09-0553-cv
Chaya and Michael Ungar, et al. v. New York City Housing Authority


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 26th day of January, two thousand and ten.

Present:         AMALYA L. KEARSE,
                 RALPH K. WINTER
                 ROSEMARY S. POOLER,
                            Circuit Judges.

_____________________________________________________

CHAYA AND MICHAEL UNGAR, YITTY NIEMAN, FRIEDRICH AND REGINA WEISER,
MOSHE DEUTSCH, ISAAC TELLER, SOLOMON WOLLNER, SHIA PINCHUS
SCHWARTZ, IRENE ACKERMAN, YEHUDA STEIN, SOLOMON WERZBERGER,
JOSHUA ADLER, CHAIM EIDLISZ, AZRIEL KATZ, MOSHE STERN, and ESTHER
SCHWARTZ,*

                                                Plaintiffs-Appellants,

                          -v-                                            No.   09-0553-cv

NEW YORK CITY HOUSING AUTHORITY,

                                                Defendant-Appellee.




       *
           The Clerk of the Court is directed to amend the official caption as set forth above.
Appearing for Appellants:     MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, New
                              York.

Appearing for Appellee:       STEVEN J. RAPPAPORT, of counsel to Sonya M. Kaloyanides,
                              Acting General Counsel, New York City Housing Authority, New
                              York, New York.


     Appeal from a judgment of the United States District Court for the Southern District of
New York (Robert W. Sweet, Judge).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiffs-Appellants (“plaintiffs”) appeal from a decision of the United States District
Court for the Southern District of New York (Sweet, J.) granting summary judgment for
defendant-appellee (“defendant”). Plaintiffs are seventeen orthodox Jews who allege defendant
excludes them from public housing in violation of the Fair Housing Act (“FHA”), 42 U.S.C. §
3601 et seq., and burdens their religious practice in violation of the Free Exercise Clause of the
First Amendment by failing to exempt them from its Tenant Selection and Assignment Plan
(“TSAP”) based on religious hardship.

        We review the decision below de novo, construing the evidence in the light most
favorable to the non-moving party. World Trade Center Props., L.L.C. v. Hartford Fire Ins. Co.,
345 F.3d 154, 165-66 (2d Cir. 2003). We may affirm on any basis supported by the record.
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); ACEquip Ltd. v. American Eng'g
Corp., 315 F.3d 151, 155 (2d Cir. 2003). We assume the parties’ familiarity with the underlying
facts and procedural history.

        Summary judgment for defendant was appropriate because plaintiffs have not established
a prima facie case that TSAP has a disparate impact on Orthodox Jewish families. Title VII
disparate impact analysis applies also to claims arising under the FHA. See Huntington Branch,
NAACP v. Town of Huntington, 844 F.2d 926, 934 (2d Cir. 1988). “Under disparate impact
analysis ... a prima facie case is established by a showing that the challenged practice of the
defendant ‘actually or predictably results in . . . discrimination; in other words that it has a
discriminatory effect.’” Id. (quoting United States v. City of Black Jack, 508 F.2d 1179, 1184-85
(8th Cir. 1974)). “If a plaintiff makes a prima facie showing, the burden shifts to the defendant
to prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental
interest and that no alternative would serve that interest with less discriminatory effect.”
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 575 (2d Cir. 2003) (internal quotation
marks omitted).

        In the present case, there was no evidence that Orthodox Jewish applicants are
underrepresented even among new Williamsburg tenants. “The basis for a successful disparate
impact claim involves a comparison between two groups—those affected and those unaffected by
the facially neutral policy. This comparison must reveal that although neutral, the policy in

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question imposes a ‘significantly adverse or disproportionate impact’ on a protected group of
individuals.” Tsombanidis, 352 F.3d at 575. Here, plaintiffs did not compare TSAP’s effects on
Jewish families with its effects on non-Jewish families. Further, the record contains evidence as
to the percentages of Hasidic families that have moved into the Williamsburg developments
since 1992. Defendants assert that evidence shows that between 1992 and 2006 approximately 4
percent of the families moving in were Hasidic, and that between 1998 and 2006 that number
was nearly 5 percent. Plaintiffs, analyzing part of the evidence, assert that only 2.4 percent of the
families moving into the Williamsburg developments since 1992 were Hasidic. However, since
plaintiffs did not present evidence that Hasidic Jews make up more that 2.4 percent of the
applicant pool, the dispute is not material, as plaintiffs have not shown that Hasidic Jews are
underrepresented among new tenants in the Williamsburg developments.

        Plaintiffs argue that even if 5 percent of new Williamsburg tenants are Hasidic, this
represents a “stark decline.” However, even if there were evidence of this, NYCHA had
previously settled a lawsuit alleging that it had historically discriminated in favor of Hasidic
families in the Williamsburg developments. See Williamsburg Fair Hous. Comm. v. New York
City Hous. Auth., 450 F. Supp. 602 (S.D.N.Y. 1978). Indeed, plaintiffs acknowledge the
“historic over-representation of Hasidic in the Williamsburg projects.” (Pl.’s Br. at 30). Thus, a
stark decline in the percentage of new Hasidic tenants would not necessarily be evidence of
discrimination. This is why statistics are important. Tsombanidis, 352 F.3d at 575 (“[P]laintiffs
are ordinarily required to include statistical evidence to show disparity in outcome between
groups.”) (citing Smith v. Xerox Corp., 196 F.3d 358, 365 (2d Cir. 1999)). To know whether
TSAP has disparate impact on Hasidic Jews, we would need to know, at a minimum, the
percentage of the approximately 80,000 people who apply for public housing each year that is
Hasidic. Because plaintiffs have not provided this information, they failed to establish a prima
facie case of discrimination.

        Nor have plaintiffs established that they are entitled to an exemption from TSAP under
the Free Exercise Clause. “[T]he right of free exercise does not relieve an individual of the
obligation to comply with a valid and neutral law of general applicability on the ground that the
law proscribes (or prescribes) conduct that his religious prescribes (or proscribes).” Employment
Division, Dep’t of Human Resources v. Smith, 494 U.S. 872, 879 (1990) (internal quotation
marks omitted). A “law that is neutral and of general applicability need not be justified by
compelling governmental interests even if the law has the incidental effect of burdening a
particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 531 (1993).

        In the present case, TSAP is facially neutral, making no reference to religious practice.
Plaintiffs contend that TSAP is not generally applicable because defendant makes exceptions to
its general policy of acting on a first-come, first-served basis for victims of domestic violence,
those living in substandard housing, and others, while refusing to accommodate their religious
needs. However, defendant grants exceptions only for specified categories, not on an ad hoc
basis, and these exceptions are available to Hasidic Jews if they fall into one of those categories.
Because TSAP is neutral and generally applicable, defendant need only demonstrate a rational
basis for the plan. Defendant’s stated reason for TSAP, “assur[ing] that it receives and processes
applications for conventional public housing efficiently and in accordance with the laws,” is a

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rational basis for the plan. Because TSAP is neutral, generally applicable, and has a rational
basis, plaintiffs failed to establish a Free Exercise violation.

       We have considered the plaintiffs’ remaining arguments and conclude that they are
without merit. The judgment below is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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