Fair Housing Justice Center, Inc. v. Allure Rehabilitation Services LLC et al

Filing 153

MEMORANDUM AND ORDER: For the reasons stated in the Memorandum and Order, defendant's motions to dismiss are denied in their entirety. The parties will confer and the plaintiff shall, within 14 days, file an amended complaint orstipulation identifying the correct parties. SO Ordered by Judge Raymond J. Dearie on 9/26/2017. (Ramesar, Thameera)

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y

5

SEP 2 6 2017

5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN OFFICE

FAIR HOUSING JUSTICE CENTER,
INC.,

Plaintiff,

MEMORANDUM & ORDER

- against -

15 CV 6336(RJD)
(LB)

ALLURE REHABILITATION SERVICES LLC,
ET AL.,
Defendants.

DEARIE, District Judge

Plaintiff Fair Housing Justice Center ("Fair Housing"), a non-profit organization, brings

this action against owners of various nursing homes and assisted living residences in the New

York City area.' The complaint alleges that defendants, in violation offederal and state law, have
policies in place that discriminated against deaf residents on the basis of disability. Defendants
move to dismiss for lack of standing and for failure to state a claim. Defendants' motions are
denied in their entirety.
BACKGROUND

Fair Housing alleges that defendemts discriminate against deaf residents of their facilities

by refusing to provide American Sign Language("ASL")translators upon request. Fair Housing
describes itself as a non-profit advocacy organization that seeks to identify and remedy housing
discrimination against disabled persons in the New York City area. As part of its work. Fair

'A number ofthe facilities and their owners have entered into stipulations of settlement with the

plaintiffs. The remaining defendants and moving parties are Allure Rehabilitation Services LLC,
Hamilton Park Multicare LLC,Cassena Care LLC,Amsterdam Nursing Home Corporation, Sea
Crest Health Care Center, LLC,Centers for Specialty Care Group LLC,Sentosacare, LLC,

White Plains Center for Nursing Care LLC,Eastchester Rehabilitation and Health Care Center,
LLC,and Golden Gate Rehabilitation and Health Care Center, LLC.

Housing conducts investigations wherein individuals posing as prospective renters, home buyers
or residents ("testers") attempt to uncover discriminatory practices. This case arises out of one
such investigation. Over a period of months,the testers visited and called defendants' facilities
purportedly on behalf of deaf relatives seeking housing. The testers inquired about the

availability of ASL interpreters and translators at the facilities. The complaint alleges that each
of the named defendants told testers that the facilities did not employ ASL interpreters and

would not make any available for deaf residents. Some facilities stated outright that ASL

interpreters would not be provided. Others said that because the facilities offered different
communication tools, including white boards or picture boards with images ofcommon
necessities, ASL interpreters were not necessary.
DISCUSSION

Fair Housing alleges violations of the Rehabilitation Act("RA"),the Fair Housing Act

("FHA"), and the New York City Human Rights Law("NYCHRL")and seeks declaratory and

injunctive relief as well as compensatory and punitive damages and costs. Defendants filed three
separate motions to dismiss, collectively asserting that Fair Housing does not have standing and,
alternatively, that Fair Housing fails to state a claim for relief.
1. Standing

Article III standing is an "irreducible constitutional minimum." Luian v. Defs. of
Wildlife. 504 U.S. 555, 560(1992). For a plaintiff to establish standing, it must demonstrate

"(1)'injury in fact,'(2)a 'causal connection' between that injury and the complained-of
conduct, and(3)a likelihood 'that the injury will be redressed by a favorable decision.'" Strubel
V. Comenitv Bank. 842 F.3d 181, 187-88(2d Cir. 2016)(quoting Luian. 504 U.S. at 560-61). A

plaintiff seeking injimctive relief must additionally "establish a likelihood offuture or
continuing harm." Nicosia v. Amazon.com. Inc.. 834 F.3d 220,239(2d Cir. 2016).
An organization, such as Fair Housing, may establish standing in one oftwo ways."It

may sue on behalf of its members,in which case it must show,inter alia, that some particular
member ofthe organization would have had standing to bring the suit individually." N.Y. Civil
Liberties Union v. N.Y.C. Transit Auth..684 F.3d 286, 294(2d Cir. 2012)(emphasis in

original). This has been called "representational" standing.

Warth v. Seldin,422 U.S. 490,

511 (1975). Otherwise, the "organization can 'have standing in its own right to seek judicial

relieffrom injury to itself and to vindicate whatever rights and immunities the association itself
may enjoy.'" N.Y. Civil Liberties Union.684 F.3d at 294(quoting Warth. 422 U.S. at 511).
Under this so-called "organizational" standing,"the organization is just another person—^albeit
a legal person—seeking to vindicate a right." Id

Fair Housing asserts organizational standing, alleging that it "expended staff time and
other resources to investigate and respond to [djefendants' discriminatory practices, which

diverted resources away from other [Fair Housing] activities." Compl. H 13. Fair Housing also

provides information to public and other non-profit organizations about fair housing laws,
intake counseling for victims of housing discrimination, legal referrals for complainants, and
related services. Id ^ 10. Defendants argue that the diversion of plaintiffs resources for testing
was done solely "in anticipation of litigation" and was therefore an attempt to "manufacture"
Article III standing. See Def. Sentosacare LLC,et. al., Mem. at 7, ECF No. 116-1. This
argument is not supported by controlling precedent.
In Havens Realtv Corporation v. Coleman. 455 U.S. 363(1982), the Supreme Court held

that a civil rights organization deploying a testing operation had organizational standing if it

was required to "devote significant resources to identify and counteract the [defendant
landlords'] racially discriminatory steering practices." Id at 379. The Second Circuit reads
Havens Realty to mean that "only a 'perceptible impairment' of an organization's activities is
necessary for there to be an 'injury in fact.'" Nnebe v. Daus.644 F.3d 147, 157(2d Cir. 2011)

(quoting Raein v. Harrv Macklowe Real Estate Co..6 F.3d 898,905(2d Cir.1993)). This
impairment may include costs incurred in anticipation of litigation.

Ragin.6 F.3d at 905

("That some ofthe [organization's] staffs time was spent exclusively on litigating this action
does not deprive the organization ofstanding to sue in federal court."). In Nnebe,the Second
Circuit recognized that"some circuits have read Havens Realty differently than [the Second

Circuit] read it in Ragin and have emphasized that 'litigation expenses alone do not constitute

damage sufficient to support stemding.'" Id at 157(quoting Fair Hons. Council of Suburban
Phila. V. Montgomery Newspapers, 141 F.3d 71,78-79(3d Cir.1998)). Nevertheless, the court

affirmed that "Ragin remains good law in this Circuit." Id A recent summary order reaffirmed
Nnebe's reasoning, holding that diversion of organizational resources for litigation expenses is
sufficient for organizational standing. See Mental Disability Law Clinic. Touro Law Ctr. v.

Hogan,519 F. App'x 714,717(2d Cir. 2013)("This Court has explicitly rejected the argument

that litigation expenses are insufficient to demonstrate an injury in fact for the purposes of
Article III standing."(citing Nnebe,644 F.3d at 157)).

Fair Housing alleges that it was required to divert organizational resources to testing,
which necessitated multiple visits and calls to defendants' facilities to uncover discriminatory

practices. Though testers' visits occurred without any prior complaints of discrimination. Fair
Housing incurred ongoing expenditures confirming defendants' policies after initial contacts

indicated that ASL interpreters would not be provided. These expenditures establish an injuryin-fact, at least with respect to Fair Housing's request for damages.

Fair Housing has also established standing to pursue its claims for declaratory and
injunctive relief. To have standing for injunctive relief,"[t]he plaintiff must show that he has
sustained or is immediately in danger of sustaining some direct injury as the result of the
challenged official conduct and the injury or threat of injury must be both real and immediate,
not conjectural or hypothetical." Citv of Los Angeles v. Lvons.461 U.S. 95,101-02(1983)

(citations and quotations omitted). This is a "requirement that cannot be met where there is no
showing of any real or immediate threat that the plaintiff will be wronged again." Id. at 111.

"[A] district court has broad discretion to enjoin possible future violations oflaw where past
violations have been shown .... Courts are free to assume that past misconduct is 'highly

suggestive ofthe likelihood offuture violations.'" United States v. Carsom 52 F.3d 1173,118384(2d Cir. 1995)(quoting SEC v. Memt. Dvnamics. Inc.. 515 F.2d 801,807(2d Cir. 1975)).
Moreover,"[w]hen the violation has been founded on systematic wrongdoing, rather than an
isolated occurrence, a court should be more willing to enjoin future misconduct." Id at 1184
(quotation omitted).

Defendants argue that any future harm is entirely speculative. But Fair Housing does not

allege that defendants engaged in an isolated offense that may or may not be repeated at a future
date. Quite the contrary. The complaint alleges in considerable detail that each of the defendants

categorically stated that they would not provide ASL interpreters to deaf residents. For example,
the complaint alleges that on October 28,2014,a Fair Housing tester visited Boro Park Center
for Rehabilitation and Health Care("Boro Park"), a facility owned by defendant Centers for

Specialty Care Group LLC. Compl. 59. The tester met with Boro Park's Director of
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Admissions and was told that they did not offer ASL interpreters and that they use white boards
to communicate with deaf residents. Id The tester asked if Boro Park would be willing to hire

an ASL interpreter, and was told no. Id Another tester called Boro Park in January 2015 and
was told by the same Director of Admissions that Boro Park does not offer sign language
interpreters. Id ^61-62.

Though the facts of each encounter differ, Fair Housing alleges that each defendant
refused to make ASL translators available for deaf residents. If proven, their refusal amounts to

an ongoing violation "founded on systematic wrongdoing," Carson. 52 F.3d at 1184,a violation
this court may justifiably enjoin.
2 Failure to State a Claim

Defendants also move to dismiss for failure to state a claim. To survive a motion to

dismiss under Rule 12(b)(6), a complaint must plead "'enough facts to state a claim to relief that

is plausible on its face.'" Brown v. Daikin Am.Inc.. 756 F.3d 219,225(2d Cir. 2014)(quoting
Bell Atl. Corp. v. Twomblv. 550 U.S. 544,570(2007)). In reviewing the complaint, this Court

"accept[s] all well-pleaded allegations in the complaint as true [and] draw[s] all reasonable
inferences in the plaintiffs favor." Chabad Lubavitch of Litchfield Cntv. Inc. v. Litchfield
Historic Dist. Comm'n.768 F.3d 183,191 (2d Cir. 2014)(second alteration in original)."A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
V. iQbal. 556 U.S. 662,678(2009).

Fair Housing's claims under the RA,FHA and NYCHRL will be addressed individually.

a. Rehabilitation Act of 1973

Section 504 ofthe RA states that "[n]o otherwise qualified individual with a disability in
the United States ... shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Under the RA's

implementing regulations, a qualifying hospital "shall establish a procedure for effective
communication with persons with impaired hearing for the purpose of providing emergency

health care." 45 C.F.R. § 84.52(c). Additionally, a qualifying hospital is required to "provide

appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where
necessary to afford such persons an equal opportunity to benefit from the service in question."
Id § 84.52(d)(1).

"To establish a prima facie violation ofthe RA,a plaintiff must show that [it] is:(1)a

'handicapped person' as defined in the RA;(2)'otherwise qualified' to participate in the offered
activity or to enjoy its benefits;(3)excluded from such participation or enjoyment solely by
reason of[its] handicap; and (4) being denied participation in a program that receives federal
financial assistance." Loeffler v. Staten Island Univ. Hosp.. 582 F.3d 268, 275(2d Cir. 2009)

(quoting Rothschild v. Grottenthalen 907 F.2d 286,289-90(2d Cir. 1990))."Generally, a

plaintiff can base a discrimination claim under the Rehabilitation Act on 'one ofthree theories of
liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.'"
Kellv V. N.Y. State Office of Mental Health. 200 F. Supp. 3d 378, 390(E.D.N.Y. 2016)(quoting
Davis V. Shah. 821 F.3d 231,260(2d Cir.2016)).

A categorical refusal to provide ASL interpreters to deaf residents fails to make a
reasonable accommodation and therefore violates the RA. See Transcript of Oral Decision at 26,

Fair Hous. Justice Ctr.. Inc. v. Catholic Managed Long Term Care. Inc., No. 15-8677(S.D.N.Y.

Apr. 4,2016)(hereinafter Catholic Managed)^. Fair Housing alleged that defendants refused to
make "appropriate auxiliary aids"—^ASL interpreters—available under any circumstance when
asked by the testers. The RA does not absolutely require covered facilities to provide interpreters
upon request, as "the question of whether a proposed accommodation is reasonable is *factspecific' and must be evaluated on 'a case-by-case basis.'" Kennedv v. Dresser Rand Co.. 193
F.3d 120,122(2d Cir. 1999)(citing Wemick v. Federal Reserve Bank. 91 F.3d 379,385(2d
Cir.1996)). The RA does, however, require the facilities to "at least be willing to [provide ASL
interpreters] when necessary to facilitate effective communication." Catholic Managed at 25.

This is because the RA requires defendants to undertake an "interactive process with plaintiff to
discuss and explore plaintiffs requested accommodations." Montano v. Bonnie Brae
Convalescent Hosp.. Inc.. 79 F. Supp. 3d 1120, 1127(C.D. Cal. 2015)(citation omitted). An

outright refusal to provide an interpreter, as a matter of policy, demonstrates an unwillingness to
engage with the needs of deaf persons and therefore violates the RA.
Defendants argue that they could not have violated the RA because there were no actual
deaf individuals with whom defendants could have interacted, and it was therefore impossible for

defendants to "discuss and explore plaintiffs requested accommodations." Id But Fair Housing

does not allege that defendants violated the rights ofany particular individual; it alleges that
defendants had a policy and practice of refusing to provide ASL interpreters under any

2 Catholic Managed,a recent case in the Southern District of New York, arose from the same

Fair Housing testing operation at issue here. In an opinion read from the bench at oral argument,
Judge Paul Engelmayer found that Fair Housing had organizational standing to bring its claims
and that it also had sufficiently pled its claims under the RA,FHA and NYCHRL. Judge
Engelmayer accordingly denied the defendant facilities' motion to dismiss. The oral argument
transcript, including the opinion as read, was attached as Exhibit 1 to Fair Housing's
memorandum in opposition. S^ PI. 0pp. Ex. 1, ECF No. 121-1.
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circumstance. Where the facility's policy or practice demonstrates a failure to accommodate,

specific occurrences of this failure need not be pled. In Brooklyn Center for the Independence of
the Disabled v. Bloomberg,980 F. Supp. 2d 588(S.D.N.Y. 2013), Judge Furman found that New

York City had violated the RA because the city's sheltering plans failed to ensure effective
communication for people with disabilities. Judge Furman noted that the city did not, for

example,"provide sign language interpretation at shelters or ensure that common signage is
available in Braille." Id at 650. Even though the city provided "some guidance to shelter staff

about communication with people with special needs,the only accommodation it[made]in this

regard [was] to provide a communications board with pictures and symbols at shelter registration
tables." Id Because this was insufficient to "ensure that all City residents have access to the

service provided by the shelters," the city violated the RA.Id
So with defendants here. Fair Housing alleges a policy and practice of refusing to provide

ASL interpreters to residents. Such an unqualified refusal to even consider providing interpreters
would constitute the denial offull access to the facilities and would violate the RA.Id Taking

the complaint as true. Fair Housing has stated a claim under the RA.

In a separate but related argument, defendants assert that Fair Housing does not state a
claim under the statutory terms of the RA because it failed to plead that a "qualified individual

with a disability" was denied a benefit or was subject to discrimination since all ofthe

prospective residents were fictional. But the RA extends remedies to "any person aggrieved by
any act or failure to act," 29 U.S.C. § 794a, and not merely to individuals with a disability. As
discussed with regard to standing. Fair Housing alleged that it was independently injured when it
was compelled to divert organizational resources to address defendants' practices. It was, in
other words,"aggrieved" by defendants'"act or failure to act."

Defendants finally argue that Fair Housing cannot be awarded monetary damages

because it has not pled intentional discrimination.

Loeffler. 582 F.3d at 275 ("[M]onetary

damages are recoverable only upon a showing of an intentional violation [ofthe RA]."). In the
context of the RA,"intentional discrimination may be inferred when a 'policymaker acted with

at least deliberate indifference to the strong likelihood that a violation offederally protected

rights will result from the implementation ofthe [challenged] policy ... [or] custom.'" Id
(alterations in original)(quoting Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331
(2d Cir. 1998), cert, granted, judgment vacated. 527 U.S. 1031 (1999))
In Loeffler. the Second Circuit held that a reasonable jury could find a defendant

hospital's repeatedly ignoring a deaf plaintiffs request for an ASL interpreter—going so far as to
laugh offthe request on one occasion—constituted deliberate indifference to the strong
likelihood of a violation. 582 F.3d at 277. Here, defendants were made aware that a prospective

deafresident would require ASL translation at some point but did nothing. Instead, they refused

to provide the requested accommodation under any circumstance. Since defendants' refusal
indicates that they would never provide ASL interpreters for the testers' relatives, plaintiff
adequately pleads that defendants acted with deliberate indifference to the needs of deaf patients,
b. Fair Housing Act

Fair Housing also brings claims under two subsections of the FHA:42 USC § 3604(f),
banning discrimination in the terms or conditions of a dwelling, and 42 USC § 3604(c), banning
discriminatory statements made in connection with the rental or sale of housing. Fair Housing
seeks an award of compensatory damages, punitive damages, and costs pursuant to the FHA.

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L Section 3604(f)(2)

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 with such dwelling, because of a handicap ofthat person." 42 USC §

3604(f)(2). "Discrimination" in this context includes "a refusal to make reasonable
accommodations in rules, policies, practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 USC §
3604(f)(3)(B).
The reasonable accommodation standard under the FHA is co-extensive with the standard

under the RA.

Shapiro v. Cadman Towers. Inc.. 51 F.3d 328, 334(2d Cir. 1995)("[I]n

enacting the anti-discrimination provisions ofthe [FHA],Congress relied on the standard of
reasonable accommodation developed under section 504 of the Rehabilitation Act....");

Sinisgallo v. Town of Islip Hons. Auth.. 865 F. Supp. 2d 307, 337(E.D.N.Y. 2012)("The

relevant portions of the FHA,ADA,and Section 504 [ofthe Rehabilitation Act] offer the same

guarantee that a covered entity, such as a [public housing authority], must provide reasonable
accommodations in order to make the entity's benefits and programs accessible to people with

disabilities. Consequently, analysis ofa reasonable accommodation claim under the three statutes
is treated the same."(alterations in original)(quotations and citations omitted)). Accordingly, for
the same reasons Fair Housing stated a claim under the RA,it has stated a claim under Section
3604(f)(2) ofthe FHA.

3 Defendant Hamilton Park disputes that a nursing home should be considered a "dwelling" under
the FHA,but numerous courts have held otherwise. See, e.g., Hovsons. Inc. v. Two,of Brick. 89
F.3d 1096, 1102(3d Cir. 1996)("We therefore hold that the proposed nursing home is a
dwelling' within the meaning of § 3602(b).").
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a. Section 3604(c)

Fair Housing has also stated a claim under Section 3604(c)ofthe FHA,which makes it
unlawful to "make, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any

preference, limitation, or discrimination based on ... handicap ... or an intention to make any

such preference, limitation, or discrimination." 42 U.S.C. § 3604. The relevant regulations
interpret this provision to cover "all written or oral notices or statements by a person engaged in
the sale or rental of a dwelling." 24 C.F.R. § 100.75.

The Second Circuit has read this section of the FHA broadly. Section 3604(c)does not

merely "prevent expressions that result in the denial of housing." United States v. Space Hunters.

Inc.. 429 F.3d 416,424(2d Cir. 2005). Rather,"[t]he statute also protect[s] against [the] psychic

injury caused by discriminatory statements made in connection with the housing market." Id
(citation omitted). Fair Housing alleges that defendants refused to even consider providing ASL

interpreters for the testers' relatives. These refusals were discriminatory statements, and because
they were made in connection with the housing market, this claim has been adequately pleaded,
c. New York Citv Human Rights Law

Fair Housing's final claim is brought under various provisions ofthe NYCHRL.Section

8-107(15)(a) requires a place of public accommodation to make a reasonable accommodation for

persons with disabilities. N.Y.C. Admin. Code § 8-107(15)(a). Section 8-107(4)(a) provides that
it shall be unlawful for a provider of public accommodation, because ofthe actual or perceived
disability ofany person, to refuse or deny to such person any ofthe accommodations,
advantages, facilities or privileges thereof. N.Y.C. Admin. Code § 8-107(4)(a). Section 8-

107(5)(a)(2) provides that it shall be an unlawful, discriminatory practice for any person having

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the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation,to

discriminate against any person because ofsuch person's actual or perceived disability. N.Y.C.
Admin. Code § 8-107(5)(a)(2).

NYCHRL also explicitly allows "associational discrimination" claims, whereby claims

can be brought on behalf of disabled persons with whom the plaintiff has a "known relationship
or association." N.Y.C. Admin. Code § 8-107(20).
The NYCHRL is not co-extensive with federal anti-discrimination laws. Rather an

"independent analysis [ofNYCHRL]must be targeted to understanding and fulfilling what the
statute characterizes as the[NYCHRL]'s 'uniquely broad and remedial' purposes, which go

beyond those ofcounterpart state or federal civil rights laws." Loeffler. 582 F.3d at 278 (quoting
Williams v. N.Y.C. Hons. Auth.. 61 A.D.Sd 62,66-69(N.Y. App. Div. 2009)). Thus, claims that

might not satisfy the pleading requirements ofthe federal statutes might still pass muster under
the more lenient pleading standard of the NYCHRL.

The provisions of the NYCHRL cited by plaintiffs are substantially similar to

corresponding sections ofthe RA and FHA. See Jing Zhang v. Jenzabar. Inc., No. 12-CV-2988
(RRM)
(RER)2015 WL 1475793 at *13 n.25(EDNY Mar. 30, 2015). Because the NYCHRL
claim is premised on the same factual allegations as the adequately pleaded RA and FHA
claims, the NYCHRL claim also withstands the motions to dismiss.
3. Parties to the Action

Finally, defendants argue that Allure Rehabilitation Services LLC,Cassena Care LLC,
and Centers for Specialty Care Group LLC are not actually owners and/or operators ofthe

nursing home facilities as alleged in the complaint. At oral argument. Fair Housing requested
that they be given the opportunity to confer with defendants to identify the correct parties to the

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suit and to amend the complaint accordingly. The Court anticipates the parties' resolution of
these concerns.

CONCLUSION

For the reasons stated above, defendant's motions to dismiss are denied in their entirety.

The parties will confer and the plaintiff shall, within 14 days, file an amended complaint or
stipulation identifying the correct parties.

SO ORDERED.

Dated: Brooklyn, New York
September
2017

s/ RJD

)ND^EARIE
5s District Judge

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