should consider relocating to a better and more easily accessible Location.
A few days later, on February 16, Ms. Rodriguez sent a text message to Aponte stating that she needed to reschedule the inspection because A.R. had suffered the second seizure and needed to return to the hospital for testing. J.A. 232. This led to the following exchange:
[Aponte (February 16, 7:42 p.m.):] Just spoke w my lawyer for management company.. We will accept your rescheduling appointment for Friday if you provide verification of medical appointment for your daughter. The prospective new owner is very concerned about continuing your lease with you Childs medical situation and will probably not want to rent to you. I think we need to let you know that we will not be renting to you! Please plan on rel Please make plans to relocate. We will give you Until end of March. Respond to me. . Not to mr Morelli Blanca
[Ms. Rodriguez (February 16, 8:16 p.m.):] What are you talking about?
[Aponte (February 16, 8:42 p.m.):] Exactly what I said. You have cancelled our appointment because of issues with your daughter's illness. We want verification of your appointment.. That being said. . . The new owner has decided not to continue to rent to you because your daughter should be in a more convenient location to medical treatment
[Ms. Rodriguez (February 16, 9:04 p.m.):] You spoke to the new owner that fast and he made a decision not to rent to us because my daughter has seizures? Or. is this you decision?
I am confused.
[Aponte (February 17, 7:11 a.m.):] The new owner is concerned by your statement that emergency vehicles cannot reach you should your daughter be at risk. Also concerned about you not making place readily available for inspection and thinks I should have a key that is the right of a landlord and his
representative. For me, I only have your statement that your daughter us sick Do u have verification?
On February 23, Aponte reiterated that the new owner was concerned about renting to the Rodriguezes because of Ms. Rodriguez's statement that the home was not " readily accessible to emergency vehicles," which Aponte stated was a " major concern as to liability." J.A. 234-35. She further stated, " I think that your tenancy is over. Will verify ...