Theresa Thomas-Tupper v. Catholic Charities

Opinion

22-689-cv (L)

Theresa Thomas-Tupper v. Catholic Charities et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 16th day of June, two thousand twenty-three. 4 5 PRESENT: 6 ROSEMARY S. POOLER, 7 RICHARD C. WESLEY, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 Theresa Thomas-Tupper, individually and 13 on behalf of her son R.K., a minor, 14 15 Plaintiff-Appellant- 16 Cross-Appellee, 17 18 v. 22-689, 22-780, 22-812 19 20 Catholic Charities, Thea Bowman F.S.P.A. 21 Housing Development Fund Company, Inc., 22 Rockville Centre Diocese, and 23 the Stanan Group, 24 25 Defendants-Appellees- 26 Cross-Appellants. * 27 _____________________________________ 28 29 FOR PLAINTIFF: MAIA GOODELL, Kakalec 30 Law PLLC, Brooklyn, N.Y.

*

The Clerk of Court is respectfully directed to amend the caption accordingly.

1 FOR DEFENDANTS CATHOLIC HILLARY J. RAIMONDI, Traub 2 CHARITIES, THEA BOWMAN F.S.P.A HOUSING Lieberman Straus & 3 DEVELOPMENT FUND COMPANY, INC., AND Shrewsberry LLP, 4 ROCKVILLE CENTRE DIOCESE: Hawthorne, N.Y. 5 6 FOR DEFENDANT THE STANAN GROUP: CHERYL F. KORMAN (Janice 7 J. DiGennario, on the brief), 8 Rivkin Radler LLP, 9 Uniondale, N.Y. 10

11 Appeal from a judgment of the United States District Court for the Eastern District of New 12 York (Brown, J.).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 14 DECREED that the judgment of the district court is AFFIRMED. 15 Defendants Catholic Charities, Thea Bowman F.S.P.A Housing Development Fund 16 Company, Inc., and Rockville Centre Diocese run a federally funded independent living facility 17 for low-income individuals and families with qualified impairments, which is managed by 18 Defendant Stanan Group (collectively, “Defendants”). Plaintiff Theresa Thomas-Tupper moved 19 into the facility with her minor sons, R.K. and N., in 2013. Defendants began eviction proceedings 20 against Plaintiff when Robert Kellett, father of R.K., moved into the apartment in violation of 21 Plaintiff’s lease. Plaintiff was evicted in 2018. Plaintiff sued, bringing claims for discrimination 22 under the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601–3619; Section 504 of the Rehabilitation 23 Act (“Section 504”), 29 U.S.C. § 701; and the New York State Human Rights Law (“NYSHRL”), 24 N.Y. Exec. L. § 290 et seq.; and for retaliation under the FHA and NYSHRL. The district court 25 granted summary judgment in favor of Defendants on all claims. We assume the parties’ 26 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

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1 “We review de novo a district court’s grant of summary judgment, construing the evidence 2 in the light most favorable to the nonmoving party and drawing all inferences and resolving all 3 ambiguities in favor of that party.” Tompkins v. Metro-N. Commuter R.R. Co., 983 F.3d 74, 78 4 (2d Cir. 2020) (cleaned up). We find that the district court correctly granted summary judgment 5 in favor of Defendants on Plaintiff’s claims for discrimination and retaliation. 6 I. Discrimination 7 The FHA, Section 504, and the NYSHRL all prohibit discrimination based on disability 8 status, including discrimination by failure to make reasonable accommodations. See 42 U.S.C. 9 § 3604(f)(3)(B) (FHA); McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (Section 10 504); N.Y. Exec. Law § 296(2)(c)(i) (NYHRL). In order to establish a prima facie violation based 11 on a failure to accommodate, Plaintiff must show that (1) she “is a qualified individual with a 12 disability”; (2) Defendants are “subject to the acts”; and (3) she “was denied the opportunity to 13 participate in or benefit from [Defendants’] services, programs, or activities or [Defendants’] 14 otherwise discriminated against [her] by reason of [her] disability.” Wright v. N. Y. State Dep’t of 15 Corr., 831 F.3d 64, 72 (2d Cir. 2016). 1 16 The district court correctly granted summary judgment in favor of Defendants because “the 17 undisputed record reveals that [Plaintiff] was accorded a plainly reasonable accommodation.” Id. 18 at 73 (internal quotations omitted). Indeed, Defendants offered Plaintiff the exact accommodation 19 she sought. Specifically, Plaintiff requested that Kellett be permitted to serve as her live-in aide

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The standards under each statute are the same so we consider the claims together. See Forziano v. Indep. Grp. Home Living Program, Inc., 613 F. App’x 15, 18 (2d Cir. 2015) (comparing Section 504 and FHA); Williams v. MTA Bus Co., 44 F.4th 115, 124 (2d Cir. 2022) (comparing NYSHRL and Section 504).

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1 as an accommodation for her disability. When Kellett moved into Plaintiff’s apartment in 2015 2 (in violation of her lease), he had not been certified to serve as a live-in aide and had a drug-related 3 criminal conviction that would otherwise have made him ineligible to serve as a live-in aide at 4 Defendants’ facility. Nevertheless, Defendants agreed to Plaintiff’s request: in 2018, Defendants 5 signed a stipulation drafted by Plaintiff’s then-attorney agreeing to end eviction proceedings 6 against Plaintiff and to “permit[] . . . Robert Kellett at the premises as a live-in aide due to 7 [Plaintiff’s] current medical need for such aide.” J. App’x at JA-300 (“Stipulation”). Plaintiff 8 refused to sign the Stipulation. 9 Plaintiff now argues that the Stipulation could not constitute an offer of accommodation 10 because “[t]his Court has squarely held that settlement offers conditioned on waiving substantive 11 rights do not constitute admissible offers of reasonable disability accommodation.” Appellant Br. 12 at 17 (citing Sheng v. M&TBank Corp., 848 F.3d 78, 87 (2d Cir. 2017)). But Plaintiff’s reliance 13 on Sheng is misplaced. There, this Court held that an employer’s offer to settle an employee’s 14 discrimination claim did not constitute a reasonable accommodation where the offer was 15 “conditioned upon the dropping of monetary claims” in the employee’s discrimination lawsuit. 16 Sheng, 848 F.3d at 87. The Stipulation here did not require Plaintiff to waive any discrimination 17 claims against Defendants. Instead, it forgave existing violations of Plaintiff’s lease—specifically, 18 Kellett’s unauthorized residence and Plaintiff’s failure to pay rent—on the condition that Plaintiff 19 pay the rent she owed and Kellett not commit additional disqualifying crimes while working as a

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1 live-in aide. Although Plaintiff was not required to sign the Stipulation, it is proof that Defendants 2 offered her a reasonable accommodation. 2 3 II. Retaliation 4 The FHA “safeguards members of the protected class from coercion, intimidation, threats, 5 or interference in the exercise or enjoyment of their Fair Housing Act rights.” Frazier v. Rominger, 6 27 F.3d 828, 833 (2d Cir. 1994). Similarly, the NYHRL prohibits “retaliat[ion] . . . against any 7 person because he or she has opposed any practices,” including opposing certain practices of 8 discrimination based on disability status. N.Y. Exec. Law §§ 296(5), (7). 9 “To make out a prima facie case of retaliation, [Plaintiff] must make four showings: that 10 (1) she engaged in a protected activity; (2) [Defendants were] aware of this activity; 11 (3) [Defendants] took adverse . . . action against her; and (4) a causal connection exists between 12 the alleged adverse action and the protected activity.” Summa v. Hofstra Univ., 708 F.3d 115, 125 13 (2d Cir. 2013) (cleaned up). “Once a prima facie case of retaliation is established, the burden of 14 production shifts to [Defendants] to demonstrate that a legitimate, nondiscriminatory reason 15 existed for its action.” Id. (quoting Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001)). “If 16 [Defendants] demonstrate[] a legitimate, non-discriminatory reason, then the burden shifts back to 17 [Plaintiff] to establish, through either direct or circumstantial evidence, that [Defendants’] action 18 was, in fact, motivated by discriminatory retaliation.” Id. (cleaned up); see also Reg’l Econ. Cmty.

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Plaintiff also claims that Defendants should have created an exception to the “blanket building policy barring [Kellett] for a two-year-old misdemeanor drug conviction.” Appellant Br. at 20–22. But Defendants did grant this exception: they learned about Kellett’s criminal history in January 2017 and the parties began negotiating a stipulation that excused Kellett’s ineligibility no later than April 2017.

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1 Action Program, Inc. v. City of Middletown, 294 F.3d 35, 54 (2d Cir. 2002) (same standard under 2 FHA). 3 The district court found that Plaintiff failed to demonstrate a prima facie case of retaliation 4 because she had not offered evidence that any adverse actions—namely, the eviction proceedings 5 and eventual eviction—were causally connected to any protected activity. We agree. Defendants 6 sent Plaintiff two notices informing her that Kellett’s residence violated her lease, and they served 7 a thirty-day notice of eviction all before Plaintiff submitted a medical form requesting a live-in 8 aide. And Plaintiff did not request that Kellett be the one to serve as her live-in aide until after the 9 eviction proceedings had already begun. In addition, Defendants sought a default judgment in the 10 eviction proceeding only after Plaintiff refused to sign the Stipulation, which had been drafted by 11 her own lawyer and which would have provided the exact accommodation she had sought. There 12 is no basis on which to infer that the eviction was in retaliation for Plaintiff’s request to have 13 Kellett serve as her live-in aide, when the eviction proceedings began before she made the request 14 and Defendants had agreed to the request. Instead, the record demonstrates that the eviction 15 occurred in response to Plaintiff’s violation of her lease. 16 We need not reach Defendants’ alternative argument for affirmance based on the statute of 17 limitations. We have considered all of Plaintiff’s remaining arguments and find them to be without 18 merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk of Court