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Francis v. Kings Park Manor, Inc.

United States Court of Appeals, Second Circuit

December 6, 2019

DONAHUE FRANCIS, Plaintiff-Appellant,

          Argued: April 7, 2016

          Final Submission: November 22, 2016

         In this appeal, we consider whether a landlord may be liable under §§ 3604 and 3617 of the Fair Housing Act of 1968 ("FHA"), 42 U.S.C. §§ 3604, 3617, and analogous provisions of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, for intentionally discriminating against a tenant who complains about a racially hostile housing environment that is created by and leads to the arrest and conviction of another tenant. The United States District Court for the Eastern District of New York (Spatt, J.) dismissed the claims of plaintiff Donahue Francis under the FHA, 42 U.S.C. §§ 1981 and 1982, and the NYSHRL, as well as Francis's other claims under New York State law. We VACATE the District Court's dismissal of the federal claims and the NYSHRL claims and REMAND for further proceedings. We AFFIRM the District Court's judgment in all other respects.

          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.


         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.


         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 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 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 Francis's 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 the KPM Defendants so that Francis could pursue this appeal, even though damages against Endres remained to be determined. See Fed.R.Civ.P. 54(b).

         Following oral argument, we solicited HUD's views relating to a landlord's potential liability for a tenant's racial harassment of another tenant under its regulations. In response, HUD, as amicus curiae, points us to its rules designed to clarify the law in this area and urges us to recognize certain limited claims against landlords arising out of tenant-on-tenant racial harassment.


         We focus on Francis's federal claims arising under §§ 3604 and 3617 of the FHA and under the Civil Rights Act of 1866, as well as his New York claims arising under NYSHRL § 296 and for negligent infliction of emotional distress. We review the District Court's dismissal of these claims de novo, accepting the factual allegations in the complaint as true. See Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015).

         1. Post-Acquisition Claims Under the Fair Housing Act

         We start with the statutory text. As relevant to this appeal, § 3604(b) of the Act 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, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b). Section 3617 of the Act also 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" any right protected by the Act. 42 U.S.C. § 3617. The language of the FHA has a "broad and inclusive compass," City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995) (quotation marks omitted), and we therefore give it a "generous construction," Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972). Together, the Act's provisions are designed "to eliminate all traces of discrimination within the housing field." Cabrera v. Jakabovitz, 24 F.3d 372, 390 (2d Cir. 1994) (quotation marks omitted).

         We first address Francis's claims under §§ 3604(b) and 3617 with the text and those principles in mind. As a threshold matter, we consider whether § 3604 prohibits discrimination occurring after a plaintiff buys or rents housing. We hold that so-called "post-acquisition" claims that arise from intentional discrimination are cognizable under § 3604. In other words, the FHA has some post-acquisition application, and we here describe only the degree of application necessary to resolve Francis's FHA claims on appeal.

         Our view is rooted first in the language of the provision itself, which prohibits discrimination in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith." 42 U.S.C. § 3604(b). Like our sister circuits, we locate in this text at least some degree of post-acquisition protection. We agree with the Seventh Circuit, for example, that the FHA's use of the terms "privileges" and "conditions" refers not just to the sale or rental itself, but to certain benefits or protections flowing from and following the sale or rental. See Bloch v. Frischholz, 587 F.3d 771, 779-80 (7th Cir. 2009) (en banc). And we agree with the analysis of the Ninth Circuit, for example, that "[t]he inclusion of the word 'privileges' implicates continuing rights," indicating that the "natural reading" of the statute "encompasses claims regarding services or facilities perceived to be wanting after the owner or tenant has acquired possession of the dwelling." Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 713 (9th Cir. 2009). In other words, we rely not only on the Supreme Court's directive that we read the statute broadly, but also and more fundamentally on the statutory text itself. Cf. 42 U.S.C. § 2000e-2(a)(1) (Title VII) (banning both pre-and post-hiring racial discrimination and harassment, and similarly providing that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race" (emphasis added)); Neudecker v. Boisclair Corp., 351 F.3d 361, 364-65 (8th Cir. 2003) (where tenant's suit against property management company alleged that he was subjected to repeated disability-based harassment by fellow tenants, that he reported the harassment to the company "to no avail," and that the harassment interfered with his right to enjoy his home, Eighth Circuit concluded that such a post-acquisition "disability harassment" claim "is actionable under the FHA," relying on analogous language in the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.).

         It is telling that on the issue of whether the FHA prohibits any type of post-acquisition discrimination, every other circuit faced with the issue has acknowledged that § 3604(b) at least prohibits "discrimination relating to . . . actual or constructive eviction," which is necessarily post-acquisition. Cox v. City of Dallas, 430 F.3d 734, 746 (5th Cir. 2005); see Modesto, 583 F.3d at 714; Woodard v. Fanboy, L.L.C., 298 F.3d 1261, 1263-64, 1268 (11th Cir. 2002); Betsey v. Turtle Creek Assocs., 736 F.2d 983, 985-86 (4th Cir. 1984); see also Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994). As the Seventh Circuit concluded, "in some circumstances homeowners have an FHA cause of action for discrimination that occurred after they moved in." Bloch, 587 F.3d at 772. In short, there is no circuit split on whether § 3604 reaches post- acquisition conduct. It does.[5]

         We therefore conclude that § 3604(b) reaches conduct that, as here, "would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling" after acquisition. Modesto, 583 F.3d at 714; see Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 866-67 (7th Cir. 2018); Honce v. Vigil, 1 F.3d 1085, 1088-90 (10th Cir. 1993) (a hostile housing environment claim is actionable "when the offensive behavior unreasonably interferes with use and enjoyment of the premises" and is "sufficiently severe or pervasive to alter the conditions of the housing arrangement" (quotation marks omitted)).

         But if there were any doubt that the FHA reaches post-acquisition conduct - and we think there is none - Francis has also brought a claim under § 3617. Recall that this section 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 . . . 3604." 42 U.S.C. § 3617. Section 3617 more comprehensively prohibits discriminatory conduct barred by § 3604(b) and creates an independent cause of action. Based on our reading of the text of that provision, we agree with the Seventh Circuit that "[c]oercion, intimidation, threats, or interference with or on account of a person's exercise of his or her [§ 3604(b)] rights can be distinct from outright violations of [§ 3604(b)]." Bloch, 587 F.3d at 782. "For instance, if a landlord rents to a white tenant but then threatens to evict him upon learning that he is married to a black woman, the landlord has plainly violated § 3617, whether he actually evicts the tenant or not." Id. Separate and apart from § 3604(b), then, § 3617 also applies to at least some post-acquisition conduct. As we explain below, Francis has adequately alleged that the KPM Defendants violated § 3617 by interfering with his rights under § 3604(b).[6]

         We add here that, consistent with our interpretation of §§ 3604 and 3617, HUD's regulations have for thirty years clearly contemplated claims based on post-acquisition conduct. In 1989, for example, HUD promulgated regulations that prohibited "[f]ailing or delaying maintenance or repairs of sale or rental dwellings because of race," 24 C.F.R. § 100.65(b)(2), or "[l]imiting the use of privileges, services or facilities associated with a dwelling because of race. . . of an owner [or] tenant," id. § 100.65(b)(4); see Bloch, 587 F.3d at 780-81; Modesto, 583 F.3d at 713-14; Implementation of the Fair Housing Amendments Act of 1988, 54 Fed. Reg. 3232, 3285 (Jan. 23, 1989). The direct reference to "tenants" in § 100.65(b)(4) provides particularly strong evidence that HUD has long considered the services provision of § 3604 to apply throughout a person's tenancy.

         Finally, in our view, contrary interpretations of §§ 3604(b) and 3617 would contravene Congress's intent to root out discrimination in housing and to "replace the ghettos [with] truly integrated and balanced living patterns." Trafficante, 409 U.S. at 211 (quotation marks omitted). With the objective of building a racially integrated society in mind, it would make no sense for Congress to require landlords to rent homes without regard to race but then permit them to harass or otherwise discriminate against tenants because of race. See Babin, 18 F.3d at 347 (The FHA "encompasses such overt acts as racially- motivated firebombings . . . [or] sending threatening notes.").

         2. Landlord Liability for Tenant-on-Tenant Racial Harassment

         Having concluded that the FHA encompasses post-acquisition claims, we next consider whether a landlord may be liable under the FHA for intentionally discriminating against a tenant by, as is alleged to have occurred here, choosing not to take any reasonable steps within its control to address tenant-on-tenant harassment of which it has actual notice that is specifically based on race, even though it chooses to take steps to address other forms of tenant misconduct unrelated to race. The Seventh Circuit, which is the only other circuit to grapple with a similar issue, held that the FHA "creates liability against a landlord that has actual notice of tenant-on-tenant harassment based on a protected status, yet chooses not to take any reasonable steps within its control to stop that harassment." Wetzel, 901 F.3d at 859.

         We agree that the text of § 3617, which forbids "interfer[ence]" with a person's "exercise or enjoyment of" his or her rights under the FHA, clearly encompasses landlord liability for a tenant's racially hostile conduct in at least some circumstances. See Wetzel, 901 F.3d at 859, 862-63. For example, a landlord who fines tenants for creating fire hazards or for littering on the premises, or who responds to complaints of certain forms of tenant-on-tenant harassment, but then watches silently as white tenants burn a cross or dump trash in front of the home of recently arrived black tenants, may be said to intentionally interfere with the tenant's rights under the FHA on the basis of race.

         It is true that the text of the FHA nowhere explicitly endorses landlord liability arising from such tenant-on-tenant harassment. But we have never required every last detail of a legislative scheme to be spelled out in a statute itself-especially a civil rights statute. After all, the FHA also makes no explicit reference to liability for actual or constructive ...

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