Opinion
01-CV-6259 CJS(F)
March 7, 2002
Monroe County Legal Assistance Corporation, Laurie M. Lambrix, of Counsel, Rochester, NY, for the plaintiff.
Peter J. Weishaar, Esq., McConville, Considine, Cooman Morin, PC, Rochester, NY, for defendant Schuler.
During oral argument, plaintiff's counsel informed the Court that she had successfully served Mr. O'Connell in jail, that he has defaulted, and that she would be seeking entry of a default from the Clerk.
DECISION and ORDER
On May 22, 2001, plaintiff, who is African-American, filed this action on her own behalf, and on behalf of her two minor children, alleging racial discrimination on the part of defendants because they refused to rent a house to her.
Plaintiff raises three causes of action. The first alleges that by engaging in the discriminatory conduct she described, both defendants intentionally violated the Fair Housing Act, Title VIII of the 1968 Civil Rights Act by refusing to rent to plaintiff because she is black, and by setting different terms and conditions in the application process based upon the fact that she is black. In her second cause of action, plaintiff alleges that by engaging in the discriminatory conduct she described, both defendants deprived her, an African-American, of the same rights enjoyed by a white person to make and enforce a contract, specifically, a lease for real property. She states by so doing, defendants acted intentionally and maliciously to damage her rights and her childrens' rights in violation of 42 U.S. Code § 1981. Finally, in her third cause of action, plaintiff states that by engaging in discriminatory conduct she described, defendants deprived her, an African-American, of the same rights enjoyed by white citizens to lease and hold real property on the basis of her race. She states that in so doing, defendants acted intentionally and maliciously to damage her rights and those of her children, in violation of 42 U.S. Code § 1982.
The case is now before the Court on defendant David Schuler's ("Schuler") motion to dismiss filed on September 28, 2001. During oral argument, the Court indicated to plaintiff that it would give her two weeks to file an amended complaint as to her claims under 42 U.S. Code §§ 1981 and 1982, before ruling on Schuler's motion. Plaintiff did so on January 3, 2002, within the time set by the Court. After considering the Amended Complaint, the papers filed in support of and in opposition to the application, and the oral argument of counsel, the Court denies Schuler's motion.
FACTUAL BACKGROUND
Plaintiff's Amended Complaint alleges that she is a 31 year old African-American woman and the mother of two minor children. She alleges that she is employed full time as the head custodian at the DeWitt Road School in Webster, New York. She states in her Amended Complaint that on or about March 13, 2001, she saw a "for rent" sign in front of a single family home at 739 DeWitt Road. She further states that she was excited to find a potential residence across the street from her place of employment, and called the telephone number listed on the sign that same day. According to plaintiff's Amended Complaint, an answering machine answered her call and she left a phone message concerning the rental, as well as her telephone number. Over the next several days, she alleges she called several more times and left other messages.
On March 16, 2001, plaintiff maintains that she left a message at the number listed on the "for rent" sign, indicating that she was interested in the house, that she wanted to be informed about when the house was being shown, and that she had a security deposit to put down. Schuler, whom plaintiff alleges was a real estate agent employed by defendant James O'Connell, returned plaintiff's call. Plaintiff called him back and informed him that she wanted to see the house. Amended Complaint at ¶ 15. Schuler agreed to meet her there as soon as possible. Plaintiff alleges that, in response, she and her sister drove to the residence and that Schuler arrived shortly thereafter.
Plaintiff states in her Amended Complaint that Schuler introduced himself to plaintiff by name, and that plaintiff, "felt that Mr. Schuler was uncomfortable when he observed her appearance." Amended Complaint at ¶ 16. Schuler explained his agency relationship with the owner of the house, then showed the residence to plaintiff and her sister. Schuler stated that no one was living in the house.
Plaintiff alleges that after viewing the house, she told Schuler that she liked it and wanted to rent it. Schuler, she alleges, responded that if she wanted to rent the house, she would have to put down a $500.00 deposit that day. Plaintiff agreed, and she and Schuler drove to plaintiff's bank, after which plaintiff gave him $500.00 in cash, receiving a "Rental Deposit Receipt" in exchange. Plaintiff also alleges that Schuler wrote on this form that she did not use or sell drugs, and then had her sign his copy of the Rental Deposit Receipt. Plaintiff also filled out a one page application, providing information about the name and phone number of her current landlord, three personal references, her date of birth, her social security number, and her place of employment. Plaintiff alleges that she understood from Schuler that he would check her references and credit history, and then he would call her back in "a couple of days." Amended Complaint at ¶ 29.
Plaintiff alleges that she volunteered to Schuler that she had "made late rent payments to her current landlord a couple of times, but that other than that, there had been no problems." Amended Complaint at ¶ 30. According to plaintiff, Schuler informed her that a home visit to her current residence would be required as part of the screening process. Plaintiff states that although she was surprised at this requirement, she told Schuler that a home visit would be fine.
Plaintiff further indicates in her Amended Complaint, that several days passed without word from Schuler, and that, with the passing of each day she became increasingly concerned. She also states that, while going back and forth to work, she observed that the "for rent" sign was still posted in the yard of the house. Plaintiff alleges that she began calling Schuler at different times of the day in an attempt to reach him. Each time, she states, she got his answering machine, and left a message asking him to call her, however, she maintains that Schuler did not return her calls.
On March 24, 2001, eight days after she had toured the house, plaintiff was on her way to work and observed that the "for rent" sign had been taken. Two days later, plaintiff observed the van of a carpet cleaning service in the driveway of the house and then saw a man drive up in a car and stop at the house. Plaintiff walked up to this man and introduced herself. The man, whom plaintiff alleges was defendant James P. O'Connell, stated to plaintiff that she must be the woman who worked across the street and had two children. Plaintiff states that O'Connell told her that he was the owner of the house, and that it had been rented to a young divorced woman with one child. O'Connell further indicated that this woman had given Schuler a deposit and one month's rent. Plaintiff informed O'Connell that she had given Schuler a $500.00 cash deposit on the house, and he told her to take the matter up with Schuler.
Plaintiff alleges that she then immediately called Schuler and left a message, advising him that she knew the house had been rented and demanded he return her call right away. She states that several hours passed with no response from him. She called him again and left a message stating that if he did not return her call immediately, she would call the police. Thereafter, Schuler returned her call. Plaintiff alleges Schuler said he would meet her at her place of employment between 9:00 a.m. and 11:00 a.m. the following day to return her $500.00 deposit. Plaintiff also says that Schuler told her that he had tried to get through to her current landlord, Housing Opportunities, and had been unable to get in touch with them. Schuler then related, according to plaintiff' Amended Complaint, that the landlord (presumably O'Connell) had been wary about a prospective tenant with some history of late rent payments. Plaintiff alleges that he also stated, that he had been unable to speak with anyone at Housing Opportunities, and that he had not processed her application any further.
On the next day, March 27, 2001, Schuler failed to keep his appointment with plaintiff. Plaintiff called him again and left a message stating that if he did not appear by 3:00 p.m. at her place of employment with her money, she would call the police. At 3:00 p.m., Schuler arrived at plaintiff's job site, and again repeated to her that he had been unable to speak with plaintiff's current landlord, and therefore had not proceeded with her application. She states he also repeated that the owner of the house did not want to take a chance on a tenant who had some late payments of rent.
Plaintiff alleges in the Amended Complaint that in fact, Schuler never even called Housing Opportunities, and also that he failed to contact any of the references listed on her application. She also states, upon information and belief, that defendants rented the house to a white tenant. Amended Complaint at ¶ 50. Plaintiff then states, "Schuler and O'Connell refused to rent the house at 739 DeWitt [R]oad to Ms. Diaz [plaintiff] because she is black." Amended Complaint at ¶ 51.
Plaintiff seeks a declaratory judgment that defendants are in violation of the sections of law referred to above. She also seeks an order that defendants take appropriate affirmative action to ensure the activities complained of are not engaged in again by them or any of their agents; she seeks to permanently enjoin defendants, their agents, employees, and successors, from discriminating on the basis of race; appropriate punitive and compensatory damages; and, costs pursuant to 42 U.S. Code §§ 3613(c)(2) and 1988.
ANALYSIS
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b), the Court must deny the motion unless "it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cruz v. Gomez, 202 F.2d 593, 596-97 (2d Cir. 2000). "An action, especially under the Civil Rights Act should not be dismissed at the pleadings stage unless it appears to a certainty that the plaintiff's are entitled to no relief under any state of the facts, which could be proved in support of their claims." Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970) (citations omitted).
Further, when considering the sufficiency of a complaint on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court "must accept all factual allegations in the complaint as true. . . ." Cruz v. Chach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000). Furthermore, the Court must view the evidence in the light most favorable to the non-moving party, according that party according the non-moving party every inference which may be drawn from the facts presented. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).
Schuler contends that plaintiff has failed to allege that she was treated differently than similarly situated non-minorities, and has not alleged that she was qualified to rent the property at issue. He states that the complaint, in fact, establishes precisely that plaintiff was not qualified to rent the property by virtue of her statement that she had "made late rent payments to her current landlord a couple of times. . . ." Complaint at ¶ 30; Amended complaint at ¶ 30. In his reply memorandum of law, at 7, Schuler goes further and argues that plaintiff's Amended Complaint should be dismissed because his defense appears on its face.
Since the Amended Complaint was filed after oral argument, defendant's papers refer to the original complaint; however, the Amended Complaint is virtually identical, with the exception of an allegation that, upon information and belief, defendants rented the house to a white tenant. Amended Complaint at ¶ 50. Thus, the Court considered all of defendants' arguments against the original complaint as made against the Amended Complaint.
Fair Housing Act Cause of Action
In order to state a cause of action under the Fair Housing act, 42 U.S. Code § 3604, plaintiff must show only that the action complained of had a racially discriminatory effect; she is not required to show that Schuler acted with a racially discriminatory motivation. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979). Thus, the elements of a Fair Housing Act claim are:
(1) that the plaintiff is [a member of a minority];
(2) that [she] applied for and was qualified to rent . . . the housing;
(3) that [she] was rejected; and
(4) that the housing opportunity remained available.
Id. at 1038. The Court finds that for the purposes of surviving a motion to dismiss, plaintiff alleged facts sufficient to meet her burden.
Schuler urges the Court to apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), criteria applicable to a summary judgment motion, to his motion to dismiss. However, he fails to reconcile the evidentiary proof necessary under that test with the clear direction to the Court that, when deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court is constrained to review only the information contained within the complaint, which the Court must view in the light most favorable to plaintiff. See LaBounty, 933 F.2d at 123. Relying on Reyes v. Bronx-Lebanon Hosp. Ctr., 2000 WL 377511, *3, 2000 U.S. Dist. LEXIS 4654, *8 (S.D.N.Y., No. 99 Civ. 4534 (JSM), Apr. 13, 2000), Schuler contents that the pleading requirements in an employment discrimination case are more stringent in this circuit are more stringent than in others. That case discussed the amount of detail needed in a complaint to sustain a cause of action under 42 U.S. Code § 1981. Id. While the case is instructive on the § 1981 and § 1982 claims, it does not take into account the different requirements of a claim under the Fair Housing Act. Moreover, the Supreme Court recently repudiated the Second Circuit's heightened pleading standards with regard to employment discrimination cases, and held that "an employment discrimination complaint . . . must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., ___ U.S. ___, ___, 2002 U.S. LEXIS 1374, *4-5 (No. 00-1853, Feb. 26, 2002) (quoting FED. R. CIV. P. 8(a)(2)). The Supreme Court's decision affirms the basic pleading requirements of Federal Rule of Civil Procedure 8 and is consistent with the Eighth Circuit's holding in Ring v. First Interstate Mortgage, Inc., 984 F.2d 927, 926 (8th Cir. 1993), a case on which plaintiff relies in arguing against the position urged by Schuler. The Court agrees with plaintiff. Clearly, the Supreme Court's ruling means that the Court can not apply the McDonnell Douglas framework to plaintiff's Amended Complaint when analyzing defendant's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss.
Sections 1981 and 1982 Causes of Action
Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens. . . ." Section 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." To sufficiently plead a cause of action under 42 U.S. Code § 1981, plaintiff must allege facts in support of the following elements:
Section 1 of the 1866 Act and Section 16 of the 1870 Act were later combined and codified in Section 1977 of the Revised Statutes of 1874 and ultimately recodified in 42 U.S. Code § 1981. The "property clause" of Section 1, which applied only to "citizens" and was not included in Section 16, was codified in Section 1978 of the Revised Statutes of 1874 and ultimately became 42 U.S. Code § 1982. Anderson v. Conboy, 156 F.3d 167, 172 (2d Cir. 1998) (citations omitted).
Claims under § 1982 "must make clear that the alleged mistreatment was a function of racial animus and intentional discrimination." Burgin v. Toys-R-Us-NYTEX, Inc., 1999 WL 454302, *4 (W.D.N.Y. Jun. 30, 1999) citing Jones v. United States, 392 U.S. 409, 436 (1968).
(1) the plaintiff is a member of a racial minority;
(2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute.
Mian v. Donaldson, Lufkin Jenrette Securities, 7 F.3d 1085, 1087 (2d Cir. 1993). If the complaint fails this test, then the Court should give plaintiff the opportunity to amend the complaint "in light of the policy to liberally construe civil rights complaints. . . ." Id. at 1087 (citation omitted).
Plaintiff's original complaint before the Court failed to allege facts sufficient to show that Schuler intended to discriminate on the basis of race. Rather, the complaint showed a plausible non-discriminatory reason for refusing to accept her rental application. Plaintiff was, therefore, granted leave to amend her complaint to comply with the pleading requirements set forth above. See Mian, 7 F.3d at 1087. This she did, and added information from which the Court can find an inference of racial discrimination. More specifically, plaintiff alleged in the Amended Complaint that the tenant to whom the house was rented is white. When combined with the other allegations in her Amended Complaint, the Court finds plaintiff has sufficiently pleaded causes of action under the Fair Housing Act (Title VII of the 1968 Civil Rights Act), and 42 U.S. Code §§ 1981 and 1982.
CONCLUSION
Based on the foregoing, the Court denies defendant Schuler's motion to dismiss the Amended Complaint.
As previously stated, though defendant Schuler's motion addressed only the original complaint, the Court considered his arguments as made against the Amended Complaint, too.