Peek et al v. Pines Apartment LLP et al

Filing 69

ORDER granting 55 Motion for Summary Judgment. Signed by Hon. Jonathan W. Feldman on 09/30/2017. (JKT)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHANNON PEEK and TANESHA
WILLIAMS,
Plaintiffs,
v.

DECISION

&

ORDER

10-CV-6665

PINES APARTMENT LLP and WINN
RESIDENTIAL,
Defendants.
Procedural History

Plaintiffs Shannon Peek and Tanesha Williams commenced this
action in 2010 alleging that the defendants denied them housirtg
based ort their religion,
("FHA"), 42 U.S.C.
On December 30,

§§

2016,

for summary judgment.
Apartment,

in violation of the Fair Housing Act

3601 et seq.

a

(Docket # 1).

defendant Winn Residential filed a motion
See Docket## 55, 56.

Co-defendant Pines

LLP filed an affirmation on the same day joining in

the motion for summary judgment.
filed

See Complaint

response

on

February

See Docket # 54.
14,

2017,

Residential replied on February 28, 2017.

and

Plaintiffs

defendant

See Docket## 59, 61.

The Court heard argument from all parties on May 4,
(Docket # 63) ,

and requested supplemental briefing.

Pines Apartment,
2017.
on May

2017

2017

Defendant

LLP submitted supplemental materials on May 8,

See Docket # 62.
15,

Winn

(Docket

response on May 25,

2017.

Plaintiffs filed supplemental briefing
#

64),

and Winn Residential

See Docket # 65.

filed a

For the reasons

stated

the

below,

motion

defendants'

for

summary

judgment

(Docket# 55) is granted.1
Factual Background

Even viewing the facts in the light most favorable to the
much

plaintiffs,

of

the

chronology

relevant

to

plaintiffs'

claims of discrimination is not in dispute.

The record before

this

two

Court

evidence

can

generally

regarding

be

divided

into

application

plaintiffs'

to

categories
reside

at

the

Pines of Perinton apartment complex and evidence regarding how
The

Pines

of

Perinton

and

processed,

denied,

ultimately

plaintiffs' application.
Plaintiffs'
Apartment,

Application

to

The

Pines:

LLP operates an apartment complex,

( "The Pines")
Residential2

Pines

Defendant

Pines of Perinton

which is owned and managed by co-defendant Winn
( collectively

"defendants") .

attached to Def.'s Mot. for Summ. J.

Addy

Dep. ,

Ex.

(Docket# 55-4) at 64.

"A"

The

Pines is a 508-unit apartment building which "provides safe and
affordable housing for individuals and families" with "low" and
"very low'1

incomes.

Resident Selection Plan,

to Def.'s Mot. for Summ. J.

Ex.

(Docket# 55-6) at 4.

"C" attached
Pursuant to a

In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P.
7 3 the parties have consented to the jurisdiction of this Court for all
proceedings, including dispositive motions.
See Docket# 15.
1

2
Property Manager for Winn Residential Michele Addy testified that Pines
Apartment, LLP does not have any employees.
All thirteen employees at The

Pines are employed and paid by Winn Residential.
Their paychecks,
come from Pines of Perinton, LLP.
See Addy Dep. at 64-65.
2

however,

Rental

Assistant

subsidies

Payment

Contract,

( "Section 8 Vouchers")

and Urban Development ("HUD")
Id.
to

The

Pines

accepts

rental

from the Department of Housing

for a percentage of the 508 units.

Because it accepts federal assistance, The Pines is subject
HUD

guidelines

federal

fair

in

housing

the

application
In

Id.

laws.

process,

including

addition,

The

all

Pines

is

subject to audits by the New York State Department of Homes and
Community Renewal.

See Addy Dep. at 157.

Plaintiffs Shannon Peek and Tanesha Williams
are

"plaintiffs")
traditional

a

married
See

attire.

Def.'s Mot. for Summ. J.
Ex.

Muslim

Williams

couple

Dep.,

Ex.

Ms.

burka,

Williams

which

wears

includes

face, eyes, and mouth.

who
"A"

in

dress
attached

to

(Docket# 55-4) at 7, 25-27; Peek Dep.,

"A" attached to Def.'s Mot. for Summ. J.

56.

(collectively

what

is

(Docket# 55-4) at

generally

two black scarves

referred

that

to

as

a

cover her neck,

Williams Dep. at 25-27.

Sometime in October 2009 Mr.

Peek went to The Pines rental

office and picked up an Applicant Document Package ("Application
Package")

Stephanie

Peek Dep.

Pines.
Pines

from

because

Mr.

Glatz,

sister-in-law,

lived in an apartment at The Pines.
Peek had visited Ms.
Dep.

at

9-10.

Ms.

aid at

The

Plaintiffs were familiar with The

at 42.
Peek's

an adlhinistrati ve

Louis'

is
3

also

Louis,

had

Both Ms. Williams and Mr.

apartment

Louis

Roseline

in the past.
Muslim

and

Williams
dresses

in

traditional clothing.
Included
picked

up

twelve

page

#

notices

and

Package

HUD

that

forms,

"D" attached to Def.'s Mot.

Mr.

Peek

filled

out

the

as

Mr.

Peek

well

Peek as

Voucher

a

from

co-tenant,
the

for Summ. J.

application at

The application listed Ms.

house and Mr.
8

Application

as

a

"Application for Admission and Rental Assistance."

at 42.

Section

the

several

Ex.

55-7).

Dep.

within

were

Pl.'s App.,

Id. at 39.

Peek

home.

Williams as head of the

and noted that

Rochester

(Docket

Housing

they had a

Authority.

See

Pl.'s App. at 7, 10.
The

information
the most
rental

rental

Pines'
from

application

applicants,

relevant

is

history from

but

asked

for

purposes

the requirement
the

previous

for

a
of

variety
this

of

motion,

that an applicant provide

five

Id.

years.

at

4.

The

form asked for the names and addresses of past landlords and the
locations
five

of

the

provided

prior
spaces

Plaintiffs

residences.
the

with

following

filled
rental

in

history

information:
(1) Joe D'Alessandro, 71 Lorenzo
14611, lived for three months;
(2) Shane E. Peek, 36 Potter St.,
lived for one year;
(3) Tassama Alawal,
'07-Sept. '08;

St.,

4

NY

Rochester NY 14606,

Cairo Egypt Africa,

(4)
Patrick Gallo,
19 Carthiage
14621, lived for one years;

Rochester

St.,

lived from Oct

Rochester

the

NY

( 5) Jeniffer ? ,
Foster
lived for one years.

Id.

Mr.

rental

Peek

office

brought
and

the

left

Sometime thereafter,

it

Mr.

Block

Apts,

completed
with Ms.

Clifton

application

Springs,

to

the

Peek Dep.

Glatz.

back

at

43.

Peek recalls calling The Pines to check

on the application and being told that his wife needed to sign
Id. at 44.

the rental application.

On October 16, 2009, Ms. Williams went to The Pines'

Ms. Williams entered the rental office

to sign the application.

Ms.

while her husband stayed in their car.
Kiera Sanchez,
Ms.

an Occupancy Specialist at The Pines,

Dep. at 11-12; Sanchez Dep.,
(Docket # 55-5)

Five

days

passed

at 20,

plaintiffs

Williams followed up on October 21,

Ms.

16-18.

being

placed

Williams

on

hold

spoke

for

a

to

hearing

17.

Ms.

Williams

conversation
Pines

himself

with

and also

Id.

Glatz.
spoke

to Ms.
5

was

told

so

Williams Dep.

Glatz

and,

informed

her

Mr.

husband

Peek

Glatz.

then

after

that

"insufficient income."

immediately

Ms.

anything,

2009 by telephoning The

Stephanie

minute,

application had been denied for

for

Sanchez Dep. at 71-72.

Pines to check on the status of her application.
at

See Williams

Ms. Sanchez reviewed and

69-72.

without

who showed

"B" attached to Def.' s Mot.

Ex.

then accepted the completed application.

Ms.

Williams met with

Williams where to sign the application forms.

Summ. J.

office

Id.

her
at

about

her

called

The

He asked her how

their application could be denied for "insufficient income" when
Peek

they had a Section 8 Voucher which would cover their rent.
Dep.

at

Mr.

45-47.

Peek

could

hear

Ms.

Glatz

speaking

When she

someone else in the office and then was put on hold.
came back on the line,
call

him

Glatz

Sometime

Id.

back.

Ms.

told Mr.

to

Peek that she would

thereafter,

The

Pines

notified

plaintiffs that an error had been made and they would continue
to process plaintiffs' application.
On

November

5,

Ms.

2009,

Williams

called

ahead

and

then

went to The Pines for a walk-through of an available apartment.
Williams Dep.

She was accompanied by her mother-in-law.
Ms.

Williams

Ms.

testified that when

Sanchez

that

there

no

one

available

apartments so she could see the measurements.
Williams,
that

the

conversation

she would still

she was
to

told by
Show

escalated

like to see

when

Ms.

Accordirig to Ms .
Williams

an actual apartment,

stated
and Ms.

Sanchez "snatched" the blueprint out of Ms. Williams' hand.
at

15-16.

Plaintiff asked,

been having such a

an

Sanchez gave Williams a blueprint of the

Id. at 15.

apartment.

was

she arrived,

at 20.

"is

there

a

Id.

problem because we've

problem with you since we've been applying,

and it seems as though there's a really big problem with me just
simply coming in to ask to see an apartment."
that

point,

voices

Michelle

and came

out

Addy,
of

the

Property

her office
6

"to

Id.

Manager,

see what

at 15.
heard

the

At
loud

situation

was.

Addy Dep.

11

Ms. Addy asked Ms.

at 71.

her lunch break,

Glatz,

who was on

to show Ms. Williams a vacant apartment.

Id.

Ms. Glatz accompanied Ms. Williams and her mother-in-law as they
inspected an apartment.
On

November

11,

Williams Dep. at 33-34.
2009,

Mr.

Peek

returned

to

Peek Dep.

Sanchez who gave him a form "letter of denial."

at 53.

After seeing that his application was denied,

asked Ms.

Sanchez if

she could have Ms.

rental

He spoke to

office to check on the status of their application.
Ms.

the

Mr.

Peek

Addy sign off on the

Ms. Sanchez brought the letter "back in" to the

denial letter.

office and when she returned the letter to him it was signed by
Ms.

Addy.

According to Mr.

Id.

Peek,

the letter stated that

their application was denied because of "poor rental history."
Id.; see Ex.
55-9).

The

requesting
response.
The

"F" attached to Def.'s Mot.
couple

an

sent

a

handwritten

of

the

decision,

appeal

process

letter
but

(Docket#

to

never

The

Pines

received

a

Williams Dep. at 28~29.
Pines'

Tenant

Application

tenants to reside at The Pines,
supposed

for Summ. J.

to
is

be
set

followed
forth

Selection Plan." 3 See Ex.

In

selecting

a specific screening process is

when

in

Process:

"The

reviewing

applications.

Pines

Perinton

of

"C" attached to Def.'s Mot.

The

Resident
for Summ.

Defendants maintain that the Resident Selection Plan is a policy document
required by HUD and that as a HUD directive it must be followed.
Addy Dep.
at 77.
3

7

J.

(Docket # 55-6).

According to the Plan,

"[a]pplications will

be screened in accordance with program eligibility requirements
and the criteria set forth in the Resident Selection Plan."
at

Section

6.

Screening"

XII

criteria:

of
(1)

(3)

Rental History; and

The

Rental

the

Plan

Credit
(4)

sets

History

forth
(2)

as

set

forth

"Applicant

Criminal

Income Verification.

History criteria,

the

Id.

History;

Id. at 15-18.

in the

Plan is

as

follows:
Rental History.
Each applicant must provide the most
recent five years verifiable rental history, or the
last three consecutive places of residence, whichever
is greater.
The rental history of each adult
household member will be reviewed and rated by a
national scoring firm using the following minimum
requirements:
No evictions for non-payment of rent where a
current balance remains owing to a previous landlord.
1.

No history or disturbances or behavior that
interfered with the landlord or the rights of other
residents/neighbors.

2.

3.
An incident or incidents of actual or threatened
domestic violence, dating violence or stalking will
not be construed as serious or repeated violations of
a
lease or substantiations for denying occupancy
rights of a victim of abuse.

Id.

at

15.

Section

XIII

of

the

plan

provides

that

an

application may be rejected for a variety of reasons including
when

the

criteria."

"applicant

does

not

meet

the

property

screening

Id. at 18.

Michelle Addy and Kierra Sanchez
8

testified about how the

screening

was

implemented

during

the

relevant

personally

addition

to

applicant

appear

at

A personal

application.

their

the

rental

appearance

signed and

was

office

to

submit

an

required because,

in

completed application

had to provide copies

of

various

Once complete,

60.

the

form,

documents

the

such as

Sanchez Dep.

picture identification and a social security card.
at 44,

time

The first step in the process is that the applicant had

period.
to

process

application would be date and

time stamped and the applicant would be placed on a waiting list
until

the

type

of

apartment

According

available.

to

or

Ms.

townhouse

Sanchez,

waiting list for apartments at The Pines.
Once
complete,

the

application

certain

was

information

there

the

sought

was

became

"always"

a

Id. at 47-48.

determined
on

they

to

be

application

signed
would

entered into a leasing software program called Boston Post.

and
be
Id.

The application would remain dormant on the wait list

at 45.

until an apartment became available; then, the screening process
would begin.
following

The screening criteria would be evaluated in the

order:

credit

check,

criminal

background

check,

landlord history and finally income and asset information.
at 51.

I'd.

If an applicant did not meet a particular criterion, the

leasing agent would not evaluate the application further and the
applicant would be notified that their application was denied.
Id. at 52-56.
9

Both

Sanchez

and

Addy

testified

that

the

first

two

screening criteria (credit check and criminal record check) were
screened pursuant to a contract Winn Management had with a third

leasing

would

agent

applicant's name,
CoreLogic
history

the

Dep.

at

applicant

the

SafeRent

CoreLogic

would provide
Addy

met

the

report.

benchmarks,

provide

the

with

date of birth and social security number,

SafeRent

Assuming

The

Id. at 59; Addy Dep. at 78-79.

party - CoreLogic SafeRent.

a

credit

126;

check

Sanchez

credit

and

and

criminal

at

Dep.

and

criminal

51-52.
history

the leasing agent would proceed to the next step of

screening process

Sanchez

evaluating landlord history.

Dep. at 56-57; Addy Dep. at 127-28; see Resident Selection Plan
at 15.

Although the Resident Selection Plan provides that the

applicant's

rental

history

national scoring firm,"

"will

be

reviewed

review

landlords

a

the
form

application,
which

and

asked

mail

for

applicant's prior rental history.
Addy Dep. at 80-81, 96.

rated

by

a

the record reflects that The Pines used
The leasing agent

their own employees to screen rental history.
would

and

or

fax

information

Sanchez Dep.

the

prior

about

at 56,

the

62-63;

If a response was not received from the

landlord within two or three days,

a

second attempt to obtain

the information would be made by fax, mail or a telephone call,
depending

on

the

leasing

agent's

information provided by the applicant.
10

choice,

and

the

landlord

Sanchez Dep. at 65; Addy

Dep. at 93, 96.
According to Ms. Sanchez, the leasing software program kept
track of where every applicant was in the screening process and
the program would not permit the leasing agent to move from one
step

to

the

next

until

each step

had been

could not provide

the

in

the

If the landlord did not or

Sanchez Dep. at 64.

required order.

completed

rental history information,

the

leasing

agent would sometimes contact the applicant and tell them their
Id. at

previous landlord had not responded or was unreachable.

Sanchez testified that it would normally take three to

66-67.

four

days

to process

an

Id.

application.

at

Ms.

68.

Addy

testified that if a landlord did not respond to their requests
for rental history information,
for

lack of

denial

Addy Dep.

letter.

receiving
time

information and

to

the

denial

provide

the application would be denied

the

at

letter,

contact

applicant
If

96-97.

called

information

and
for

would be
the

applicant,

requested
the

mailed

a

upon

additional

landlord,

Addy

testified The Pines would "re-open the application and attempt
[ to contact the landlord]

again."

Addy acknowledge

Id. at 97.

that if the landlord failed to respond to repeated attempts, the
applicant
denied.

would
Id.

"be

This was,

held

responsible"

and

the

application

in part, because there was time pressure

to fill vacant apartments as leasing agents were "processing 4850

applications"

at a

time.

Id.
11

at 147.

"If we do our due

diligence

and we' re

still not

getting a

response,

it

becomes

denied and the burden is back on the applicant to get us the
information we
respond."

or

talk

to

the

landlord

to

get

them

to

Id. at 147-48.

During

their

both Addy and Sanchez
about

testified

and

how

reviewed
it

was

After plaintiffs completed application was received,

processed.

required

CoreLogic

depositions,

application

plaintiffs'

the

need

identifying data was

SafeRent

on

October

electronically submitted to
2009.

19,

Id.

at

102-04.

CoreLogic SafeRent ran a credit and a criminal history check of
both plaintiffs Williams and Peek,

and notified the Pines that
Id. at 105-08.

they each met both screening criteria.
the

passed

two

first

screening

requirements,

application went "on for further processing."
As per the Residential Selection Plan,
next

screened

for

landlord

plaintiffs'

Id. at 105.
the application was
Plaintiffs'

history.

Having

rental

application listed five previous residences, although it appears
that only three were described with sufficient particularity so
as

to

contact

allow mail
the

or

fax

communication. 4

listed landlords with the

After attempting to

information supplied by

plaintiffs, The Pines received two returned landlord references.

The address for one previous residence was simply listed as "Cairo, Egypt."
On another, the landlord was identified as only "Jennifer" with no address of
the residence, although plaintiffs did provide the name of the apartment
complex.
See Pl.'s App.

4

12

The

first

was

from

Shane

Peek,

plaintiff

Peek's

brother,

who

personally delivered 5 the form to The Pines' rental office.

However, the form was incomplete as Shane Peek

Addy Dep. at 84.
failed

answer

to

did

not

provide

Pl.'s App.;
from

Joe

any

any

attachment

Addy Dep.

or

plaintiffs'

form,

completed

problematic

in

D' Alessandro

meeting

The

indicated that

history

but Mr.

Peek

information.

See

The second form returned was

at 84-85.

D' Alessandro,

further

landlord at

but

the

time

they

Mr. D'Alessandro returned a

were applying to live at The Pines.
properly

landlord

pertinent

the

of

The form referenced an "attachment,"

questions.

See

Pines'

screening

plaintiffs

were

nevertheless

was

form

the

criteria.

fine

tenants,

Mr.
but

they were also in the midst of their lease with him and, if they
did move out, he would "probably" not rent to them again because
"their

lease

testified
acceptable
fulfilled.
returned.

was

that

not

reference

this

landlord

reference

Addy Dep.

See

fulfilled."

would

because

at 86-87.

not
a

Ms.

App.

be

prior

considered
lease

was

Addy
an
not

No other landlord forms were

Having determined that plaintiffs did not meet the

rental history screening requirement,
any further in screening plaintiffs'
plaintiffs,

Pl. ' s

The Pines did not proceed
application.

they were not mailed a denial

letter,

According to
but instead

s The form was originally mailed to Shane Peek and was returned to The Pines
because he was not at the address provided on the application.
Plaintiffs
contacted Mr. Peek and he subsequently hand-delivered the form to the rental
office. Addy Dep. at 84.

13

had

to

inquire

about

their

receiving

one.

The letter cited "poor rental history" as the

Peek Dep. at 53.

reason for the denial.
Summ. J.

application before

See Ex.

"F" attached to Def.' s Mot. for
When shown the

(Docket # 55-9); Addy Dep. at 128-129.

letter plaintiffs claim they sent to The Pines seeking to appeal
the denial, Ms. Addy testified that she did not recall receiving
it.

In any event,

no appeal was ever processed by The Pines.

Addy Dep. at 109-10.
Discussion

Summary judgment is appropriate

Summary Judgment Standard:

where "the movant shows that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a

standard

"By its very terms, the

Fed. R. Civ. P. 56(c)

matter of law."

provides

that

the

mere

existence

of

some

alleged

factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment;

the requirement

is that there be no genuine issue of material fact."
v. Liberty Lobby,
original).

Inc., 477 U.S. 242, 247-48

No.

29,

2015)

(emphasis in

A dispute of fact is material "only if it has some

effect on the outcome of the suit."
Co.,

(1986)

Anderson

13-CV-6653P.,

Eagley v.

2015 WL 5714402,

at

(citation and quotation omitted).

*5

State Farm Ins.
(W.D.N.Y.

Sept.

Moreover, a genuine

issue exists as to a material fact "if the evidence is such that
a

reasonable

jury

could

return
14

a

verdict

for

the

nonmoving

Anderson,

party."

477

motion,

judgment

U.S.

courts

at

When deciding a

248.

inferences

all

resolve

must

summary
and

ambiguities in favor of the party against whom summary judgment
is

Thompson

sought.

1990);

Donahue v.

54,

(2d Cir.

57

though,
Elec.

Gjivoje,

896

Windsor Locks Bd.

F.2d

Of

716,

(2d

Cir.

Comrn'rs,

Fire

720

834

F.2d

1987).

The reasonableness of those inferences,

on

depends
Indus.

v.

record taken as

Co.

"the
v.

Zenith

Radio

a

Matsushita

whole."

Corp.,

475

U.S.

574,

587

(1986)
The burden of showing the absence of any issue of material
Celotex Corp. v.

fact rests with the movant.
317,

323

Once

(1986)

prima facie

entitlement

the
to

moving

party

Catrett,

has

summary judgment,

477 U.S.

established

its

the burden shifts

to the non-moving party to "go beyond the pleadings and by.
affidavits,
and

or by

admission

there

is

a

the

answers

file,

on

depositions,
designate

specific

genuine

issue

for

citations omitted).

Put differently,

show that

cited

genuine

dispute,

admissible
56 (c).
that

materials
or

evidence

an

support

facts
at

the

adverse
the

interrogatories,
showing

that

(internal

324

the non-moving party must

"establish

that
to

Id.

trial."

to

party

fact."

presence
cannot

Fed.

R.

of

a

produce
Ci v.

P.

It is not enough for the non-movant to present evidence

just raises

doubts;

the non-movant must present

"concrete

evidence from which a reasonable juror could return a verdict in
15

his favor."

Anderson,

a

of

scintilla

477 U.S.

evidence"

The "mere existence of

at 256.

to

support

the

non-moving

party's

claims is insufficient to defeat a motion for summary judgment.
Id. at 252.
In evaluating
the

context

of

a

the merits

of

a

discrimination

summary
claim,

judgment motion

this

Court

in

must

be

cautious in granting relief where the conduct at issue "requires
an assessment of individuals'

,,

Brown v.

These are

"matters

judgment
judges

device

in

this

that

judgment -

257

call

because

of
Id.

area."

less

1985).

special

(2d Cir.

salutary

Meiri v.

the summary
over

and citations

purposes

expensive,

2001)

advantages

quotations

to discrimination cases

Indeed,

251

sparing use of

(internal

other areas of litigation."
(2d Cir.

a

246,

juries'

avoiding protracted,

apply no

F.3d

for

"the

Nevertheless,

omitted) .

-

Henderson,

motivations and state of mind .

of

summary

and harassing trials
than to commercial or

Dacon,

759 F.2d 989,

998

"summary judgment remains available to

reject discrimination claims in cases lacking genuine issues of
material fact."
40

(2d

Cir.

Chambers v.

TRM Copy Ctrs.

Corp.,

1994);

see

also Abdu-Brisson v.

Inc.,

239 F.3d 456,

466

(2d Cir.

that

summary

intensive
this

judgment

context

stage,

of

may

be

2001)

the trial court

Delta Air

even

cases.") .

is limited to
16

F.3d 29,
Lines,

("It is now beyond cavil

appropriate

discrimination

43

in

the

fact-

Ultimately,

"issue-finding,"

at
and

not resolution, while keeping "in mind that only by reference to
the substantive law can it be determined whether a disputed fact
is

material

Prudential

to

the

resolution

Residential

Serv.,

of

the

Ltd.

Gallo

dispute."

P' ship,

22

v.

F. 3d 1219,

1224

"The

Fair

(2d Cir. 1994).
Discrimination

Under

the

Fair

Housing

Act:

Housing Act makes it unlawful '[t]o refuse to sell or rent after
the making of a bona fide offer,

or to refuse to negotiate for

the sale or rental of, or otherwise make unavailable or deny,
dwelling to any person because of race,
familial status,
F.3d

39,

47

Cir.

(quoting

2003)

religion,

Mitchell v.

or national origin.'"

(2d

color,

42

U.S.C.

Shane,

a

sex,
350

3604(b)).

§

Claims brought under the FHA are subject to the familiar burden
shifting framework established by the Supreme Court in McDonnell
Douglas

Corp.

v.

Green,

411

Robinson v. 12 Lofts Realty,
1979)).

"To

refusal case,

make

out

a

Id.

(citing

610 F.2d 1032, 1038

(2d Cir.

U.S.

Inc.,
prima

792

facie

(1973).

discriminatory

housing

a plaintiff must show that he is a member of a

statutorily protected class who applied for and was qualified to
rent or purchase housing and was rejected although the housing
remained available."
Dev.,

967 F.2d 817,

Soules v. U.S. Dep't. of Housing and Urban
822

(2d Cir.

1992).

Assuming a plaintiff

has established a prima facie case of discrimination, the burden
shifts

to

the

defendant
17

to

assert

a

legitimate,

nondiscriminatory rationale

for

McDonnell Douglas,

at 802-03.

back

to

the

who

plaintiff,

demonstrating
defendant

411 U.S.

"the

that

were

not

discrimination."

its

the

challenged decision.

bears

true

The burden then shifts
the

legitimate

ultimate

reasons

reasons,

but

burden

offered

were

of

by

the

pretext

for

Burdine,

450

a

Texas Dep't of Cmty. Affairs v.

U.S. 248, 253 (1981).

See

In this pretext stage, the plaintiff must

demonstrate that the proffered reason was not the true
reason for the [housing] decision. This burden now
merges with the ultimate burden of persuading the
court that she has been the victim of intentional
discrimination.
She
may
succeed
in
this
either
directly by persuading the court that a discriminatory
reason more
likely motivated the
[defendant]
or
indirectly by showing that the [defendant's] proffered
explanation is unworthy of credence.
Id.

at

(citing

256

plaintiffs'

for

housing.

Douglas

at

It

804-05).

is

burden to show that religious discrimination was a

motivating factor,
factor,

Mcdonnell

although not necessarily the sole motivating

defendants'

Robinson v.

rejection

12

Lofts

of

their

Realty,

application

Inc.,

610

for

F.2d 1032,

1042-43 (2d Cir. 1979).
The Meri ts of Defendants'
defendants

do

not

concede

burden shifting analysis,
Court

defendants

assume

any

step

03-CV-6334 CJS(F),

of

the

McDonnell

Douglas

for purposes of the motion before the
that

plaintiff

facie case of housing discrimination.
No.

While

Summary Judgment Motion:

can establish a

prima

See Cleveland v. Bisuito,

2004 WL 2966927, at *4 (W.D.N.Y. Dec. 21,
18

20 04)

( "Proving a prima facie case requires only a

showing

that

Defendants
minimis

exists

there

argue

burden

that
of

even

plaintiffs

a

proving

defendants

discrimination,

assuming

facie

prima

have

supplied

meet

case
a

fact.").

of

issue

triable

a

de minimis

the

of

de

housing

legitimate

non-

discriminatory reason for their refusal to rent to plaintiffs,
and plaintiffs have failed to show that the proffered reason is
pretextual.
The

See Def.'s Mem. of Law (Docket# 55-1).

Court

legitimate,

agrees

that

the

defendants

nondiscriminatory rationale

for

have

supplied

a

their decision not

to rent an apartment to plaintiffs.

Section XII of The Pines'

Resident

the

Selection

Credit History;

(2)

Criminal

Income Verification.

criteria,
to

sets

forth

Under Section XII,

criteria.

(4)

Plan

the

"Applicant

Screening"

screening criteria are

History;

(3)

Rental

While plaintiffs met

History;
the

first

(1)
and
two

the evidence confirms that the defendants were unable

verify

a

rental

history

that

met

the

third

step

of

the

screening criteria.
HUD regulations permit the owners of rental housing units
to

"screen families

on the basis of their tenancy histories."

24 C.F.R. § 982.307(a) (3); see Morales v. Related Mgmt. Co., No.
13-CV-8191,
("HUD's

2015

WL

applicable

7779297,

at

regulations

*6

permit

(S.D.N.Y.
the

Dec.

owners

2,
of

2015)
rental

housing units to 'screen families on the basis of their tenancy
19

histories,'
Jonathan

which includes

Woodner

Co.,

the payment of

549

F.

Supp.

2d

rent.") ;
78,

87

Bourbeau v.

(D.D.C.

2008)

( "Landlords remain free not to rent to voucher holders provided
. legitimate, non-discriminatory grounds,

they do so on .

Here,

as an applicant's rental history or criminal history.") .
plaintiffs
the

cannot

rental

Selection
rental

reasonably dispute that they did not

history
The

Plan.

application

requirement

and

requirement

set

forth

information plaintiffs

did

the

not

meet

contact

the

five

information

in

Resident

provided

was

satisfy

the

year

such

in

rental

their

history

deficient

for

at

Only two of the five

least two of the five landlords provided.

listed landlords submitted the requested forms and one of them,
a relative, did not fill out any of the requested information on
the

The

form.

other,

plaintiffs'

current

landlord,

did

not

provide an entirely favorable reference because he noted that if
plaintiffs

moved,

with

lease

admissible
reason

for

to

the

would

necessarily

Accordingly,

him.
evidence

plaintiffs
Pines

they

supporting

rejection of

failed
verify a

to

a

legitimate

current

submitted

non-discriminatory

housing

sufficient

satisfactory rental

their
have

defendants

plaintiffs'

provide

break

application

information

history pursuant

for
to

-

The
the

requirements of the screening criteria.
The crux of plaintiffs'
final

step

of

the

argument,

McDonnell
20

Douglas

therefore,

focuses on the

analysis

plaintiffs'

to

demonstrate

by

defendants'

explanation

is

false

plaintiffs

#59) ,

the

is

and

a

pretext

for

In their initial Memorandum of Law

intentional discrimination.
(Docket

that

evidence

admissible

burden

argue

that

the

manner

in

which

plaintiffs' application was processed raises an issue of fact as
to

insufficient

landlord

history

counsel for plaintiffs,
in

procedures"
variances
example,

Dep.

at

the

of

was

pretextual.

According

evidence

application

plaintiffs'
of

religious

and

to

these
For

discrimination.

plaintiffs allege that the Pines'

standard procedures

personal interview to make sure an application was
before

71

being

(" [w] e

accepted

for

processing.

Sanchez

See

Sanchez

just look to make sure they have five-year

landlord history on there that it's completed").
Ms.

for

application

the defendants did not follow "standard

screening

are

required a
completed

rejection

defendants'

whether

initialed plaintiffs'

Here, a.l though

application and date-stamped

it, she accepted the application without comment although it did
not list five years of landlord history.
Dep. at 11-12.
accepted

the

Id. at 69-72; Williams

Plaintiffs also allege that although Ms. Sanchez
application,

she

was

not

the

leasing

agent

and

"assumed the leasing agent would verify the five year history."
See Pl.'s Mem. of Law (Docket# 59)
the

fact

that

Ms.

Sanchez

stated

at 3.
that

Plaintiffs point to

al though

she

may have

received the application, she was not a leasing agent in October
21

2009

and

did

not

process

references at that time.

applications

or

landlord

at 69-74.

See Sanchez Dep.

verify

Sanchez

stated that the handwritten processing notes on the application
Id. at 85-86.

However, Michelle Addy, property

manager for Winn Residential,

stated that Kiera Sanchez handled

were not hers .

the

initial

review

of

plaintiffs'

application

Sanchez's handwriting was on the application.

and

that

Ms.

See Addy Dep. at

84.
evaluating

In

in

followed

procedures"

were

not

application,

this

Court

Indeed,

argument

plaintiffs'

processing

will assume plaintiffs

plaintiffs'

to be

correct.

While The Pines may have

this Court will go further.

adopted legitimate

"standard

that

screening criteria for

prospective

tenants,

the manner in which it implemented those criteria with respect
to prior rental history was not only unfair to plaintiffs,

it

was unfair to any prospective tenant who was unlucky enough to
have

a

landlord who

would not

immediately respond

letter seeking rental history information.
list,

The Pines had the

to

a

form

With a long waiting

luxury of rejecting applications

from

individuals who would be perfectly good tenants,

simply because

their previous landlords refused,

or were simply

unwilling

to

respond

in

a

were too busy,

matter

seeking rental history information.

of

days

to

a

form

letter

While some former landlords

might be corporate entities with employees willing to respond to
22

such

inquiries,

individual

able

to

timely

provide

landlords

change,

sold,

provide

a

forwarding

landlords

rental
and

might

history

if

address,

a

not

was

a

landlord

clear

from

"standard
uniform

the

deposition

procedure"

requirement

on

testimony
to

verify
letters

follow up with a phone call,
to

them

let

know
It

unreachable.

that

also

need

application

to.
form

week or two,

If

landlord

a

seems

did

the
not

The

landlord
to

are
not

tenant

Moreover,
Pines

it

had no

history,

send out,

no

when

to

and when to contact the applicant

clear

reason The Pines did not have a
didn't

that

how many

of

how

or

did

prospective

supposed to provide accurate contact information?
is

willing

Properties

data.

previous

how

be

unresponsive

was

from

the

record

that

or
the

standard procedure was that it

provided
yield a

information
favorable

on

the

housing

reference within

a

it was easier for the leasing agents to move on to

the next application rather than following up with an otherwise
qualified prospective tenant.
Thus,
treated

the record supports plaintiffs'

unfairly.

gravamen

of

unfairly

due

rebut

But

plaintiffs'
to

defendants'

their

for

same

record

that

complaint
religious

does

beliefs.

not

they

support
were

"[Al

discrimination'

Plaintiffs

cannot
that

reason cannot be proved to be 'a

unless
23

the

treated

proffered explanation merely by showing

the explanation is false:
pretext

the

claim that they were

it

is

shown both

that

the

reason was false,
St.

Mary's

(emphasis
to

get

Honor

explanation

[plaintiff]

Second

is

not

it

224

[defendant]

33,

and

enough

(2d

42

[discrimination]
Zant
1996)
1994)

v.

KLM

was

Royal

the

real

demonstrate

that

citations

motivating

Fazekas,

No.

factor

in

the

06-CV-6l39T,

v.

(internal
Therefore,
judgment,

summary
'some'

likely

more

80

the

F. 3d

evidence,

by

the

than

not

[action]

708,

714

based

Plaintiffs
upon

defendant's

at

Van
Cir.

(2d Cir.
need

religious

not

beliefs

only that it was

decision."

2008 WL 723914,

'"
(2d

31 F.3d 105, 110

"was the sole reason they were denied housing,
a

the

plaintiff's

proffered

omitted)).

discrimination

"[t] o

rational finding that the

(citing Woroski v. Nashua Corp.,
(additional

the

omitted).

reason for

Dutch Airlines,

stated,

2000)

simply

that

and

(1993)

Weinstock

Cir.

reasons

nondiscriminatory

515

disbelieve

to

for

motion

obliged to produce not

false,

has

also believe

citations

[defendant] 's

were

502,

Circuit

'sufficient evidence to support a

legitimate,

U.S.

discrimination."

F.3d

alterations,

was

509

the

factfinder must

Univ.,

defeat

0

Hicks,

intentional

of

quotations,

but

the

v.
As

jury,

[defendants] ;

" [t]

Ctr.

supplied)
the

Columbia

and that discrimination was the real reason."

*5

Swinton v.

(W.D.N.Y.

Mar.

14, 2008)
Despite years of discovery and ample opportunity to do so,
plaintiffs have not adduced sufficient admissible evidence that
24

would support a

finding

that

the reason defendants assert Mr.

Peek and Ms. Williams were denied housing - a lack of verifiable
rental history - was intended to mask purposeful discrimination
based on plaintiffs'

Plaintiffs'

religious beliefs.

proof that

The Pines failed to follow its own internal rules for processing
tenant

applications,

even

if

true,

does

not,

on this

record,

provide sufficient evidence "from which a reasonable jury could
find that it was pretext to hide a discriminatory motive."

See

Kennedy v. Related Management, 403 F. App'x 566, 568-69 (2d Cir.
2010); see al.so Singh v. Air India Ltd., 108 F. App':x: 9, 10
Cir.

(affirming

2004)

claim because,
plaintiff
rational

dismissal

of

plaintiff's

(2d

discrimination

even if the evidence "did demonstrate pretext,"

failed
jury

to

to

"present

conclude
This

discrimination").

evidence

that

Court

this

that

was

would
pretext

a

perrnit
for

remains mindful

that a

a
age

"smoking

gun" proving intentional discrimination is rarely available and
"intent often must be inferred from circumstantial evidence found
Holtz v. Rockefeller

in affidavits and depositions."
F.3d

62,

submitted

69
in

(2d Cir.
the

But

2001).

light

most

here,

favorable

simply is a lack of evidence to suggest,
the

defendants'

denial

of

plaintiffs'

viewing
to

&

the

Co., 258
evidence

plaintiffs,

let alone infer,

there
that

housing application was

motivated in whole or part by religious discrimination.
Perhaps

sensing

that

direct
25

evidence

of

religious

discrimination was lacking,

plaintiffs alleged at oral argument

and

Memorandum

in

their

engaged

in

post-hearing

a

•pattern

and

of

practice"

Law

of

that

defendants

rejecting

"eligible

minority applications under the pretext that they failed to meet

the portion of
asked to

Ms.

applicants

identified

were

Plaintiffs argue

that

racial minorities
the

66. 57%

of

Id.

The

this

racial

as

Latino,

that were

Asian 1

•pattern"

at

was

rejected due

to

The rejected

2-3.

including

minorities,
and

she

Pacific

Islander.

of discrimination against

is corroborated by statistical evidence kept

defendants

white.

deposition testimony where

landlord references. 6

non-Hispanic

Hispanic,

by

Addy's

review other applications

insufficient

Plaintiffs point to

See Docket #64 at 2.

admission criteria.•

which,

Pines'

according

units

have

to

heads

plaintiffs,
of

show

households

that

who

are

Id.

In making their "pattern"

argument,

plaintiffs acknowledge

that they have no statistical evidence regarding the religious
preferences of any residents of The Pines because the defendants
do

not

however,

collect
the

information.

According

to

plaintiffs,

Court may rely on evidence of generalized racial

discrimination
defendants'

such

in

the

specific

application

religious

process

discrimination

as
in

evidence
this

of

case.

6 For reasons unknown to the Court,
plaintiffs' counsel did not attach copies
of the referenced applications to their motion papers,
and thus the
applications are not part of the record.

26

There

are

several

problems

with

plaintiffs'

"pattern

and

practice" argument.
First,
fails

to

plaintiffs'
reveal

Plaintiffs'
from

a

counsel

"racial

pattern
showed

minority"

insufficient

landlord

application

and

for

lease

why

example,
Exhibit

the

Exhibit

rejected

because

at

if

referenced
an

6,

a

they

who

would

were

applications

rejected

Addy went

the

the

Michelle

was

rejected

were

Mr.

Han

that

Mr.

this

that
not

the

See Addy Dep.

apartment.

to

was

of

applicants

for

to

reference

testified

Addy

due

through each

deposition,

responded

rent

of

application

application

landlord

discrimination.

landlord

the

5

of

number

the

because

at

a

Ms.

rejected

129-30.

determined"

applicants

Ms.

was

holders

Addy

history."

"landlord

application

practice

references.

For

marked as

or

Ms.

indicated

insufficient.
Santiago,

reliance on other rejected applications

it

Throng

at

Throng,
was

in

was

"to

the

be

future

because they would want to know if he would cause damage once he
relocated.
Camilo,

was

Id.

at 131.

rejected

for

landlord responded that
rent,

that

he

was

rejected

because

rent four times.

Id.

poor

every

Id. at 135.
a

7,

an application for Billio

landlord

history

because

a

the applicant was not current with the

late

proceedings had begun.
was

Exhibit

prior

month,

and

In Exhibit 8,

landlord

said

she

that

eviction

the applicant
was

late

Applicant Terasa Harris,

at 137.
27

with

Exhibit

9,

was rejected because her landlord did not return a reference.
Exhibit 10,

at 140-44.

Id.

Dennis Cherry,

was rejected because
at 145-46.

none of the landlord references were returned.

Id.

With no

context

for

these

comparisons

similar

applications

where

the

Court

racial

simply

or

as

to

show

showing

accepted

in

plaintiffs

could

effort The Pines'
an

applicant's

ethnicity

of

race

of

improper motive,

have

inference
might

ethnicity

granted

of

have

treatment

housing,

discrimination,

used a

in a

of

sample

of

myriad of ways,
who

were

landlord history.

insufficient

developed

was

of

Or

evidence

applicants

that

the

time

and

puts into contacting landlords and confirming
history varied depending
Absent

applicant.

direct

on

the

race

evidence

or

of

an

an inference of discrimination can often most

readily be generated
of a

any

or

their

rental
the

make

and no

applicant

disparate

the

spite

the

Plaintiffs

otherwise.

applications
such

cannot

applications,

through evidence

of

unfavorable

treatment

plaintiff and then comparing that treatment to similarly-

situated

individuals.

7

Given

the

absence

of

such

comparisons

Indeed, the primary case relied upon by plaintiffs in arguing that the
defendants' "failure to follow up to obtain additional rental information"
creates a question of fact as to disparate treatment only confirms the lack
of evidence of disparate treatment here.
See Docket #64 at 2.
In Davis v.
Mansard, 597 F. Supp. 334 (N.D. Ind. 1984), plaintiffs claimed that although
the apartment complex had both black and white tenants, black applicants were
subjected to far more scrutiny than white applicants.
The court held that
although there were legitimate criteria to screen prospective tenants, ''the
facts show, however, a pattern of treating black and white apartment seekers
of similar backgrounds and earnings differently, to the detriment of the
blacks."
Id. at 345.
Despite ample opportunity to develop facts showing a
pattern of subjecting non-white applicants to greater scrutiny of their
rental history than white applicants, no such evidence has been presented by

28

after seven years
hearing

of

discovery and the
the

submissions,

Court

can

opportunity for

only

assume

post-

that

this

evidence of discrimination based on disparate treatment does not
exist.
Plaintiffs'

on

statistical

evidence

is

equally

"It is well-settled that an individual disparate

unpersuasive.
treatment

reliance

plaintiff

may use

statistical

evidence

regarding an

employer's general practices at the pretext stage to help rebut
the

Hollander v.
1990)

explanation."

nondiscriminatory

purported

employer's

American Cyanamid Co.,

895

F.2d 80,

84

(2d Cir.

"Evidence relating to company-wide

(citations omitted).

practices may reveal patterns of discrimination against a group
increasing
explanation

for

the

likelihood that
decision

a

a

[defendant's]

regarding

indi victual masks a discriminatory motive."
the

Court

were

religious
meaning

to

consider racial
the

discrimination,
from

raw

the

Plaintiffs

plaintiffs.

can

as

assign

even if

evidence of
no

specific

relied

on

by

maintained

by

the

statistical

numbers

claim

data

that

particular

Here,

Id.

disparities

Court

a

offered

defendants show that 66.5% of residents at The Pines are White,
and

that

33.5%

are

Declined to Report.
Such

evidence

is

Asian,

Black,

Native

America,

Other,

or

See Continuation of Exhibits (Docket# 62).
meaningless

plaintiffs here.

29

without

context.

What

is

the

racial

breakdown

make-up

of

of

the

comparison?

the

applicant

relevant

community

In the absence of context,

opinion containing an analysis
this

data,

composition

this

single

The

Pines

of

inference

( finding

of

that

pool,

cannot

women

355

racial

used

for

of

the

discrimination is

on

the

F.

its

own,

App'x

racial

support
Lomotey

478,

481

"amounts

racial composition of

support

an

inference

Columbia Univ.,

Columbia

significance

See

evidence

(2d

to

an
V.

Cir.

nothing

of

the qualified

discrimination") ;

224 F.3d 33,

46

(2d Cir.

"raw data purportedly describing

under-representation

faculty at

statistical

an expert

without further information on key

(rejecting argument that

pattern

being

or better yet,

not,

statistical

see also Weinstock v.

a

of

does

Transp.,

considerations such as

2000)

the

raw data point measuring the

more than raw numbers which,

labor

is

discrimination.

religious

of

Connecticut-Dep't
2009)

that

is

What is the racial make-up of other similar housing

complexes?

of

What

pool?

and

unequal

opportunity

conclusion that

for

leads

to

the

gender

in play here,"

as

"little but an unsupported

hypothesis providing no foundation for the assertion that there
was discrimination") ;
1993)
from

Odom v.

(raw data of age,
1980-1983,

anything");

"without

Hosick v.

F. Supp. 2d 956,

race,

969

Frank,

3 F.3d 839,

849

(5th Cir.

and location of persons promoted

more,

is

not

Chicago State Univ.
(N.D. Ill. 2013)
30

competent
Bd.

to

prove

of Trustees,

924

(noting that "[w]ithout any

statistical
"next

analysis"

to worthless") ;

raw

racial

F.3d 816, 829 (7th Cir. 2006)
merely point

to

[racial

statistics

are

Thompson Distribution Co. ,

Hague v.

composition

43 6

("The plaintiffs must do more than

composition statistics]

and proclaim:

'Aha! Discrimination.'").
In sum,
tend

to

establish

application
forward
factor

even if the evidence relied on by plaintiffs could

was

evidence
for

the

that

defendants'

pretextual,
sufficient
denial

Mitchell

v.

Shane,

350

judgment

is appropriate

was
F.3d

reason

plaintiffs
to

have

demonstrate

religious
39,

47

denying

failed

that

a

to

Cir.

the
put

motivating

discrimination.

(2d

if no reasonable

for

2000)

See
(summary

jury could find that

the defendant's actions were motivated by discrimination)
Conclusion

For the reasons

stated above,

it is the

judgment of this

Court that defendants' motion for summary judgment (Docket# 55)
is granted.

This action is dismissed and the Clerk of Court is

directed to enter a judgment for the defendants.

ed States Magistrate Judge

Dated:

September 30, 2017
Rochester, New York
31