         11-3618
         Whitaker v. New York University


                           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 TO 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
 2       the Second Circuit, held at the Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the 22nd
 4       day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                 RICHARD C. WESLEY,
 8                 PETER W. HALL,
 9                      Circuit Judges.*
10       _____________________________________
11
12       Barbara Whitaker,
13
14                           Plaintiff-Appellant,
15                    v.                                        11-3618
16
17       New York University,
18
19                      Defendant-Appellee.**
20       _____________________________________
21
22       FOR PLAINTIFF-APPELLANT: Barbara Whitaker, pro se, New York, NY.
23
24       FOR DEFENDANT-APPELLEE:           Nancy Kilson, Associate General Counsel,
25                                         for Bonnie Brier, General Counsel, New
26                                         York University, New York, NY.

               *
                Pierre N. Leval, Circuit Judge, recused himself. The two
         remaining members of the panel, who are in agreement, have
         decided this case in accordance with Second Circuit Internal
         Operating Procedure E(b).
               **
                The Clerk of the Court is directed to amend the caption
         to read as shown above.
 1       Appeal from a judgment of the United States District

 2   Court for the Southern District of New York (Swain, J.).

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

 4   AND DECREED that the judgment of the district court is

 5   AFFIRMED.

 6       Appellant Barbara Whitaker, pro se, appeals from the

 7   district court’s summary judgment in favor of the defendant

 8   in Whitaker’s action asserting familial status

 9   discrimination and retaliation claims pursuant to the Fair

10   Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”); the New York

11   State Human Rights Law, N.Y. Exec. L. § 296 et seq.; and the

12   New York City Human Rights Law, N.Y.C. Admin. Code § 8-101

13   et seq.     We assume the parties’ familiarity with the

14   underlying facts, the procedural history of the case, and

15   the issues on appeal.

16       We review an order granting summary judgment de novo,

17   and ask whether the district court properly concluded that

18   there were no genuine issues of material fact and that the

19   moving party was entitled to judgment as a matter of law.

20   See Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004).

21   In determining whether there are genuine issues of material

22   fact, we are “required to resolve all ambiguities and draw


                                     2
 1   all permissible factual inferences in favor of the party

 2   against whom summary judgment is sought.”      Id. (internal

 3   quotation omitted).     However, reliance upon conclusory

 4   statements or mere allegations is not sufficient to defeat a

 5   summary judgment motion. See Yin Jing Gan v. City of New

 6   York, 996 F.2d 522, 532 (2d Cir. 1993); Fed R. Civ. P.

 7   56(e).     We will only affirm the dismissal of a claim on

 8   summary judgment “if it appears beyond doubt that the

 9   plaintiff can prove no set of facts in support of [her]

10   claim which would entitle [her] to relief.”      Feingold, 366

11   F.3d at 148 (internal quotation omitted).

12       Having conducted an independent and de novo review of

13   the record in light of these principles, we affirm the

14   district court’s judgment for substantially the same reasons

15   stated in the district court’s thorough and well-reasoned

16   July 19, 2011 decision.     The FHA makes it unlawful “[t]o

17   refuse to negotiate for the sale or rental of, or otherwise

18   make unavailable or deny, a dwelling to any person because

19   of race, color, religion, sex, familial status, or national

20   origin.”     42 U.S.C. § 3604(a).   We find no basis for

21   concluding that New York University’s (“NYU”) general policy

22   of not providing on-campus dormitory housing to spouses,


                                     3
 1   domestic partners, or dependents of NYU students (unless

 2   those spouses, domestic partners, or dependents are also NYU

 3   students) is facially discriminatory, because the FHA does

 4   not identify non-student status as a protected class.        See

 5   42 U.S.C. § 3604(a).

 6       In order to establish a prima facie case of housing

 7   discrimination based on disparate treatment, a plaintiff is

 8   required to establish, inter alia, that she sought and was

 9   qualified to rent or purchase the housing.     Mitchell v.

10   Shane, 350 F.3d 39, 47 (2d Cir. 2003).    In order to satisfy

11   the “qualified” element, the renter must meet the applicable

12   criteria that the owner established.     See id. at 47-48.

13   Here, NYU proffered evidence that it provides dormitory

14   housing to its students based on student status and has a

15   long-standing policy of not providing housing for non-

16   student family members.   Thus, although Whitaker would have

17   been qualified to obtain on-campus housing if she sought to

18   live alone, she did not qualify for on-campus housing for

19   both herself and her son based on NYU’s objective criteria.

20       Finally, in order to establish a prima facie case of

21   discrimination based on disparate impact, a plaintiff is

22   required to show, inter alia, a “significantly adverse or


                                   4
 1   disproportionate impact on persons of a particular type

 2   produced by the defendant’s facially neutral acts or

 3   practices.”   See Regional Economic Comm. Action Program,

 4   Inc. v. City of Middletown, 294 F.3d 35, 53 (2d Cir. 2002).

 5   Here, Whitaker failed to establish a prima facie case

 6   because she did not demonstrate that NYU’s policy of not

 7   providing on-campus housing to non-student dependents of NYU

 8   students has a significantly more adverse or

 9   disproportionate impact on members of Whitaker’s protected

10   class than it has on non-protected classes who are also

11   impacted by NYU’s housing policy.   Accordingly, we conclude

12   that the district court properly granted summary judgment in

13   favor of NYU on Whitaker’s FHA discrimination claims.

14   Finally, “we find that the district court acted well within

15   its discretion in declining to assert supplemental

16   jurisdiction over plaintiffs’ state-law claim[s].”

17   Domnister v. Exclusive Ambulette, Inc., 607 F.3d 84, 87 (2d

18   Cir. 2010) (internal quotation omitted).

19       We have considered all of Whitaker’s remaining

20   arguments and find them to be without merit.    Accordingly,

21   we AFFIRM the judgment of the district court.
22
23                               FOR THE COURT:
24                               Catherine O’Hagan Wolfe, Clerk




                                   5
