Second Circuit Affirms Dismissal of Tenant-on-Tenant Racial Harassment Case Under the Fair Housing Act

In Francis v. Kings Park Manor, Inc., 2021 WL 1137441 (2d Cir. March 25, 2021), in an en banc decision, the court addressed the following issue:

Does a plaintiff state a claim under the Fair Housing Act of 1968 (“FHA”) for intentional discrimination by alleging that his landlord failed to respond to reports of race-based harassment by a fellow tenant? [Footnote omitted.]

The court, on the record before it, answered this question in the negative, reasoning that in its view “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.”

From the opinion:

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.”

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. 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. [Footnotes omitted; cleaned up.]

The court continued by rejecting plaintiff’s reliance on a “deliberate indifference” theory – which it assumed, for purposes of this appeal, “may be used to establish liability under the FHA when a plaintiff plausibly alleges that the defendant exercised substantial control over the context in which the harassment occurs and over the harasser” – on the ground that the alleged “control” defendants exercised over the alleged harasser can not “be reasonably presumed to exist in the typically arms-length relationship between landlord and tenant, unlike the custodial environments of schools and prisons.” It further explained that “[t]he typical powers of a landlord over a tenant—such as the power to evict—do not establish the substantial control necessary to state a deliberate indifference claim under the FHA.”

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