Schonton et al v. MPA Granada Highlands LLC et al

Filing 145

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS Defendants' motion for summary judgment as to Count I, D. 130, and DENIES D. 117 and D. 140 as moot.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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DANYELA SCHONTON, et al.,
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Plaintiffs,
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v.
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Case No. 16-cv-12151-DJC
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MPA GRANADA HIGHLANDS LLC, et al.,
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Defendants.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

March 5, 2020

Introduction
Plaintiffs, Brazilian tenants and tenant applicants, allege that Defendants MPA Granada

Highlands LLC, Metropolitan Properties of America, Inc., Jeffrey J. Cohen, Marisa V. Cohen,
Paula Nigro and Jacqueline Motta (collectively, “Defendants”) discriminated against them in
violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3604 (Count I), the Civil Rights Act, 42
U.S.C. § 1981 (Count II) and Mass. Gen. L. c. 151B, § 4(6) (Count III), the claims that remain as
the other counts of the amended complaint have been dismissed. D. 46; D. 71. Defendants now
have moved for summary judgment on the remaining claims. D. 130. At the motion hearing,
counsel for Plaintiffs indicated that they are no longer pursuing Counts II and III. For the reasons
stated below, the Court ALLOWS the motion for summary judgment as to Count I.

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II.

Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.”
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations
or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must,
with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a
trier of fact could reasonably resolve that issue in her favor,” Borges v. Serrano-Isern, 605 F.3d 1,
5 (1st Cir. 2010). “As a general rule, that requires the production of evidence that is ‘significant[ly]
probative.’” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249). “Neither party may
rely on conclusory allegations or unsubstantiated denials, but must identify specific facts derived
from the pleadings, depositions, answers to interrogatories, admissions and affidavits to
demonstrate either the existence or absence of an issue of fact.” Magee v. United States, 121 F.3d
1, 3 (1st Cir. 1997). In conducting this inquiry, the Court “view[s] the record in the light most
favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc.,
556 F.3d 20, 25 (1st Cir. 2009).
III.

Factual Background
The following facts are drawn from Defendants’ statement of undisputed material facts, D.

132, Plaintiffs’ response to same, D. 138, and other supporting documents and are undisputed
unless otherwise noted.
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Plaintiffs are current and former tenants and tenant applicants of Defendants’ apartment
complex, Altitude Apartments, which was formerly known as Granada Highlands (“Granada”),
who allege discrimination based upon their Brazilian national origin between January 1, 2016 and
the present. See D. 46 ¶¶ 118-22; D. 138 ¶ 1. Defendant Granada is a complex of 919 apartment
units in multiple buildings located on Kennedy Drive in Malden, Massachusetts. D. 138 ¶ 1.
Defendant MPA Granada Highlands, LLC (“MPA”) is the owner of Granada. Id. Defendant
Jeffrey J. Cohen is the Founder and Chief Executive Officer of MPA. Id. Defendants Marisa V.
Cohen (“Cohen”), Paula Nigro (“Nigro”) and Jacqueline Motta (“Motta”) are current or former
employees, agents or servants of MPA and/or Granada. D. 138 ¶¶ 2-4.
A.

Rental Policies at Granada

Granada has instituted a written policy of requirements to rent units in their buildings (the
“Rental Policy”). D. 13-40. The Rental Policy includes a section titled General Rental Screening
Criteria (the “General Criteria”). D. 13-40 at 9. The General Criteria states that all applicants
must have either a social security card or an Individual Taxpayer Identification Number (“ITIN”).
Id. The General Criteria indicates that, if an applicant is unable to provide a social security card
or an ITIN, they must produce a visa or an immigrant green card. Id. Pursuant to the General
Criteria, applicants must also submit prior rental history, proof of employment and income and
must pay applicable fees and deposits, among other requirements. See id. at 9-13.
The Rental Policy states that “foreign-born, non-US citizen [a]pplicants require special
processing” and cross-references to a subsection titled “Conditional Approvals.” D. 13-40 at 9.
The relevant subsection applies to “Foreign Citizen[s], Non Students.” D. 13-40 at 14. This
provision applies to “only those foreign citizens temporarily working in the US on an approved
VISA.” Id. The provision requires that those foreign citizens must submit either a social security

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number or an ITIN as well as a “valid photo passport” along “with their VISA.” Id. The policy
also indicates that foreign citizens are required to provide proof of income “by an established
company.” Id. If a foreign applicant has resided in the United States for more than three months,
they are required to submit proof of residency. Id.
The Rental Policy also includes a list of specific requirements for all potential tenants. See
id. at 18-21. The Rental Policy states that “[e]ach applicant must provide two unexpired forms of
identification (a valid driver’s license, passport, age of majority card, military ID, or state issued
photo ID cards are acceptable).” Id. at 18. The Rental Policy also details income and credit
requirements, rental history and employment history requirements. Id. at 18-19. The list of
requirements limits the number of occupants that are allowed to reside in each unit and lists the
specific required deposits and fees. Id. at 19. Potential tenants are also subject to criminal
background checks and are required to obtain rental insurance. Id. at 19-20. Finally, the Rental
Policy indicates certain limits on pets per unit. Id. at 20.
Defendants claim that a former employee, Emil Kreymer (“Kreymer”), who worked for
Granada for approximately eight months in 2015, regularly did not follow Granada’s Rental Policy
when leasing to tenants. D. 138 ¶ 19. In fact, certain Plaintiffs have represented that Kreymer did
not require them to submit more than one form of identification to lease an apartment at Granada.
See D. 138 ¶¶ 42, 62, 124.
B.

Plaintiffs

Plaintiff Danyela Schonton (“D. Schonton”), her husband Sergio Luciano Schonton (“S.
Schonton,” together the “Schontons”), and her brother Jehozadak Sanches Alves Pereira
(“Pereira”) are current tenants at Granada who have resided at the complex since 2015. D. 138 ¶¶
41, 43, 64, 81. The Schontons and Pereira were born in Brazil and are undocumented immigrants.

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D. 138 ¶¶ 35, 56, 75. When initially leasing their apartment at Granada, D. Schonton, S. Schonton
and Pereira provided their Brazilian passports. D. 138 ¶¶ 42, 62, 80. Neither of the Schontons nor
Pereira have a United States passport, a driver’s license, a permanent or temporary resident card
or a valid visa. D. 138 ¶¶ 37, 58, 77. Each of them has been issued an ITIN by the Internal
Revenue Service. Id. Prior to the expiration of their lease, Motta informed Pereira that each tenant
needed to provide additional documents to renew their lease, including an additional form of
identification such as a driver’s license, United States passport, visa or SSN card. D. 138 ¶ 46.
Neither of the Schontons nor Pereira provided the requested documents. See D. 138 ¶ 47. Upon
expiration of their lease, the Schontons and Pereira did not move out of the apartment at Granada
and have been month-to-month tenants since that time. D. 138 ¶ 51.
Plaintiff Jasson Da Silva (“Da Silva”) is a current resident at Granada. D. 138 ¶ 111. Da
Silva was born in Brazil and came to the United States in approximately 2001 when he was eleven
years old. D. 138 ¶ 87. In 2013, Da Silva was granted Deferred Action for Childhood Arrival
(“DACA”) status, deferring deportation and allowing him to remain in the United States. D. 138
¶ 90. Da Silva has a social security card and was granted employment authorization, but does not
possess a United States passport, valid visa or a permanent or temporary resident card. D. 138
¶¶ 91-92. Da Silva submitted his Brazilian passport when initially applying to lease a unit at
Granada but did not submit any other identification. D. 138 ¶ 95. Da Silva and his family moved
into a unit at Granada in 2009 and their lease was renewed for the next five consecutive years.
D. 138 ¶¶ 97-98. In November 2016, Motta informed Da Silva that she would need additional
documents to renew his lease, including two forms of identification, which could include a visa,
passport or driver’s license. D. 138 ¶ 102. Da Silva and his family did not provide the requested
documents. D. 138 ¶ 103. Between 2014 and 2016, Da Silva and his family received fifteen

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eviction notices due to non-payment of rent and, in June 2016, Da Silva’s mother received a cease
and desist letter because there was an unauthorized satellite dish installed on the deck of their unit
they rented. D. 138 ¶¶ 107-109. Da Silva and his family continue to reside at Granada. D. 138 ¶
111.
Missieli Mason Souza (“Souza”) is a current resident at Granada. D. 138 ¶ 135. Souza is
a citizen of Brazil and has been granted DACA status. D. 138 ¶¶ 114-115. After receiving DACA
status, Souza was issued a social security card and employment authorization. D. 138 ¶ 116.
Souza and her husband initially applied for an apartment at Granada in 2015. D. 138 ¶ 121. At
the time, Souza and her husband submitted copies of their driver’s licenses, but no other forms of
identification. D. 138 ¶ 124. Souza and her husband were granted a one-year lease that expired
in September 2016. D. 138 ¶ 128. Just prior to the expiration of their lease, Motta informed Souza
and her husband that they needed to provide an additional form of identification to renew their
lease. D. 138 ¶ 129. Souza does not possess a United States passport, a valid visa or a permanent
or temporary resident card. D. 138 ¶ 118. Souza did not provide the requested second form of
identification. D. 138 ¶ 130. Since the expiration of her lease in September 2016, Souza has been
living at Granada on a month-to-month basis. D. 138 ¶ 135.
Plaintiff Leoncio Geraldo Pimenta Da Silva (“Pimenta Da Silva”) is a current resident at
Granada. See D. 138 ¶ 154. Pimenta Da Silva is a Brazilian citizen who first came to the United
States on a tourist visa. D. 138 ¶¶ 140-41. Pimenta Da Silva’s tourist visa expired in 2006 and he
has remained in the United States since the expiration. D. 138 ¶ 141. Pimenta Da Silva and his
wife have lived at Granada since 2012. D. 138 ¶ 144. To initially lease their apartment at Granada,
Pimenta Da Silva and his wife submitted their Brazilian passports and Brazilian driver’s licenses
as identification. D. 138 ¶ 147. Pimenta Da Silva’s lease was renewed for three consecutive years.

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D. 138 ¶ 148. In November 2016, prior to the expiration of Pimenta Da Silva’s lease, Motta
informed him that he and his wife were required to submit additional documents, including two
forms of identification. D. 138 ¶ 150. Pimenta Da Silva did not provide the requested documents,
but his lease was renewed for an additional year. D. 138 ¶ 152. Pimenta Da Silva and his wife are
currently residents at Granada on a month-to-month lease. D. 138 ¶ 154.
Plaintiff Vinicios Jordao (“Jordao”) is a former resident at Granada. See D. 138 ¶ 162.
Jordao is a Brazilian citizen who has lived in the United States since 2005 as an undocumented
immigrant. D. 138 ¶¶ 157-59. Jordao does not have a United States passport, valid visa or a
permanent or temporary identification card. D. 138 ¶ 160. Jordao and his wife lived in an
apartment at Granada from 2010 through 2016. D. 138 ¶ 162. While a resident at Granada,
Jordao’s wife was also an undocumented immigrant. D. 138 ¶ 163. At the time they initially
applied to lease an apartment, Jordao and his wife submitted only their Brazilian passports as
identification. D. 138 ¶ 164. In December 2015, Jordao received a letter notifying him that he
had “received a 14[-]day notice [for late payment of rent] every month” he had lived at Granada.
D. 138 ¶ 166. During his time at Granada, Jordao submitted multiple checks that bounced due to
insufficient funds. D. 138 ¶ 169. Jordao’s lease prohibited him from having animals in his
apartment, however, he kept a large birdcage and a fish tank in his apartment. D. 138 ¶¶ 170-71.
Despite being asked to remove the animals from his unit, Jordao kept the animals for another two
months. D. 138 ¶¶ 173-74. In September 2016, Granada notified Jordao that his lease would not
be renewed. D. 138 ¶ 175. Jordao did not move out of his apartment when his lease expired but
remained in the unit for approximately eight to nine more months before vacating. D. 138 ¶ 178.
Plaintiff Luis Silva (“Silva”) is a former resident of Granada and is a Brazilian citizen.
D. 138 ¶¶ 184, 202. Silva has lived in the United States since 2006 and is an undocumented

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immigrant. D. 138 ¶¶ 183, 186. Silva and his wife resided in an apartment at Granada from 2010
through 2016. D. 138 ¶ 188. While living at Granada, Silva’s wife was also an undocumented
immigrant. D. 138 ¶ 189. When they first applied for an apartment at Granada in 2010, Silva and
his wife indicated that they were from Brazil but did not provide any identification. D. 138 ¶¶
190-91. Silva does not possess a United States passport, visa, driver’s license or permanent or
temporary resident card. D. 138 ¶ 185. Silva’s lease at Granada was renewed every year from
2011 through 2015. D. 138 ¶ 196. While living at Granada, Silva violated his lease by painting a
room in the unit without permission. D. 138 ¶ 198. In 2016, Nigro informed Silva that he was
required to provide documents evidencing his lawful status to renew his lease. D. 138 ¶ 199. Silva
was unable to provide the requested documents. D. 138 ¶ 200. Silva’s lease was not renewed and
he vacated the apartment at Granada in June 2016. D. 138 ¶ 201.
Plaintiff Ivonette Maximiano (“Maximiano”) is a former tenant of Granada. See D. 138
¶ 226. Maximiano was born in Brazil and came to the United States in 2002. D. 138 ¶¶ 211-12.
Maximiano was an undocumented immigrant until she received a visa as the spouse of a United
States citizen, Kenneth Bokor (“Bokor”), in 2018. D. 138 ¶¶ 212-13. When submitting the
application for a unit at Granada, Maximiano provided a copy of her Brazilian passport. D. 138
¶ 218. Maximiano, Bokor, and Maximiano’s former sister-in-law entered into a lease for a unit at
Granada in 2014. D. 138 ¶ 220. While living at Granada, Maximiano and Bokor asked for guest
passes more times than allowed under the rental policy. D. 138 ¶¶ 223, 230. Bokor was notified
in 2016 that the lease would not be renewed. D. 138 ¶ 225. Defendants state that the lease was
not renewed for multiple reasons, including that Bokor informed Granada staff that he would not
be living in the unit on a full-time basis, which was required for all tenants such as Bokor whose
credit history and income were relied upon to rent the unit, and that staff was concerned

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unauthorized individuals were living in the apartment because of the frequency with which Bokor
requested additional passes. D. 138 ¶¶ 227, 230.
Plaintiff Diane Souza Hugueney (“Hugueney”) is an undocumented immigrant from Brazil
who has lived in the United States since 2015. D. 138 ¶ 237. Hugueney has not been issued either
a social security number or an ITIN. D. 138 ¶ 238. Hugueney also does not have a United States
passport, valid visa, driver’s license or permanent or temporary resident card. D. 138 ¶ 239.
Sometime around May or June of 2016, Hugueney and her daughter visited Granada to inquire
about renting an apartment. D. 138 ¶ 241. Once staff at Granada were informed that Hugueney
was employed as a house cleaner, she was told that no units were available for rent. D. 138 ¶ 242.
Plaintiff Marcelo Ricardo Souza (“M.R. Souza”) is a Brazilian citizen who obtained an F2 visa to enter the United States in 2015 because his wife, also a Brazilian citizen, was studying in
the United States. D. 138 ¶ 251-52. M.R. Souza does not have a social security card or an ITIN.
D. 138 ¶ 253. In February 2017, M.R. Souza submitted an application to rent a unit at Granada
that indicated that he was a student, although he was not. D.138 ¶ 257. M.R. Souza’s application
was not accepted. See D. 138 ¶ 258.
IV.

Procedural History
Plaintiffs filed an amended complaint in this action on July 11, 2017. D. 46. The Court

denied in part and granted in part Defendant’s motion to dismiss the amended complaint. D. 71.
Plaintiffs then filed a motion to certify a class on October 12, 2018, D. 109, which the Court denied.
D. 114. Defendants have now moved for summary judgment. D. 130. Defendants have also
moved to sever Plaintiffs’ claims, D. 117, and to strike portions of Plaintiffs’ opposition to the
motion for summary judgment, D. 140. The Court heard the parties on the motions and took the
matter under advisement. D. 144.

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V.

Discussion
A.

Count I – Violation of the Fair Housing Act

Plaintiffs allege that Defendants have violated the FHA, 42 U.S.C. § 3604, by
discriminating against them based on national origin because they are from Brazil. See D. 46 ¶¶
118-22. The FHA states, in part, that it is unlawful to “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). A plaintiff can prove a FHA claim by showing either disparate
treatment or disparate impact. Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir. 2002); see
Batista v. Cooperativa de Vivienda Jardines de San Ignacio, 776 F.3d 38, 43 (1st Cir. 2015).
Plaintiffs have indicated that they are not bringing a claim based on disparate impact, D. 137 at 5,
and, therefore, they must show disparate treatment. To establish a disparate treatment claim “there
must be sufficient evidence for a reasonable jury to conclude that the Defendants were motivated
by a protected characteristic in performing the challenged conduct.” South Middlesex Opportunity
Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 96 (D. Mass. 2010) (internal quotation
marks omitted). “Summary judgment for the defendant is warranted on a disparate treatment claim
‘if the plaintiff cannot produce either (a) direct evidence of discriminatory intent or (b) indirect
evidence creating an inference of discriminatory intent.’” Batista, 776 F.3d at 43 (internal citation
omitted); see Pina v. Town of Plympton, 529 F. Supp. 2d 151, 155 (D. Mass. 2007).
More often, discrimination is shown through indirect evidence, so the Court turns to that
first. On an FHA claim, “[w]hen a plaintiff offers no direct evidence of discrimination, his claim
of discrimination under the FHA is to be examined under the burden-shifting framework
of McDonnell Douglas Corp. v. Green . . . established in Title VII cases.” Pina, 529 F. Supp. 2d

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at 155-156 (quoting Caron, 307 F. Supp. 2d at 369). Pursuant to the framework developed in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Plaintiffs must initially establish a prima
facie case of discrimination by demonstrating that: (1) they are members of a protected class; (2)
they applied for, or attempted to apply for, an apartment at Granada and were qualified to receive
one; (3) they were denied despite being qualified; and (4) “the defendant approved the same type
of [application] for a similarly situated party during a period relatively near the time plaintiff was
denied.” See McDonnell Douglas, 411 U.S. at 802; Pina, 529 F. Supp. 2d at 156 (citing Gamble
v. City of Escondido, 104 F.3d 300, 305 (9th Cir. 1997)).
1.

Plaintiffs Have Failed to Establish a Prima Facie Case

Plaintiffs meet the first element in that they are of Brazilian national origin, so qualify as
members of a protected class under the FHA. See 42 U.S.C. §3604(b); see Pina, 529 F. Supp. 2d
at 156. Plaintiffs, however, have not satisfied the remaining elements of a prima facie showing.
They have not satisfied the second element because they have failed to demonstrate that they were
qualified to obtain or renew a lease at Granada. D. 131 at 18-19. Plaintiffs argue that they satisfy
the criteria in the Rental Policy for renting a unit at Granada and that the Conditional Approvals
are not applicable to them. D. 137 at 4. This argument is contradicted by the plain language of
the Rental Policy, which cross-references to the Conditional Approvals subsection of the Rental
Policy. D. 13-40 at 9. Under the Conditional Approvals subsection, there is a provision titled
“Foreign Citizen, Non Students,” D. 13-40 at 14,which applies to all Plaintiffs as each one was a
citizen of Brazil at the time they sought to apply for or renew their lease and none were students.
The Conditional Approvals “applies to only those foreign citizens temporarily working in the US
on an approved VISA.” D. 13-40 at 14. Under this provision, applicants must provide a Social
Security Number or Individual Taxpayer Identification Number and a valid photo passport

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together with their visa. Id. Based on the Rental Policy, all but one Plaintiff failed to meet the
applicable requirements to lease a unit at Granada based on the undisputed fact that they did not
have a visa at the time of nonrenewal of their lease or at the time they were denied an opportunity
to lease an apartment. See D. 138 ¶¶ 37, 58, 77, 92, 118, 147, 160, 185, 229, 239. The only
Plaintiff that had a valid visa was M.R. Souza, who had an F-2 visa based on his wife’s status as a
foreign student studying in the United States. D. 138 ¶ 252. M.R. Souza, however, could not meet
the requirements to lease an apartment at Granada because, as is undisputed, he did not have a
SSN or ITIN to produce as also required under the Rental Policy. D. 138 ¶ 253; D. 13-40 at 9, 13.
Accordingly, none of the Plaintiffs were “qualified for the housing opportunity in question,” Pham
v. Deutsche Bank Trust Co. Americas, 2019 WL 2340957, at *3 (D. Mass. June 3, 2019) (granting
summary judgment for Defendant on FHA claim where there was “simply no evidence that
[plaintiffs] were eligible for a ‘housing opportunity’”); D. 131 at 20 and cases cited, and, therefore,
have failed to satisfy this second element of their prima facie case. Based upon Plaintiffs’ inability
to satisfy the second element of the McDonnell Douglas framework because they do not meet the
requirements of the Rental Policy, they are also unable to satisfy the third element, which requires
that a showing that Plaintiffs who were otherwise qualified to lease were denied initial leases or
renewals. See McDonnell Douglas Corp., 411 U.S. at 802-03.
Plaintiffs also have not satisfied the fourth element, which requires that Plaintiffs show
that Defendants approved renewal or lease applications for similarly situated non-Brazilian
tenants. See McDonnell Douglas, 411 U.S. at 802-03; Pina, 529 F. Supp. 2d at 157. Each Plaintiffs
concede that they are unaware of what requirements any other tenants, including foreign citizen
tenants from countries besides Brazil, were required to fulfill to renew a lease or apply for a lease.
See D. 138 ¶¶ 55, 73, 104, 139, 156, 180, 207, 233, 250, 264. The only evidence Plaintiffs have

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provided to show discrimination based upon Brazilian national origin is affidavits of two former
Granada employees. See D. 137-13 (redacted), D. 143-1 (unredacted), 137-14. Although the
Court declines to strike them as Defendants seek, D. 140, neither of the affidavits provide specific,
admissible evidence that qualified non-Brazilian tenants were subject to less stringent
requirements for leasing units at Granada. See D. 134-2–134-18. That is, Plaintiffs have failed to
“bear[ ] the burden of showing that the individuals with whom he seeks to be compared have been
subject to the same standards and have engaged in the same conduct without such differentiating
or mitigating circumstances that would distinguish their conduct or the [Defendants’] treatment of
them for it.” Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st Cir. 1999) (internal
quotation marks and citation omitted).
Because Plaintiffs are unable to establish a prima facie case of national origin
discrimination, it is unnecessary to discuss the burden-shifting analysis articulated in McDonnell
Douglas in which, had Plaintiffs made out a prima facie case, Defendants would be required to
articulate a legitimate and non-discriminatory reason for denying Plaintiffs’ renewal or lease
applications and Plaintiffs would then be required to show that such reasons provided by
Defendants were pretextual. See Pina, 529 F. Supp. 2d at 156; McDonnell Douglas Corp., 411
U.S. at 802-03.
2.

Plaintiffs Have Failed Otherwise to Raise a Material Issue of Fact

In their opposition, Plaintiffs contend that they have “direct evidence of discriminatory
intent,” D. 137 at 6, and, therefore, have raised a material issue of fact defeating Defendants’
motion for summary judgment.

In support of this position, Plaintiffs rely upon two,

aforementioned affidavits of former employees of Granada that they claim show direct evidence
of discriminatory intent by Granada and its employees against Brazilian nationals. D. 137-13; D.

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137-14; D. 137 at 6-7. Defendants dispute that these affidavits are sufficient to defeat summary
judgment, arguing that they contain only “conclusory statements of opinion” and that affiants lack
personal knowledge of the facts relevant to Plaintiffs’ claims. See D. 141 at 2-5. Further,
Defendants argue that the affiants do not include any evidence regarding Defendants’ denial of
leases to any of the Plaintiffs. See D. 141 at 2-5.
To be admissible, an affidavit must “be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein.” Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir.
2001) (quoting Fed. R. Civ. P. 56(e)). Further, affidavits must be factual rather than conclusory.
See id. “Without any specific factual knowledge to support [a] statement [in an affidavit], it is a
mere conclusion that cannot serve as probative evidence.” Reynolds v. Steward St. Elizabeth's
Med. Ctr. of Boston, Inc., 364 F. Supp. 3d 37, 57 (D. Mass. 2019) (internal quotation marks and
citation omitted). Here, both affidavits include statements of opinion and conclusory statements
that are unsupported by specific, admissible facts. See D. 143-1 (e.g., asserting that “the company”
broke a “laundry list of fair housing laws”); D. 137-14 (describing affiant’s perception of
discrimination by management, but not giving specific, factual information about same).
Even assuming the affidavits relied upon by Plaintiffs were sufficient, neither provides the
critical link indicating that Plaintiffs were denied leases “because of” their national origin as
required under the FHA. See 42 U.S.C. § 3604(b) (barring discrimination against any person
“because of . . . national origin”); see Batista, 776 F.3d at 44 (denying an FHA claim where
“[Plaintiff] . . . put forward no evidence . . . to suggest that an impermissible, . . . discriminatory
purpose motivated the [housing cooperative’s] actions”). Neither affidavit references any of the
Plaintiffs or Granada’s actions denying Plaintiffs’ leases or renewal of leases. See D. 143-1; D.

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137-14. Further, besides stating that they worked for Granada in 2015 to 2018 and 2017-2018,
respectively, D. 143-1 at 1; D. 137-14 at 2, neither affidavit includes any temporal reference
indicating the events they describe in relation to such denials of leases or lease renewals as to the
Plaintiffs. For all of these reasons, Plaintiffs have failed to meet their burden to show that there is
a genuine dispute as to a material fact. Accordingly, the Court grants summary judgment in favor
of Defendants as to Count I.
B.

Other Pending Motions

Defendants have also moved to sever Plaintiffs’ claims, D. 117, and moved to strike parts
of Plaintiffs’ submission in opposition to the motion for summary judgment, including the
affidavits of former employees of Granada, D. 140. Given the Court’s ruling on the summary
judgment motion, the Courts DENIES D. 117 and D. 140 as moot.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS Defendants’ motion for summary judgment

as to Count I, D. 130, and DENIES D. 117 and D. 140 as moot.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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