Thurmond v. Bowman

211 F.Supp.3d 554

Amayla THURMOND, Plaintiff,

v.Margaret BOWMAN & Wilfred Tombs, Defendants.

6:14-CV-06465

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

Signed September 30, 2016

Laurie Marie Lambrix, Rochester, NY, for Plaintiff.

Clinton E. Curtis, Law Offices of Clint Curtis & Ingrid Morfa, Orlando, FL, David D. Benz, Cheney & Blair, LLP, Geneva, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Amayla Thurmond (hereinafter "Plaintiff") commenced this action on August 11, 2014, alleging discrimination in the provision of housing based on her family status and gender, purportedly in violation of the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. §§ 3601 et seq. (hereinafter "FHA") when defendant Wilfred Toombs (hereinafter "Toombs")¹ purportedly refused to show Plaintiff a rental property because she had two minor children. (Dkt. 1). Plaintiff alleges that Toombs manages the property owned by defendant Margaret Bowman (hereinafter "Bowman"). (Id. ¶ 14).

Presently before the Court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that Plaintiff lacks standing. (Dkt. 41). Also before the Court is Plaintiff's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56. (Dkt. 20). For the reasons that follow, Defendants' motion to dismiss is denied. In addition, summary judgment is granted in favor of Plaintiff on the issue of liability for discrimination based on familial status in violation of 42 U.S.C. §§ 3604(a) and (c), and is denied in all other respects.²

PROCEDURAL BACKGROUND

Plaintiff filed her complaint on August 11, 2014. (Dkt. 1). Plaintiff's complaint specifically claims violations of §§ 804(a) and (c) of the FHA, as codified at 42 U.S.C. §§ 3604(a) and (c). (Id. at 5). Plaintiff alleges that she was denied housing due to discrimination based on her familial status, and that she suffered injuries of homelessness, emotional distress, and anxiety as a result of the discrimination. (Id. ¶ 27). In September 2014, each defendant filed an answer to Plaintiff's complaint. (Dkt. 4; Dkt. 5). The case then proceeded to discovery. (Dkt. 11).

On April 17, 2015, Plaintiff filed the pending summary judgment motion. (Dkt. 20). In support of her motion, Plaintiff submitted, inter alia , a Statement of Material Facts Not in Dispute (Dkt. 21) and an affirmation by her attorney, attached to which are documents from an administrative proceeding before the Geneva Human Rights Commission (hereinafter "GHRC") that include sworn statements of the parties (Dkt. 22). Defendants responded in opposition to the summary judgment motion; their submissions included, inter alia, affidavits from Toombs and Bowman. (Dkt. 27–2; Dkt. 27–3).

On June 16, 2016, Defendants moved to dismiss pursuant to Rule 12(b)(1), alleging that Plaintiff lacks standing. (Dkt. 41; Dkt. 65). Plaintiff opposes the motion. (Dkt. 47).

On September 20, 2016, the parties appeared before the undersigned at a motion hearing regarding the motion for summary judgment and motion to dismiss. (Dkt. 112). The Court reserved decision.

FACTUAL BACKGROUND

According to Plaintiff's Statement of Material Facts Not in Dispute,³ Plaintiff is the mother of two minor children. (Dkt. 21 ¶ 1). She sought to rent an apartment at 11 Union Street in Geneva, New York. (Id. ¶ 2). That apartment was owned by Defendant Bowman and managed by Defendant Toombs. (Id. ). When Plaintiff called to inquire about the vacancy at the Union Street apartment, she contends that Defendant Toombs told her that he would not rent to her because of the presence of children in her household. (Id. ¶ 3).

As discussed, Plaintiff's evidence in support of her summary judgment motion consists of documents from a proceeding before the GHRC. (Id. ¶¶ 1-3 (citing (Dkt. 22 at 5-15)). Those documents reveal that in February 2013, Plaintiff filed a charge with the GHRC (hereinafter "GHRC Charge"), alleging the same discrimination at issue in this case. (Dkt. 22 at 6-7). The GHRC Charge is signed and sworn to by Plaintiff (id. at 7), and its allegations are summarized below.

Plaintiff has two minor children. (Id. at 6 ¶ 1). In December 2012, she saw a newspaper advertisement for a vacancy at the Union Street Apartment, which was owned by Bowman and managed locally by Toombs. (Id. at 6 ¶¶ 2-5). She called Toombs and told him that she was responding to the newspaper advertisement. (Id. at 6 ¶ 6). Toombs told Plaintiff the apartment was available, and then the following exchange between Toombs and Plaintiff occurred:

(a) Question: "How many people will be living with you?" [Plaintiff's] response: "Three—myself and my two daughters."

(b) Question: "How old are your daughters?" [Plaintiff's] response: "They are seven (7) and one (1)."

(Id. at 6 ¶ 7). Plaintiff next alleged: "After divulging the ages of my children, the man on the phone abruptly cut me off and said, ‘I will not be able to rent to you because of your two small children. There is a disabled person living in the unit below and children that age will drive [her] nuts.’ " (Id. at 7 ¶ 8).

The Fair Housing Enforcement Project of Legal Assistance of Western New York then conducted two tests on the Union Street Apartment. (Id. at 7 ¶ 10). Toombs did not permit the first tester, posing as a single mother of two minor children, to see the apartment after the tester revealed the ages of her children, stating, inter alia, that "they do not rent upstairs apartments to people that have kids ...." (Id. at 7 ¶¶ 11-13). Toombs permitted a second tester, who posed as a married person with no children, to inspect the unit and told that tester that the apartment was available. (Id. at 7 ¶ 14).

In response to Plaintiff's GHRC Charge, Toombs submitted an unsworn statement. (Dkt. 22 at 9-11). In the statement, he apologized "for any violation of housing laws," although he did not directly admit to violating the law. (Id. at 9 ¶ B). Instead, he expressed his concerns about leasing the property to families with children, describing past incidents in which the apartment's low-situated window and steep stairs were hazardous to children. (Id. at 9-10 ¶¶ E-M). He also stated in this unsworn statement that the tenant in the downstairs apartment is a "handicapped senior citizen" and expressed concern for her "peaceful enjoyment of her apartment." (Id. at 10 ¶ N). He does not indicate whether he refused to lease or to show the apartment to Plaintiff. Instead, in Toombs' unsworn statement, he states as follows: "At the time of our telephone conversation, [Plaintiff] hung up after I spoke of [the tenant] downstairs, but before I got to speak of my worry over the safety of young children in the apartment." (Id. at 10 ¶ P).

Defendants submitted an Answer (hereinafter "GHRC Answer") to Plaintiff's GHRC Charge. (Dkt. 22 at 13-14). The GHRC Answer contained the notarized signatures of both Toombs and Bowman. (Dkt. 22 at 13-14). The GHRC Answer contains the following relevant responses to Plaintiff's GHRC Charge:

• Defendants admit that Toombs asked Plaintiff how many people will live with her, and how old Plaintiff's daughters were, in response to paragraph 7 of the Charge (Dkt. 22 at 6 ¶ 7; Dkt. 22 at 13 ¶ 3).

• Paragraph 8 of Plaintiff's Charge alleged: "After divulging the ages of my children, the man on the phone abruptly cut me off and said, ‘I will not be able to rent to you because of your two small children. There is a disabled person living in the unit below and children that age will drive them nuts.’ " (Dkt. 22 at 7 ¶ 8). Defendants responded: "Admit the allegations of Paragraph 8 ... insofar as it is alleged that the quoted portion, or words substantially to that effect were addressed during the said telephone conversation (and Respondents acknowledge that the words were spoken by Respondent Toombs), and deny knowledge or information sufficient to form a belief as to the truth of the rest of the allegations of Paragraph 8." (Dkt. 22 at 13-14 ¶ 4).

• Defendants also admit that Toombs did not permit a fair housing tester, posing as a single mother with two minor children, to see the apartment after he inquired about the ages of the tester's children. (Dkt. 22 at 7 ¶¶ 11-13; Dkt. 22 at 14 ¶¶ 5-7).

• Defendants also admit that Toombs permitted a second fair housing tester, posing as a married person without children, to see the apartment and told that tester that the apartment was available. (Dkt. 22 at 7 ¶ 14; Dkt. 22 at 14 ¶ 8).

In an affidavit submitted to this Court in opposition to the summary judgment motion, Toombs described the telephone conversation with Plaintiff as follows:

I received a call from [Plaintiff] ... who said she lived at the Woodlands regarding an apartment being rented. This person asked about the apartment that has some concerns regarding children because the stairs are very steep and the window seals are low. We have always rented that apartment to families with children but want to make sure that the renters know any safety issues as well as that a handicapped neighbor lives downstairs that will complain if there is a lot of noise.

It makes it hard to keep tenants in the upstairs apartment. I asked her if she had any children and she said she had two girls. I began to tell her of the safety issues involving children so that she would know what to expect when she came to see the apartment. She never asked to see the apartment and instead hung up on me before I had even told her all the safety concerns. I am a little forgetful in my old age but I am almost certain that she never asked to see the apartment and I never told her she could not see it .

(Dkt. 27–3 (emphasis added)).

Plaintiff has also submitted a copy of a cover letter from attorney Martin E. Eades regarding the GHRC proceedings; in the letter, Eades, on behalf of Bowman and Toombs, sent to the GHRC the verified Answer, along with conciliation election...