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-

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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 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

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