Byrd v. Dunn Towers I/Apt's et al

Filing 17

DECISION AND ORDER granting 7 Motion to Dismiss for Failure to State a Claim; denying 13 Motion for Summary Judgment consistent with this Decision and Order.Plaintiff's complaint is dismissed with prejudice. (Clerk to close case.)Copy of this Decision and Order sent by first class mail to Plaintiff. Signed by Hon. Michael A. Telesca on 1/16/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,

No. 6:16-cv-06785(MAT)
DECISION AND ORDER

-vsDUNN TOWERS I, APT’S, PHILLIPONE
REALTY, INC., DUNN TOWERS I
APARTMENTS,
Defendants.

I.

Background
Proceeding pro se, Vickie Dianne Byrd (“Plaintiff”) instituted

this action against defendants “Dunn Towers I, Apt’s” and “Dunn
Towers I Apartments” (collectively, “Dunn Towers I”) and Phillipone
Realty, Inc. (“Phillipone”) by filing a complaint (Dkt #1) dated
December 1, 2016, alleging that defendants violated

the Fair

Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”) and generally
discriminated against her on the basis of disability. The Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
By Decision and Order dated November 15, 2017, the Court
converted Dunn Towers I’s pre-answer Motion to Dismiss into a
Motion for Summary Judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure (“Rule 56”). Also in the November 15th
Decision and Order, the Court converted Phillipone’s Answer with
its attached exhibits into a Rule 56 motion for summary judgment.
Plaintiff was served with a copy of the Western District of
New York’s Rule 56 Notice to Pro Se Litigants, in accordance with

Western District of New York Local Rule 56(b) and Irby v. N.Y. City
Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001).
Plaintiff filed her own Rule 56 Motion for Summary Judgment,
to which Dunn Towers I submitted a Reply. Phillipone has not filed
any additional papers subsequent to the Court’s November 15th
Decision and Order. The motions are fully submitted and ready for
decision.
II.

Rule 56 Standard
“Summary judgment is required where ‘the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Rodriguez v. Vill.
Green Realty, Inc., 788 F.3d 31, 39–40 (2d Cir. 2015) (quoting Fed.
R. Civ. P. 56(a)). “In assessing the record to determine whether
there is a genuine issue to be tried as to any material fact, the
court

is

required

to

resolve

all

ambiguities

and

draw

all

permissible factual inferences in favor of the party against whom
summary judgment is sought.” Stone v. City of Mount Vernon, 118
F.3d 92, 99 (2d Cir. 1997). “A fact is ‘material’ for these
purposes if it ‘might affect the outcome of the suit under the
governing law.’” Rodriguez, 78 F.3d at 39 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A dispute of fact
is ‘genuine’ if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Id. (quoting Anderson,
477 U.S. at 248).

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III. Discussion
A.

Overview of Plaintiff’s Claims and the Parties

While Plaintiff’s pleadings are rather difficult to decipher,
the gist of her Complaint alleges that her rental application was
unlawfully denied by Dunn Towers I on the basis of discrimination.
According to its website, Dunn Towers I provides “housing for
seniors 62 years of age or over, disabled veterans who submit
satisfactory

proof

of

physical

and/or

mobility

eligibility

according to the Civil Service Law ‘Section 85: Definition of
Disabled Veteran’, and anyone 18 years of age and older with a
physical or mobility disability.”1

Dunn Towers I also denominates

itself an Equal Housing Opportunity by its use of the official logo
sanctioned by the Department of Housing and Urban Development
(“HUD”) under the terms of the FHA.2 Dunn Towers I is managed by
Phillipone.
B.

Discriminatory Practices Prohibited Under the FHA

The FHA prohibits discrimination across a spectrum of housingrelated activities, including the provision of brokerage services,
real estate transactions, and housing sales and rentals. See

1

http://www.dunntower.com/dunn1 (last accessed Jan. 15, 2018).

2

Fair
Housing
Advertising
guidelines,
available
at
https://www.hud.gov/sites/documents/DOC_7781.PDF (last accessed Jan. 15, 2018).
The use of the Equal Housing Opportunity logo serves to “educat[e] the
homeseeking public that the property is available to all persons regardless of
race, color, religion, sex, handicap, familial status, or national origin.”
(Id.).

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42

U.S.C.

§§

3604-3606.

Subject

to

certain

exceptions

applicable here, the FHA makes it “unlawful—
(a) To 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, a
dwelling to any person because of race, color, religion,
sex, familial status, or national origin.
(b) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities
in connection therewith, because of race, color,
religion, sex, familial status, or national origin.
(c) To make, print, or publish, or cause to be made,
printed, or published any notice, statement, or
advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or
discrimination based on race, color, religion, sex,
handicap, familial status, or national origin, or an
intention to make any such preference, limitation, or
discrimination.
(d) To represent to any person because of race, color,
religion, sex, handicap, familial status, or national
origin that any dwelling is not available for inspection,
sale, or rental when such dwelling is in fact so
available.
(e) For profit, to induce or attempt to induce any person
to sell or rent any dwelling by representations regarding
the entry or prospective entry into the neighborhood of
a person or persons of a particular race, color,
religion, sex, handicap, familial status, or national
origin.
(f)(1) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any
buyer or renter because of a handicap of-(A) that buyer or renter,
. . .
(2) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities
in connection with such dwelling, because of a handicap
of-(A) that person . . . .”
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not

42 U.S.C. § 3604. Plaintiff does not specify the subsections of
Section 3604 under which she seeks relief. Construing her Complaint
and motion papers liberally, see, e.g. Nielsen v. Rabin, 746 F.3d
58, 63 (2d Cir. 2014), Plaintiff appears to be asserting violations
of Sections 3604(a), 3604(b), and 3604(f)(1) of Title 42 U.S.C.
In her Complaint, Plaintiff specifically alleges that
[t]he Defendant Lisa Simmons, the on-site manager of Dunn
Tower Apartments, wrote me back a letter stating that my
application for housing was not accepted. She allegedly
claims that I had a bad credit report which was not true,
false. Claim (1) first and foremost you do not need
triple A credit to get in disability housing subsidized
(HUD) housing, this is federal government housing; (2) my
credit report is in fact good. Why wouldn’t it be, I pay
cash for everything!!!; and (3) Dunn Tower II approved my
application this is a fact: conflict of interest!!!
. . .
Mrs. Carol Stone, the on site manager at Dunn Tower II is
not in fact discriminating against black applicants but
Dunn Tower I is!!!? (1) Dunn Tower II on site manager
Mrs. Carol Stone processed my application without any
problem. Do you keep [sic] the comparison, she approved
my application. (2) Like it should have been done by the
other site manager Dunn Tower I the defendant Mrs. Lisa
Simmons is in fact lying about minorities application =
housing discrimination!
(Complaint (Dkt #1)).
As

the

Second

Circuit

has

explained,

claims

of

housing

discrimination are evaluated under the burden-shifting framework
articulated by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–03 (1973). Mitchell v. Shane, 350 F.3d 39,
47 (2d Cir. 2003) (citing Robinson v. 12 Lofts Realty, Inc., 610
F.2d 1032, 1038 (2d Cir. 1979)). The elements of a prima facie case
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of housing discrimination are as follows: (1) the plaintiff is a
member of a protected class; (2) the plaintiff sought and was
qualified to rent or purchase the housing; (3) the defendant denied
the plaintiff the opportunity to rent or purchase the housing; and
(4) the housing opportunity remained available to other renters or
purchasers. “[O]nce a plaintiff has established a prima facie case
of discrimination, the burden shifts to the defendant to assert a
legitimate,
decision.”

nondiscriminatory
Id.

(citing

rationale

McDonnell

Douglas

for

the

Corp.,

challenged

411

U.S.

at

802–03). “If the defendant makes such a showing, the burden shifts
back to the plaintiff to demonstrate that discrimination was the
real reason for the defendant’s action.” Id. (citing Schnabel v.
Abramson, 232 F.3d 83, 87 (2d Cir. 2000)). Importantly, “although
the McDonnell Douglas presumption shifts the burden of production
to the defendant, ‘[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.’”

St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); emphasis
and brackets in original). “Summary judgment is appropriate if no
reasonable

jury could find that the defendant’s actions were

motivated by discrimination.” Mitchell, 350 F.3d at 47 (citing
Schnabel,

232 F.3d

at

91

(holding

that summary

judgment

was

appropriate “for plaintiff has presented no evidence upon which a

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reasonable trier of fact could base the conclusion that age was a
determinative factor in defendants’ decision to fire him”)).
For the sole purpose of resolving the pending summary judgment
motions, the Court assumes arguendo that Plaintiff has established
a prima facie case of discrimination under the FHA.
Dunn

Towers

legitimate,

I

and

Phillipone

non-discriminatory

have

reason

come
to

forward

deny

with

a

Plaintiff’s

application, namely, that she has a “negative credit history.”
(Phillipone’s Answer (Dkt #6), ¶¶ 5-6 & Exhibits (“Exs.”) A, B, &
C). The record indicates that on May 31, 2016, Lisa Simmons
(“Simmons”), Managing Agent for Phillipone and On-Site Manager for
Dunn Towers I, sent Plaintiff a letter (Dkt #6, Ex. A) indicating
that her rental application had not been accepted “because a credit
check has revealed that [she] ha[s] a negative credit history[,]”
which was “verified through TransUnion. . . .” (Id. (citing Dkt #6,
Ex. C (“TransUnion Credit Report”)). The TransUnion Credit Report
(Dkt #6, Ex. C) referenced in Simmons’ letter indicates a “high
risk fraud alert” for Plaintiff, apparently because her “current
file

address

does

not

match

input

address(es).”

(Id.).

The

TransUnion Credit Report also reveals two creditor accounts with
past due amounts totaling $407.00, and a December 2015 civil
judgment in the amount of $565.00 entered against Plaintiff in
favor of Barbara Manor Apartments. (Id.). Simmons’ letter provided
the address for TransUnion, and suggested that Plaintiff order her

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own credit report. (Id.). Simmons also notified Plaintiff that if
she disagreed with the decision, she could, within 14 days of her
receipt of Simmons’ letter, respond in writing or request a meeting
with management, at which they could discuss Plaintiff’s credit
history. (See id.).
Phillipone

has

submitted

excerpts

Apartments Tenant Selection Plan 2016”

of

the

“Dunn

Towers

(Dkt #6, Ex. B), listing

the possible reasons rental applicants can be rejected. One of
these is that the individual has a “negative credit history” as
verified by a credit check performed by TransUnion. (Id.). Courts
in this Circuit have found that for purposes of evaluating FHA
claims within the McDonnell Douglas

burden-shifting framework, a

bad credit report constitutes a legitimate, non-discriminatory
reason for failing to rent apartment to an applicant. E.g., Mancuso
v. Douglas Elliman LLC, 808 F. Supp.2d 606, 620 (S.D.N.Y. 2011)
(“Defendants

have

satisfied

their

burden

[to

articulate

a

legitimate, non-discriminatory reason for failing to rent Apartment
2020 to Mancuso]. . . by adducing evidence that Mancuso’s bad
credit report dissuaded them from renting to him.”) (internal
citation omitted).
Furthermore,

the

federal

regulations

applicable

to

housing, such as Dunn Towers I, specifically provides that
[i]n selection of families for admission to its public
housing program, or to occupy a public housing
development or unit, the PHA is responsible for screening
family behavior and suitability for tenancy. The PHA may
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HUD

consider all relevant information, which may include, but
is not limited to:
(1) An applicant’s past performance in meeting financial
obligations, especially rent . . . .
24 C.F.R. § 960.203(c)(1). Here, Defendants have adduced proof that
Plaintiff has a poor record of meeting her financial obligations,
particularly rent payments. Specifically, the TransUnion Credit
Report indicates that Plaintiff has a civil judgment against her
owed to Barbara Manor Apartments, and that she is in debt to two
other creditors.
Plaintiff purports to show pretext by asserting that her
credit report must be good because she pays cash for everything.
This is mere unfounded speculation on Plaintiff’s part which does
not overcome the documentary evidence showing that she has at least
one civil money judgment filed against her and two accounts that
are past due.
Plaintiff also suggests that discriminatory intent can be
inferred because her application at Dunn Towers II was processed
without any problem. However, this assertion is contradicted by her
own submissions in another lawsuit filed in this Court, Byrd v.
Grove Street Management Corporation and Barbara Manor, LLC, Civil
Action No. 6:16-cv-06017-MAT (W.D.N.Y.) (“Grove Street”). There,
she referenced a November 24, 2015, judgment3 in a New York State,

3

Dunn Towers I has submitted a copy of it in connection with its converted
Motion to Dismiss (Dkt #7), as Exhibit B to the Declaration of Karen Sanders,
Esq. (Dkt #7-1).

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Monroe County Court summary proceeding,

Barbara Manor Apartments

v. Byrd, Index No. 2015-12545, pursuant to which an eviction
warrant was issued against Plaintiff, and Barbara Manor Apartments
was awarded $1,630.00 in back rent, attorneys’ fees, and costs.
That judgment was entered against Plaintiff in the Monroe County
Clerk’s Office on December 2, 2015.
Further substantiating Plaintiff’s unmet rent obligations are
two letters she attached to the First Amended Complaint (“FAC”) in
the Grove Street case (Dkt #33 in Civil Action No. 6:16-cv-06017MAT (W.D.N.Y. Aug. 22, 2017) (“Grove Street FAC”). First, there is
a letter to Plaintiff dated April 3, 2017, from Dunn Towers II,
rejecting

her rental application because she owed a “subsidy

repayment to current or previous landlord.” (See Grove Street FAC,
p. 13 of 13). This letter contravenes her assertion in the instant
Complaint that her application to Dunn Towers II was accepted
without any issue. Second, there is a letter from the Rochester
Housing Authority dated April 14, 2017, indicating that Plaintiff’s
housing application was being placed on hold due to Rochester City
Court records that reflected a judgment awarded in favor of Grove
Street Management against her in the amount of $565.00. (See Grove
Street FAC, p. 12 of 13).
In short, Plaintiff has not proven that the legitimate reasons
offered by Dunn Towers I and Phillipone were not their true reasons
but

instead

were

a

pretext

for

discrimination.

Under

the

burden-shifting framework applicable to FHA claims, “the ultimate
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burden rests with the plaintiff to offer evidence sufficient to
support a reasonable inference that prohibited . . . discrimination
occurred.” Woodman v. WWOR–TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005)
(quotation omitted). No such inference is reasonable on the present
record. In light of all of the evidence the Court has reviewed,
Plaintiff has failed to show that a reasonable jury could conclude
that discrimination was the real reason her rental application to
Dunn Towers I was rejected. Summary judgment is therefore granted
to Dunn Towers I and Phillipone with respect to the substantive FHA
claims.
In her Motion for Summary Judgment, Plaintiff also appears to
assert a procedural violation of the FHA based on the fact that she
was not afforded a “fair hearing” after her rental application was
rejected. Plaintiff cites no legal authority for the proposition
that the FHA automatically

entitles her to an administrative

hearing. The relevant law, in fact, fails to support her assertion.
In order to obtain a hearing based upon an alleged violation
of the FHA, there are a number of steps an aggrieved individual
must follow. First, she must file a complaint with the Secretary of
HUD within one year of an alleged discriminatory housing practice.
See 42 U.S.C. § 3610(a)(1)(A)(i). The filing of an FHA complaint
does not necessarily compel a hearing; rather, the Secretary of HUD
must “determine . . . whether reasonable cause exists to believe
that a discriminatory housing practice has occurred or is about to
occur.” Id., § 3610(g)(1). If the Secretary of HUD makes a finding
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that reasonable cause exists, a charge “shall . . . immediately
issue . . . on behalf of the aggrieved person . . . .” Id.
§ 3610(g)(2). It is only after the issuance of a charge of
discrimination that the Secretary must provide an opportunity for
a hearing on the record before an administrative law judge. Id. §
3612(b). Alternatively, an “aggrieved person” may sidestep HUD
completely and simply file suit in federal district court, id.
§ 3613(a)(1)(A), which is what Plaintiff elected to do here.
Plaintiff is simply incorrect that she was entitled, as a
matter

of

law,

to

a

hearing

on

the

denial

of

her

rental

application. Furthermore, she did not follow the procedural steps
set out in the FHA to obtain an administrative hearing but instead
chose to file suit in federal court, as she was entitled to do.
Finally, as noted above, the denial letter (Dkt #6, Ex. A) sent by
Simmons

on

behalf

of

Dunn

Towers

I

offered

Plaintiff

the

opportunity for a face-to-face meeting. (See id. (“You may, within
14 days after you receive this notice, respond in writing or
request a meeting with our management to discuss the response to
your application. If you were denied on credit, we advise you to
order a recent copy of your credit report so we can discuss it
further at
Plaintiff

the

meeting.”)).

availed

herself

However,
of

that

it

does

not

opportunity.

appear

the

Plaintiff’s

procedural claim based on the denial of a hearing under the FHA
fails as a matter of law.

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IV.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Summary

Judgment is denied with prejudice; summary judgment is granted in
favor of Dunn Towers I on its converted Motion to Dismiss; summary
judgment is granted in favor of Phillipone on its converted Answer;
and Plaintiff’s Complaint is dismissed with prejudice.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 16, 2018
Rochester, New York.

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