Sitting in a rare en banc hearing in Francis v. Kings Park Manor, Inc.  992 F.3d 67 (2d Cir. 2021), the United States Court of Appeals for the Federal Circuit vacated the panel determination holding and affirmed the District Court’s dismissal of the plaintiff’s claims of intentional discrimination under the Fair Housing Act of 1968; Housing Discrimination claims under 45 USCA §§1981 and 1982; Housing Discrimination under NYSHRL; and negligent Infliction of emotional distress.  The Court held that a claim by a tenant “alleging that his landlord failed to respond to reports of race-based harassment by a fellow tenant fails to state a claim for intentional discrimination.”  The Court reasoned that “landlords typically do not, and therefore cannot be presumed to exercise the degree of control over tenants.”


As alleged in the Complaint, Donahue Francis, a Black man, rented and lived in an apartment at Kings Park Manor, an apartment complex owned and operated by defendant Kings Park Manor, Inc. (“KPM”). Throughout 2012, Francis’s neighbor verbally attacked and attempted to intimidate him by making racist insults and at least one death threat. In March 2012, Francis reported his neighbor to the Suffolk County police, who informed KPM of the reported events. Francis renewed his lease “without comment” on May 1, 2012; thereafter, Francis wrote three letters to KPM, in which he recounted his neighbor’s behavior, the police involvement, and his neighbor’s arrest for aggravated harassment in August 2012. However, he did not allege in the complaint that he ever requested any action by KPM. His neighbor pleaded guilty to a charge of harassment in April 2013.

The Complaint

Francis’s Complaint asserted claims of racial discrimination against KPM under the Fair Housing Act (“FHA”), Section 1 of the Civil Rights Act of 1866, as amended and codified at 42 U.S.C. §§1981 and 1982, and the New York State Human Rights Law (“NYSHRL”), as well as a common law claim of negligent infliction of emotional distress. The Complaint also included a breach of contract claim against KPM. KPM moved to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court for the Eastern District of New York denied the motion as to Francis’s breach of contract claim, but otherwise granted it by dismissing Francis’s other claims against KPM.

A divided panel in the Second Circuit issued an opinion affirming the dismissal of Francis’s claims for negligent infliction of emotional distress but reversed the dismissal of his discrimination claims. Rehearing en banc was later ordered.

The Court’s Analysis

The Second Circuit, in a 7-5 en banc ruling, vacated the panel decision and affirmed the judgment of the District Court, holding that “(1) a landlord cannot be presumed to have the degree of control over tenants necessary to impose liability under the FHA for tenant-on-tenant harassment, (2) Francis fail[ed] to state a claim that the KPM defendant intentionally discriminated against him on the basis of race in violation of the FHA, Civil Rights Act, or the NYSHRL; and, (3) Francis fail[ed] to state a claim of negligent infliction of emotional distress against KPM under New York law.”

Because the plaintiff’s claims were not premised on direct evidence of landlord discrimination, the Court analyzed the claims under the McDonnell Douglas burden-shifting framework.[1] The Court found the complaint “lacks even ‘minimal support for the proposition’ that the KPM defendants were motivated by discrimination intent” and that “only untethered speculation supports an inference of racial animus of the part of the KPM defendants.” The Court recognized that Francis claimed these allegations establish that defendants intentionally discriminated against him under the “deliberate indifference” theory of liability. The Court held that, even if this theory applied, “Francis has failed to state a claim because his complaint provides no factual basis to infer that the KPM defendants had “substantial control over [the harassing and the context in which the known harassment occur[red].” Nor can such control be reasonably presumed to exist in the typical arms-length relationship between landlord and tenant, unlike the custodial environments of schools and persons.”  

The Court further explained that the typical powers of a landlord over a tenant – such as the power to evict – does not establish the “substantial control” necessary to state a “deliberate indifference” claim under the FHA.

Significantly, the Second Circuit went to lengths to distinguish the Seventh Circuit’s determination in Wetzel v. Glen St. Andrew Living Community, LLC 901 F.3d 856 (7th Cir. 2018), which “recognized a deliberate indifference theory of liability for a claim of discrimination under the FHH.”  The Second Circuit distinguished Wetzel because there the allegations “gave rise to the plausible inference that the defendant landlord had unusual supervisory control over both the premises and the harassing tenants.” In addition, the Second Circuit found it significant that the landlord in Wetzel “was alleged to have affirmatively acted against the plaintiff.”

The Court also concluded that even if KPM had “substantial control,” Francis would have still failed to state an FHA claim for discrimination under a “deliberate indifference” theory because KPM’s inaction was not “clearly unreasonable” in light of the circumstances described in the Complaint.


While the Court’s decision emphasizes the particular facts in this case, it seems that the Court’s analysis and application of the law to those facts, coupled with its analysis of the Second Circuit’s determination in Wetzel, result in a very high bar for tenants to overcome. The decision also gives significant protections to landlords faced with intentional discrimination claims based on allegations that the landlord failed to respond to allegations of fellow tenant’s race-based harassment.

[1]  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiffs have specific, “reduced” pleading burdens in cases subject to the McDonnell Douglas analysis. For a plaintiff’s claim to survive a motion to dismiss under the McDonnell Douglas analysis, he must plausibly allege that he “(1) is a member of a protected class, . . . (2) suffered an adverse . . . action, and (3) has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.” While plaintiff did allege, “in a conclusory fashion” that the KPM defendants intervened against other tenants regarding non-race related violations of their leases or of the law, the Court held that “there is no factual basis to plausibly involve infer that the KPM defendants’ conduct with regard to Francis was motivated by racial animus.”