Doe v. YWCA of Northeastern NY

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

__________________________________________

JANE DOE,

Plaintiff,

v. 1:19-CV-456

(TJM/ATB)

YMCA OF NORTHEASTERN NY, and DOZER BLAZE

PROPERTIES, LLC, f/k/a DOBER BLAZE PROPERTIES,

LLC,

Defendants.

___________________________________________

Thomas J. McAvoy,

Sr. U.S. District Judge

DECISION & ORDER

Defendants have filed motions to dismiss this action. See dkt. #s 18, 30. They

argue that the Court lacks subject matter jurisdiction over this matter, and that Plaintiff has

failed to state a claim upon which relief could be granted. The parties have briefed the

issues and the Court has determined to decide the matter without oral argument.

I. BACKGROUND

This case concerns Plaintiff Jane Doe’s1 claims that she suffered housing

discrimination from Defendants YWCA of Northeastern New York and Dozer Blaze

Properties, LLC. See Complaint (“Complt.”), dkt. # 1. Plaintiff alleges that her spouse

made a death threat on September 25, 2017. Id. at ¶ 4. She contends that the

1Magistrate Judge Andrew T. Baxter granted Plaintiff’s motion to proceed using a

pseudonym on May 14, 2019. See dkt. # 9.

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Defendants “impermissibly requir[ed]” that she “[accept] . . . harassment and

discrimination as a condition of” remaining in her apartment. Id. According to Plaintiff's

Complaint, the Defendant YWCA receives federal funding to provide permanent,

supportive housing for people with disabilities. Id. at 5. Defendant Dozer Blaze

Properties owns the apartment where Plaintiff resided. Id.

Plaintiff filed a pro-se Complaint form on April 18, 2019 containing three claims. On

the same day she filed her Complaint, Plaintiff filed a motion seeking a preliminary and

permanent injunction, a declaratory judgment, and damages for violating the Fair Housing

Act and the Violence Against Women Act. See dkt. # 2.

The Court denied this motion on April 19, 2019. See dkt. #6. The Court found that

the Anti-Injunction Act prevented the court from enjoining a state-court eviction

proceeding. Id. at 5. The Court denied Plaintiff's motion without prejudice relative to other

grounds for injunction, finding that Plaintiff4oroceeding pro se—had not followed the

necessary procedure to obtain either an Order to Show Cause or a preliminary injunction.

Id. at 6. Plaintiff then filed another motion on April 23, 2019, seeking a preliminary

injunction. See dkt. #7. She sought an injunction on the state-court eviction proceedings.

Id. The Court denied that motion as well, finding that the Anti-Injunction Act barred

interference with the ongoing state-court eviction proceeding. Id. at 2. The Court also

noted that the Rooker-Feldman doctrine barred the Court from acting as an appeal board

for any lower-court decision. Id. at 2.

After the Plaintiff served the Complaint, each of the Defendants filed motions to

dismiss. See dkt. #s 18, 30. Plaintiff has not responded to either motion. The motions to

dismiss do not treat Plaintiff's initial filing as the operative Complaint, but instead make

arguments based on Plaintiff's second filing, which the Court addressed in denying

Plaintiff's preliminary injunction motion. That document is titled “Complaint for Preliminary

and Permanent Injunction; Declaratory Judgment; and Damages for violation of the Fair

Housing Act; VAWA 2013's Housing Statute—34 U.S.C. § 12491 VAWA Confidentiality

Provision 34 U.S.C. § 12291(b)(2).”. The Court will interpret this document as an

Amended Complaint, since Plaintiff would have a right to amend her initial Complaint

under these circumstances. See FED. R. Clv. P. 15(a).

Plaintiff's Amended Complaint alleges violations of various rights. See Amended

Complaint, dkt. # 2. Plaintiff alleges that she brings this action “against the YMCA of

Northeastern NY, a federal grantee of Supportive Housing For Persons with Disabilities,

and Dozer’ Blaze Properties, LLC, majority owners of apartments rented by the YWCA

under a scattered-site leasing model.” Id. at 1. Plaintiff asserts that Defendants, “with

malicious intent . . . imposed discriminatory practices that included 20 months of hostile

environment harassment in my apartment beginning on September 26, 2017" after her

spouse threatened her life. Id. Such conduct, she claims, violates the Fair Housing Act’s

(“FHA”) prohibition on discrimination based on race, religion, sex, national origin, family

status, or disability. ld. Plaintiff also alleges that Defendants “collaborat[ed] to remove

[her] from [her] housing” and “to deny a new lease for’ her home after the death threat. Id.

at 2. They fabricated information to undermine her ability to maintain her residency in

the property, all in an effort to deny her housing because of her spouse’s threat. Id. That

conduct violated the Violence Against Women Act (“VAWA’), she claims. Id.

*Plaintiff misspells “Dozer” and “Dober” throughout her Amended Complaint. The

Court will correct that error when relating the allegations.

Defendant asserts that she “bring[s] this action against the YWCA of Northeastern

NY, and Dozer Blaze Properties LLC for authorizing a 60-day eviction notice on August 1,

2018 when my third party housing funds ended.” Id. at | 3. As an immigrant survivor of

abuse “in hiding,” Plaintiff claims, she is permitted under federal regulations to receive

housing. Id. She alleges that “an Albany (New York) based abuse shelter’s Rapid

Rehousing Program (RRP) paid for [her] housing from August 19, 2016 to July 31, 2018.”

Id. Despite knowing that Plaintiff received this assistance, “the YMCA authorized, filed,

and pursued a second action to evict [Plaintiff] on behalf of Dozer Blaze Properties, LLC,

on November 13, 2018, which ended in a dismissal on December 18, 2019.” Id. The

Defendants then “contrived a third eviction notice ending March 31, 2019" and filed an

eviction petition to be heard in April of that year in Schenectady County, New York. Id.

Plaintiff further alleges that the Defendant YWCA shared her confidential

information with Melissa Loeber of Dozer Blazer Properties, permitting “Loeber to know

how to target [her] possessions.” Id. at 4. Plaintiff claims that this action permitted

Loeber to begin a campaign of “stalking” and “psychological terrorism” against Plaintiff. Id.

Plaintiff alleges that she shared information with YWCA employees about her past abuse

in a “confidential setting,” and that release of such information violated the VAWA. Id. at □□

5. Rather than protect her, Plaintiff claims, YWCA employees “allowed Melissa Loeber to

act as an enforcer for the YWCA” and “began stealth stalking activities that morphed into

brazen acts of harassment.” Id. at ]6. The activities about which Plaintiff complains

included Loeber rearranging furniture in her apartment, damaging clothing, removing

hangars from closets, and damaging property such as printers and a fax machine. ld.

Plaintiff also alleges that Loeber damaged her apartment and her personal property and

engaged in other destructive and harassing behavior. Id. Loeber also allegedly entered

the apartment without permission or warning. Id. at J 7. The YWCA’s Director of Women

and Family Services, Lauren Jarrad, told Plaintiff in a January 24, 2019 email that the only

way she could escape Loeber’s mistreatment would be to leave her apartment. Id. at 6.

Plaintiff claims she contacted the Schenectady Police Department about this

conduct three times. Id. at 8. After those visits, she alleges, officers told her to contact

the Department of Housing and Urban Development (“HUD”). Id. Plaintiff contacted the

agency and her United States Senators about this conduct; their responses, she contends,

were unsatisfactory. Id. at J] 10-13.

Meanwhile, Plaintiff claims, the YWCA continued to ignore federal regulations. Id.

at 7 15. Plaintiff claims that the YWCA stopped offering her services in June of 2018,

even though regulations required that the YWCA provide such services until a court

ordered an eviction. Id. The YWCA also continued to permit Loeber to enter her

apartment. Id. Rather than assisting her in preventing such harassment, the YWCA wrote

to Plaintiff's attorney to inform her that she was residing illegally in her apartment and

would have to pay rent. Id. at 9 16. Plaintiff claims that the YWCA had provided housing

for a South American immigrant who was a victim of domestic abuse for four years but

refused to provide the same assistance to her. Id. at] 18. Plaintiff is “a Black, English

speaking immigrant survivor from a former British Colony.” Id. Despite receiving funding

to aid survivors of domestic abuse, Plaintiff claims, the YWCA did nothing “to protect or

aid” Plaintiff. Id. at ] 19. Plaintiff alleges that an attorney assigned to her case by Legal

Aid of Northeastern New York spent 60 hours investigating her case and concluded that

“the YWCA was not compliant with state or federal laws; that they were retaliatory; and

had developed a housing program that ignored HUD regulations, as well as due process

and civil rights laws.” Id. at J 21.

Plaintiff further claims that, after a court refused to evict Plaintiff on December 18,

2018, Defendants “employed another strategy to remove [her] from [her] home.” Id. at J

26. On January 29, 2019, she claims, “Homeland Security Agents were sent to my

residence based on a false tip.” Id. Agents quickly discovered that she was authorized to

remain in the United States as “a credible Violence Against Women Act (VAWA) Petitioner

awaiting my social security number and work permit.” Id. Agents advised her to contact

the New York State Attorney General about her housing circumstances. Id. The Attorney

General eventually recommended that Plaintiff pursue a claim in federal court with the

assistance of Legal Aid. Id. at J] 27-28. Legal Aid eventually declined to take the case,

and Plaintiff determined to file her action pro se. Id. at J 29.

Plaintiff's Amended Complaint lays out federal laws and regulations related to

prohibitions on discrimination in housing for victims of domestic violence. Id. at Jf] 34-51.

She contends that YWCA “housing administrators” failed to observe these rules and

regulations in her case. Id. at 743. The YWCA’s Executive Director, Kim Siciliano, she

alleges, “refused to acknowledge or discuss any rights” Plaintiff had under the VAWA

housing statute or the Fair Housing Act. Id. at 44. Plaintiff also describes the ways that

various housing facilitated by the YWCA was inferior or dangerous. Id. at {J 53-55. She

further alleges that the YWCA failed to help her find an attorney to help her with

immigration issues. Id. at ] 56.°

*Plaintiff contends that the Defendants discriminated against her by:

The Amended Complaint, like the original Complaint, raises three causes of action.

The first alleges a Violation of the Fair Housing Act. Plaintiff alleges that “[t]he YWCA

exposed me to hostile environment harassment from September 26, 2016 (to present)

following a death threat from my spouse[.].” Id. at 59. YWCA Senior Administrator

Lauren Jarrad allegedly “discouraged” Plaintiff from remaining in the apartment for 20

months but then informed Plaintiff in January 2018 that remaining in the apartment would

require her to “deal with” Melissa Loeber. Id. Plaintiff claims this conduct violates the Fair

Housing Act “by impermissibly requiring acceptance of a third party’s harassment and

discrimination . . . as a condition” of continued residence in the building. Id. Plaintiff

contends that this conduct violates 24 C.F.R. § 100.7, which assigns a housing provider

vicarious liability for the conduct of its employees and agents or third parties over which

the Defendant has control. Id. at [| 61(a). Plaintiff further contends that the YWCA’s

conduct in attempting to evict her violates the prohibitions on discrimination in the sale or

rental of housing in 42 U.S.C. § 3604. Id. at ] 62(b). Plaintiff contends she is entitled to

injunctive relief from this conduct. Id. at 63. She also seeks damages. ld. at □ 64.

(a)... cutting off communicating with me after a meeting on October 2", 2017 for

three months and threatening to discharge me from the program and after that

period allowing only periodic contact.

(b) On the morning of October 2, 2018, Lauren Jarrard sent me an email in her

capacity as the Director of Women and Family services, Jarrad threatened me with

a discharge from the program for refusing to meet with them to discuss the death

threat. Ms. Jarrad knew | cited challenges with my disability following the death

threat on September 25, 2018 and had requested time to regroup from the trauma

of the event and their aggressive efforts to remove my housing in collaboration with

Melissa Loeber of Dozer Blaze Properties LLC. The defendants knew of my

documented disability but chose to ignore my request.

Amended Complt. at J 57.

Plaintiff's second cause of action seeks relief under the housing portion of the

VAWA, 34 U.S.C. § 1249. Plaintiff claims that both Defendants violated the act by

attempting to have her evicted and refusing to renew her lease when she received a death

threat from a former spouse. Id. at I] 68-69. Plaintiff seeks an injunction prohibiting

Defendants from engaging in discriminatory practices. Id. at 70. She also seeks

damages. ld. 71.

Plaintiff's third cause of action alleges that the YWCA administrators violated the

confidentiality provisions of the VAWA, 34 U.S.C. § 12291(b)(2). Plaintiff alleges that the

YWCA administrators provided Loeber with confidential information in an effort “to push

me out of my home{[.]” Id. at ] 77. Sharing that information led to harassing conduct from

Loeber, which “triggered severe anxiety, psychoneuroimmunological conditions, and an

eating disorder.” Id. Plaintiff seeks injunctive relief and damages for this conduct. Id. at

Wl 78-79. Plaintiff also seeks declaratory relief that finds her eviction invalid and

unenforceable, as well as “any matters or actions brought against me by the Defendants.”

Id. at 82-84. The Amended Complaint also seeks to have the Court enjoin Defendant

Dozer Blaze from “enforc[ing] their contrived notice that the property could not be renewed

due to repairs.” Id. at 85. Plaintiff further requests an injunction “barring Defendant

YWCA of Northeastern NY . . . from taking any actions to evict” Plaintiff “based on their

notice on 7/25/2018 stating that | was non-compliant; the termination of my subsidy, and

removal from the Rosa’s House Supportive Housing Program.” Id. at J] 86. Plaintiff also

seeks damages, attorneys fees, and costs. Id. at J] 87-88.

Il. Legal Standard

Defendants filed motions to dismiss the Amended Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). In addressing such motions, the Court must accept “all

factual allegations in the complaint as true, and draw{] all reasonable inferences in the

plaintiffs favor.” Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet does

not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Id. 678. “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Id. (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). When, as here, the

Plaintiff proceeds pro se, the Court “construe [the complaint] broadly, and interprets [it] to

raise the strongest arguments that [it] suggests.” Weixel v. Bd. of Educ. of N.Y., 287 F.3d

138, 146 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). “This

is especially true when dealing with pro se complaints alleging civil rights violations.” Id.

Plaintiff did not respond to the motion. Since “no response was necessary” to a 12(b)(6)

motion to dismiss, the Court will apply the appropriate legal standard and determine

whether Plaintiff's Amended Complaint states a claim upon which relief could be granted.

Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983).

Hl. Analysis

A. Motion of Defendant YWCA

Defendant YWCA of Northeastern New York filed a motion to dismiss, raising

several grounds, which the Court will address in turn.

i. Injunctive Relief

Defendant first argues that the Court should dismiss any claim for injunctive relief.

Plaintiff has now been evicted from the apartment and thus any injunctive relief is moot

and unavailable. Moreover, the injunctive relief she seeks—a Court order barring or

reversing the state-court order evicting her—is unavailable due to the anti-injunction act,

the Rooker-Feldman doctrine, and Younger abstention.

The Court will grant the motion in this respect. The Court has already determined

that injunctive relief is unavailable to the Plaintiff under these circumstances. See dkt. #s

6, 8. The Court stands on those decisions and notes that any injunction at this point

would amount to a review over a final the state-court decision and is not permitted under

the Rooker-Feldman doctrine, which establishes that lower federal courts have no

jurisdiction over challenges to final state-court decisions. District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923); see also Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.

2005).

ii. FHA Claims

Defendant next argues that the Court should dismiss Plaintiff's Federal Housing Act

claims against the YWCA. Defendant contends that Plaintiff attempts to assert vicarious

liability against the YWCA, but that Plaintiff has not and could not allege that Dozer Blaze

acted as the YWCA’s agent under the circumstances. In any case, Defendant claims, the

YWCA was not the landlord and not the owner of the property, and therefore cannot be

subject to the liability under the FHA. As such, Defendant contends, the claim should be

dismissed.

Under the Fair Housing Act, “property owners and their agents may not ‘unlawfully

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discriminate against any person in the terms, conditions, or privileges of sale or rental of a

dwelling.” Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting 42 U.S.C. §

3604(b)). The aim of the Act is “to eliminate all traces of discrimination within the housing

field.” Francis v. Kings Park Manor, Inc., 944 F.3d 370, 376 (2d Cir. 2019). “The

language of the FHA has a ‘broad and inclusive compass,’ and [courts] therefore give it a

‘generous construction.” Id. (quoting, in turn, City of Edmonds v .Oxford House, Inc., 514

U.S. 725, 731 (1995); and Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 212 (1972)).

The act applies as well to “so-called ‘post-acquisition’ claims that arise from intentional

discrimination that occurs after a party occupies the property. Id. The Act regulates

“conduct that . . . ‘would constitute discrimination in the enjoyment of residence in dwelling

or in the provision of services associated with that dwelling’ after acquisition.” Id. at 377.

Defendant contends that it cannot be liable under the FHA because Dozer Blaze,

not the YWCA, was the landlord of the property. Plaintiff alleges, and Dozer Blaze admits

in its briefing (see dkt. # 30-1), that the YWCA leased the apartment in question from

Dozer Blaze and then sublet the apartment to the Plaintiff. See Amend. Complt. at □ 1.

Dozer Blaze brought the eviction proceeding in the Schenectady County Court, naming

both Plaintiff and the YWCA as Defendants. See dkt. #29. Under the FHA, however,

“[t]o rent’ includes to lease, to sublease, to let and otherwise grant for consideration the

right to occupy premises not owned by the occupant.” 42 U.S.C. § 3602(e). To the extent

that the YWCA sublet the property to Plaintiff and engaged in discriminatory activity, then,

the YWCA could be liable under the FHA. Making all inferences in the Plaintiff's favor, the

Court cannot grant the motion on this basis.

Still, the discriminatory and harassing conduct that Plaintiff allegedly faced did not

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come from the YWCA or the YWCA’s employees. While Plaintiff complains that Melissa

Loeber’s conduct harassed her, she also admits that Defendant Dozer Baze, and not the

YWCA, employed Loeber. The question, therefore, becomes whether the YWCA can be

liable for Loeber’s conduct. Courts have permitted vicarious liability for FHA violations.

Courts use federal agency law to determine whether vicarious liability exists. Cleveland v.

Caplaw Enters., 448 F.3d 518, 522 (2d Cir. 2006) (citing Cabrera v. Jakabovitz, 24 F.3d

372, 386 n.13 (2d Cir. 1994)). “Agency is a legal concept that depends on the existence

of three elements: (1) ‘the manifestation by the principal that the agent shall act for him’;

(2) ‘the agent’s acceptance of the undertaking’; and (3) ‘the understanding of the parties

that the principal is to be in control of the undertaking.” Id. (quoting Restatement (Second)

of Agency § 1cmt.b (1958)). Determining agency, however, is a “highly factual” endeavor.

Id. Courts rely “on a number of factors, including:

the situation of the parties, their relations to one another, and the business in which

they are engaged; the general usages of the business in question and the

purported principal's methods; the nature of the subject matters and the

circumstances which the business is done.

Id. (quoting Columbia Broad. Sys., Inc.v. Stokely-Van Camp, Inc., 522 F.2d 369, 375-76

(2d Cir. 1975)). “[T]he right of control by the principal may be exercised by prescribing

what the agent shall or shall not do before the agent acts, or at the time when he acts, or

at both times.” Id. (quoting Restatement (Second) of Agency § 14 cmt. a). A principal

need not control all conduct, that control need not be continuous, and can even be

“ineffective” when the principal “is physically absent.” Id. (quoting Restatement (Second)

of Agency at § 14 cmt. a).

As a threshold question, therefore, the Court must decide whether Plaintiff has

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alleged that an agency relationship existed between Loeber and the YWCA. The Court

finds that Plaintiff has not alleged such a relationship. Plaintiff admits that the YWCA

“rents” properties from Dozer Blaze. Amended Complt. at ¶ 1. She claims YWCA officials

allowed “Loeber to act as an enforcer for the YWCA.” Id. at ¶ 6. She further alleges that a

YWCA official, Lauren Jarrard, emailed her in January 2019 to say “she was sorry for my

suffering but if I remained in my apartment I would continue to be subjected to Ms.

Loeber.” Id. When Plaintiff reported Loeber’s conduct to the YWCA, “they advocated for

Melissa Loeber stating that I was residing in the apartment illegally without a lease, and as

a result, the landlord could not receive funds for the dwelling. Lauren Jarrard justified

Melissa Loeber[‘s] actions stating the apartment was Loeber’s property.” Id. at ¶ 7. All of

this indicates that Loeber did not serve as the YWCA’s agent, but instead operated

independently and in the interests of Defendant Dozer Blaze. Since Plaintiff has alleged

only agency liability against the YWCA, the Court finds that the Defendant’s motion should

be granted in this respect.4

Given that Plaintiff is proceeding pro se, however, and because she has alleged

that the YWCA sublet her the apartment, she may be able to allege facts that would give

rise to a FHA claim against the YWCA for its own employees’ acts of discrimination.5 The

Court will therefore permit Plaintiff to re-plead any FHA claims that she may have against

the YWCA for such discrimination. Plaintiff should keep in mind, however, the standard

4The Court also agrees with the Defendant that, to the extent that Plaintiff seeks

recovery of damages for losing benefits from HUD, her remedy is not an FHA claim, but

an action involving HUD.

5The Court declines to determine whether qualified immunity applies under the

circumstances.

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explained below. She must allege facts sufficient to make it plausible that a discriminatory

motivate lay behind the Defendant’s conduct.

iii. VAWA Act Claims

The Defendant next seeks dismissal of Plaintiff’s claim that the YWCA violated her

rights under the Violence Against Women Act by seeking to have her evicted from her

apartment. Plaintiff cannot raise such a claim, Defendant argues, because the YWCA did

not attempt to evict her, and instead sought to help her find housing. Defendant likewise

argues that Plaintiff cannot raise a claim under the VAWA for disclosing confidential

information.

The Court finds that there is separate, independent, and dispositive reason to

dismiss both of Plaintiff’s claims under the Violence Against Women Act. Courts have

concluded that “there is no private civil remedy under VAWA.” Esposito v. New York, 453

Fed. Appx. 37, 39 (2d Cir. 2011) (citing United States v Morrison, 529 U.S. 598 (2000)

(finding the private civil remedy under the VAWA unconstitutional). Because Plaintiff

cannot bring such a claim, those causes of action must be dismissed with prejudice.

B. Defendant Dozer Blaze

Defendant Dozer Blaze also seeks dismissal of Plaintiff’s claims. For the reasons

stated above concerning the lack of a private remedy under the VAWA and the Plaintiff’s

inability to obtain injunctive relief, the Court will grant the motion with respect to those

claims without further discussion. The only question that remains, therefore, is whether

Plaintiff has stated a claim that Dozer Blaze violated the FHA.

i. FHA Claims

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Defendant first argues that Plaintiff has failed to state a claim because she has not

alleged that Dozer Blaze discriminated against her because of any protected category:

race, color, religion, sex, disability, familial statute, and/or national origin. While Defendant

admits that Plaintiff has alleged that she suffers from a disability-post-traumatic stress

disorder (“PTSD”)—Defendant has not connected her eviction to any animus Defendant

had to Plaintiff because of that disability. Courts evaluating a discrimination claim under

the FHA employ the burden-shifting framework articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003)

(“We evaluate claims of housing discrimination under the McDonnell Douglas burden-

shifting framework.”). “Pursuant to that framework, once a plaintiff has established a

prima facie case of discrimination, the burden shifts to the defendant to assert a

legitimate, nondiscriminatory rationale for the challenged decision.” Palmer v. Mae, 755

Fed. Appx. 43, 46 (2d Cir. 2018). At this stage in the proceedings, however, “‘a plaintiff is

not required to plead a prima facie case under McDonnell Douglas at least as the test was

originally formulated, to defeat a motion to dismiss.” Id. (quoting Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015)). A plaintiff “can survive a motion to

dismiss” by “alleg[ing] facts that support a plausible claim that the plaintiff was ‘a member

of a protected class,’ suffered relevant ‘adverse’ treatment, and ‘can sustain a minimal

burden of showing facts suggesting an inference of discriminatory motivation.” Id.

(quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015) (emphasis in

original)). At this stage, “‘a plaintiff need only give plausible support to a minimal inference

of discriminatory motivation[.]” Id. (quoting Vega, 802 F.3d at 84)).

The Court finds that Plaintiff has failed to plead facts sufficient to provide even a

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minimal inference of discriminatory motivation in Defendant’s conduct. While Plaintiff

alleges reprehensible conduct on Loeber’s part, she alleges no facts which would make it

plausible that discrimination because of Plaintiff’s alleged disability motivated Plaintiff’s

action. The Court will therefore grant the Defendant’s motion to dismiss in this respect.

Because Plaintiff proceeds pro se, however, and because Plaintiff may be able to plead

facts which suggest a discriminatory motive to Loeber’s conduct, the Court will grant the

motion without prejudice to plaintiff re-pleading such a claim.

Defendant also argues that Plaintiff’s hostile living environment claim should also

be dismissed. First, Defendant asserts that Plaintiff has not alleged that Dozer Blaze had

authority over the “terms, conditions, or privileges of sale or rental” of the apartment.

Instead, Dozer Blaze claims, Plaintiff has alleged that the YWCA had such control. Even

if Plaintiff could allege that Dozer Blaze had such control, Defendant contends that she

has not alleged that any harassment came because of Plaintiff’s membership in a

protected class. Finally, Defendant contends that Plaintiff has not alleged the sort of

pervasive or severe conduct that would give rise to a hostile environment claim.

“District courts in this Circuit have held that a plaintiff bringing a post-acquisition

hostile housing environment claims under Section 3617 must prove (1) that he or she was

subjected to harassment that was sufficiently pervasive and severe so as to create a

hostile housing environment; (2) that the harassment was because of the plaintiff’s

membership in a protected class; and (3) that a basis exists for imputing the allegedly

harassing conduct to the landlord or property manager.” A.L.M. v. Bd. of Managers of the

Vireum Schoolhouse Condo., No. 17cv7385, 2019 U.S. Dist. LEXIS 129465, *24 (S.D.N.Y.

Aug. 2, 2019); citing Pierre v. Lantern Grp. Found., Inc., 14cv8449, 2016 US Dist. LEXIS

16

80079, 2016 WL 3461309 at *2 (S.D.N.Y. June 20, 2016); D.K. by L.K. v. Teams, 260

F.Supp.3d 334, 367 (S.D.N.Y. 2017); Cain v. Rambert, 2014 U.S. Dist. LEXIS 74188,

2014 WL 2440596 at *5 (E.D.N.Y. May 30, 2014)).

The Court will grant the Defendant’s motion in this respect. Even providing

Plaintiff’s Amended Complaint with the consideration due a pro se pleading and making all

inferences in her favor, the Court cannot find that Plaintiff has plausibly alleged that the

harassment Plaintiff allegedly faced from Loeber amounted to harassment because of her

PTSD or membership in some other protected class. While the allegations listed above

may constitute severe and pervasive conduct on Loeber’s part, Plaintiff has not connected

a discriminatory animus to that conduct sufficient to meet the pleading standard.6 The

Court will also grant the motion to dismiss on that basis.

As with the YWCA, the Court will grant the Plaintiff’s motion without prejudice to re-

pleading in this respect. The Plaintiff has alleged membership in a protected class, and

she may be able to allege discrimination related to that membership.

IV. CONCLUSION

For the reasons stated above, the Court will GRANT the Defendants’ motions to

dismiss, dkt #s 18, 30. The motions are GRANTED WITH PREJUDICE with respect to

any claims under the Violence Against Women Act and any attempts to obtain injunctive

relief. The motions are GRANTED without prejudice with respect to Plaintiff’s claims

6The Court is unable to conclude that Plaintiff has not–as Defendant claims–alleged

that Dozer Blaze did not control the terms and conditions of Plaintiff’s housing. As

explained above, the Amended Complaint is not entirely clear about the arrangements

between the YWCA and Dozer Blaze. If Plaintiff chooses to re-plead her allegations, she

should make clear the relationship between the Defendants and the nature of her lease at

the relevant times.

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under the Fair Housing Act. Plaintiff must file any amended complaint within thirty (30)

days of the date of this Order. Failure to file an Amended Complaint within that time will

cause the Court to consider the matter dismissed with prejudice. Plaintiff is advised that

an amended complaint supersedes in all respects the prior pleading. Therefore, if the

Plaintiff files an amended complaint she must properly allege the claims for which

leave to re-plead has been granted by this Decision and Order.

IT IS SO ORDERED.

DATED: February 12, 2020

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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