Boykin v. Keycorp

Full title: YVETTE BOYKIN, Plaintiff, v. KEYCORP and its subsidiary KEYBANK NATIONAL…

Court: United States District Court, W.D. New York

Date published: Mar 28, 2005

03-CV-944S (W.D.N.Y. Mar. 28, 2005)

Opinion

03-CV-944S.

March 28, 2005

DECISION AND ORDER

WILLIAM SKRETNY, District Judge

I. INTRODUCTION

On December 19, 2003, pro se Plaintiff Yvette Boykin commenced this civil rights action by filing a Complaint in the United States District Court for the Western District of New York. Therein, Plaintiff alleges five causes of action related to the denial of her application for a non-owner-occupied real estate equity loan. Presently before this Court are individual Motions to Dismiss filed by Defendants Key Corp and its subsidiary KeyBank National Association d/b/a KeyBank ("KeyBank"),¹ State of New York Division of HumanRights ("NYDHR"),² and U.S. Department of Housing and Urban Development ("HUD").³ Also before this Court is Plaintiff's Motion to Deny KeyBank's Motion to Dismiss.⁴ For the reasons discussed below, Defendants' Motions to Dismiss are granted, Plaintiff's motion is denied, and the NYDHR's Motion for Summary Judgment is denied as moot.

1 In support of its Motion to Dismiss, KeyBank filed a memorandum of law, the Affidavit of Laurence B. Oppenheimer, Esq., with attachments, and a reply memorandum of law. In opposition to KeyBank's motion, Defendant filed a Motion to Deny KeyBank's motion, a memorandum of law, and the Affirmation of Yvette Boykin.

2 The NYDHR filed a Motion to Dismiss and for Summary Judgment. In support of its motion, NYDHR filed a memorandum of law, a Rule 56 Statement of Undisputed Facts, the Declaration of Gina M. Lopez with attached exhibits, and the Reply Declaration of Michael A. Siragusa, Esq. In opposition, Plaintiff filed a memorandum of law, a Rule 56 Statement of Material Facts Requiring Trial, and the Affirmation of Yvette Boykin.

3 In support of its Motion to Dismiss, HUD filed the Affidavit of Mary K. Roach, Esq., a memorandum of law, and a reply memorandum of law. In opposition, Plaintiff filed a memorandum of law and the affirmation of Yvette Boykin.

4 In support of her Motion to Deny KeyBank's motion, Plaintiff filed a memorandum of law and the Affirmation of Yvette Boykin.

II. BACKGROUND

A. Facts

In adjudicating Defendants' Motions to Dismiss, this Court assumes the truth of the following factual allegations contained in Plaintiff's Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).

Plaintiff is an African-American woman. (Complaint, ¶ 2.) At the time of the acts complained of, she was 53 years old and resided in the state of Georgia. (Complaint, ¶ 2.) On August 1, 2001, Plaintiff applied for a non-owner-occupied real estate equity loan from Defendant KeyBank to improve, repair and maintain rental property she owns in Buffalo, New York. (Complaint, ¶ 6.) Plaintiff was initially informed by KeyBank's loan officer that her loan application had been conditionally approved based on her credit report. (Complaint, ¶ 6.)

Later that day, however, the loan officer telephoned Plaintiff and advised her that her loan application had been denied because she was not a resident of New York State. (Complaint, ¶ 7.) The loan officer stated that he was unaware of KeyBank's policy of not providing loans to out-of-state residents, but did not offer Plaintiff any alternative loan products. (Complaint, ¶ 8.) On or about August 16, 2001, Plaintiff received a written denial of her loan application, which advised that KeyBank does not grant credit under the terms requested out of its servicing area. (Complaint, ¶ 10.) Plaintiff maintains that she met all of KeyBank's financial and credit requirements for securing a non-owner occupied equity loan and was in all respects qualified to receive the real estate financing loan. (Complaint, ¶¶ 9, 31.)

After Plaintiff's loan was denied, she filed a housing discrimination complaint with HUD, which was referred to the NYDHR. (Complaint, ¶ 14.) After investigating the allegations in Plaintiff's administrative complaint, the NYDHR issued a "No Probable Cause" determination and closed the investigation. (Complaint, ¶ 14.) HUD then also closed its case based on the NYDHR's findings. (Complaint, ¶ 14.)

B. Procedural History

Plaintiff commenced this action on December 19, 2003, by filing a Complaint in the United States District Court for the Western District of New York. KeyBank filed its Motion to Dismiss on April 16, 2004; Plaintiff filed her Motion to Deny KeyBank's motion on April 23, 2004; HUD filed its Motion to Dismiss on May 24, 2004; NYDHR filed its Motion to Dismiss or for Summary Judgment on June 24, 2004. This Court took the motions under advisement after full briefing.

III. DISCUSSION

A. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a Complaint for "failure to state a claim upon which relief can be granted." A court may dismiss an action under this rule if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Stated another way, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). On a Rule 12(b)(6) motion, "[t]he issue is not whether a plaintiff will or might ultimately prevail on her claim, but whether she is entitled to offer evidence in support of the allegations in the complaint."Hamilton Chapter, 128 F.3d at 62 (citation omitted).

As noted above, all well-pleaded factual allegations contained in the Complaint are assumed true and construed in the non-moving party's favor. See Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996). If it appears from the face of the Complaint that a cause of action has not been brought within the applicable statute of limitations period, the defense of limitations "may be raised in a pre-answer motion pursuant to Fed.R.Civ.P. 12(b)(6)." Santos v. Dist. Council of New York City, 619 F.2d 963, 967 n. 4 (2d Cir. 1980); Ghartley v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). "[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). If the plaintiff does not attach or incorporate by reference documents that are integral to the Complaint, the court may consider those documents without converting the motion to one seeking summary judgment. See Int'l Audiotext Network, Inc. v. Am. Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam).

Here, although Plaintiff does not attach copies of her administrative complaint or the NYDHR's "No Probable Cause" determination letter, these documents are referenced in the Complaint and are integral to Plaintiff's claims. Moreover, both parties have provided copies of the various administrative documents with their motion papers. Accordingly, this Court will consider these documents.

Finally, because of the distinct disadvantage that pro se litigants face, federal courts routinely read their submissions liberally, and interpret them to raise the strongest arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). As Plaintiff is proceeding pro se, this Court has reviewed her submissions and arguments accordingly. Importantly, however, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 8191 B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (citation and quotation omitted).

B. KeyBank's Motion to Dismiss

KeyBank is named as a Defendant in Plaintiff's first four causes of action. It argues that Plaintiff's causes of action are either untimely, fail to state a claim, or both. Each cause of action is addressed below.

1. First Cause of Action: Fair Housing Act

Plaintiff's first cause of action alleges that KeyBank denied her loan application because of her race and sex in violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq. (Complaint, ¶¶ 18-21.) It also alleges FHA violations based on a disparate impact theory related to the application of KeyBank's lending policy guidelines. (Complaint, ¶ 13.)

The FHA makes it unlawful for any person or entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin. 42 U.S.C. § 3605(a). "A plaintiff can make out a claim of discrimination either `on a theory of disparate impact or one of disparate treatment.'" Fair Housing in Huntington Comm., Inc. v. Town of Huntington, NY, 316 F.3d 357, 366 (2d Cir. 2003) (quotingLeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995)). Claims under the FHA must be brought no later than 2 years after the occurrence of discrimination or the termination of an allegedly discriminatory housing practice. 42 U.S.C. § 3613(a)(1)(A). Computation of the 2-year period does not include any time during which an administrative complaint or charge was pending. 42 U.S.C. § 3613(a)(1)(B).

Disparate treatment claims brought under the FHA are analyzed under the McDonnell Douglas burden-shifting analysis. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir. 1979). At this stage, however, Plaintiff must only allege facts sufficient to state a claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The elements of a disparate treatment FHA claim are (1) membership in a protected class, (2) application and qualification for a real estate-related loan, (3) denial of the loan, and (4) continued approval of loans for applicants with similar qualifications. See Mitchell, 350 F.3d at 47; Powell v. Am. Gen. Finance, Inc., 310 F.Supp.2d 481, 487-89 (N.D.N.Y. 2004); Rowe v. Union Planters Bank of Southeast Missouri, 289 F.3d 533, 535 (8th Cir. 2002). To state a claim for a violation of the FHA based on disparate impact, the plaintiff must allege that "an outwardly neutral practice actually or predictably has a discriminatory effect; that is, has a significantly adverse or disproportionate impact on minorities, or perpetuates segregation." Fair Housing in Huntington Comm., Inc., 316 F.3d at 366; Khalil v. Farash Corp., 260 F.Supp.2d 582, 588 (W.D.N.Y. 2003).

This Court finds that Plaintiff's FHA claims against KeyBank must be dismissed for two reasons. First, the claims are time barred. According to Plaintiff's Complaint, KeyBank unlawfully denied her loan application on August 1, 2001. (Complaint, ¶ 7.) Plaintiff filed her administrative complaint with HUD on August 8, 2001. (See Oppenheimer Aff., Exhibit B.) Her administrative complaint was then referred to NYDHR for investigation and processing. See 42 U.S.C. § 3610(f)(1) (requiring HUD to refer complaints to certified state agencies). Plaintiff's administrative complaint then remained pending for 117 days until December 3, 2001, when the NYDHR issued its "No Probable Cause" determination. (See Oppenheimer Aff., Exhibit C.) Accordingly, by this Court's calculation, Plaintiff had 847 days⁵ from August 1, 2001, to bring her FHA claim, or November 26, 2003. Plaintiff filed this action on December 19, 2003.

5 This represents the 2-year statutory period (730 days) plus the 117 days Plaintiff's administrative complaint was pending.

Plaintiff argues that her administrative complaint remained pending through February 26, 2002, the date that HUD closed her complaint based on the NYDHR's findings. However, once HUD referred Plaintiff's claim to the NYDHR, it could take no further action on the complaint, except for in three specific circumstances not relevant here. See 42 U.S.C. § 3610(f)(2). Accordingly, because HUD could take no further action, Plaintiff's Complaint was no longer pending after the NYDHR made its determination. Plaintiff's FHA claims are therefore untimely and must be dismissed.

Second, even if Plaintiff's FHA claims were timely, this Court would dismiss the disparate treatment claim because it is insufficiently pled.⁶ While Plaintiff generally alleges that KeyBank discriminated against her based on her race and sex, the Complaint contains no specific facts supporting her claims. The only specific acts alleged in the Complaint are that KeyBank denied Plaintiff's loan and failed to offer her other loan products. (Complaint, ¶¶ 7, 8.) There are no factual allegations whatsoever that connect KeyBank's denial of Plaintiff's loan to a discriminatory motive or racial animus. In fact, each of Plaintiff's claims of racial discrimination is premised "upon information and belief." (Complaint, ¶¶ 11, 12, 13.) There are no allegations that the loan officer or any other member of KeyBank exhibited any improper animus toward Plaintiff (whether based on race or sex), nor has Plaintiff alleged the existence or any other non-New York State residents who were approved for the same loan that she was denied. It is not enough for Plaintiff to simply state that she is a black woman who was denied a loan.See Gulley v. Roach, No. 02-CV-908S, 2004 WL 2331922, at *4 (W.D.N.Y. Oct. 10, 2004) ("when alleging a violation of a civil rights statute, even a pro se litigant must make `specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning'") (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)). Accordingly, in this Court's view, Plaintiff's conclusory allegations are insufficient to sustain her disparate treatment FHA claim. See Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) (per curiam) ("[A] complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).")

6 If timely, Plaintiff's disparate impact claim is sufficiently pled such that it would survive this motion to dismiss. (See Complaint, ¶ 13.)

2. Second Cause of Action: Civil Rights Act of 1866

The second cause of action alleges that KeyBank denied Plaintiff's loan application on the basis of her race in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982. (Complaint, ¶¶ 22-24.)

a. 42 U.S.C. § 1981

Forty-two U.S.C. § 1981(a) provides as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

A § 1981 claim consists of the following elements: (1) membership in a racial minority; (2) an intention to discriminate on the basis of race by the defendants; and (3) discrimination concerning one or more of the activities enumerated in the statute. See Brown v. City of Oneonta, NY, 221 F.3d 329, 339 (2d Cir. 2000); Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1995) (per curiam). Because intentional discrimination is required under § 1981, the disparate impact theory of recovery is not available. See Jackson v. Univ. of New Haven, 228 F.Supp.2d 156, 162 (D.Conn. 2002).

In pleading a § 1981 claim, the Complaint must do more than merely assert that racial discrimination occurred. See Richardson v. Sec. Unit Employees Council 82, No. 99-CV-1021E(SR), 2001 WL 392089, *4 (W.D.N.Y. Mar. 27, 2001). To survive a motion to dismiss, the § 1981 claim must "specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). "In other words, a proper pleading under section 1981 must set out facts that demonstrate that the plaintiff's race was the reason for the defendants' conduct." Burgin v. Toys-R-Us-Nytex, Inc., No. 97-CV-998E, 1999 WL 454302, at *2 (W.D.N.Y. June 30, 1999) (emphasis added) (citing Waldron v. Rotzler, 862 F.Supp. 763, 767 (N.D.N.Y. 1994)).

As just stated, Plaintiff's Complaint is devoid of any factual allegations suggesting that her race (or sex or age) was the reason KeyBank denied her loan application. As such, Plaintiff's § 1981 claim will be dismissed.⁷ See Straker v. Metro. Transit Auth., 333 F.Supp.2d 91, 99-102 (E.D.N.Y. 2004) (stating that "a claim that does not contain any supporting factual allegations cannot withstand a Rule 12(b)(6) motion").

7 This Court notes that Plaintiff appears to concede that she has failed to state a claim under § 1981. See Plaintiff's Memorandum of Law, p. 1-2 ("Plaintiff now believes that under Defendant's analyses [sic], there may arguably be a basis for asserting that there is a failure to state a claim upon which relief can be granted under . . . the Civil Rights Act of 1866."); Boykin Aff., ¶ 1 ("the Complaint may not arguably be valid and timely under . . . the Civil Rights Act of 1866"). Indeed, Plaintiff offers no opposition to the dismissal of her § 1981 claim.

b. 42 U.S.C. § 1982

Forty-two U.S.C. § 1982 provides that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." "As is true of section 1981 claims, claims under section 1982 must make clear that the alleged mistreatment was a function of racial animus and intentional discrimination."Burgin, 1999 WL 454302, at *4 (citing Jones v. Mayer Co., 392 U.S. 409, 436 (1968)).

This Court pauses to note that by its plain terms, it does not appear as though § 1982 even applies to this set of circumstances. Plaintiff sought a loan so that she could improve and maintain property that she already owned. (Complaint, ¶ 6.) Thus, the purchase, sale or conveyance of real property is not at issue. See 42 U.S.C. § 1982. However, even assuming that § 1982 applies, Plaintiff's claim fails for the same reason that her § 1981 claim fails: Plaintiff has not alleged any facts supporting racial discrimination. Accordingly, Plaintiff's § 1982 claim will be dismissed.⁸

8 This Court notes that Plaintiff appears to concede that she has failed to state a claim under § 1982. See Plaintiff's Memorandum of Law, p. 1-2 ("Plaintiff now believes that under Defendant's analyses [sic], there may arguably be a basis for asserting that there is a failure to state a claim upon which relief can be granted under . . . the Civil Rights Act of 1866."); Boykin Aff., ¶ 1 ("the Complaint may not arguably be valid and timely under . . . the Civil Rights Act of 1866"). Indeed, Plaintiff offers no opposition to the dismissal of her § 1982 claim.

3. Third Cause of Action: Civil Rights Act of 1964

Plaintiff's third cause of action alleges that KeyBank denied her loan application because of her race and thereby excluded her from participating in and receiving the benefits of a program receiving federal financial assistance in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. (Complaint, ¶¶ 25-29.)

Title VI proscribes intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280-85, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). It provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. "Title VI covers only those situations where `federal funding is given to a non-federal entity which, in turn provides financial assistance to the ultimate beneficiary.'" Booker v. Bd. of Educ., Baldwinsville Cent. Sch. Dist., 238 F.Supp.2d 469, 474 (2d Cir. 2002) (citingSoberal-Perez v. Heckler, 717 F.2d 36, 38 (2d Cir. 1983). To establish a claim under Title VI, a plaintiff must show that: (1) the entity involved engaged in racial or national origin discrimination; (2) the entity involved received federal financial aid; and (3) plaintiff was an entitled beneficiary of the program or activity receiving the aid. Babiker v. Ross Univ. Sch. of Med., No. 98 CIV 1429 THK, 2000 WL 666342, at * 4 (S.D.N.Y. May 19, 2000).

This Court finds that Plaintiff's Title VI claim must be dismissed. First, for the reasons discussed at length above, Plaintiff has not set forth any facts of racial discrimination by KeyBank. Second, although Plaintiff has alleged that KeyBank receives federal financial assistance as defined in Title VI, this allegation is premised on Plaintiff's allegation that KeyBank is a member of the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation. (Complaint, ¶ 3.) However, membership in these two corporations, which principally exist to protect borrowers, does not equate to KeyBank being the recipient of federal financial assistance.⁹ Finally, there is no allegation that the loan product Plaintiff applied for was federally funded or part of a federal loan program. For all of these reasons, Plaintiff has failed to state a claim under Title VI. Plaintiff's third cause of action will therefore be dismissed as to KeyBank.¹⁰

9 Pursuant to 45 C.F.R. § 80.13(f), the term "Federal financial assistance" includes:

(1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.

10 This Court notes that Plaintiff appears to concede that she has failed to state a claim under Title VI. See Plaintiff's Memorandum of Law, p. 1-2 ("Plaintiff now believes that under Defendant's analyses [sic], there may arguably be a basis for asserting that there is a failure to state a claim upon which relief can be granted under Title VI."); Boykin Aff., ¶ 1 ("the Complaint may not arguably be valid and timely under Title VI of the Civil Rights Act of 1964"). Indeed, Plaintiff offers no opposition to the dismissal of her Title VI claim.

4. Fourth Cause of Action: Equal Credit Opportunity Act

The fourth cause of action alleges that KeyBank denied Plaintiff's loan application on account of her race, sex and age in violation of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691, et seq. (Complaint, ¶ 30-33.) It also alleges ECOA violations based on a disparate impact theory related to the application of KeyBank's lending policy guidelines. (Complaint, ¶ 13.)

Under the ECOA, it is unlawful for a creditor to discriminate against any applicant, with respect to any credit transaction on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract). See 15 U.S.C. § 1691(a)(1). "The ECOA provides for a private cause of action based on disparate impact or disparate treatment." Powell, 310 F.Supp.2d at 487 (citingJones v. Ford Motor Credit Co., No. 00 CIV. 8330, 2002 WL 88431, at *3 (S.D.N.Y. Jan. 22, 2002), rev'd on other grounds, 358 F.3d 205 (2d Cir. 2004)). Pursuant to 15 U.S.C. § 1691e(f), ECOA violations must be brought not later than 2 years after the date of the occurrence of the violation.

To assert a disparate treatment claim under the ECOA, "a plaintiff must allege that she was a member of a protected class, that she was qualified for the loan that she requested, and that the lender declined the loan and showed a preference for a nonprotected individual." Powell, 310 F.Supp.2d at 487. To allege a disparate impact claim, the plaintiff must allege a specific policy or practice which the defendant used to discriminate and must allege that the policy or practice had an adverse effect on the protected group. See Powell, 310 F.Supp.2d at 487 (citing Jones, 2002 WL 88431, at *3).

Plaintiff's ECOA claims suffer from the same deficiencies as her FHA claims: they are untimely and the disparate treatment claim is insufficiently pled.¹¹ First, Plaintiff's Complaint in this action was filed more than two years after KeyBank denied her loan. Therefore, her ECOA claim is untimely. See 15 U.S.C. § 1691e(f). Second, Plaintiff has failed to allege any facts indicating that KeyBank showed preference for non-protected individuals. Accordingly, Plaintiff's ECOA claim will be dismissed.¹²

11 If timely, Plaintiff's disparate impact claim is sufficiently pled such that it would survive this motion to dismiss. (See Complaint, ¶ 13.)

12 This Court notes that Plaintiff appears to concede that she has failed to state claims under the ECOA. See Plaintiff's Memorandum of Law, p. 1-2 ("Plaintiff now believes that under Defendant's analyses [sic], there may arguably be a basis for asserting that there is a failure to state a claim upon which relief can be granted under . . . the ECOA:); Boykin Aff., ¶ 1 ("the Complaint may not arguably be valid and timely under . . . the Equal Credit Opportunity Act"). Indeed, Plaintiff offers no opposition to the dismissal of her ECOA claims.

C. The NYDHR's Motion to Dismiss and for Summary Judgment

The NYDHR is named as a defendant in Plaintiff's third and fifth causes of action. In the third cause of action, Plaintiff alleges that the NYDHR discriminated against her on account of her race in violation of Title VI by conducting a faulty investigation into her administrative complaint and issuing a deficient "No Probable Cause" determination. (Complaint, ¶ 27.) She further contends that "upon information and belief, Defendant DHR administers its program and processes fair housing complaints based on sex and other protected classes more favorably than those based on race." (Complaint, ¶ 16.)

As previously discussed, a Title VI plaintiff must allege that: (1) the entity involved engaged in racial or national origin discrimination; (2) the entity involved is receiving federal financial aid; and (3) plaintiff was an entitled beneficiary of the program or activity receiving the aid. Babiker, 2000 WL 666342, at * 4.

Without question Plaintiff alleges that the NYDHR failed to properly investigate her administrative complaint. (Complaint, ¶¶ 15, 16.) It is somewhat unclear, however, whether Plaintiff alleges that the NYDHR's failure to properly investigate her case resulted in continuing racial discrimination (by not remedying KeyBank's allegedly discriminatory treatment of her), or whether Plaintiff avers that the NYDHR itself intentionally failed to conduct a proper investigation because she is black. Since the former would not state a claim for racial discrimination against the NYDHR, this Court will construe Plaintiff's Complaint as alleging the latter.

Title VI proscribes only intentional discrimination.Alexander, 532 U.S. at 280-85. It follows that a plaintiff must allege intentional discrimination on the part of the defendant to state a Title VI claim. This Court has already discussed at length the inadequacy of Plaintiff's allegations of race discrimination against KeyBank. The same holds true for Plaintiff's allegations of discrimination against the NYDHR. Nothing in Plaintiff's Complaint can reasonably be construed as a factual allegation supporting a claim of intentional race discrimination by the NYDHR. Plaintiff's claims of direct race discrimination are entirely conclusory. For example, she alleges that the NYDHR's failure to properly investigate her case was "because of her race" and that "upon information and belief" the NYDHR processes complaints based on sex and other protected classes more favorably than those based on race. (Complaint, ¶ 16.) There are no factual allegations whatsoever supporting these two wholly conclusory allegations. Dismissal of this claim is therefore necessary. See Martin, 588 F.2d at 372 (claims based on "naked assertions" fail to state a claim under the Civil Rights Acts); Straker, 333 F.Supp.2d at 99-102 (claims without supporting factual allegations cannot withstand a motion to dismiss).

Construing Plaintiff's Complaint liberally, it appears that she also alleges disparate impact under Title VI. For example, Plaintiff alleges the following:

Defendant DHR discriminated against Plaintiff-Applicant because of her race by utilizing criteria or methods of administration which had the effect of defeating or substantially impairing accomplishment of the objective of its fair housing enforcement program, by conducting a faulty investigation, and by issuing a deficient Determination of No Probable Cause on her complaint, which gave rise to this action, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., and 24 CFR Part I, thereby entitling her to all appropriate relief under that statute.

(Complaint, ¶ 27.)

To the extent Plaintiff alleges a disparate impact claim under Title VI, it must be dismissed because the U.S. Supreme Court has held that Title VI can only be violated by acts of intentional discrimination. See Alexander, 532 U.S. at 280-85 (holding that § 2000d bars only intentional discrimination and therefore does not support a disparate impact theory of recovery); see also Jackson, 228 F.Supp.2d at 162-63 (discussing disparate impact under Title VI). Accordingly, Plaintiff's disparate impact claim is not cognizable under Title VI and must be dismissed.

The NYDHR is also named as a defendant in Plaintiff's fifth cause of action. (Complaint, ¶¶ 35, 37, 38.) Plaintiff alleges that the NYDHR violated the FHA, its accompanying regulations, and the Fourteenth Amendment by violating its "legal duty to comply with certifications to administer and enforce its fair housing law in a manner which provided rights and remedies for processing Plaintiff-Applicant's complaint that were substantially equivalent to those under the Fair Housing Act." (Complaint, ¶ 35.) The NYDHR allegedly violated its duty by failing to conduct a complete investigation of Plaintiff's administrative complaint. (Complaint, ¶¶ 15, 35.)

Plaintiff's claim against the NYDHR must be dismissed because the FHA does not create an express or implied private cause of action against the investigating agency.¹³ See Weisberg v. Leon, No. 96-Civ. 2661, 1999 WL 1216663, at *2 (S.D.N.Y. Dec. 20, 1999) (dismissing plaintiff's FHA claim against HUD because no private right of action exists for a challenge to action HUD took in addressing complaint); Marinoff v. U.S. Dep't of Housing Urban Dev., 892 F.Supp. 493, 496 (S.D.N.Y. 1995), aff'd, 78 F.3d 64 (2d Cir. 1996) (dismissing complaint against HUD for failure to properly investigate claim, because the FHA provides no private right of action); Pleune v. Pierce, 697 F.Supp. 113, 119-20 (E.D.N.Y. 1988) (citing cases); Godwin v. Sec'y of Housing Urban Dev., 356 F.3d 310, 312 (D.C. Cir. 2004) (per curiam).

13 It appears that any challenge to the NYDHR's determination must be brought under § 298 of the New York Executive Law in the state supreme court in the county where the discriminatory practice occurred.

Moreover, Plaintiff's constitutional claims against NYDHR brought pursuant to 42 U.S.C. § 1983 must be dismissed because they are barred by the Eleventh Amendment. The Eleventh Amendment "renders an unconsenting state immune from lawsuits in federal court brought by that state's own citizens or citizens of another state." A.A. v. Bd. of Educ. of the Cent. Islip Union Free Sch. Dist., 196 F.Supp.2d 259, 264 (E.D.N.Y. 2002) (citing Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999); New York City Health Hosp. Corp. v. Perales, 51 F.3d 129, 134 (2d Cir. 1995)). The Eleventh Amendment prohibits "courts from exercising jurisdiction over lawsuits against a state unless [the state] waive[s] sovereign immunity or Congress has expressly and validly abrogated that immunity." A.A., 196 F. Supp. 2d at 264 (citingBd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Tuchman v. Connecticut, 185 F.Supp.2d 169, 172 (D.Conn. 2002)).

Section 1983 provides a cause of action for plaintiffs injured by a "person" acting under color of state law. However, the NYDHR is an agency of New York State and is therefore not a "person" within the meaning of § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (neither the state, its agencies, nor its employees acting in their official capacities are "persons" subject to suit under 42 U.S.C. § 1983). Moreover, it is well established that § 1983 "does not allow a State to be called into Federal Court to answer in damages for the alleged deprivation of a federal right." A.A., 196 F.Supp.2d at 266 (citing Will, 491 U.S. at 65). Such suits are barred by the Eleventh Amendment. Id.;see also Yoonessi v. State Univ. of New York, 862 F. Supp. 1005, 1012 (W.D.N.Y. 1994) ("[I]n the absence of the state's consent to be sued in a federal forum, or congressional authorization to do so, any legal or equitable claims based on alleged constitutional violations brought by private parties against the state or one of its agencies or departments are proscribed by the eleventh amendment.") (citing Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Accordingly, Plaintiff's constitutional claims against the NYDHR will be dismissed.¹⁴

14 In light of this ruling, the NYDHR's Motion for Summary Judgment will be denied as moot.

D. HUD's Motion to Dismiss

HUD is named as a Defendant only in Plaintiff's fifth cause of action. (Complaint, ¶¶ 36-38.) Plaintiff alleges that HUD violated the FHA, its accompanying federal regulations, and the Fifth Amendment by failing to supervise the NYDHR's processing of her complaint according to HUD certifications, regulations, and other contractual terms, and failing to ensure that sufficient evidence and facts supported the "No Probable Cause" determination prior to closing its file on Plaintiff's administrative complaint. (Complaint, ¶¶ 17, 36.) In essence, Plaintiff alleges that HUD failed to adequately supervise the NYDHR's handling of her complaint.

Plaintiff's Complaint against HUD must be dismissed for two reasons. First, Plaintiff's claims for monetary and injunctive relief must be dismissed because the FHA does not create an express or implied private cause of action against HUD.¹⁵ See Weisberg, 1999 WL 1216663, at *2 (dismissing plaintiff's FHA claim against HUD because no private right of action exists for a challenge to action HUD took in addressing complaint);Marinoff, 892 F.Supp. at 496 (dismissing complaint against HUD for failure to properly investigate claim, because the FHA provides no private right of action); Pleune, 697 F.Supp. at 119-20 (citing cases); Godwin, 356 F.3d at 312.

15 Without passing on the merits, this Court notes that the correct avenue for relief for what is pled as Plaintiff's FHA claim appears to be the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. See Pleune, 697 F.Supp. at 120.

Second, HUD cannot be sued for damages under the Fifth Amendment because there has been no waiver of sovereign immunity. "It is, of course `axiomatic' under the principle of sovereign immunity `that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.'" Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)); see also Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); Aces Eights Realty, LLC. v. Hartman, No. 02-CV-6032, 2002 WL 31663515, at *3 (W.D.N.Y. Nov. 4, 2002) ("It is clear that, absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit, and that, sovereign immunity is jurisdictional in nature.") (citingFed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994)) (internal quotations omitted).

The waiver of sovereign immunity must be unequivocally expressed in statutory text, and cannot simply be implied.United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); Adeleke, 355 F.3d at 150. The United States has not waived sovereign immunity for constitutional torts, see Meyer, 50 U.S. at 476-78, and Plaintiff has not otherwise established waiver. See also Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 651 (2d Cir. 1998) (recognizing that Meyer held that an individual cannot bring a constitutional claim for money damages against a federal agency).

Accordingly, Plaintiff's claims against HUD will be dismissed.¹⁶

16 This Court does not find Young v. Pierce, the only case relied upon by Plaintiff, instructive. 544 F.Supp. 1010 (E.D. Tex. 1982). Not only is Young a non-precedential case arising outside of the Second Circuit, but it is not on point. Moreover, this Court views the case law developed since Young's issuance more than two decades ago to be more persuasive.

IV. CONCLUSION

For the foregoing reasons, Defendants' Motions to Dismiss are granted, the NYDHR's Motion for Summary Judgment is denied as moot, and Plaintiff's motion is denied.

V. ORDERS

IT HEREBY IS ORDERED, that KeyBank's Motion to Dismiss (Docket No. 2) is GRANTED.

FURTHER, that Plaintiff's Motion to Deny KeyBank's Motion to Dismiss (Docket No. 11) is DENIED.

FURTHER, that HUD's Motion to Dismiss (Docket No. 15) is GRANTED.

FURTHER, that the NYDHR's Motion to Dismiss and for Summary Judgment (Docket No. 23) is GRANTED in part and DENIED in part. The NYDHR's Motion to Dismiss is GRANTED. The NYDHR's Motion for Summary Judgment is DENIED as moot.

FURTHER, that the Clerk of the Court is directed to close this case.

SO ORDERED.