09-3613-cv
Kennedy v. Related Mgmt.

                           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. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO 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 14 th day of December, two thousand ten.

PRESENT:                 REENA RAGGI,
                         DEBRA ANN LIVINGSTON,
                         DENNY CHIN,
                                 Circuit Judges.
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JOHN FITZGERALD KENNEDY, HILDA KENNEDY,
WILLIAM HENRY KENNEDY,
                                 Plaintiffs-Appellants,

                   v.                                                      No. 09-3613-cv

RELATED MANAGEMENT, THE RELATED
COMPANIES,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANTS:                         PA UL BENJA M IN D A LN O K Y , Esq., New
                                                  York, New York.

APPEARING FOR APPELLEES:                          STEVEN H. KAPLAN (Warren A. Herland, on
                                                  the brief), Jones Hirsch Connors & Bull P.C.,
                                                  New York, New York.
       Appeal from the United States District Court for the Southern District of New York

(Paul A. Crotty, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on July 24, 2009, is AFFIRMED.

       Plaintiffs John Fitzgerald Kennedy, who has Acquired Immune Deficiency Syndrome

(“AIDS”), his wife Hilda Kennedy, and their adult son William Henry Kennedy, appeal from

an award of summary judgment in favor of defendants Related Management and The Related

Companies (“Related”), dismissing plaintiffs’ claims that they were denied rental housing

due to John Kennedy’s illness in violation of the Fair Housing Act (“FHA”), 42 U.S.C.

§ 3601 et seq., and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law

§ 290 et seq. See Kennedy v. Related Mgmt., No. 08 Civ. 3969, 2009 WL 2222530

(S.D.N.Y. July 23, 2009). We review an award of summary judgment de novo, “resolving

all ambiguities and drawing all permissible factual inferences in favor of the party against

whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)

(internal quotation marks omitted). Summary judgment is appropriate only if there are no

genuine issues of material fact and the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c)(2). We assume the parties’ familiarity with the facts and

procedural history of this case, which we reference only as necessary to explain our decision

to affirm.



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       Plaintiffs’ FHA and NYSHRL discrimination claims are subject to the familiar burden

shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). See Mitchell v. Shane, 350 F.3d 39, 47 & n.4 (2d Cir. 2003).

Neither party disputes that plaintiffs established a prima facie case of discrimination. See

Kennedy v. Related Mgmt., 2009 WL 2222530, at *4-5. Rather, plaintiffs argue that (1)

Related failed sufficiently to articulate a non-discriminatory reason for rejecting plaintiffs’

housing application; and, (2) even if Related did articulate such a reason, questions of fact

exist concerning whether the proffered reason was a pretext for illegal discrimination. Both

arguments lack merit.

1.     Non-Discriminatory Reason

       Related articulated a non-discriminatory reason for rejecting plaintiffs’ application:

plaintiffs “failed to supply accurate, complete, and consistent information concerning their

income.” Kennedy v. Related Mgmt., 2009 WL 2222530, at *5.1 Plaintiffs contend that this

fails to satisfy Related’s step-two burden because the company’s internal rules do not allow

tenant applications to be rejected on that basis. Plaintiffs offer no evidentiary support for this

contention; rather, they challenge the submissions Related offered to support its policy of

       1
          Although plaintiffs contend that John Kennedy was not required to submit
information about his wife’s income to the New York City Human Resources
Administration, the record is to the contrary. Even if John Kennedy’s reporting obligations
in this regard were unclear, plaintiffs point to nothing in the record indicating that Related’s
proffered reason was not bona fide. See Obabueki v. Int’l Bus. Machs. Corp., 145 F. Supp.
2d 371, 386-87 (S.D.N.Y. 2001), aff’d, 319 F.3d 87, 88 (2d Cir. 2003) (per curiam).

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rejecting applicants who provide false or incomplete information to third parties, which in

plaintiffs’ case related to income information provided to the New York City Human

Resources Administration. This argument misperceives Related’s step-two burden. At that

stage, we do not decide whether a defendant’s proffer is credible or convincing. We ask only

whether defendant has adduced evidence that, “‘taken as true, would permit the conclusion

that there was a nondiscriminatory reason.’” Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d

Cir. 2008) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in

Hicks)). Related has more than satisfied that burden here.

2.     Pretext

       Plaintiffs argue that questions of fact nevertheless persist as to whether Related’s

proffered non-discriminatory reason was a pretext for illegal discrimination because: (1) the

reason did not comply with Related’s internal rules, (2) Related applied greater scrutiny to

applications from people receiving public assistance, and (3) Related proffered “shifting”

reasons for rejecting plaintiffs’ application. We disagree.

       Plaintiffs’ first contention is entirely conclusory and lacks any support in the record,

as we have already explained in rejecting their step-two challenge. Indeed, the challenged

action appears to have been authorized by a general provision of Related’s tenant selection

plan requiring rejection of applicants who provide false information. Plaintiffs’ second

contention is similarly deficient. The record indicates that Related afforded plaintiffs’



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application priority due to Mrs. Kennedy’s visual impairment, but otherwise conducted a

review consistent with that of all applications. Indeed, uncontested evidence establishes that,

upon plaintiffs’ appeal of their rejection to the New York City Department of Housing

Preservation and Development, that agency identified nothing improper in Related’s review

of plaintiffs’ application.

       In support of their third contention, plaintiffs rely on Carlton v. Mystic Transportation,

Inc., 202 F.3d 129, 137 (2d Cir. 2000) (holding that defendant’s proffer during litigation of

non-discriminatory reason disclaimed in administrative proceedings raised genuine issue of

material fact with regard to veracity of former), and EEOC v. Ethan Allen, Inc., 44 F.3d 116,

120 (2d Cir. 1994) (identifying fact issue where defendant offered contradictory reasons

seriatim during course of administrative investigation). These cases are not analogous to the

circumstances at issue here, however, because plaintiffs have adduced no comparable

evidence of Related’s reliance on inconsistent reasons for their challenged decision.

Drawing all reasonable inferences in their favor, plaintiffs’ evidence – a single underlined

phrase in an initial form letter rejecting their application – at best demonstrates ambiguity as

to Related’s rationale. Any such ambiguity is dispelled, however, by Related’s uncontested

evidence indicating that the form letter was underlined inadvertently and that Related

explained its reason for rejecting plaintiffs’ application consistently thereafter on at least two

occasions. In short, the totality of the evidence, which included an admission by John



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Kennedy that he did not believe his application was rejected due to his illness, would not

permit any reasonable jury to conclude that Related’s proffered reason for rejecting

plaintiffs’ application was a pretext for illegal discrimination. Moreover, even if we were

to assume that Related’s asserted reason was pretextual, there is no evidence in the record

from which a reasonable jury could find that it was a pretext to hide a discriminatory motive.

See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (plaintiffs bear the

ultimate burden of demonstrating that “the legitimate reasons offered by the defendant were

not its true reasons, but were a pretext for discrimination).

       We have considered plaintiffs’ other arguments on appeal and conclude that they are

without merit. Accordingly, the judgment of the district court entered on July 24, 2009, is

hereby AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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