Rodriguez v. Village Green Realty, Inc., No. 13-4792 (2d Cir. 2015)
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Plaintiffs, parents of minor child A.R., filed suit against a real estate agency and its agent for disability discrimination under the Fair Housing Act (FHA), 42 U.S.C. 3601 et seq. Plaintiffs alleged that defendants made housing unavailable on the basis of disability; provided different terms, conditions, and privileges of rental housing on the basis of disability; expressed a preference on the basis of disability; and misrepresented the availability of rental housing on the basis of disability. The district court granted summary judgment to defendants. The court held, however, that the district court erred because there was sufficient evidence presented that A.R. qualifies as disabled under the FHA; the FHA’s prohibition against statements that “indicate[ ] any preference, limitation, or discrimination based on . . . handicap,” pursuant to section 3604(c), may be violated even if the subject of those statements does not qualify as disabled under the FHA; and the “ordinary listener” standard is not applicable to claims under section 3604(d) for misrepresenting the availability of housing. Accordingly, the court vacated and remanded.
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13 4792 cv Rodriguez v. Village Green Realty, Inc. 1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 6 August Term, 2014 No. 13 4792 cv 7 8 9 10 HEIDI RODRIGUEZ, individually and as parent and natural guardian of the minor child, A.R., and JUAN RODRIGUEZ, individually and as parent and natural guardian of the minor child, A.R., Plaintiffs Appellants, 11 v. 12 13 14 15 VILLAGE GREEN REALTY, INC., d/b/a Coldwell Banker Village Green Realty, and BLANCA APONTE, Defendants Appellees. 16 17 18 19 20 21 22 23 24 Appeal from the United States District Court for the Northern District of New York. No. 11 cv 1068 Thomas J. McAvoy, Judge. ARGUED: SEPTEMBER 12, 2014 DECIDED: JUNE 2, 2015 The Clerk of the Court is directed to amend the official caption to conform to the above. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Before: LIVINGSTON and DRONEY, Circuit Judges, and NATHAN, District Judge. Heidi and Juan Rodriguez, parents of minor child A.R., brought suit for disability discrimination under the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), against Village Green Realty, Inc., a real estate agency, and Blanca Aponte, its agent. The United States District Court for the Northern District of New York (McAvoy, J.) granted summary judgment for the defendants. We hold that the district court erred because there was sufficient evidence presented that A.R. qualifies as disabled under the FHA. We also hold that the FHA’s prohibition against statements that “indicate[ ] any preference, limitation, or discrimination based on . . . handicap,” 42 U.S.C. § 3604(c), may be violated even if the subject of those statements does not qualify as disabled under the FHA. Finally, we hold that the “ordinary listener” standard is not applicable to claims under 42 U.S.C. § 3604(d) for misrepresenting the availability of housing. Accordingly, we VACATE the judgment of the United States District Court for the Northern District of New York and REMAND. SASHA M. SAMBERG CHAMPION (Michael G. Allen and Timothy M. Smyth, on the brief), Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiffs Appellants. The Honorable Alison J. Nathan, of the Southern District of New York, sitting by designation. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ARI I. BAUER (Paul S. Ernenwein, on the brief), Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY, for Defendants Appellees. Cathy A. Simon and Thomas H. Prouty, Troutman Sanders LLP, Washington, DC; Megan K. Whyte de Vasquez, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Washington, DC, for the Epilepsy Foundation, Autism National Committee, the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities, National Council on Independent Living, Judge David L. Bazelon Center for Mental Health Law, the Disability Rights Education & Defense Fund, National Disability Rights Network, and AARP as amici curiae in support of Plaintiffs Appellants. DRONEY, Circuit Judge: 19 Plaintiffs Appellants Heidi and Juan Rodriguez, parents of 20 minor child A.R., brought suit for disability discrimination under 21 the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), against 22 Defendants Appellees Village Green Realty, Inc., a real estate 23 agency, and Blanca Aponte, its agent. The plaintiffs allege, inter alia, 24 that the defendants (1) made housing unavailable on the basis of 25 disability in violation of 42 U.S.C. § 3604(f)(1); (2) provided different 3 1 terms, conditions, and privileges of rental housing on the basis of 2 disability in violation of 42 U.S.C. § 3604(f)(2); (3) expressed a 3 preference on the basis of disability in violation of 42 U.S.C. § 4 3604(c); and (4) misrepresented the availability of rental housing on 5 the basis of disability in violation of 42 U.S.C. § 3604(d). The United 6 States District Court for the Northern District of New York 7 (McAvoy, J.) granted summary judgment for the defendants on 8 these claims. This appeal followed. 9 We hold that the district court erred because there was 10 sufficient evidence presented that A.R. qualifies as disabled under 11 the FHA. We also hold that the FHA’s prohibition against 12 statements that “indicate[ ] any preference, limitation, or 13 discrimination based on . . . handicap,” 42 U.S.C. § 3604(c), may be 14 violated even if the subject of those statements does not qualify as 15 disabled under the FHA. Finally, we hold that the “ordinary 16 listener” standard is not applicable to claims under 42 U.S.C. § 4 1 3604(d) for misrepresenting the availability of housing. Accordingly, 2 we VACATE the judgment of the district court and REMAND. 3 4 BACKGROUND I. Factual Background 5 Plaintiffs Heidi and Juan Rodriguez are the parents of minor 6 child A.R.1 who has Autism Spectrum Disorder and epilepsy. This 7 suit under the Fair Housing Act arose from text messages about A.R. 8 sent to Heidi Rodriguez by defendant Blanca Aponte, a real estate 9 agent. 10 The Rodriguez family had rented a single family home on a 11 month to month basis for two years on property located in 12 Saugerties, New York. The property was owned by Donnie Morelli 13 and included two single family homes and twenty eight acres. Some 14 time in 2010, the property was listed for sale with defendant real The parties have referred to the minor child by her initials since the initiation of this lawsuit. We will continue to do the same. Heidi and Juan Rodriguez are proceeding in this action individually and also as the parents and guardians of A.R. on her behalf. 1 5 1 estate agency Village Green Realty, Inc. Defendant Aponte served as 2 the listing agent. 3 On January 20, 2011, Aponte left a letter at the Rodriguez 4 home informing them of Morelli’s intention to sell the property to 5 Mansour Farhandian. The letter stated that Farhandian would be 6 willing to continue to rent to the Rodriguez family, but under certain 7 modified terms, including an increased rent, and asked the 8 Rodriguezes to inform Aponte whether they agreed to the new 9 terms. If not, the letter stated, they would have to vacate the 10 premises by March 15, 2011. The Rodriguezes did not immediately 11 inform Aponte as to whether they accepted the new terms. 12 On January 23, 2011, Morelli entered into a purchase 13 agreement with Farhandian; the agreement anticipated a closing in 14 early March. In order to facilitate the anticipated sale, Aponte 15 continued to try to contact the Rodriguezes to determine whether 16 they intended to accept the new lease terms. She texted Ms. 6 1 Rodriguez on January 25 and February 4 inquiring about a response 2 to the letter, but Ms. Rodriguez did not respond. 3 On February 6, 2011, A.R. suffered two grand mal seizures.2 4 Ms. Rodriguez called Morelli from the hospital to inform him about 5 the seizures and tell him that it was “not the time” for her and Mr. 6 Rodriguez to be negotiating with Aponte. J.A. 146. The next day, 7 Aponte texted Ms. Rodriguez:3 “Hi Please respond to my notices! If 8 you have an attorney please have them get in touch w me,” J.A. 230, 9 to which Ms. Rodriguez replied: “Please call Donnie [Morelli] for an 10 update.” Id. Aponte wrote back: “Will do.” Id.4 11 This began the exchange of text messages from February 7 to 12 23 that are the principal subject of this action. On February 7, 13 Aponte wrote to Ms. Rodriguez that she had “[j]ust spoke[n] w[ith] 2 A grand mal seizure is described later in the text. Excerpts from the text messages between Aponte and Ms. Rodriguez quote the actual language of the messages, including typographical errors, except where otherwise indicated. 4 During this period, Ms. Rodriguez was communicating directly with Morelli about A.R.’s condition. 3 7 1 Donnie [Morelli]” and that, “[w]hile [they were] both sympathetic to 2 [Ms. Rodriguez’s] situation,” Morelli was selling the property and 3 Aponte would “be proceeding with legal action to remove you from 4 [the] premises.” Id. After several exchanges regarding scheduling a 5 time for Aponte to inspect the Rodriguezes’ home, Ms. Rodriguez 6 stated, 7 8 9 10 11 12 13 14 15 We are not leaving. Where do you want us to go with a sick child? . . . Why do you keep on harassing and insisting that we move? . . . When you were told of my daughter being sick we weren t asking for free rent or anything of the sort. Just to be understood and left alone to deal with her medical issues without being bothered by you asking us to leave our home. 16 J.A. 231. Aponte replied that she had “not asked you to leave” but 17 that she had received no response from the Rodriguezes about the 18 new owner’s rental terms. Id. In reply, Ms. Rodriguez complained 19 about the “poorly maintained icy road” near the home and 20 questioned how vehicles could get up the road “[o]r better yet an 21 ambulance for my daughter if needed.” Id. Aponte responded, 8 1 2 3 4 5 6 7 8 9 10 This has nothing to do with what we were just speaking about[.] Fact is that if I can get up and down emergency vehicles should be able to as well. This has been an unusually cold and snow filled Winter. So maybe you should consider relocating to a better and more easily accessible Location. Id. 11 A few days later, on February 16, Ms. Rodriguez sent a text 12 message to Aponte stating that she needed to reschedule the 13 inspection because A.R. had suffered the second seizure and needed 14 to return to the hospital for testing. J.A. 232. This led to the following 15 exchange: 16 17 18 19 20 21 22 23 24 [Aponte (February 16, 7:42 p.m.):] Just spoke w my lawyer for management company.. We will accept your rescheduling appointment for Friday if you provide verification of medical appointment for your daughter. The prospective new owner is very concerned about continuing your lease with you Childs medical situation and will probably 9 1 2 3 4 5 6 not want to rent to you.5 I think we need to let you know that we will not be renting to you! Please plan on rel Please make plans to relocate. We will give you Until end of March. Respond to me. . Not to mr Morelli Blanca 7 8 [Ms. Rodriguez (February 16, 8:16 p.m.):] What are you talking about? 9 10 11 12 13 14 15 16 17 [Aponte (February 16, 8:42 p.m.):] Exactly what I said. You have cancelled our appointment because of issues with your daughter s illness. We want verification of your appointment.. That being said. . . The new owner has decided not to continue to rent to you because your daughter should be in a more convenient location to medical treatment 18 19 20 21 22 [Ms. Rodriguez (February 16, 9:04 p.m.):] You spoke to the new owner that fast and he made a decision not to rent to us because my daughter has seizures? Or is this you decision? 23 I am confused. 24 25 [Aponte (February 17, 7:11 a.m.):] The new owner is concerned by your statement that Aponte admitted that she never communicated with the prospective buyer, Farhandian, concerning A.R’s medical condition and that she fabricated this and the following statements that purported to represent Farhandian’s view of A.R.’s conditions. 5 10 1 2 3 4 5 6 7 8 9 emergency vehicles cannot reach you should your daughter be at risk. Also concerned about you not making place readily available for inspection and thinks I should have a key that is the right of a landlord and his representative. For me, I only have your statement that your daughter us sick Do u have verification? J.A. 232 33. 10 On February 23, Aponte reiterated that the new owner was 11 concerned about renting to the Rodriguezes because of Ms. 12 Rodriguez’s statement that the home was not “readily accessible to 13 emergency vehicles,” which Aponte stated was a “major concern as 14 to liability.” J.A. 234 35. She further stated, “I think that your 15 tenancy is over. Will verify after speaking to both Donnie [Morelli] 16 and buyer.” J.A. 235. 17 In addition to learning of A.R.’s medical problems from the 18 text messages from Ms. Rodriguez, Aponte obtained information 19 around the same time about A.R. from the Rodriguezes’ neighbor, 20 Tammy Drost. Drost, who lived in the second house on the property 11 1 that was being sold, was a special education aide at A.R.’s 2 elementary school, and A.R.’s “personal assistant” at the school. 3 Drost had frequent contact with Aponte and told Aponte that A.R. 4 was autistic, may be epileptic and was placed in a special class at 5 school. Ms. Rodriguez testified at her deposition that she believed 6 that Morelli, who was also aware of A.R.’s diagnoses, seizures, and 7 special educational services, had also told Aponte this information. 8 Although the sale between Morelli and Farhandian was not 9 completed, Plaintiffs began looking for new housing in late January 10 or early February of 2011, when it became “very apparent that [they] 11 were not wanted,” and they moved to another home in September of 12 that year. J.A. 196. In the interim, the Rodriguezes complied with 13 Aponte’s request for higher rent beginning in March. 14 II. Proceedings in District Court 15 In September 2011, plaintiffs filed this action, alleging that the 16 defendants had violated the Fair Housing Act, 42 U.S.C. § 3601 et 12 1 seq. (“FHA”). In their amended complaint, the plaintiffs claimed that 2 the real estate agency and Aponte had (1) made housing unavailable 3 on the basis of disability in violation of 42 U.S.C. § 3604(f)(1); (2) 4 provided different terms, conditions, and privileges of rental 5 housing on the basis of disability in violation of 42 U.S.C. § 6 3604(f)(2); (3) expressed a preference on the basis of disability in 7 violation of 42 U.S.C. § 3604(c); and (4) misrepresented the 8 availability of rental housing on the basis of disability in violation of 9 42 U.S.C. § 3604(d).6 10 The plaintiffs and defendants cross moved for summary 11 judgment.7 On October 10, 2013, the district court granted 12 defendants’ motion with respect to the claims at issue here, holding 13 that the plaintiffs had not come forward with sufficient admissible Plaintiffs also brought a claim under 42 U.S.C. § 3617, which has been voluntarily dismissed and is not at issue in this appeal. 7 The plaintiffs sought only partial summary judgment. The district court granted that motion solely on the question of whether Village Green Realty was vicariously liable for Aponte’s actions, which is not at issue in this appeal. The plaintiffs’ motion was denied in all other respects. 6 13 1 evidence to allow a reasonable factfinder to conclude that A.R. was 2 disabled as defined by the FHA.8 Rodriguez v. Vill. Green Realty, Inc., 3 No. 1:11 cv 1068, 2013 WL 5592703, at *9 10 (N.D.N.Y. Oct. 10, 2013) 4 (“Rodriguez I”). The plaintiffs moved for reconsideration of the 5 district court’s dismissal of their claims under 42 U.S.C. § 3604(c) 6 and (d), arguing that for those claims it is irrelevant whether A.R. is 7 disabled, because these FHA provisions apply to any person 8 aggrieved by a statement indicating a preference or discrimination 9 based on handicap or a misrepresentation of availability because of 10 handicap. Although the district court agreed upon reconsideration 11 that subsections (c) and (d) apply more broadly than subsection (f) The FHA uses the term “handicap” rather than “disability.” See 42 U.S.C. §§ 3602(h), 3604. The FHA definition of “handicap,” though, historically was virtually identical to the definition of “disability” in the Americans with Disabilities Act of 1990 (“ADA”), Pub. L. No. 101 336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq. (2008)), and disability scholars tend to prefer the term “disability.” We will therefore treat the two terms interchangeably and use “disability” in this opinion. See Bhogaita v. Altamonte Heights Condo. Ass n, Inc., 765 F.3d 1277, 1285 n.2 (11th Cir. 2014) (using the terms interchangeably for similar reasons); see also Robert G. Schwemm, Housing Discrimination Law and Litigation § 11D:1 n.* (database updated 2014) (discussing the near identity of the statutory definitions under the FHA and ADA). 8 14 1 as to standing to bring a claim, the court still dismissed these claims, 2 finding that there was insufficient evidence that Aponte’s statements 3 about A.R. indicated a preference, limitation or discrimination based 4 on handicap, or that a dwelling was not available because of 5 handicap. Rodriguez v. Vill. Green Realty, Inc., No. 1:11 cv 1068, 2013 6 WL 6058577, at *3 (N.D.N.Y. Nov. 15, 2013) (“Rodriguez II”). 7 8 This appeal followed. DISCUSSION 9 Plaintiffs contend that the district court erred in dismissing 10 their claims on the basis of lack of disability. Plaintiffs assert that 11 A.R. meets the FHA’s definition of disabled because her epilepsy 12 and autism substantially limit her ability to learn. See 42 U.S.C. § 13 3602(h)(1); 24 C.F.R. § 100.201. They also argue, in the alternative, 14 that regardless of whether A.R. is actually disabled under the Act, 15 Aponte “regarded” her as having an impairment that substantially 16 limited her in a major life activity. See 42 U.S.C. § 3602(h)(3); 24 15 1 C.F.R. § 100.201. Finally, the plaintiffs argue that the district court 2 erroneously concluded that an ordinary listener could not have 3 interpreted Aponte’s statements as reflecting disability based 4 discrimination. 5 I. Standard of Review 6 This Court reviews the district court s grant of summary 7 judgment de novo. Reg l Econ. Cmty. Action Program, Inc. v. City of 8 Middletown, 294 F.3d 35, 45 (2d Cir. 2002) (“RECAP”), superseded by 9 statute on other grounds, ADA Amendments Act of 2008, Pub. L. No. 10 110 325, 122 Stat. 3553 (“ADAAA”). Summary judgment is required 11 where “the movant shows that there is no genuine dispute as to any 12 material fact and the movant is entitled to judgment as a matter of 13 law.” Fed. R. Civ. P. 56(a). “In assessing the record to determine 14 whether there is a genuine issue to be tried as to any material fact, 15 the court is required to resolve all ambiguities and draw all 16 permissible factual inferences in favor of the party against whom 16 1 summary judgment is sought.”9 Stone v. City of Mount Vernon, 118 2 F.3d 92, 99 (2d Cir. 1997). A fact is “material” for these purposes if it 3 “might affect the outcome of the suit under the governing law.” 4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of 5 fact is “genuine” if “the evidence is such that a reasonable jury could 6 return a verdict for the nonmoving party.” Id. 7 II. Statutory Framework 8 This appeal requires us to address the 1988 Amendments to 9 the FHA, which extended the Fair Housing Act’s protections against 10 housing discrimination to disabled individuals. See Fair Housing 11 Amendments Act of 1988, Pub. L. No. 100 430, 102 Stat. 1619 12 (codified at 42 U.S.C. § 3601 et seq.). We are guided by our decisions 13 interpreting similar language that appeared in the Americans with We note that the 2010 amendments to the Federal Rules of Civil Procedure replaced “issue” with “dispute” because “‘[d]ispute’ better reflects the focus of a summary judgment determination.” See Fed. R. Civ. 56(a) advisory committee’s note to 2010 amendment. 9 17 1 Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., prior to the 2 ADA’s amendment in 2008. 10 3 A. Definition of “Handicapped” 4 The FHA makes it unlawful “[t]o discriminate in the sale or 5 rental, or to otherwise make unavailable or deny, a dwelling to any 6 buyer or renter because of a handicap” or “[t]o discriminate against 7 any person in the terms, conditions, or privileges of sale or rental of 8 a dwelling, or in the provision of services or facilities in connection 9 with such dwelling, because of a handicap.” 42 U.S.C. § 3604(f). The 10 Act also forbids the representation “to any person because of . . . 11 handicap . . . that any dwelling is not available for inspection, sale, 12 or rental when such dwelling is in fact so available.” Id. § 3604(d). Until 2008, the ADA definition of “disability” was virtually identical to the FHA definition of “handicap,” and so the Court’s interpretation of the ADA was frequently applied to the FHA. Compare 42 U.S.C. § 3602(h), with the ADA, § 3, 104 Stat. at 329 30. Congress amended the ADA, including its definition of “disability,” in 2008. See ADAAA, § 4, 122 Stat. at 3555 57. The FHA, however, was not similarly amended and so our FHA interpretation is still guided by pre ADAAA cases. See Bhogaita, 765 F.3d at 1288 (holding that the FHA should still be interpreted in line with the preamendment ADA). 10 18 1 Both provisions prohibit action taken “because of . . . handicap,” 2 and, as such, require that plaintiffs show the existence of a disability 3 within the meaning of the FHA in order to state a claim under these 4 subsections.11 5 To demonstrate a disability under the FHA, a plaintiff must 6 show: (1) “a physical or mental impairment which substantially 7 limits one or more . . . major life activities”; (2) “a record of having 8 such an impairment”; or (3) that he or she is “regarded as having 9 such an impairment.” 42 U.S.C. § 3602(h); see RECAP, 294 F.3d at 46. 10 Prongs 1 and 3, which we will refer to as the “actually disabled” test We evaluate claims that a defendant discriminated “because of” a disability under the burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff must first establish a prima facie case of housing discrimination by showing, among other things, that a relevant person is a member of a protected class – in this case, that the plaintiffs’ child is disabled. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). Once the plaintiff establishes “a prima facie case of discrimination, the burden shifts to the defendant to assert a legitimate, nondiscriminatory rationale for the challenged decision. If the defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate that discrimination was the real reason for the defendant’s action.” Id. (citation omitted). 11 19 1 and the “regarded as” test, respectively, are the two definitions 2 relevant here. 3 B. 4 Subsection 3604(c) of the FHA prohibits “mak[ing], print[ing], 5 or publish[ing], or caus[ing] to be made, printed, or published any 6 notice, statement, or advertisement, with respect to the sale or rental 7 of a dwelling that indicates any preference, limitation, or 8 discrimination based on . . . handicap . . . , or an intention to make 9 any such preference, limitation, or discrimination.” 42 U.S.C. § 10 3604(c). This Court has interpreted this provision in the context of 11 racial discrimination to mean that “a plaintiff could bring an action 12 . . . if the defendant’s [statements] ‘suggest[ed] to an ordinary reader 13 that a particular race [was] preferred or dispreferred for the housing 14 in question,’ regardless of the defendant’s intent.” Ragin v. Harry 15 Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (“Ragin II”) 16 (third and fourth alterations in original) (emphasis added) (quoting 17 Ragin v. N.Y. Times Co., 923 F.2d 995, 999 (2d Cir. 1991) (“Ragin I”)). Subsection 3604(c) 20 1 III. Whether A.R. is Disabled 2 The plaintiffs argue that A.R. is disabled under the FHA 3 because her impairments substantially limit the major life activity of 4 learning or, in the alternative, because Aponte treated A.R.’s 5 impairments as if they substantially limited a major life activity.12 6 We hold that the district court erred in granting summary judgment 7 to defendants on the ground that A.R. did not have a disability The defendants, on appeal, challenge the plaintiffs’ standing to bring this suit. Although the plaintiffs contend this issue is not properly before the Court due to the defendants’ lack of cross appeal, standing is necessary to our jurisdiction. RECAP, 294 F.3d at 46 n.2. That said, the plaintiffs’ allegation that Aponte forced them to leave their home because of their daughter’s disability and the emotional harm they suffered as a result of Aponte’s statements concerning A.R. are sufficient to satisfy the “injury in fact” requirement. See Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 184 85 (2d Cir. 2001); see also LeBlanc Sternberg v. Fletcher, 67 F.3d 412, 424 25 (2d Cir. 1995) (“The FHA confers standing to challenge such discriminatory practices on any ‘aggrieved person,’ 42 U.S.C. § 3613(a)(1)(A). . . . This definition requires only that a private plaintiff allege ‘injury in fact’ within the meaning of Article III of the Constitution, that is, that he allege ‘distinct and palpable injuries that are “fairly traceable” to [defendants’] actions.’ An injury need not be economic or tangible in order to confer standing.” (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 375–76 (1982))); cf. Ragin II, 6 F.3d at 904 (holding that plaintiffs “confronted by advertisements indicating a preference based on race” had standing to raise a claim under section 3604(c) of the FHA). Defendants also argue that the plaintiffs lack standing because A.R. is not disabled within the meaning of the FHA and therefore the plaintiffs’ injuries do not bear a sufficient nexus to discrimination based on disability; we need not reach this argument, though, because – as will be discussed – we find that the plaintiffs have raised a genuine dispute as to whether A.R. is disabled. 12 21 1 within the meaning of the FHA because there is sufficient evidence 2 from which a reasonable jury could conclude that A.R. was either 3 substantially limited in the major life activity of learning or that 4 Aponte regarded A.R. as substantially limited in the major life 5 activities of learning or obtaining housing. 6 A. “Actually Disabled” Under Section 3602(h)(1) 7 “[A]n individual is considered disabled [under 42 U.S.C. 8 § 3602(h)(1)] if he or she: (1) suffers from a physical or mental 9 impairment, that (2) affects a major life activity, and (3) the effect is 10 ‘substantial.’” RECAP, 294 F.3d at 46. “Major life activities include 11 ‘functions such as caring for one’s self, performing manual tasks, 12 walking, seeing, hearing, speaking, breathing, learning, and 13 working.’” Id. at 47 (quoting, inter alia, 24 C.F.R. § 100.201(b)). 14 The applicable regulations define a “[p]hysical or mental 15 impairment” to include epilepsy and autism. 24 C.F.R. 16 § 100.201(a)(2). Epilepsy is a brain disorder that causes recurring 17 seizures. U.S. Nat’l Library of Med., Epilepsy, MedlinePlus, 22 1 http://www.nlm.nih.gov/medlineplus/epilepsy.html (last updated 2 Apr. 14, 2015). People with epilepsy can experience different types 3 of seizures, including grand mal and petit mal seizures. U.S. Nat’l 4 Library 5 http://www.nlm.nih.gov/medlineplus/ency/article/000696.htm (last 6 updated May 12, 2015). Grand mal seizures typically result in rigid 7 muscles, followed by violent muscle contractions and loss of 8 consciousness. U.S. Nat’l Library of Med., Generalized Tonic Clonic 9 Seizure, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/ 10 article/000695.htm (last updated May 12, 2015). Petit mal seizures, 11 also known as absence seizures, generally involve staring episodes 12 lasting fewer than 15 seconds. U.S. Nat’l Library of Med., Absence 13 Seizure, supra. People experiencing this type of seizure undergo a 14 change in consciousness or alertness. Id. 15 16 of Autism Med., spectrum Absence disorder Seizure, is a MedlinePlus, neurological and developmental disorder that “affects how a person acts and interacts 23 1 with others, communicates, and learns.” U.S. Nat’l Library of Med., 2 Autism 3 http://www.nlm.nih.gov/medlineplus/autismspectrumdisorder.html 4 (last updated May 26, 2015). The “essential features” of the disorder 5 are “persistent impairment in . . . social interaction” and “restricted, 6 repetitive patterns of behavior, interests, or activities.” Am. 7 Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 8 53 (5th ed. 2013) (“DSM 5”). “Manifestations of the disorder . . . vary 9 greatly.” Id. Deficits in social communication can range from 10 abnormalities in eye contact to failure to initiate or respond to social 11 interactions. Id. at 50. One example of characteristic repetitive 12 behavior is “[h]ighly restricted, fixated interests that are abnormal in 13 intensity.” Id. A diagnosis of autism spectrum disorder requires that 14 these symptoms “limit or impair everyday functioning.” Id. at 53. 15 “In young children with autism spectrum disorder, lack of social 16 and communication abilities may hamper learning, especially Spectrum Disorder, 24 MedlinePlus, 1 learning through social interaction or in settings with peers. . . . 2 Extreme difficulties in planning, organization, and coping with 3 change negatively impact academic achievement, even for students 4 with above average intelligence.” Id. at 57. 5 The first question is whether the plaintiffs have provided 6 sufficient evidence to create a genuine dispute that A.R. suffers from 7 an impairment. The plaintiffs’ evidence includes a sworn declaration 8 from A.R.’s pediatrician, Dr. Irene Flatau, which states: 9 10 11 12 13 14 15 16 17 18 19 20 21 A.R.’s medical history shows that she has been diagnosed with epilepsy since 2010. This causes her to experience grand mal seizures, the most intense type of seizure, during which she loses consciousness and suffers violent muscle contractions, as well as petit mal seizures, also known as “absence” seizures, during which a person briefly and suddenly lapses into unconsciousness. . . . In addition, A.R. has been diagnosed with Autism Spectrum Disorder[.] 22 J.A. 229. Ms. Rodriguez also testified that A.R. has been diagnosed 23 with autism, suffers from petit and grand mal seizures, and receives 25 1 medical treatment and special services in school for these conditions. 2 This evidence is sufficient to create a genuine dispute as to whether 3 A.R. has a “physical or mental impairment” under the FHA. See 24 4 C.F.R. § 100.201(a)(2). 5 We must then determine whether the district court erred in 6 holding that there was insufficient evidence from which a 7 reasonable jury could conclude that A.R.’s impairments substantially 8 limited her ability to learn. In Toyota Motor Manufacturing, Kentucky, 9 Inc. v. Williams, 534 U.S. 184 (2002), superseded by statute ADAAA, § 4, 10 122 Stat. at 3554, the Supreme Court decided that “substantially 11 limit[s]” in the ADA’s definition of “disability” required that an 12 impairment “prevent[] or severely restrict[]” an individual’s major 13 life activity. Toyota Motor, 534 U.S. at 198; accord Capobianco v. City of 14 N.Y., 422 F.3d 47, 57 (2d Cir. 2005) (“[T]he mere fact that an 15 impairment requires an individual to perform a task differently 16 from the average person does not mean that she is disabled within 26 1 the meaning of the ADA . . . .”). “The impairment’s impact must . . . 2 be permanent or long term,” Toyota Motor, 534 U.S. at 198, and it 3 must be evaluated “with reference to measures that mitigate the 4 individual’s impairment,” Sutton v. United Air Lines, Inc. 527 U.S. 5 471, 475 (1999), superseded by statute, ADAAA, § 4, 122 Stat. at 3556. 13 6 Defendants argue that this Circuit requires the submission of 7 medical evidence to establish a disability under the FHA and that 8 plaintiffs’ claims fail for their failure to present admissible medical 9 evidence concerning how A.R.’s epilepsy and autism affected her 10 learning. However, medical evidence as to the extent of an 11 individual’s impairment is not always required to survive summary 12 judgment. Neither the ADA or the FHA’s text, nor the respective Congress amended the ADA in 2008 “to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002),” and “to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures.” ADAAA, § 2(b)(2), (4), 122 Stat. at 3554. As mentioned previously, though, the FHA was not similarly amended and so our FHA interpretation is still guided by pre ADAAA cases, including Toyota Motor and Sutton. See Bhogaita, 765 F.3d at 1288. 13 27 1 implementing regulations require medical evidence to establish a 2 genuine dispute of material fact regarding the impairment of a 3 major life activity at the summary judgment stage. Instead, Toyota 4 Motor requires “[a]n individualized assessment” to determine the 5 existence of a disability. Toyota Motor, 534 U.S. at 199. Medical 6 testimony may be helpful to show that an impairment is 7 substantially limiting, but it is not always necessary. See E.E.O.C. v. 8 AutoZone, Inc., 630 F.3d 635, 643 44 (7th Cir. 2010); Head v. Glacier 9 Nw., Inc., 413 F.3d 1053, 1058 59 (9th Cir. 2005). 10 Our decision in Heilweil v. Mount Sinai Hospital, 32 F.3d 718 11 (2d Cir. 1994), is not to the contrary, as defendants contend. The 12 statement in Heilweil that “[n]o medical proof substantiate[d]” the 13 plaintiff’s disability claim under the Rehabilitation Act was limited 14 to the context of that case. Id. at 723. In Heilweil, the issue that 15 required such proof was the extent to which the conceded 16 impairment of asthma limited the plaintiff in the major life activity 28 1 of working. Id. at 722 23. The plaintiff claimed that her asthma 2 prevented her from working in the hospital where she had been 3 employed. Id. at 723. Both the plaintiff’s own statements and those of 4 her doctor showed, however, that her asthma was only exacerbated 5 in a particular unventilated area in the hospital, and not at different 6 locations with different air quality. Id. It was in this context that we 7 dismissed the plaintiff’s contrary contention that she was unable to 8 work in the general environment of the hospital as mere speculation 9 given the absence of corroborating medical evidence. Id. Thus, 10 because the plaintiff only showed that she was unable to work in 11 one particular area of the hospital due to her asthma, she did not 12 raise a genuine issue of material fact as to whether she was 13 substantially limited in the major life activity of working. Id. at 723 14 24. 15 As the outcome of Heilweil reflects, conclusory declarations 16 are insufficient to raise a question of material fact. See Davis v. New 29 1 York, 316 F.3d 93, 100 (2d Cir. 2002). However, non medical evidence 2 that conveys, in detail, the substantially limiting nature of an 3 impairment may be sufficient to survive summary judgment. 4 Here, the plaintiffs have presented sufficient evidence to 5 create a genuine dispute of material fact as to whether A.R.’s ability 6 to learn was substantially limited by her impairments. The district 7 court concluded that the plaintiffs’ testimony “does not explain how 8 A.R.’s condition may have substantially limited a major life 9 activity,” Rodriguez I, 2013 WL 5592703, at *6, and that there was “no 10 objective assessment or indication of the degree of any [e]ffect of 11 A.R.’s impairments on her school work or learning ability such that 12 it can reasonably be said that any limitation is substantial,” id. at *8. 13 This summary of the evidence fails “to resolve all ambiguities [or] 14 draw all permissible factual inferences” in favor of the plaintiffs. See 15 Stone, 118 F.3d at 99. 30 1 In reaching its conclusion, the district court did not note 2 relevant deposition testimony from Ms. Rodriguez. For example, 3 Ms. Rodriguez testified that A.R. was provided with an 4 Individualized Education Plan (“IEP”)14 at school since summer 2009 5 and was classified as “OHI.”15 According to Ms. Rodriguez, A.R. had 6 been diagnosed with autism at the beginning of 2009. As a result of 7 her classification as OHI and the provisions of her IEP, A.R. received 8 at her school “counsel[]ing, individual, group counsel[]ing, . . . “A state receiving federal funds under the [Individuals with Disabilities Education Act (‘the IDEA’), 20 U.S.C. § 1400 et seq.] must provide disabled children with a free and appropriate public education . . . .” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 174 75 (2d Cir. 2012). To ensure compliance, a school district must create an IEP for each qualifying child. Id. at 175. “The IEP is a written statement that sets out the child’s present educational performance, establishes annual and short term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Id. (internal quotation marks and citation omitted); see also 20 U.S.C. § 1414(d) (setting forth the information to be included in an IEP). 15 “OHI” stands for “other health impairments” and is one of the categories used to define a “child with a disability” under the IDEA. See 20 U.S.C. § 1401(3)(A)(i). “Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that . . . [a]dversely affects a child s educational performance.” 34 C.F.R. § 300.8(c)(9)(ii). 14 31 1 [occupational therapy], speech and physical therapy . . . different 2 testing accommodation[s], note takers, various things being read to 3 her, extra time to complete tasks, extra time to take tests, [and] 4 homework modifications.” J.A. 165 66. Defendants argue that the 5 receipt of special education services is not, by itself, determinative as 6 to whether a child qualifies as disabled. We agree. A child receiving 7 services under the IDEA “need not be ‘substantially limit[ed]’ in the 8 major life activity of learning,” so “one may therefore qualify as 9 ‘disabled’ under the IDEA for purposes of that statute without 10 demonstrating a ‘substantially limit[ing]’ impairment.” Ellenberg v. 11 N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009) (alterations in 12 original). Here, however, it is not just that A.R. qualified for an IEP 13 that is dispositive in determining whether she qualifies as disabled. 14 Rather, the nature of the specific services she requires shows the 15 extent to which her impairments affect her ability to learn, and the 16 additional evidence of how she has struggled notwithstanding her 32 1 IEP and the support she receives at school create a triable question 2 of fact precluding summary judgment. Cf. id. at 821 n.6 (noting that 3 the plaintiff “could have used her particular individualized 4 education program to show specific evidence of substantial 5 impairment, but did not”). 6 Ms. Rodriguez also testified that A.R.’s petit mal seizures 7 cause her to “blink[] off” for short periods of time. J.A. 177. For 8 example, when experiencing these seizures, A.R. will stop mid 9 sentence, having forgotten what she was saying, or she will miss 10 part of a program when watching television and not recall what 11 happened. According to Ms. Rodriguez, A.R. began experiencing 12 petit mal seizures in August or September 2010, when A.R. was 13 entering fifth grade. Ms. Rodriguez testified that A.R. received 14 special academic services throughout fifth grade, and that her 15 grades in sixth grade – while initially good – “kept going 16 considerably lower.” J.A. 172. By the time A.R. reached seventh 33 1 grade in September 2012, she was still having petit mal seizures and 2 still struggling with school. This testimony therefore also 3 demonstrates the magnitude of A.R.’s impairment in the area of 4 learning. See Hanneke M. de Boer et al., The Global Burden and Stigma 5 of Epilepsy, 12 Epilepsy & Behav. 540, 542 (2008) (stating that “[o]ne 6 major area of cognitive malfunctioning in people with epilepsy is 7 memory impairment” and that frequent seizures can “impair 8 learning of new information because of the amount of time the 9 person is unaware of the environment”). 10 In addition, on February 6, 2011 – during the time of the text 11 message exchange with Aponte – A.R. had her first of two grand 12 mal seizures. She was taken to the hospital and then suffered the 13 second grand mal seizure on the way home. She was again taken to 14 the hospital. Shortly following these seizures, A.R. was removed 15 from her school because her medications were causing her to have 16 “outbursts” and the school was “not able to provide her with a one 34 1 on one aide,” making it “more of a safety risk to have her there.”16 2 J.A. 166 67. She was then home schooled by a tutor (provided by the 3 school system), who had to “double [her] time because they could 4 not even get through the stuff with her.” J.A. 167 68. She did not 5 return to school until the last week of June and did not finish her 6 fifth grade course work until August 2011. Although the defendants 7 are correct in observing that A.R.’s grand mal seizures have 8 apparently not recurred since February 2011, it is the impact of her 9 impairment, not its most severe physical manifestations, that must 10 be “permanent or long term.” See Toyota Motor, 534 U.S. at 198. Ms. 11 Rodriguez testified that A.R. was continuing to struggle to keep up 12 in school as late as September 2012. There is therefore at least a 13 question of fact as to the long term impact of the grand mal seizures 14 alone and in combination with her other conditions on A.R.’s ability See Sutton, 527 U.S. at 482 (“[I]f a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures – both positive and negative – must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled.’”). 16 35 1 to learn. Cf. Joan K. Austin et al., Does Academic Achievement in 2 Children with Epilepsy Change over Time?, 41 Developmental Med. & 3 Child Neurology 473, 478 (1999) (finding no trend of improved 4 academic achievement among children “whose seizure conditions 5 changed from high to low severity,” and hypothesizing that “[o]ne 6 possible explanation for this finding . . . is that these children missed 7 out on learning information during the period when their seizure 8 conditions were severe and [they] were not able to catch up”). 9 In addition to this evidence, the plaintiffs also submitted 10 medical evidence to demonstrate the extent of A.R.’s limitations, 11 including a May 2009 developmental behavioral evaluation, a June 12 2009 occupational therapy initial evaluation, and progress notes and 13 reports from A.R.’s pediatric neurologists in 2010 and 2011. The 14 plaintiffs offered these documents in opposition to defendants’ 15 motion for summary judgment. The documents were cited in 16 plaintiffs’ opposition brief, quoted in plaintiffs’ response to 36 1 defendants’ Local Rule 56.1 statement, and presented as attachments 2 to the declaration of plaintiffs’ attorney, who attested that they are 3 true and accurate copies, and were produced under a protective 4 order for A.R.’s medical records. 5 The defendants first raised an objection to the admissibility of 6 these records in their reply brief in support of their motion for 7 summary judgment, which was filed on October 4, 2013. On October 8 7, 2013, the district court noted on the docket that the parties’ cross 9 motions for summary judgment would be decided without oral 10 argument. On October 10, 2013 – just six days after defendants first 11 objected to the admissibility of the medical records – the district 12 court issued its opinion in Rodriguez I, in which it found that the 13 records were inadmissible because they were unauthenticated and 14 there was no indication that they were complete and accurate copies 15 of A.R.’s medical records. See Rodriguez I, 2013 WL 5592703, at *6. It 16 therefore does not appear that the plaintiffs had an opportunity to 37 1 respond to the defendants’ objections or to supplement the record 2 with additional documentation to authenticate and certify the 3 records prior to the district court’s ruling. See Fed. R. Civ. P. 56(c)(2) 4 advisory committee’s note to 2010 amendment (“[A] party may 5 object that material cited to support or dispute a fact cannot be 6 presented in a form that would be admissible in evidence. The 7 objection functions much as an objection at trial, adjusted for the 8 pretrial setting. The burden is on the proponent to show that the 9 material is admissible as presented or to explain the admissible form 10 that is anticipated.”); cf. H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 11 454 (2d Cir. 1991) (stating that Fed. R. Civ. P. 56 “does not . . . require 12 that parties authenticate documents where [the non offering party] 13 did not challenge the authenticity of the documents”). 14 Having reviewed these medical records, we note that their 15 appearance, contents, and substance are what one would expect of 16 such records and support plaintiffs’ claim that they are what they 38 1 appear to be. Cf. Fed. R. Evid. 901(b)(4) (stating that the 2 authentication requirement can be satisfied by “[t]he appearance, 3 contents, substance, . . . or other distinctive characteristics of the 4 item, taken together with all the circumstances”); United States v. 5 Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (“[T]he burden of authentication 6 does not require the proponent of the evidence to . . . prove beyond 7 any doubt that the evidence is what it purports to be. Rather, the 8 standard for authentication, and hence for admissibility, is one of 9 reasonable likelihood.” (alteration in original) (internal quotation 10 marks and citation omitted)); United States v. Bagaric, 706 F.2d 42, 67 11 (2d Cir. 1983) (“The requirement of authentication is satisfied by 12 evidence sufficient to support a finding that the matter is what its 13 proponent claims. This finding may be based entirely on 14 circumstantial 15 substance . . . and other distinctive characteristics of the writing.” 16 (alterations in original) (internal quotation marks and citations evidence, including 39 [a]ppearance, contents, 1 omitted)), abrogated on other grounds by Nat l Org. for Women, Inc. v. 2 Scheidler, 510 U.S. 249 (1994). The record also indicates that these 3 records were produced by the medical providers themselves. See 4 Smyth Decl., App’x A, Tab 5 at 2 (facsimile transmittal page from 5 eRiver Neurology); id., App’x A, Tab 8 at 2 (HIPAA authorization 6 signed by Ms. Rodriguez authorizing release of A.R.’s records to 7 plaintiffs’ counsel); id., App’x A, Tab 9 at 2 (cover letter to plaintiffs’ 8 counsel describing photocopying fee from school district where 9 A.R.’s evaluating occupational therapist was employed). These 10 documents therefore seem like the type that likely could have been 11 authenticated and certified, had plaintiffs had the opportunity to 12 respond. 13 Moreover, although the district court stated that these records 14 were “inadmissible,” the court still considered them, reviewed them 15 in some detail, and concluded that they were “insufficient to 16 establish a medical condition that substantially limits one or more 40 1 major life activities.” Rodriguez I, 2013 WL 5592703, at *6 8. 2 Accordingly, although we conclude that the non medical evidence 3 discussed above is sufficient to raise a genuine dispute as to the 4 extent of A.R.’s limitations, we will consider these medical records 5 as well. Cf. Sony Corp. v. Elm State Elecs., Inc., 800 F.2d 317, 320 (2d 6 Cir. 1986) (describing the Second Circuit’s “strong preference for 7 resolution of disputes on their merits” and “preference for resolving 8 doubts in favor of a trial on the merits”); Cargill, Inc. v. Sears 9 Petroleum & Transp. Corp., 334 F. Supp. 2d 197, 247 (N.D.N.Y. 2004) 10 (“Because of the preference to have issues and claims decided on 11 their merits, rather than on the basis of a procedural shortcoming, 12 the exclusion of otherwise relevant evidence on technical grounds is 13 generally not favored . . . .”). 14 We find that the medical records submitted by the plaintiffs 15 further support plaintiffs’ claims of how severely A.R.’s 41 1 impairments affect her ability to learn.17 In May 2009, at the 2 recommendation of A.R.’s school, the Rodriguezes took A.R. to see 3 pediatrician Dr. Monica R. Meyer for a developmental behavioral 4 evaluation. Dr. Meyer recorded the Rodriguezes’ concern that A.R.’s 5 “anxieties . . . have led to a plateauing in her school work and her no 6 longer performing well in school.” J.A. 250. She diagnosed A.R. as 7 having “pervasive developmental disorder” and noted that this 8 condition, along with A.R.’s anxiety, “impact[s] her life in general, 9 her performance at school and her peer interactions.” J.A. 254 55. Dr. 10 Meyer found that “[a]t school, [A.R.] belongs in an integrated class 11 with a special education teacher who has experience working with 12 children on the autistic spectrum.” J.A. 255. Dr. Meyer also 13 recommended counseling, social skills training, occupational These records include progress notes from A.R.’s pediatric neurologists, Drs. Glenn Y. Castaneda and Faith Goring Britton; a developmental behavioral evaluation by Dr. Monica R. Meyer, a developmental behavioral pediatrician; and an occupational therapy initial evaluation by Meg Simmons Jackson, a licensed and registered occupational therapist. 17 42 1 therapy, and “accommodations that lessen the impact of [A.R.’s] 2 anxiety on her academic performance.” Id. 3 An occupational therapy initial evaluation conducted by 4 A.R.’s school system in 2009 following A.R.’s autism diagnosis 5 found that she had “difficulty registering visual and movement 6 input” and “misses written/demonstrated directions.” J.A. 260. The 7 evaluation also noted that A.R. “requires more external supports 8 than her peers to participate in learning,” “is currently not 9 registering input that will help her attend to the task at hand,” “[has] 10 [t]olerance within the learning environment [that] is less than that of 11 her peers,” and “[has] [a]vailability for learning within the learning 12 environment [that] is less than that of her peers.” J.A. 259. 13 In November 2010, shortly before the events of February 2011, 14 pediatric neurologist Dr. Glenn Castaneda diagnosed and treated 15 A.R.’s epilepsy. His notes confirm that the Rodriguezes observed 43 1 that A.R.’s petit mal seizures were “beginning to affect her school 2 work as her grades [were] deteriorating.” J.A. 247. 3 Finally, Dr. Castaneda’s records from March 2011 state that 4 Ms. Rodriguez reported that A.R.’s conditions were “causing a lot of 5 distress for [A.R.] . . . and [that] she ha[d] been off of school for at 6 least a couple of weeks.” J.A. 241. At the time of Ms. Rodriguez’s 7 deposition in September 2012, A.R. was in her first week of seventh 8 grade, and she was still experiencing petit mal seizures and was 9 “having struggles [with school] already.” J.A. 172, 176 77. 10 Whether just considering the non medical evidence, or also 11 considering this medical evidence, the evidence as to the severity of 12 A.R.’s learning limitations is sufficient to survive summary 13 judgment. A jury could reasonably infer from the extensive 14 educational support A.R. receives that she is significantly limited in 15 her ability to independently register and process information, pay 16 attention to educators, take notes, read, and complete her 44 1 homework. See Gummo v. Vill. of Depew, N.Y., 75 F.3d 98, 107 (2d Cir. 2 1996) (“If, as to the issue on which summary judgment is sought, 3 there is any evidence in the record from which a reasonable 4 inference could be drawn in favor of the opposing party, summary 5 judgment is improper.”). These skills are fundamental to learning, as 6 are the ability to remember information and to follow written or 7 demonstrated directions — abilities that may also be substantially 8 limited by A.R.’s petit mal seizures and autism, according to 9 plaintiffs’ evidence. Where these skills are limited, it follows that 10 A.R.’s ability to learn may be substantially limited. See Emory v. 11 AstraZeneca Pharm. LP, 401 F.3d 174, 181 82 (3d Cir. 2005) (reversing 12 a grant of summary judgment because evidence that plaintiff’s 13 “limitations interfere with his ability to read and process 14 information, as well as basic math skills or the filling out of 15 paperwork,” was sufficient to create a genuine issue as to whether 16 he was substantially limited in the major life activity of learning); cf. 45 1 Branham v. Snow, 392 F.3d 896, 903 04 (7th Cir. 2004) (holding that a 2 reasonable juror could find the plaintiff substantially limited in the 3 activity of eating based on his diabetes, his limitations after 4 receiving treatment, and the side effects of that treatment). 5 Significantly, this conclusion is supported by the fact that, despite 6 the extra help A.R. receives at school, her grades began deteriorating 7 in fifth grade and she has continued to struggle in sixth and seventh 8 grade. See Sutton, 527 U.S. at 482. Drawing all permissible inferences 9 in favor of the plaintiffs, they have presented sufficient evidence at 10 this stage of the litigation to create a genuine dispute as to whether 11 A.R.’s ability to learn is substantially limited. 12 B. “Regarded as” Disabled Under Section 3602(h)(3) 13 Plaintiffs also challenge the district court’s conclusion that 14 “there is insufficient evidence upon which a fair minded trier of fact 15 could reasonably conclude that Aponte regarded A.R. as having a 16 handicap.” Rodriguez I, 2013 WL 5592703, at *9. According to the 17 regulations issued by the Department of Housing and Urban 46 1 Development, one is regarded as having an impairment if, inter alia, 2 she “[h]as a physical or mental impairment that does not 3 substantially limit one or more major life activities but that is treated 4 by another person as constituting such a limitation.” 24 C.F.R. 5 § 100.201(d)(1). Prior to the 2008 enactment of the ADAAA, the 6 regulations implementing the ADA contained a substantially 7 identical provision, which we held required a plaintiff to “show that 8 defendants perceived [the plaintiff’s] impairment as substantially 9 limiting the exercise of a major life activity.” Reeves v. Johnson 10 Controls World Servs., Inc., 140 F.3d 144, 153 (2d Cir. 1998).18 18 Following the enactment of the ADAAA, [a]n individual meets the requirement of “being regarded as having such an impairment” [under the ADA] if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. 47 1 “Proving that a[] [plaintiff] is regarded as disabled . . . is a 2 question embedded almost entirely in the [defendant’s] subjective 3 state of mind.” Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 4 2001). 5 6 7 8 9 10 11 12 13 14 15 This Court has consistently held where subjective issues regarding a litigant s state of mind . . . are squarely implicated, summary judgment would appear to be inappropriate and a trial indispensable. . . . Furthermore, a sojourn into an adherent s mind set will inevitably trigger myriad factual inferences, as to which reasonable persons might differ in their resolution. Traditionally, this function has been entrusted to the jury. 16 Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984) (citations omitted). 17 The first step of our analysis is to determine the major life 18 activity at issue. Cf. Reeves, 140 F.3d at 153 54. The plaintiffs 19 primarily contend that Aponte’s text messages show that she 20 perceived A.R.’s epilepsy as substantially limiting her in the major 42 U.S.C. § 12102(3)(A); see also Hilton v. Wright, 673 F.3d 120, 128 29 (2d Cir. 2012) (per curiam) (discussing the amendment to the ADA’s “regarded as” provision). As noted above, the FHA was not similarly amended. 48 1 life activity of obtaining housing. They also argue that she regarded 2 A.R. as substantially limited in her ability to learn. 3 This Court has not determined whether “obtaining housing” 4 is a major life activity, but the Fourth Circuit has held that it is. 5 United States v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir. 1992). We 6 agree. “Major life activities means functions such as caring for one s 7 self, performing manual tasks, walking, seeing, hearing, speaking, 8 breathing, learning and working.” 24 C.F.R. § 100.201(b). But this list 9 is “not exclusive.” Reeves, 140 F.3d at 150; see also Bartlett v. N.Y. State 10 Bd. of Law Exam’rs, 226 F.3d 69, 79 80 (2d Cir. 2000). Major life 11 activities are “those activities that are of central importance to daily 12 life,” Toyota Motor, 534 U.S. at 197, including reading, Bartlett, 226 13 F.3d at 80, and interacting with others, Jacques v. DiMarzio, Inc., 386 14 F.3d 192, 202 04 (2d Cir. 2004). On the other end of the spectrum are 15 those activities that are “insufficiently fundamental,” such as 16 performing housework and shopping. Colwell v. Suffolk Cnty. Police 49 1 Dep’t, 158 F.3d 635, 642 43 (2d Cir. 1998). The ability to obtain shelter 2 is among the most basic of human needs and thus is a “major life 3 activity” for purposes of the FHA. We note that a person is not 4 substantially limited in the major life activity of obtaining housing 5 simply because she is unable to, or regarded as unable to, live in a 6 particular dwelling. Rather, a person is substantially limited if, due 7 to her impairment, she cannot live or is regarded as unable to live in 8 a broad class of housing that would otherwise be accessible to her. 9 Cf. Sutton, 527 U.S. at 491 92. 10 We now turn to whether the plaintiffs’ evidence is sufficient 11 for a reasonable juror to conclude that Aponte perceived A.R.’s 12 impairments as substantially limiting her in the activities of learning 13 or obtaining housing. The district court concluded that “the only 14 limitations expressed” by these messages were with respect to the 15 ability of an ambulance to reach the property, “not whether A.R. 50 1 was limited with respect to a major life activity.” Rodriguez I, 2013 2 WL 5592703, at *9. We disagree. 3 First, there is sufficient evidence to create a genuine dispute as 4 to whether Aponte perceived A.R. as substantially limited in her 5 ability to learn. Aponte knew from Drost – the Rodriguezes’ 6 neighbor and A.R.’s aide at school – that A.R. was autistic and 7 received special education services at school. Aponte learned from 8 Ms. Rodriguez, and likely from Morelli as well, that A.R. is epileptic. 9 Although Aponte’s statement in her text messages that “[t]he 10 prospective new owner is very concerned about continuing your 11 lease with you Childs medical situation and will probably not want 12 to rent to you,” J.A. 232, does not illuminate what medical condition 13 is at issue or why she thought the condition would be of concern, 14 answering those questions and determining Aponte’s mental state 15 should be left to the jury. See LeFevre, 745 F.2d at 159. 51 1 Second, there is also evidence that Aponte perceived A.R. as 2 substantially limited in her ability to obtain housing. Aponte wrote 3 in her text messages to Ms. Rodriguez: 4 5 6 7 “The new owner has decided not to continue to rent to you because your daughter should be in a more convenient location to medical treatment[.]” J.A. 233. 8 9 10 11 “The new owner is concerned by your statement that emergency vehicles cannot reach you should your daughter be at risk.” Id. 12 13 14 15 16 “When all these concerns came up about your daughter being seriously ill and emergency vehicles not being able to get to her! That is of major concern as to liability which you raised!!” Id. at 235. 17 Arguably, Aponte expresses through these messages a belief 18 that, because of her epilepsy, A.R. could only live close to facilities 19 providing medical treatment. If true, this could certainly be a 20 perceived substantial limitation on A.R.’s ability to obtain housing. 21 By including in the definition of “handicap” “not only those who are 22 actually physically impaired, but also those who are regarded as 52 1 impaired . . . , Congress acknowledged that society’s accumulated 2 myths and fears about disability and disease are as handicapping as 3 are the physical limitations that flow from actual impairment.” Sch. 4 Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 284 (1987) (referring to 5 section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93 112, 87 6 Stat. 355 (1973) (codified as amended at 29 U.S.C. § 701 et seq.)). The 7 1988 Amendments to the FHA, which extended coverage of the Act 8 to disabled individuals, were specifically aimed at rejecting 9 “[g]eneralized perceptions about disabilities and unfounded 10 speculations about threats to safety . . . as grounds to justify 11 exclusion.” H.R. Rep. No. 100 711, at 18 (1988), reprinted in 1988 12 U.S.C.C.A.N. 2173, 2179. A conclusion that one with epilepsy can 13 only safely live in a property close to medical care is the sort of 14 “unfounded speculation” about a disability against which the FHA 15 is designed to protect, and any denial of housing resulting from such 16 speculation would be “as handicapping as . . . the physical 53 1 limitations that flow from [A.R.’s] actual impairment.” Arline, 480 2 U.S. at 284. 3 Aponte’s text messages can also be read to suggest that she 4 believed the new owner would find A.R.’s medical needs, in her 5 words, a “liability” and a “risk.” In extending coverage to those 6 individuals who are “regarded as” having a physical or mental 7 disability, Congress was concerned with impairments that “might 8 not diminish a person’s physical or mental capabilities, but could 9 nevertheless substantially limit that person[ ] . . . as a result of the 10 negative reactions of others to the impairment.” Id. at 282 83 & n.10. 11 One reasonable interpretation of Aponte’s texts is that she believed 12 A.R.’s impairment made her an undesirable tenant, restricted in her 13 ability to obtain housing because property owners would not wish 14 to rent to her.19 As mentioned above, any such concerns would have originated with Aponte herself, as she had no basis to believe that the prospective purchaser of the property felt this way. 19 54 1 Because there is sufficient evidence to create a genuine 2 dispute as to whether A.R. qualifies as disabled for purposes of the 3 FHA, we vacate the district court’s grant of summary judgment on 4 plaintiffs’ claims under 42 U.S.C. § 3604(f) and remand.20 5 C. 6 The district court also dismissed the plaintiffs’ subsection 7 Subsection 3604(d) 3604(d) claim. The court found that 8 9 10 11 12 13 14 15 16 17 18 for the § 3604(c) claim, Plaintiffs must demonstrate that an ordinary listener would believe that, in light of all the circumstances, Aponte s statements indicated a preference, limitation or discrimination based on “handicap,” as defined by statute. Similarly, for the § 3604(d) claim, Plaintiffs must demonstrate that Aponte represented that the apartment was not for rent because of “handicap,” as defined by the statute. Defendants urge that we affirm the district court on the ground that Aponte’s alleged conduct was insufficient “to qualify as rendering a house unavailable and/or imposing discriminatory terms and conditions for continued renting” under 42 U.S.C. § 3604(f)(1) and (2). As the district court did not reach this question, we decline to address it in the first instance on appeal. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90 (2d Cir. 2004) (“In general, we refrain from analyzing issues not decided below . . . .”). 20 55 1 Rodriguez II, 2013 WL 6058577, at *3. The court – discussing and 2 dismissing both claims together – concluded that Aponte’s 3 statements were not “based on handicap” as defined in the FHA 4 because there was insufficient evidence (1) that A.R. was disabled 5 within the meaning of the FHA or (2) that “Aponte expressed a 6 preference, limitations, or discrimination against disabled persons 7 generally or persons whom she regarded as disabled or had a record 8 of disability.” Id. In doing so, the district court conflated subsection 9 (c) with subsection (d). This was also error. 10 Subsection (d) makes it unlawful “[t]o represent to any person 11 because of . . . handicap . . . that any dwelling is not available for 12 inspection, sale or rental when such dwelling is in fact so available.” 13 42 U.S.C. § 3604(d) (emphasis added). The italicized language 14 mirrors subsection 3604(f), which prohibits discrimination “because 15 of a handicap.” Id. § 3604(f). It is not the same as subsection 3604(c), 16 which prohibits statements that “indicate[] any preference . . . based 56 1 on” disability. See Ragin I, 923 F.2d at 999 (relying on the “critical . . . 2 verb ‘indicates’” to support adoption of the “ordinary reader” 3 standard). It is the “actually disabled” or “regarded as disabled” 4 standards – not the ordinary listener standard – that is applied to 5 subsection 3604(d). Because the “ordinary listener” standard does 6 not apply and there is sufficient evidence to show that A.R. is 7 disabled, we also vacate and remand the district court’s dismissal of 8 plaintiffs’ subsection 3604(d) claim. 9 IV. Subsection 3604(c) 10 In dismissing plaintiffs’ claim under subsection 3604(c), the 11 district court held on reconsideration that an “ordinary listener” 12 could not have understood Aponte’s statements concerning A.R. to 13 indicate a preference based on disability. The court based its 14 determination on the fact that Aponte’s statements were aimed 15 exclusively at A.R., and that the court had already determined that 16 the evidence was insufficient to establish that A.R. was in fact 57 1 disabled under the FHA definition. Rodriguez II, 2013 WL 6058577, at 2 *3. However, regardless of whether A.R. is disabled under the FHA 3 definition, the “ordinary listener” could understand Aponte’s 4 statements to A.R.’s mother as classifying A.R. as such and 5 expressing discrimination on that basis. For the reasons that follow, 6 we hold that section 3604(c) can be violated by statements targeted 7 at an individual that convey to an ordinary listener that the 8 individual is disabled. In other words, it is not determinative that 9 the individual being addressed is or is not disabled under the FHA; 10 what matters is whether the ordinary listener would understand the 11 statements as considering her as such and expressing discrimination 12 or a preference against her on that basis.21 This analysis of our “ordinary listener” standard is necessitated by the unique circumstances of a case alleging discriminatory statements targeted at an individual based on disability. While the “ordinary listener” standard is well established in the context of racial discrimination, disability is often a much more contested classification that requires a fact intensive, case by case inquiry. See Toyota Motor, 534 U.S. at 198 99. The determination becomes even more complicated when applying the “ordinary listener” standard to statements made directly to an individual. 21 58 1 This approach is supported by our decisions that have 2 emphasized that subsection 3604(c) “‘protect[s] against [the] psychic 3 injury’ caused by discriminatory statements made in connection 4 with the housing market.” United States v. Space Hunters, Inc., 429 5 F.3d 416, 424 25 (2d Cir. 2005) (alterations in original) (quoting 6 Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c): 7 A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 8 Fordham Urb. L.J. 187, 250 (2001)); see also Schwemm, supra, at 249 9 (noting that courts have ruled that section 3604(c)’s goals include 10 reducing the market limiting effect of discriminatory statements and 11 protecting “home seekers from suffering insult, emotional distress, 12 and other intangible injuries”). 13 We believe this approach alleviates the difficulty in applying 14 section 3602(h)’s definition of “handicap . . . with respect to a 15 person” to subsection 3604(c), the only prohibition in section 3604 16 that does not refer to a “person” or “buyer or renter.” In Toyota 59 1 Motor, the Supreme Court pointed out that the “the [ADA] defines 2 ‘disability’ with respect to an individual.” Toyota Motor, 534 U.S. at 3 198. The same is true of the FHA’s definition of handicap. See 42 4 U.S.C. § 3602(h). According to the Court, this language in the ADA 5 “ma[de] clear that Congress intended the existence of a disability to 6 be determined in . . . a case by case manner,” requiring “[a]n 7 individualized assessment of the effect of an impairment.” Toyota 8 Motor, 534 U.S. at 198 99. The Toyota Motor Court, however, was 9 considering a pre amendment version of a section of the ADA that 10 prohibited “not making reasonable accommodations to the known 11 physical or mental limitations of an otherwise qualified individual 12 with a disability who is an applicant or employee . . . .” ADA, § 13 102(b)(5)(A), 104 Stat. at 332 (emphasis added). In referring to an 14 “individual,” this provision of the pre amendment ADA is similar to 15 42 U.S.C. § 3604(a) (b), (d) (f), all of which refer to a “person” or 16 “buyer or renter.” But subsection 3604(c) of the FHA – as noted 60 1 above – is different. Subsection 3604(c) does not refer to attributing a 2 disability to a particular person, making the definition of 3 “handicap . . . with respect to a person” and Toyota’s individualized 4 analysis inapt. Indeed, a statement implicating subsection 3604(c) 5 need not be targeted at a single, identifiable individual at all. Thus, 6 holding that a statement, even when targeted at a non disabled 7 individual, can still violate subsection 3604(c) – as long as it conveys, 8 to the ordinary listener, a preference against those who are disabled 9 as defined by the FHA – accomplishes the goal of subsection 3604(c). 10 This view of subsection 3604(c) also recognizes that subsection 11 3604(c) “prohibits all ads that indicate a [disallowed] . . . preference 12 to an ordinary reader whatever the advertiser’s intent.” Ragin I, 923 13 F.2d at 1000; cf. Soules v. U.S. Dep’t of Hous. & Urban Dev., 967 F.2d 14 817, 825 (2d Cir. 1992) (“[F]actfinders may examine [the speaker’s] 15 intent, not because a lack of design constitutes an affirmative 16 defense to an FHA violation, but because it helps determine the 61 1 manner in which a statement was made and the way an ordinary 2 listener would have interpreted it.”). It would contradict the 3 language of subsection 3604(c) to hold that what matters is whether 4 a person was “regarded as” disabled by the speaker, an inquiry that 5 depends on the speaker’s state of mind. See Reeves, 140 F.3d at 153. 6 Under subsection 3604(c), the speaker’s subjective belief is not 7 determinative. What matters is whether the challenged statements 8 convey a prohibited preference or discrimination to the ordinary 9 listener.22 10 In the end, the “touchstone” of the inquiry is the message 11 conveyed. Ragin I, 923 F.2d at 1000. Aponte responded to learning 12 that A.R. had autism and epileptic seizures with a series of text 13 messages stating concerns about renting to the Rodriguez family, 14 including fear that their tenancy would be a “liability.” The district This discussion addresses the particular issues raised by the “regarded as” definition of disability under subsection 3602(h)(3), but a statement directed at an individual can also violate subsection 3604(c) when it conveys to the ordinary listener that the individual is actually disabled under subsection 3602(h)(1). 22 62 1 court acknowledged that Aponte’s “statements superficially appear 2 to be discriminatory on their face because they indicate a desire not 3 to rent to Plaintiffs on account of A.R.’s ‘illness,’ ‘medical condition,’ 4 ‘situation,’ or proximity to medical treatment.” Rodriguez II, 2013 WL 5 6058577, at *3. The ordinary listener, who “is neither the most 6 suspicious nor the most insensitive of our citizenry,” Ragin I, 923 7 F.2d at 1002, very well could have interpreted these messages as 8 stating a desire not to rent to anyone with such limitations. This 9 preference could cover many people who qualify as disabled under 10 the FHA, and thus Aponte’s statements conveying this preference 11 would violate subsection 3604(c). 12 CONCLUSION 13 We hold that the district court erred in granting defendants 14 summary judgment because there is sufficient evidence that A.R. is 15 disabled under the FHA. Furthermore, we hold that the “ordinary 16 listener” standard is not applicable to claims under 42 U.S.C. § 63 1 3604(d). Therefore, this claim also survives summary judgment 2 based on the evidence that A.R. was either actually disabled or 3 regarded as such. Finally, we hold that statements directed at an 4 individual may violate the FHA’s prohibition against statements 5 that indicate a preference or discrimination based on handicap, 42 6 U.S.C. § 3604(c), even if that individual is not disabled under the 7 FHA. Here, the ordinary listener could understand Aponte’s 8 statements as classifying A.R. as disabled under the FHA and 9 indicating discrimination or a preference against her on that basis. 10 11 Accordingly, we VACATE the judgment of the district court and REMAND. 64
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