“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Second Circuit Judges Steven Menashi, William Nardini, Richard Sullivan, Michael Park, and Joseph Bianco cast the deciding votes in a 7-5 ruling of the full court that effectively reversed a decision of a three-judge panel and dismissed a complaint by a black tenant that a landlord had discriminated against him under the Fair Housing Act (FHA) by refusing to take any action against a pattern of racial harassment by a white tenant in violation of lease obligations, even though it had acted against other tenants who had violated their leases on other grounds. The March 2021 decision was in Francis v Kings Park Manor Inc.
Donahue Francis, an African-American man, rented and moved into an apartment in a development owned and managed by Kings Point Manor (KPM) in Suffolk County, New York. All KPM leases require that tenants not commit “objectionable or disorderly conduct” that “disturbs or interferes with the rights, comforts , or conveniences of other residents.” About a month after Francis moved in, however, his next-door neighbor Raymond Endres began a months-long campaign of intimidation and harassment against him, which included “racial insults and at least one death threat.”
Among other things, Endres “repeatedly” called Francis “a fucking nigger” and a “black bastard,” demanded that Francis “close your god-darn door” and “keep your door closed,” told Francis “I oughta kill you, you fucking nigger,” and twice stood in Francis’ open door and took pictures of “the interior of Francis’ apartment.” Francis became “terrified” and felt “unwelcome” and “uncomfortable walking in the common areas” of the building. He repeatedly contacted KPM, writing three letters over several months, as well as to the county police.
KPM refused to take any action, and in fact told its property manager “not to get involved,” even though, according to the complaint Francis filed, it had previously “intervened against other tenants” concerning “non-race-related violations of their lease or of the law.” The police, on the other hand, investigated Francis’ complaint, arrested Endres for “aggravated harassment,” and he pleaded guilty. As to KPM, however, Endres continued to live at the complex “without any warning, reprimand, or so much as a word” until he moved out after his lease expired.
Francis filed suit in federal court against KPM and Endres under the FHA and other federal and state anti-discrimination laws. Endres never appeared, and a default judgment was entered against him. Although the lower court dismissed the case against KPM without even any discovery, a three-judge panel of the Second Circuit reversed, ruling that Francis should have the opportunity to try to prove that KPM knew of and improperly failed to take action against the discriminatory harassment by Endres and that several other federal appellate courts and the Department of Housing and Urban Development (including under the Trump Administration) had recognized such “hostile housing environment claims under the FHA.”
The full Second Circuit then decided to rehear the case, and Trump judges Menashi, Nardini, Sullivan, Park, and Bianco provided deciding votes in a 7-5 decision to effectively reverse the panel decision and order that Francis’ complaint should be dismissed. Despite previous decisions in the Second Circuit and elsewhere, the majority stated that a landlord like KPM “cannot be presumed to have the degree of control over tenants” to lead to liability under the FHA for “tenant-on-tenant harassment.” Although the majority recognized that the case was at an early stage where no discovery had taken place, it maintained that Francis had not “plausibly pleaded” discrimination by KPM because his complaint’s key allegations, such as that state records show that KPM had taken action against other tenants because of “non-race-related violations of their leases or of the law,” were simply “conclusory” and did not “provide enough information.”
The five dissenting judges strongly disagreed. A dissent written by Judge Raymond Lohier explained that the majority’s “attack” on Francis’ complaint was “flawed” because it “misapplies” Supreme Court precedent by demanding “significantly more than the short and plain statement” of the claim that is properly required, as well as actual facts and evidence that should not be required before even any discovery has taken place. In addition, Lohier continued, the courts have made clear that a plaintiff has only a “minimal” burden in raising discrimination allegations under the FHA and is under “no obligation to allege facts” as demanded by the majority at the early stage of a case like this one. Based on prior case law, Lohier concluded, the allegations in the complaint “clearly raise a plausible inference” that KPM had “the authority to take remedial action” against Endres and refused to do so for discriminatory reasons.
A dissent written by Judge Denny Chin compared this case with another recent harmful divided Second Circuit ruling in a discrimination case – the Mandala decision concerning employment discrimination. In both cases, Judge Chin explained, “instead of drawing all reasonable inferences” in favor of civil rights plaintiffs at the early stages of a case, as the law requires, the narrow majority “draws inferences against them.” In both, Chin went on, the majority imposed an improperly “heightened” requirement as to what must be contained in a complaint in a “civil rights case” that “shuts the courthouse door” on what “may very well be meritorious claims of discrimination.” Chin concluded that “taken together,” the two rulings clearly will make it “more difficult for plaintiffs with meritorious civil rights claims to have their day in court.”
That is precisely the result of the five Trump judges deciding votes in this housing discrimination case, just as it was with respect to their deciding votes in Mandala concerning job discrimination. Such decisions make it all the more urgent that President Biden and the Senate take prompt action to fill the two vacancies now on the Second Circuit in order to help “repair the damage done” to people’s rights by Trump judges.