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noting that the "basic principle—that in order for an alleged adverse action to constitute unlawful retaliation, the action must have some materially adverse effect on the plaintiff—has been affirmed by numerous courts in a variety of contexts" and collecting cases
Summary of this case from Wilson v. Wilder Balter Partners, Inc.Opinion
No. 99 Civ. 5733 (THK)
April 26, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action under the Fair Housing Act and Fair Housing Amendments Act (collectively, "Fair Housing Act" or "FHA"), 42 U.S.C. § 3601 et seq., and related New York laws, claiming that Defendants, who manage and own the building in which she lives (1) discriminated against her by serving her with notices to cure and to terminate because she had Acquired Immune Deficiency Syndrome ("AIDS"); (2) improperly refused her request for a reasonable accommodation; and (3) retaliated against her for bringing an earlier lawsuit by refusing her accommodation request and by serving her with the notices to cure and to terminate. A jury trial in this action commenced on December 4, 2000. Before the jury began its deliberations, Plaintiff withdrew her claim that Defendants' serving of the notices to cure and to terminate was discriminatory, thereby leaving only the accommodation and retaliation claims in the action. Following a two-day trial, the jury found that Defendants had violated the FHA and related state laws by denying Plaintiff her requested accommodation, and by doing so in retaliation for her prior lawsuit against them. The jury also found, however, that Defendants' serving Plaintiff with notices to cure and to terminate was not retaliatory. The jury awarded Plaintiff $50,000 in compensatory damages and $250,000 in punitive damages.
Now before the Court is Defendants' motion, brought pursuant to Federal Rule of Civil Procedure 50(b), for judgment as a matter of law on the jury's findings of liability as well as its damages awards. For the reasons that follow, Defendants' motion is granted.
BACKGROUND
At the time of trial Plaintiff Phyllis Marks had resided in a rent-controlled apartment at 166 Second Avenue in New York City for approximately thirty-eight years. (Trial Transcript ("Tr.") at 98.) Defendant Lloyd Goldman is the president of and a shareholder in Defendant BLDG Management Company, Inc., which manages the property at 116 Second Avenue. (Id. at 242-43.) Mr. Goldman also has interests in Defendant companies IG Second Generation Partners, L.P., and I BLDG Company, Inc., which have ownership interests in the 116 Second Avenue property. (Id. at 242.) During the thirty eight years in which Plaintiff has lived in Defendants' building, she has had roommates for "practically all" of that time. (Id. at 99.)
In 1986, Plaintiff was diagnosed with AIDS, and, in 1991, was diagnosed with AIDS-related non-Hodgkins lymphoma. (Id. at 98.) Beginning in 1992, Plaintiff began going to Florida during the winter months because the warmer weather was beneficial to her health. (Id. at 99-101, 173-74.) During this time, Plaintiff continued her practice of having a roommate, and the roommate occupied the apartment year-round — that is, regardless of whether Plaintiff was in New York or in Florida.
Defendants have not disputed that Plaintiff's diagnosis of AIDS renders her a disabled person within the meaning of the FHA and related state laws.
In May 1996, Defendants commenced an eviction proceeding against Plaintiff based on her alleged illegal subletting of her apartment. (Id. at 104, 308-09.) In response, Plaintiff filed suit against Defendants in this Court, alleging that the proceedings were brought because of her disability of AIDS, in violation of the FHA and related state laws. In August 1997, a jury found that Defendants did not discriminate against Plaintiff in their attempts to evict her. Subsequently, in October 1997, the parties stipulated to a discontinuance of the state eviction action. (Id. at 109.)
The trial was held before the Honorable Harold Baer, United States District Judge. (Def. Ex. I.)
By a letter dated November 3, 1997, Plaintiff, through her attorney Michael O'Neill, wrote to Bella Sezer, Defendants' managing agent for the 116 Second Avenue property. (Id. at 111, 191; Plaintiff's Exhibit ("Pl. Ex.") 1.) The letter informed Defendants that Plaintiff "suffers from AIDS," and that "for health reasons she prefers to spend the cold months in a warmer climate, Florida." (Pl. Ex. 1.) Mr. O'Neill also stated that Plaintiff was aware that Defendants had "a policy of accommodating the special needs of tenants who have medical conditions which require them to be absent from their apartments." (Id.) Mr. O'Neill further stated:
Pursuant to this policy, and pursuant to the Americans With Disabilities Act, I am requesting that you accommodate the needs of Ms. Marks in the following respects:
• That you permit her to be absent from her apartment, more or less continuously, from the onset of cold weather in New York until the onset of warm weather in Spring, without jeopardizing her leasehold rights; and
• That you permit Ms. Marks to allow a friend or roommate to occupy her apartment while she is not in New York, without jeopardizing her leasehold rights.
(Id.) The letter stated that Plaintiff intended to maintain the apartment at 166 Second Avenue as her primary residence, and that she had no intention of relinquishing or abandoning her leasehold rights in the apartment, or of assigning, subletting, or otherwise granting tenancy rights to any roommate who occupied the apartment in her absence. (Id.) Attached to the correspondence was a letter from Plaintiff's doctor, Robert K. Gale, stating that Plaintiff was under treatment for "AIDS and related conditions"; that "[i]t would be beneficial to Ms. Marks to spend the cold weather in Florida"; and that "any accommodation that can be granted would be beneficial to her health." (Id.)
Defendants, through their attorney Lawrence P. Wolf, denied Plaintiff's request by a letter dated November 12, 1997. (Pl. Ex. 3.) In this letter, Mr. Wolf denied having knowledge of any policy of accommodating the needs of tenants with long-term illnesses requiring them to be absent from their apartments, and stated that the information Plaintiff had provided did not establish that it was necessary for her to spend part of the year in Florida. Mr. Wolf informed Plaintiff that if she intended to have a roommate in the New York apartment while she was in Florida, she would be doing so "at her own risk." Mr. Wolf also wrote,
Without seeming to be callous, the owner wishes to inform you that the owner is not able to ascertain from the letter of Dr. Gayle what Ms. Marks' current condition is. Furthermore, your client has already put my client through an enormous amount of unnecessary expenses based on your frivilous [ sic] claim made in Federal Court which was recently dismissed.
(Id.) After this letter was sent, Plaintiff continued to travel to Florida during the winter months, and to maintain a year-round roommate. (Tr. at 112.)
In May 1999, Defendants served Plaintiff with a notice to cure, which stated that Plaintiff was in violation of the obligations of her rent-controlled tenancy, and ordered her to cure the violation by removing any unauthorized occupant. (Pl. Ex. 5.) The notice to cure was followed by a notice to terminate approximately one month later, which informed Plaintiff that her tenancy would be terminated on July 31, 1999. (Pl. Ex. 4.)
Specifically, the notice alleged that Plaintiff was either subletting her apartment without consent of her landlord, in violation of N.Y. Real Prop. Law § 226(b), or permitting individuals to remain in the apartment when she herself was not occupying the apartment, in violation of N.Y. Real Prop. Law § 235-f. (Pl. Ex. 5.)
Plaintiff commenced the instant action on July 15, 1999. As noted above, at the close of trial Plaintiff withdrew her claim that Defendants had discriminated against her because she had AIDS. Further, the jury rejected the claim that the 1999 issuance of the notices to cure and to terminate were in retaliation for Plaintiff's 1996 lawsuit, which ended in 1997. The jury found, however, that the 1997 denial of Plaintiff's request to allow her roommate to remain in her apartment when she was in Florida violated the FHA, both as a denial of an accommodation of Plaintiff's handicap, and as a retaliation for her previous lawsuit. The jury awarded Plaintiff $50,000 in compensatory damages and $250,000 in punitive damages.
Indeed, there was no evidence adduced at trial that suggested a discriminatory animus against Plaintiff on account of her illness.
DISCUSSION
I. Rule 50(b) Legal Standards
Federal Rule of Civil Procedure 50 provides that a court may render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue . . . ." Fed.R.Civ.P. 50(a)(1). A party seeking judgment as a matter of law must first make its motion before the case is submitted to the jury. See Fed.R.Civ.P. 50(a)(2). If the motion is denied, Rule 50(b) permits the moving party to renew its motion after a verdict is rendered. See Fed.R.Civ.P. 50(b).
In deciding a Rule 50(b) motion, a court is required to "consider the evidence in the light most favorable to the [nonmoving party] and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor." Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001) (quoting Smith v. Lightning Bold Prods., 861 F.2d 363, 367 (2d Cir. 1988) (internal quotation marks omitted)); see also Nat'l Communications Ass'n, Inc. v. ATT Corp., 238 F.3d 124, 127 (2d Cir. 2001). A court may not "assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Tolbert, 242 F.3d at 70 (citation omitted); see also Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998). Thus, although a court should "review all of the evidence in the record," it "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 2110 (2000). "That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id. (citation and internal quotation marks omitted).
A party seeking judgment as a matter of law bears a heavy burden. A court may not grant a Rule 50 motion unless
(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it.Burke v. Spartanics Ltd., 252 F.3d 131, 136 (2d Cir. 2001) (quoting Galdieri-Ambrosini, 136 F.3d at 289 (internal quotation marks and brackets omitted)); see also DiSanto v. McGraw-Hill, Inc., 220 F.3d 61, 64 (2d Cir. 2000); Fowler v. New York Transit Auth., No. 96 Civ. 6796 (JGK), 2001 WL 83228, at *1 (S.D.N.Y. Jan. 31, 2001). In other words, judgment as a matter of law may not be granted unless, "viewed in the light most favorable to the nonmoving party, the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached." Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (citations and internal quotation marks omitted); see also Simms v. Village of Albion, 115 F.3d 1098, 1110 (2d Cir. 1997)
II. Defendants' Motion A. Plaintiff's Failure to Accommodate Claim
The FHA makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling" because of that person's disability. 42 U.S.C. § 3604 (f)(2). Under the FHA, discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Although a defendant may be required to incur "reasonable costs" to accommodate a plaintiff's handicap, he is not required to provide any accommodation that poses an "undue hardship or a substantial burden." Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 300 (2d Cir. 1998) (quoting Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335 (2d Cir. 1995) (internal quotations marks and emphasis omitted)).
Plaintiff's failure to accommodate claim arises out of her attorney's 1997 letter request that Plaintiff be permitted to maintain a roommate in her apartment while she was away. Defendants argue that they are entitled to judgment as a matter of law on this claim for several reasons. As a threshold matter, Defendants assert that Plaintiff's request to leave a roommate in her apartment while she was in Florida did not constitute a request for an "accommodation" within the meaning of the FHA. Defendants claim that because Plaintiff's need for a roommate was in no way related to her disability, but was, admittedly, a way of defraying costs, Defendants' failure to accommodate that need did not violate the FHA. Relying on the Second Circuit's opinion in Salute, Defendants claim that the FHA does not require them to provide Plaintiff with what was essentially an economic accommodation. Defendants further argue that since Plaintiff's request was to be absent from the dwelling, it was by definition not related to her "use and enjoyment" of the apartment. Finally, Defendants claim that granting Plaintiff's request would have posed an undue burden on them, and therefore was not "reasonable," even if it could be deemed an accommodation. Defendants offer a number of reasons why this is so. However, because the Court agrees with Defendants as to the threshold issue — viz., that Plaintiff's request was not an "accommodation" under the FHA — it is unnecessary to elaborate on Defendants' contentions as to its reasonableness.
The Court notes that Defendants have raised this argument for the first time in their post-judgment Rule 50 motion. When Defendants made their motion for judgment as a matter of law at the close of the evidence, the only defects they alleged with any specificity regarding Plaintiff's failure to accommodate claim were: (1) that Plaintiff did not submit sufficient medical proof to establish that the requested accommodation was necessary; and (2) that the evidence established that Defendants did not act unreasonably in denying Plaintiff's request. (Tr. at 363-65.) Defendants gave no indication that they also questioned the legitimacy of Plaintiff's request not as a factual matter, but as a matter of law.
Ordinarily, the failure to raise an argument at trial bars a party from raising that argument in a Rule 50(b) motion. See Mason v. City of New York, 949 F. Supp. 1068, 1073 (S.D.N.Y. 1996) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir. 1993). However, where the nonmoving party fails to object to a Rule 50(b) motion on the grounds of waiver, the objection itself is deemed waived. See Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 1994); Williams v. Runyon, 130 F.3d 568, 572 (3d Cir. 1997) (noting that six circuits have so held); see also 9 James Wm. Moore et al., Moore's Federal Practice § 50.43 [3] [e] (3d ed. 2000).
Here, Plaintiff has not objected to Defendants' motion on the ground that certain arguments were not properly preserved. Moreover, because Defendants' argument is legal, not factual, the Court's present consideration of it for the first time does not trigger the concerns underlying the specificity requirement of Rule 50(b) — namely, that the plaintiff be given the opportunity. to cure any alleged deficiencies in his proof before the case is submitted to the jury. See Lambert, 10 F.3d at 54. Accordingly, the Court will address Defendants' argument on its merits.
It is undisputed that Defendants would have permitted Plaintiff to spend the winters in Florida, provided she did not leave a roommate in the apartment. (Tr. at 248-49.)
Plaintiff argues that Defendants fundamentally misconstrue the nature of her requested accommodation. Plaintiff contends that under New York law, every residential tenant has the right to share her residence with one other person, as long as the tenant maintains the apartment as her primary residence. Thus, according to Plaintiff, her "use and enjoyment of her apartment undeniably included the right, guaranteed by law, to permit another person to occupy the apartment." (Plaintiff's Memorandum of Law in Opposition to Defendants' Post-Trial Motions ("Pl. Mem.") at 7.) Accordingly, Plaintiff asserts that she was not requesting permission to have a roommate, since this was already something guaranteed to her, purportedly by New York Real Property Law § 235-f. Rather, taking it as a given that she would continue to exercise her right to have a year-round roommate, Plaintiff characterizes her request as one for permission to leave her apartment during the cold months of the year. Plaintiff's need for an accommodation resulted from Defendants' internal policy of prohibiting tenants who were absent from their apartments for any appreciable length of time from maintaining roommates during their absence. Because Plaintiff's disability-related need to go to Florida for half the year (while incidentally maintaining a roommate in New York) clashed with Defendant's "Roommate Rule," Plaintiff required a waiver of this policy. Plaintiff thus contends that it is irrelevant whether or not her wish to have a roommate was related to her disability; what matters is whether her disability required her to leave New York during the cold months, and whether a waiver of Defendants' Roommate Rule was necessary for her to have an equal opportunity to use and enjoy the apartment. Plaintiff argues that it was, since without a waiver she would have had to forgo her right to have a roommate, or risk eviction.
New York Real Property Law § 235-f(3) provides, "Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant's spouse occupies the premises as his primary residence."
Plaintiff also claims that the Roommate Rule "[a]rguably" violates state law, and that the accommodation she sought was merely that Defendants follow state law. (Pl. Mem. at 7 n. 2.) This argument is fundamentally flawed: by definition, accommodating an individual's disability entails something more than just following generally applicable law. See United States v. Salvation Army, No. 96 Civ. 2415 (WHP), 1999 WL 756199, at *10 (S.D.N.Y. Sept. 24, 1999) ("[A] reasonable accommodation generally presupposes an otherwise valid policy to which a defendant is asked to make an affirmative change or exception.") As discussed below, if Defendants' policy deprived Plaintiff of rights she enjoyed under New York Real Property Law, she need only have gone to Housing Court to seek relief from that policy. The issue in this case, however, is Defendants' obligations to Plaintiff under the reasonable accommodation provision of the FHA, not under New York housing law.
Whatever its merits in the abstract, Plaintiff's view of what the FHA requires has been rendered untenable by recent Second Circuit precedent, as well as by the weight of other judicial authority interpreting the law. In Salute, the Second Circuit foreclosed the availability under the FHA of accommodations that do not directly address an individual's disability, as opposed to addressing economic or other hardships that may stem from that disability. The plaintiffs in Salute, who were undisputedly disabled within the meaning of the law, received rental subsidies through the Section 8 housing program administered by HUD. See Salute, 136 F.3d at 296. The plaintiffs sought to lease apartments from the defendant, but were turned down because of the defendant's policy of refusing to rent to Section 8 recipients. See id. The Court rejected plaintiffs' argument that because their poverty — and hence, their need for Section 8 vouchers — resulted from their being disabled, the landlord's participation in the Section 8 program should be deemed an "accommodation" within the meaning of the statute. The Court stated, "We think it is fundamental that the law addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps." Id. at 301. Citing cases involving deaf persons' need for a hearing dog, an MS sufferer's need for a parking space, and a deaf person's need for a sign-language interpreter, the Court remarked, "Ordinarily, the duty to make reasonable accommodations is framed by the nature of the particular handicap." Id. (citations omitted).
Landlords' participation in the Section 8 program is voluntary. See id. at 301.
In another example, which provides an instructive contrast to the instant case, the Salute Court noted the frequency of cases involving developers' requests for variances of zoning ordinances to permit the construction of group housing for disabled persons. Summarizing these cases, the Court stated, "[T]he duty to accommodate is shaped by the handicap, such as the need of people with certain handicaps to live together in order to share support personnel and to reinforce each other's efforts in creating and maintaining a home." Id. at 302.
The Court contrasted such disability-related accommodations with the accommodation requested by the plaintiffs in the case before it, who were the victims of "economic discrimination of a kind that is practiced without regard to handicap." Id. In the Court's words:
What stands between these plaintiffs and the apartments at Stratford Greens is a shortage of money, and nothing else. In this respect, impecunious people with disabilities stand on the same footing as everyone else. Thus, the accommodation sought by plaintiffs is not "necessary" to afford handicapped persons "equal opportunity" to use and enjoy a dwelling.Id. (citations and emphasis omitted). In other words, the Court held, the FHA does not require reasonable accommodations for poor people who happen to be disabled whenever a neutral policy has an adverse impact on all poor people. See id.
Other courts have similarly refused to require accommodations aimed at alleviating financial hardships rather than overcoming obstacles particular to disability. See Hemisphere Bldg. Co. v. Village of Richton Park, 171 F.3d 437, 439-40 (7th Cir. 1999) (refusing to require village to waive neutral zoning ordinance to accommodate "the interest of handicapped people in being able to obtain housing suitable for their special needs at the lowest possible price"); Brandt v. Village of Chebanse, 82 F.3d 172, 174 (7th Cir. 1996) (FHA does not "require municipalities to eliminate rules that increase the expense of housing for all persons equally"); Means v. Dayton, 111 F. Supp.2d 969, 978 (S.D. Ohio 2000) (granting summary judgment where plaintiff argued only that zoning requirement caused group home to incur expenses, and presented no evidence that waiver of such requirement was necessary for residents' use and enjoyment of home); Schanz v. Village Apartments, 998 F. Supp. 784, 792 (E.D. Mich. 1998) (holding that FHA does not require landlord to accept financial guarantor agreement on behalf of disabled plaintiff unable to meet landlord's credit and income requirements; "[plaintiff's] handicap is not preventing him from renting an apartment") (emphasis added); cf. United States v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1381 (9th Cir. 1997) (holding that no reasonable jury could find for plaintiff where plaintiff did not show that waiver of parking fees for home healthcare provider was necessary to afford plaintiff an equal opportunity to use and enjoy her dwelling).
In art earlier opinion in same case, the Ninth Circuit had rejected the argument that under no circumstances could a defendant be required to waive generally applicable fees. See United States v. California Mobile Rome Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994). The later opinion, issued after trial, found that the plaintiff had not proved an essential element of her case, namely, that the defendant's generally applicable parking fees did in fact cause a denial of her use and enjoyment of her housing. See, California Mobile Home II, 107 F.3d at 1381.
These "economic accommodation" cases, including Salute, stand for the more general proposition that an accommodation is not "necessary" to afford a disabled person access to equal housing opportunity when the accommodation sought does not directly ameliorate an effect of the disability. In other words, the FHA does not require defendants to waive generally applicable policies when such policies negatively affect disabled individuals for reasons unrelated to their disability. Numerous cases in addition to those already cited have affirmed this basic principle. See, e.g., Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 604 (4th Cir. 1997); Bronk v. Ineichen, 54 F.3d 425, 428-29 (7th Cir. 1995); Advocacy and Res. Ctr. v. Town of Chazy, 62 F. Supp.2d 686, 689-90 (N.D.N.Y. 1999); United States v. Salvation Army, No. 96 Civ. 2415 (WHP), 1999 WL 756199, at *10 (S.D.N.Y. Sept. 24, 1999); Anonymous v. Goddard Riverside Cmty. Ctr., Inc., No. 96 Civ. 9198 (SAS), 1997 WL 475165, at *3 (S.D.N.Y. July 18, 1997); Gavin v. Spring Ridge Conservancy, Inc., 934 F. Supp. 685, 688 (D. Md. 1995)
Plaintiff's request to leave a roommate in her apartment during her stays in Florida runs directly counter to this precept. Plaintiff presented no evidence that having a roommate while she was away (or even while she was not) was necessary in any way to assist her in dealing with her AIDS-related medical condition, or even that it mitigated in any way the difficulties associated with her illness. Plaintiff offered no evidence that having a roommate was necessary, for example, to assist in her medical care, or "to reinforce [her] efforts in creating and maintaining a home." Salute at 302. Plaintiff's testimony about the benefits of having a roommate concerned almost exclusively the roommate's financial contributions. (Tr. at 103-04, 131.) Simply put, Plaintiff's request for a roommate had nothing to do with her sickness and, from all that appears, everything to do with her pocketbook; under Salute, Defendants cannot be required to accommodate the latter.
In any event, Plaintiff never even claimed that without a roommate she could not afford to go to Florida or would be forced to relinquish her New York apartment.
The only other reason Plaintiff offered (albeit in passing) for having a roommate was that having someone else in the apartment had, in the past, provided companionship. (Tr. at 103.) However, Plaintiff presented no evidence as to how this purpose could be served while she was in Florida. Even more significantly, she offered no evidence linking the need for companionship to anything having to do with her illness. The absence of such evidence is fatal to her claim.
Plaintiff attempts to circumvent the requirement that the accommodation address the disability by claiming that the accommodation she sought was simply permission to spend time in Florida. Plaintiff asserts that she was not requesting the right to have a roommate, because, she claims, she already had that right under New York law. Thus, Plaintiff argues, she had no obligation to demonstrate a connection between having a roommate and accommodating her AIDS disability. Under Plaintiff's view, the question for the jury was not whether or not she needed a roommate because of her AIDS, but whether her AIDS required her to avoid cold weather. Because Plaintiff put forth sufficient evidence that it did — which Defendants neither contradicted nor impeached at trial — Plaintiff asserts that this Court must accept the jury's implicit finding that the accommodation she sought was necessary.
Plaintiff's arguments are unpersuasive. Despite Plaintiff's efforts to characterize her request as simply entailing her traveling to Florida during the cold months, the plain, uncontroverted, unavoidable fact is that Plaintiff also requested to leave a roommate in the apartment in her absence. It was this request, and not a mere request to spend time out of New York, that Defendants failed to accommodate. The Court agrees with Plaintiff that whether or not Plaintiff's disability required her to spend winters in Florida was a question for the jury, and that Plaintiff presented sufficient evidence on this issue for the jury to find in her favor on this score. However, the question before the Court is whether or not the jury could also have reasonably found that Plaintiff's disability required her to leave a roommate in her New York apartment. Indeed, this would be a different case had Plaintiff simply been denied the opportunity to travel to Florida, without having requested to leave a roommate in New York. In such a case, the denial of Plaintiff's request to temporarily vacate her apartment to travel to Florida for medical reasons would have harmed her for reasons particular to her disability — that is, by depriving someone with AIDS of the benefits of warm weather. In this case, however, the Roommate Rule harmed Plaintiff in the same way it did everyone else — by making it more expensive to leave the apartment for half the year by disallowing stay-behind roommates to defray costs. Plaintiff thus stood on the same footing as a healthy tenant who liked to spend winters in Florida playing golf. Both enjoyed an equal opportunity to make the trip; neither had a disability-related need to leave someone in his or her New York apartment. Accommodating Plaintiff's request to waive the Roommate Rule would thus have done more than simply afford her an equal opportunity to use and enjoy her apartment, it would have granted her a special subsidy unavailable to nondisabled tenants. This the law does not require. Because Plaintiff has failed to show how her accommodation request addressed a hardship created by her disability, her claim must fail as a matter of law.
The parties hotly contest whether Defendants' denial of Plaintiff's request violated New York law. As noted, however, the merits of this dispute are irrelevant to the issue before this Court, which is what the Fair Housing Act, not New York property law, requires. Whether or not Defendants' refusal of Plaintiff's request for a roommate deprived her of a right she enjoyed under New York law, the proper forum for Plaintiff to vindicate any such right was New York state court. Indeed, the statute under which Plaintiff claimed the right to a roommate expressly provides a cause of action for injunctive relief and damages for violations of its provisions. See N.Y. Real Prop. Law § 235-f(9).
Defendants have not contested Plaintiff's asserted rationale for going to Florida (Def. Reply at 13), and, as noted, did not oppose the simple fact of her spending long periods of time in Florida. Thus, no issue concerning the medical necessity of her trips is before the Court. It is worth noting, however, that the evidence on this score was equivocal at best. Apart from Plaintiff's own testimony concerning her doctors' advice, the only evidence concerning her alleged "need" to travel to Florida was a note from one of her doctors stating that "[i]t would be beneficial to Ms. Marks to spend the cold weather [ sic] in Florida." (Pl. Ex. 2.)
B. Plaintiff's retaliation Claim
The jury also found that Defendants' denial of Plaintiff's requested accommodation constituted unlawful retaliation against Plaintiff for having brought her prior FHA lawsuit against them. Defendants argue that they are entitled to judgment as a matter of law on Plaintiff's retaliation claim on several grounds. First, Defendants argue that because their refusal to grant Plaintiff's request for a roommate while she was in Florida did not deny Plaintiff any right to which she was entitled, Plaintiff's retaliation claim based on the same conduct must fail as a matter of law. Second, Defendants argue that Plaintiff failed to meet the plain-language statutory requirement of 42 U.S.C. § 3617, because there is no evidence that Defendants "coerce[d], intimidate[d], threaten[ed], or interfere[d]" with Plaintiff's use and enjoyment of her apartment. Finally, Defendants argue that the evidence was insufficient to establish a causal connection between Defendants' denial of Plaintiff's accommodation request and Plaintiff's prior lawsuit.
The FHA renders it unlawful to "coerce, intimidate, threaten, or interfere with any person . . . on account of his having exercised or enjoyed . . . any right granted or protected" under the FHA. 42 U.S.C. § 3617; see also 24 C.F.R. § 100.400(c)(5) (§ 3617 prohibits, inter alia, "[r]etaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act"). To prevail on a claim of retaliation under the FHA, a plaintiff is required to prove that (1) she engaged in activity protected under the FHA; (2) defendants were aware of that activity; (3) defendants subsequently subjected her to an adverse action; and (4) there was a causal connection between this adverse action and her protected activity. See Broome v. Biondi, 17 P. Supp. 2d 211, 218-19 (S.D.N.Y. 1997); San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998); see also Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (discussing the elements of an ADA retaliation claim); Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994) (Rehabilitation Act); Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) (Title VII),cited in Biondi, 17 F. Supp. 2d at 219.
Defendants claim that since they were not legally required to grant Plaintiff's roommate accommodation request under 42 U.S.C. § 3617, their denial cannot subject them to liability for retaliation under 42 U.S.C. § 3617, as a matter of law. Defendants argue, quoting the Seventh Circuit, that "where the conduct that allegedly violated section 3617 is the same conduct that allegedly violated section 3604(a) and was engaged in by the same party, the validity of the section 3617 claim depends upon whether the [conduct] violated section 3604(a)."South-Suburban Housing Ctr. v. Greater S. Suburban Bd. of Realtors, 935 F.2d 868, 886 (7th Cir. 1991) (citation and internal quotation marks omitted); see also Gavin, 934 F. Supp. at 685 ("[T]he lack of any merit in plaintiff's principal claim [alleging failure to accommodate] bars a § 3617 claim based on the same charge of discrimination.") (also cited by Defendants). A Second Circuit case, not cited by Defendants, similarly rejected a § 3617 claim of "interference" that was based on the same conduct that had been found not to violate § 3604(a). See Frazier v. Rominger, 27 F.3d 828, 834 (2d Cir. 1994). In Frazier, the plaintiff's claimed that defendants had refused to rent to them on account of race, in violation of § 3604(a), as well as on account of one of the plaintiff's having questioned the landlord as to his potential racial bias, allegedly in violation of § 3617. The Court ruled that because asking the landlord about his potential racial motivation was not a "right granted or protected by section 3603, 3604, 3605, or 3606," the landlord's act of "interference" allegedly prompted by the questioning was not actionable under § 3617. See id. at 834. The Court noted that without viable allegations concerning the predicate exercise of a protected right, there could be no cause of action under § 3617 for "interference" with such a right. Without such a predicate, the plaintiffs' claim of "interference" under § 3617, which was based solely on the denial of rental housing, was duplicative of their claim for discriminatory denial of housing under § 3604(a). In such a case, the Court stated, the plaintiff's sole remedy is under § 3604(a). See id.
However, neither the Frazier case, nor those cited by Defendants, presented the scenario here. That is, none of those cases involved a claim of retaliation based on the plaintiff's having engaged in indisputably protected activity. In Frazier, the Court rejected the plaintiffs' allegation that they engaged in such activity, see id. at 834; inSouth-Suburban Housing and Gavin, the plaintiffs did not even make such an allegation, see South-Suburban Housing, 935 F.2d at 868; Gavin, 934 F. Supp. at 687. Thus, none of the cases addressed whether an action that does not violate § 3604 nonetheless may, if taken in retaliation for exercising a right granted under the substantive provisions of the FHA, violate § 3617. Put another way, the conduct complained of by Plaintiff under § 3617 is not really the "same conduct" complained of under § 3604(f), inasmuch as the former involves additional facts that support an inference of retaliatory animus.
This conclusion is consistent with the opinions of numerous courts, including several in this Circuit, that have found that a meritorious claim under § 3604 is not a prerequisite to a retaliation claim under § 3617. See, e.g., Ohana v. 180 Prospect Place Realty Corp., 996 F. Supp. 238, 242 (E.D.N.Y. 1998) (so concluding after thorough review of statutory language of FHA and interpretative caselaw); Puglisi v. Underhill Park Taxpayer Ass'n, 947 F. Supp. 673, 696 (S.D.N.Y. 1996);New York ex rel. Abrams v. Merlino, 694 F. Supp. 1101, 1103-04 (S.D.N.Y. 1988); Stackhouse v. DeSitter, 620 F. Supp. 208, 210 (N.D. Ill. 1985). This Court agrees that. "reading § 3617 as dependent on a violation of the enumerated sections would render § 3617 superfluous."Stackhouse, 620 F. Supp. at 210, quoted in Ohana, 996 F. Supp. at 242. Indeed, such a reading would lead to precisely the result condemned by the Second Circuit in Frazier: rendering § 3617 and § 3604 duplicative of each other.
Here, Defendants have not disputed that Plaintiff's filing of a lawsuit under the FHA constitutes "protected activity." See 24 C.F.R. § 100.400(c)(5) (§ 3617 forbids retaliation because party has "made a complaint . . . under the Fair Housing Act") Thus, the record contains a sufficient predicate upon which Plaintiff's retaliation claim may be based, a fact that distinguishes this case from those discussed above in which no such predicate was established. Accordingly, this Court finds that the fact that Plaintiff failed to establish a violation of her right, under § 3604, to reasonable accommodation of her disability, does not immunize Defendants from liability under § 3617.
Nor, obviously, do Defendants deny knowledge of that lawsuit, given that they were the defendants in that case too.
The Court therefore must determine whether a reasonable jury could have found in Plaintiff's favor with respect to the remaining elements of her retaliation claim. Specifically, the Court must decide whether the jury reasonably could have found that Defendants' denial of Plaintiff's request constituted an "adverse action," and, if so, whether it reasonably could have found a causal connection between such adverse action and the filing of Plaintiff's lawsuit.
As for the latter, Plaintiff adduced sufficient evidence at trial to support a jury's finding a causal connection between the lawsuit and the denial of her request for a roommate. There is no way around the fact that Mr. Wolf's November 12, 1997 letter denying Plaintiff's request, despite offering other reasons for the denial, states, "Furthermore, your client has already put my client through an enormous amount of unnecessary expenses based upon your frivilous [ sic] claim made in Federal Court which was recently dismissed." (Pl. Ex. 3.) This letter was written just months after the termination of Plaintiff's lawsuit. Moreover, Mr. Goldman agreed that one of the reasons Mr. Wolf denied Plaintiff's request was the expenses incurred by Defendants as a result of the litigation. (Tr. at 252-53.) Though at trial Defendants offered legitimate business reasons for the denial, the conflicting evidence in the record entitled the jury to reject those explanations and find that Defendants acted for improper reasons.
Similarly, Defendants plausibly argue that if they intended to retaliate against Plaintiff for her lawsuit, which they won, they could have sought costs against her, and they could have continued their eviction proceedings against her in state court, which the jury in the federal lawsuit had found not to be discriminatory. Defendants did neither. Nevertheless, it is not the Court's province in this context to weigh the evidence or to substitute its views for the findings of the jury on whether Defendants acted with a retaliatory motive.
The more difficult question is whether Defendants "acted adversely" at all. The FHA does not prohibit retaliatory motives, without more; rather, the aggrieved party must show that she suffered an adverse action based on such motives. Under the terms of § 3617, the retaliatory adverse action must "coerce, intimidate, threaten, or interfere with" the party. 42 U.S.C. § 3617; see Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001). Though many of the reported cases under § 3617 involve allegations of force or violence, see, e.g., Bryant v. Polston, No. IP 00-1064-C-T/G, 2000 WL 1670938, at *3 (S.D. Ind. 2000) (collecting cases), such a showing is not necessary to prove a violation, see Walker, 272 F.3d at 1128. The plain language of the statute supports this application, as do numerous cases upholding claims based on wide-ranging conduct in opposition to protected activity. See e.g., Walker, 272 F.3d at 1126 (failure to renew contract of nonprofit agency); Biondi, 17 F. Supp. 2d at 218 (denial of plaintiff tenant's application to sublet her apartment, issuance of notice of default, and filing of lawsuits against plaintiff); Potomac Group Home Corp. v. Montgomery County, 823 F. Supp. 1285 (D. Md. 1993) (surprise inspection, program review, and orders to correct deficiencies). As discussed, conduct not proscribed by § 3604 may still violate § 3617. In addition, the Ninth Circuit has held that even an otherwise voluntary decision, such as whether to renew a contract, may run afoul of § 3617 if made because of retaliatory motives. See Walker, 272 F.3d at 1126 (quoting, inter alia, Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283, 97 S. Ct. 568 (1977) ("Even though he could have been discharged for no reason whatever, . . . he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made [for retaliatory reasons.]"))
On the other hand, other courts have recognized limits to what conduct § 3617 properly forbids. See, e.g., Michigan Prot. and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 348 (6th Cir. 1994) (rejecting claim of "interference" based on defendants' engaging in economic competition with plaintiffs); Sporn v. Ocean Colony Condo. Ass'n, 173 F. Supp.2d 244, 252 (D.N.J. 2001) (holding that "shunning," even if in response to HUD complaints, did not rise to the level of conduct prohibited by § 3617); United States v. Weisz, 914 F. Supp. 1050, 1054-55 (S.D.N.Y. 1996) (dismissing claim based on neighbors' offensive behavior where complained-of conduct did not permit inference of discriminatory or retaliatory animus). As one court has put it, the complained-of conduct must "in some way or another implicate the concerns expressed by Congress in the FHA." Weisz, 914 F. Supp. at 1054.
In this case, there was sufficient evidence to support a jury finding that Defendants had an internal policy of permitting tenants with long-term illnesses to leave another person in the apartment while the prime tenant was away, as long as certain conditions were met. Defendants' assertions that this policy applied only to rent-stabilized tenants, and not rent-controlled tenants such as Plaintiff, were not supported by consistent evidence at trial. It is undisputed that in 1995, Ms. Sezer informed Plaintiff that Defendants had a policy, for tenants with long-term illnesses, to consider their requests to be away from their apartments for extended periods of time, while leaving a roommate in the apartment. Ms. Sezer testified, "We would ask them to have a letter sent from their doctor and depending on the contents of it and a review with our attorney we would enter into an agreement and we would allow another person to remain on the premises while the tenant is away." (Tr. at 196-97.) In response to Defendants' counsel's questioning, Ms. Sezer stated that although she was not aware of this in 1995, the policy she discussed with Plaintiff at that time applied only to rentstabilized, and not to rent-controlled, tenants. (Id. at 199-200.) However, upon further questioning by Plaintiff's counsel, Ms. Sezer testified that the policy did not differentiate between rent-controlled and rent-stabilized tenants, but pertained to all tenants who were ill. (Id. at 212, 217-18.) Ms. Sezer also testified that the accommodation Plaintiff was requesting was "exactly what the policy provides." (Id. at 217-18.) In addition to Ms. Sezer's testimony, Mr. Wolf testified that there was no statutory requirement that a rent-controlled tenant had to be physically occupying her apartment during the entire time that a roommate was present in the apartment. (Id. at 346-47.) Based on the foregoing, a reasonable juror could have concluded that Defendants had a policy that would have permitted them to accommodate Plaintiff's request.
Ms. Sezer testified as follows:
Q: So she [Plaintiff] only asked for what you said the company had a policy of doing, correct?
A: Correct.
Q: And we just cleared up that the policy has nothing to do with rent-stabilized or rent-controlled tenants; it just has to do with sick tenants, right?
A: Right.
(Tr. at 212.)
Q: Now you testified that you had one policy that deals with subleasing, right?
A: Right.
Q: And that you have another policy that deals with sick tenants, ill tenants; correct?
A: It basically applies to both. Stabilized tenants are allowed to sublet.
Q: Okay. But you also testified that the company has a policy for tenants who are ill.
A: Right.
Q: Rent-stabilized, rent-controlled, it doesn't matter; correct?
A: Correct.
(Id. at 217.)
Furthermore, this Court disagrees with Defendants that a landlord's refusal, for retaliatory reasons, to provide a tenant with a voluntary benefit regularly provided to other tenants can never constitute an "adverse action" in violation of § 3617. In certain circumstances, the denial of such benefits might well discourage tenants from exercising their rights under the FHA, the very evil § 3617 is designed to prevent. See Walker, 272 F.3d at 1128 (holding that defendant's exercise of right not to renew contract could constitute retaliation if "designed to coerce and intimidate [Plaintiff] into changing or ceasing" its protected advocacy).
Nevertheless, the Court agrees with Defendants that, no such evil has occurred in this case, as Plaintiff has shown no injury whatsoever as a result of Defendants' retaliatory refusal of her request. Indeed, Plaintiff presented no evidence that she was even aware of the refusal. Mr. Wolf's November 12, 1997 denial of Plaintiff's request (made by Mr. O'Neill, her attorney, by letter dated November 3, 1997) was sent to Mr. O'Neill. Plaintiff testified that she did not remember seeing Mr. Wolf's letter, or even being told by Mr. O'Neill that her request was denied. (Tr. at 131, 152-53.) Moreover, Plaintiff offered no evidence of any negative impact that the letter had on her. On the contrary, Plaintiff testified that after the letter was sent, she went to Florida for the winter that year, as well as the winter of the following year, leaving a roommate in the apartment during each period. (Tr. at 112.) Thus, the Court finds no evidence in the record of an adverse action of "sufficient magnitude to permit a finding of intimidation, coercion, threats or interference." Sporn, 173 F. Supp. 2d at 252. After Mr. Wolf's November 1997 letter was sent to Mr. O'Neill, Defendants took no other potentially "adverse action" against Plaintiff until 1999, when, under different circumstances from those existing in 1997, they served her with notices to cure and to terminate — notices the jury found not to be retaliatory.
In light of this record, the Court must conclude that Plaintiff has failed to establish an essential element of a claim of retaliation, as she has not shown that she was actually the victim of any injurious action. See Biondi, 17 F. Supp. 2d at 218 — 19 (§ 3617 retaliation claim requires showing of "adverse action"); San Pedro, 159 F.3d at 477 (§ 3617 retaliation claim must include element that plaintiff "suffered some resulting damage"). This basic principle — that in order for an alleged adverse action to constitute unlawful retaliation, the action must have some materially adverse effect on the plaintiff — has been affirmed by numerous courts in a variety of contexts. See, e.g., Weeks v. New York Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001) (no adverse action to support Title VII retaliation claim where the plaintiff did not describe the alleged action's "effect or ramifications, [or] how or why the effect would be serious"); Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (holding that employer's isolated request that employee drop EEOC complaint was not unlawful retaliation under Title VII because plaintiff refused request, and did not suffer any negative consequences as a result of such refusal); Ali v. Szabo, 81 F. Supp.2d 447, 467 (S.D.N Y 2000) (dismissing prisoner's retaliation claim where prisoner did not allege any injury as a result of defendant's action); Mishk v. DeStefano, 5 F. Supp.2d 194, 202 (S.D.N.Y. 1998) (dismissing First Amendment retaliation claim against employer for lack of evidence of any negative impact of alleged retaliatory transfer); Fluent v. Salamanca Indian Lease Auth., 847 F. Supp. 1046, 1056 (W.D.N.Y. 1994) ("[T]here has been no harm resulting from the alleged retaliation. In the absence of any injury, there can be no claim."); cf.Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir. 2001) (holding that employee who was not even aware of sexual harassment of coworkers while it was ongoing, failed to show that such harassment caused her to suffer hostile work environment).
Moreover, the record does not show, or even suggest, that the denial had any chilling effect on Plaintiff's willingness to assert her rights under the FHA. Indeed, Plaintiff's filing of the instant suit, raising substantially similar claims as her previous case, indicates just the opposite. Under the circumstances, the Court takes guidance from First Amendment caselaw holding that a plaintiff's claim of retaliation must fail where there is no showing that the alleged violation had any actual effect on him. "Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech." Curley v. Village of Suffern, 268 F.3d 65, 75 (2d Cir. 2001); see also Spear v. Town of W. Hartford, 954 F.2d 63, 67 (2d Cir. 1992) (dismissing claim where plaintiff continued writing critical editorials just as he had before the alleged retaliatory action against him). InDavis v. Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978), in which the plaintiff alleged that the defendants attempted to evict her in retaliation for her protest activities, the Second Circuit stated: "Insofar as Davis' cause of action is based not upon an actual loss of her apartment, but upon a chill of her First Amendment rights, she must prove that she was actually chilled in the exercise of her rights. If she was not, then she may not recover on this basis." Id. at 464.
The lesson for the instant case is clear. Plaintiff neither suffered actual interference with her use and enjoyment of her apartment, nor was she "actually chilled" in the exercise of her rights under the Fair Housing Act. In these circumstances, no reasonable jury could find that Plaintiff suffered an adverse action in retaliation for having engaged in protected activity. Given the a complete lack of evidence supporting the verdict, this Court must conclude that "the jury's findings could only have been the result of sheer surmise and conjecture." Burke, 252 F.3d at 136. Accordingly, the verdict must be reversed.
The Court's conclusion is bolstered by, but not dependent on, the fact that Plaintiff did not present any evidence of damages flowing from the denial of her accommodation request. Plaintiff's only evidence of actual damages was her brief testimony concerning the emotional distress she suffered after receiving the 1999 notices to cure and to terminate. (Tr. at 122-23.) Plaintiff tacitly concedes that she suffered no harm from the 1997 letter, but argues that the damages she incurred after the 1999 notices were the direct and proximate result of the 1997 letter, because "had [Defendants] granted [P]laintiff's request for an accommodation they would not have issued the 1999 eviction notices." (Pl. Mem. at 21.) This is wholly unconvincing. It seems clear that whatever injury may have occurred as the result of the 1999 notices cannot be legally attributed to the 1997 letter. Not only did the jury expressly find the 1999 notices not to violate Plaintiff's rights, but there is nothing in the record to suggest any direct causal link between the denial of Plaintiff's 1997 request and the Defendants' issuance, eighteen months later, of the notices — which, moreover, address distinct issues. Given such a complete absence of evidence, the $50,000 awarded to Plaintiff was clearly unwarranted — as any award of compensatory damages would have been.
However, given the Court's decision on liability, the issue of damages is moot. Plaintiff cannot even establish entitlement to nominal damages, otherwise available under the FHA where the plaintiff shows a violation but no compensable harm, see LeBlancSteinberg v. Fletcher, 67 F.3d 412, 431 (2d Cir. 1995), as here there has been no violation. See Diesel v. Town of Lewisboro, 232 F.3d 92, 109 (2d Cir. 2000) ("Absent liability, damages — nominal, compensatory or punitive — are unavailable."); Monsky v. Moraghan, 47 F. Supp.2d 280, 284-85 n. 3 (D. Conn. 1999) (distinguishing unlawful retaliation that results in nocompensable injury, entitling plaintiff to nominal damages, from conduct motivated by retaliation that results in no injury at all, requiring dismissal of claim).
CONCLUSION
For the foregoing reasons, Defendants' motion for judgment as a matter of law on Plaintiff's failure to accommodate claim and Plaintiff's retaliation claim is hereby granted. The Clerk of the Court shall be directed to enter Judgment in favor of Defendants.