13

‐ 4792

‐ cv

Rodriguez v. Village Green Realty, Inc.



## In the 1 

# United States Court of Appeals 2



## For the Second Circuit 3

4

August Term, 2014 5

No. 13

‐ 4792

‐ cv 6

H EIDI R ODRIGUEZ

, individually and as parent and natural guardian 7

of the minor child, A.R., and J UAN R ODRIGUEZ

, individually and as 8

parent and natural guardian of the minor child, A.R., 9

Plaintiffs

‐ Appellants

, 10

v. 11

V ILLAGE G REEN R EALTY

, I NC

., d/b/a Coldwell Banker Village Green 12

Realty, and B LANCA A PONTE

, 13

Defendants

‐ Appellees

.  14

15

Appeal from the United States District Court 16

for the Northern District of New York. 17

No. 11

‐ cv

‐ 1068

― Thomas J. McAvoy, Judge

. 18

19

20

A RGUED : S EPTEMBER 12, 2014 21

D ECIDED : J UNE 2, 2015 22

23

24

 The Clerk of the Court is directed to amend the official caption to conform to

the above.‐ 2

‐ Before: L IVINGSTON and D RONEY

, Circuit Judges

, and N ATHAN

, 1

District Judge

.  2

3

4

Heidi and Juan Rodriguez, parents of minor child A.R., 5

brought suit for disability discrimination under the Fair Housing 6

Act, 42 U.S.C. § 3601 et seq. (“FHA”), against Village Green Realty, 7

Inc., a real estate agency, and Blanca Aponte, its agent. The United 8

States District Court for the Northern District of New York 9

(McAvoy, J. ) granted summary judgment for the defendants. We 10

hold that the district court erred because there was sufficient 11

evidence presented that A.R. qualifies as disabled under the FHA. 12

We also hold that the FHA’s prohibition against statements that 13

“indicate[ ] any preference, limitation, or discrimination based on

. . . 14

handicap,” 42 U.S.C. § 3604(c), may be violated even if the subject of 15

those statements does not qualify as disabled under the FHA. 16

Finally, we hold that the “ordinary listener” standard is not 17

applicable to claims under 42 U.S.C. § 3604(d) for misrepresenting 18

the availability of housing. 19

20

Accordingly, we VACATE the judgment of the United States 21

District Court for the Northern District of New York and REMAND

. 22

23

24

S ASHA M. S AMBERG

‐ C HAMPION (Michael G. Allen 25

and Timothy M. Smyth, on the brief ), Relman, 26

Dane & Colfax PLLC, Washington, DC, for 27

Plaintiffs

‐ Appellants

. 28

29

 The Honorable Alison J. Nathan, of the Southern District of New York, sitting

by designation.‐ 3

‐ A RI I. B AUER (Paul S. Ernenwein, on the brief ), 1

Catania, Mahon, Milligram & Rider, PLLC, 2

Newburgh, NY, for Defendants

‐ Appellees

. 3

4

Cathy A. Simon and Thomas H. Prouty, 5

Troutman Sanders LLP, Washington, DC; Megan 6

K. Whyte de Vasquez, Washington Lawyers’ 7

Committee for Civil Rights and Urban Affairs, 8

Washington, DC, for the Epilepsy Foundation, 9

Autism National Committee, the State of Connecticut 10

Office of Protection and Advocacy for Persons with 11

Disabilities, National Council on Independent Living, 12

Judge David L. Bazelon Center for Mental Health 13

Law, the Disability Rights Education & Defense Fund, 14

National Disability Rights Network, and AARP as 15

amici curiae in support of Plaintiffs

‐ Appellants. 16

17

DRONEY, Circuit Judge : 18

Plaintiffs

‐ Appellants Heidi and Juan Rodriguez, parents of 19

minor child A.R., brought suit for disability discrimination under 20

the Fair Housing Act, 42 U.S.C. § 3601 et seq. (“FHA”), against 21

Defendants

‐ Appellees Village Green Realty, Inc., a real estate 22

agency, and Blanca Aponte, its agent. The plaintiffs allege, inter alia

, 23

that the defendants (1) made housing unavailable on the basis of 24

disability in violation of 42 U.S.C. § 3604(f)(1); (2) provided different 25‐ 4

‐ terms, conditions, and privileges of rental housing on the basis of 1

disability in violation of 42 U.S.C. § 3604(f)(2); (3) expressed a 2

preference on the basis of disability in violation of 42 U.S.C. § 3

3604(c); and (4) misrepresented the availability of rental housing on 4

the basis of disability in violation of 42 U.S.C. § 3604(d). The United 5

States District Court for the Northern District of New York 6

(McAvoy, J. ) granted summary judgment for the defendants on 7

these claims. This appeal followed. 8

We hold that the district court erred because there was 9

sufficient evidence presented that A.R. qualifies as disabled under 10

the FHA. We also hold that the FHA’s prohibition against 11

statements that “indicate[ ] any preference, limitation, or 12

discrimination based on

. . . handicap,” 42 U.S.C. § 3604(c), may be 13

violated even if the subject of those statements does not qualify as 14

disabled under the FHA. Finally, we hold that the “ordinary 15

listener” standard is not applicable to claims under 42 U.S.C. § 16‐ 5

‐ 3604(d) for misrepresenting the availability of housing. Accordingly, 1

we VACATE the judgment of the district court and REMAND. 2

BACKGROUND 3

I. Factual Background 4

Plaintiffs Heidi and Juan Rodriguez are the parents of minor 5

child A.R. 1 who has Autism Spectrum Disorder and epilepsy. This 6

suit under the Fair Housing Act arose from text messages about A.R. 7

sent to Heidi Rodriguez by defendant Blanca Aponte, a real estate 8

agent. 9

The Rodriguez family had rented a single family home on a 10

month

‐ to

‐ month basis for two years on property located in 11

Saugerties, New York. The property was owned by Donnie Morelli 12

and included two single family homes and twenty

‐ eight acres. Some 13

time in 2010, the property was listed for sale with defendant real 14

1 The parties have referred to the minor child by her initials since the initiation of

this lawsuit. We will continue to do the same. Heidi and Juan Rodriguez are

proceeding in this action individually and also as the parents and guardians of

A.R. on her behalf.‐ 6

‐ estate agency Village Green Realty, Inc. Defendant Aponte served as 1

the listing agent. 2

On January 20, 2011, Aponte left a letter at the Rodriguez 3

home informing them of Morelli’s intention to sell the property to 4

Mansour Farhandian. The letter stated that Farhandian would be 5

willing to continue to rent to the Rodriguez family, but under certain 6

modified terms, including an increased rent, and asked the 7

Rodriguezes to inform Aponte whether they agreed to the new 8

terms. If not, the letter stated, they would have to vacate the 9

premises by March 15, 2011. The Rodriguezes did not immediately 10

inform Aponte as to whether they accepted the new terms. 11

On January 23, 2011, Morelli entered into a purchase 12

agreement with Farhandian; the agreement anticipated a closing in 13

early March. In order to facilitate the anticipated sale, Aponte 14

continued to try to contact the Rodriguezes to determine whether 15

they intended to accept the new lease terms. She texted Ms. 16‐ 7

‐ Rodriguez on January 25 and February 4 inquiring about a response 1

to the letter, but Ms. Rodriguez did not respond. 2

On February 6, 2011, A.R. suffered two grand mal seizures. 2 3

Ms. Rodriguez called Morelli from the hospital to inform him about 4

the seizures and tell him that it was “not the time” for her and Mr. 5

Rodriguez to be negotiating with Aponte. J.A. 146. The next day, 6

Aponte texted Ms. Rodriguez: 3 “Hi Please respond to my notices! If 7

you have an attorney please have them get in touch w me,” J.A. 230, 8

to which Ms. Rodriguez replied: “Please call Donnie [Morelli] for an 9

update.” Id

. Aponte wrote back: “Will do.” Id. 4 10

This began the exchange of text messages from February 7 to 11

23 that are the principal subject of this action. On February 7, 12

Aponte wrote to Ms. Rodriguez that she had “[j]ust spoke[n] w[ith] 13

2 A grand mal seizure is described later in the text.

3 Excerpts from the text messages between Aponte and Ms. Rodriguez quote the

actual language of the messages, including typographical errors, except where

otherwise indicated.

4 During this period, Ms. Rodriguez was communicating directly with Morelli

about A.R.’s condition.‐ 8

‐ Donnie [Morelli]” and that, “[w]hile [they were] both sympathetic to 1

[Ms. Rodriguez’s] situation,” Morelli was selling the property and 2

Aponte would “be proceeding with legal action to remove you from 3

[the] premises.” Id. After several exchanges regarding scheduling a 4

time for Aponte to inspect the Rodriguezes’ home, Ms. Rodriguez 5

stated, 6

We are not leaving. Where do you want us 7

to go with a sick child?

. . . Why do you 8

keep on harassing and insisting that we 9

move?

. . . When you were told of my 10

daughter being sick we weren ʹ t asking for 11

free rent or anything of the sort. Just to be 12

understood and left alone to deal with her 13

medical issues without being bothered by 14

you asking us to leave our home. 15

J.A. 231. Aponte replied that she had “not asked you to leave” but 16

that she had received no response from the Rodriguezes about the 17

new owner’s rental terms. Id. In reply, Ms. Rodriguez complained 18

about the “poorly maintained icy road” near the home and 19

questioned how vehicles could get up the road “[o]r better yet an 20

ambulance for my daughter if needed.” Id. Aponte responded, 21‐ 9

‐ This has nothing to do with what we were 1

just speaking about[.] Fact is that if I can 2

get up and down emergency vehicles 3

should be able to as well. This has been an 4

unusually cold and snow filled Winter. 5

So maybe you should consider relocating to 6

a better and more easily accessible 7

Location. 8

9

Id. 10

A few days later, on February 16, Ms. Rodriguez sent a text 11

message to Aponte stating that she needed to reschedule the 12

inspection because A.R. had suffered the second seizure and needed 13

to return to the hospital for testing. J.A. 232. This led to the following 14

exchange: 15

[Aponte (February 16, 7:42 p.m.):] Just 16

spoke w my lawyer for management 17

company.. We will accept your 18

rescheduling appointment for Friday if you 19

provide verification of medical 20

appointment for your daughter. The 21

prospective new owner is very concerned 22

about continuing your lease with you 23

Childs medical situation and will probably 24‐ 10

‐ not want to rent to you. 5 I think we need to 1

let you know that we will not be renting to 2

you! Please plan on rel Please make plans 3

to relocate. We will give you Until end of 4

March. Respond to me.

. Not to mr Morelli 5

Blanca 6

[Ms. Rodriguez (February 16, 8:16 p.m.):] 7

What are you talking about? 8

[Aponte (February 16, 8:42 p.m.):] Exactly 9

what I said. You have cancelled our 10

appointment because of issues with your 11

daughter ʹ s illness. We want verification of 12

your appointment.. That being said.

. . The 13

new owner has decided not to continue to 14

rent to you because your daughter should 15

be in a more convenient location to medical 16

treatment 17

[Ms. Rodriguez (February 16, 9:04 p.m.):] 18

You spoke to the new owner that fast and 19

he made a decision not to rent to us 20

because my daughter has seizures? Or is 21

this you decision? 22

I am confused. 23

[Aponte (February 17, 7:11 a.m.):] The new 24

owner is concerned by your statement that 25

5 Aponte admitted that she never communicated with the prospective buyer,

Farhandian, concerning A.R’s medical condition and that she fabricated this and

the following statements that purported to represent Farhandian’s view of A.R.’s

conditions.‐ 11

‐ emergency vehicles cannot reach you 1

should your daughter be at risk. Also 2

concerned about you not making place 3

readily available for inspection and thinks I 4

should have a key that is the right of a 5

landlord and his representative. For me, I 6

only have your statement that your 7

daughter us sick Do u have verification? 8

J.A. 232

‐ 33. 9

On February 23, Aponte reiterated that the new owner was 10

concerned about renting to the Rodriguezes because of Ms. 11

Rodriguez’s statement that the home was not “readily accessible to 12

emergency vehicles,” which Aponte stated was a “major concern as 13

to liability.” J.A. 234

‐ 35. She further stated, “I think that your 14

tenancy is over. Will verify after speaking to both Donnie [Morelli] 15

and buyer.” J.A. 235. 16

In addition to learning of A.R.’s medical problems from the 17

text messages from Ms. Rodriguez, Aponte obtained information 18

around the same time about A.R. from the Rodriguezes’ neighbor, 19

Tammy Drost. Drost, who lived in the second house on the property 20‐ 12

‐ that was being sold, was a special education aide at A.R.’s 1

elementary school, and A.R.’s “personal assistant” at the school. 2

Drost had frequent contact with Aponte and told Aponte that A.R. 3

was autistic, may be epileptic and was placed in a special class at 4

school. Ms. Rodriguez testified at her deposition that she believed 5

that Morelli, who was also aware of A.R.’s diagnoses, seizures, and 6

special educational services, had also told Aponte this information. 7

Although the sale between Morelli and Farhandian was not 8

completed, Plaintiffs began looking for new housing in late January 9

or early February of 2011, when it became “very apparent that [they] 10

were not wanted,” and they moved to another home in September of 11

that year. J.A. 196. In the interim, the Rodriguezes complied with 12

Aponte’s request for higher rent beginning in March. 13

II. Proceedings in District Court 14

In September 2011, plaintiffs filed this action, alleging that the 15

defendants had violated the Fair Housing Act, 42 U.S.C. § 3601 et 16‐ 13

‐ seq. (“FHA”). In their amended complaint, the plaintiffs claimed that 1

the real estate agency and Aponte had (1) made housing unavailable 2

on the basis of disability in violation of 42 U.S.C. § 3604(f)(1); (2) 3

provided different terms, conditions, and privileges of rental 4

housing on the basis of disability in violation of 42 U.S.C. § 5

3604(f)(2); (3) expressed a preference on the basis of disability in 6

violation of 42 U.S.C. § 3604(c); and (4) misrepresented the 7

availability of rental housing on the basis of disability in violation of 8

42 U.S.C. § 3604(d). 6 9

The plaintiffs and defendants cross

‐ moved for summary 10

judgment. 7 On October 10, 2013, the district court granted 11

defendants’ motion with respect to the claims at issue here, holding 12

that the plaintiffs had not come forward with sufficient admissible 13

6 Plaintiffs also brought a claim under 42 U.S.C. § 3617, which has been

voluntarily dismissed and is not at issue in this appeal.

7 The plaintiffs sought only partial summary judgment. The district court granted

that motion solely on the question of whether Village Green Realty was

vicariously liable for Aponte’s actions, which is not at issue in this appeal. The

plaintiffs’ motion was denied in all other respects.‐ 14

‐ evidence to allow a reasonable factfinder to conclude that A.R. was 1

disabled as defined by the FHA. 8 Rodriguez v. Vill. Green Realty, Inc.

, 2

No. 1:11

‐ cv

‐ 1068, 2013 WL 5592703, at *9

‐ 10 (N.D.N.Y. Oct. 10, 2013) 3

(“ Rodriguez I ”). The plaintiffs moved for reconsideration of the 4

district court’s dismissal of their claims under 42 U.S.C. § 3604(c) 5

and (d), arguing that for those claims it is irrelevant whether A.R. is 6

disabled, because these FHA provisions apply to any person 7

aggrieved by a statement indicating a preference or discrimination 8

based on handicap or a misrepresentation of availability because of 9

handicap. Although the district court agreed upon reconsideration 10

that subsections (c) and (d) apply more broadly than subsection (f) 11

8 The FHA uses the term “handicap” rather than “disability.” See 42 U.S.C. §§

3602(h), 3604. The FHA definition of “handicap,” though, historically was

virtually identical to the definition of “disability” in the Americans with

Disabilities Act of 1990 (“ADA”), Pub. L. No. 101

‐ 336, 104 Stat. 327 (codified as

amended at 42 U.S.C. § 12101 et seq. (2008)), and disability scholars tend to prefer

the term “disability.” We will therefore treat the two terms interchangeably and

use “disability” in this opinion. See Bhogaita v. Altamonte Heights Condo. Ass ʹ n,

Inc.

, 765 F.3d 1277, 1285 n.2 (11th Cir. 2014) (using the terms interchangeably for

similar reasons); s ee also Robert G. Schwemm, Housing Discrimination Law and

Litigation § 11D:1 n.* (database updated 2014) (discussing the near identity of the

statutory definitions under the FHA and ADA).‐ 15

‐ as to standing to bring a claim, the court still dismissed these claims, 1

finding that there was insufficient evidence that Aponte’s statements 2

about A.R. indicated a preference, limitation or discrimination based 3

on handicap, or that a dwelling was not available because of 4

handicap. Rodriguez v. Vill. Green Realty, Inc.

, No. 1:11

‐ cv

‐ 1068, 2013 5

WL 6058577, at *3 (N.D.N.Y. Nov. 15, 2013) (“ Rodriguez II ”). 6

This appeal followed. 7

DISCUSSION 8

Plaintiffs contend that the district court erred in dismissing 9

their claims on the basis of lack of disability. Plaintiffs assert that 10

A.R. meets the FHA’s definition of disabled because her epilepsy 11

and autism substantially limit her ability to learn. See 42 U.S.C. § 12

3602(h)(1); 24 C.F.R. § 100.201. They also argue, in the alternative, 13

that regardless of whether A.R. is actually disabled under the Act, 14

Aponte “regarded” her as having an impairment that substantially 15

limited her in a major life activity. See 42 U.S.C. § 3602(h)(3); 24 16‐ 16

‐ C.F.R. § 100.201. Finally, the plaintiffs argue that the district court 1

erroneously concluded that an ordinary listener could not have 2

interpreted Aponte’s statements as reflecting disability

‐ based 3

discrimination. 4

I. Standard of Review 5

This Court reviews the district court ʹ s grant of summary 6

judgment de novo

. Reg ʹ l Econ. Cmty. Action Program, Inc. v. City of 7

Middletown

, 294 F.3d 35, 45 (2d Cir. 2002) (“ RECAP ”), superseded by 8

statute on other grounds, ADA Amendments Act of 2008, Pub. L. No. 9

110

‐ 325, 122 Stat. 3553 (“ADAAA”). Summary judgment is required 10

where “the movant shows that there is no genuine dispute as to any 11

material fact and the movant is entitled to judgment as a matter of 12

law.” Fed. R. Civ. P. 56(a). “ In assessing the record to determine 13

whether there is a genuine issue to be tried as to any material fact, 14

the court is required to resolve all ambiguities and draw all 15

permissible factual inferences in favor of the party against whom 16‐ 17

‐ summary judgment is sought.” 9 Stone v. City of Mount Vernon

, 118 1

F.3d 92, 99 (2d Cir. 1997). A fact is “material” for these purposes if it 2

“might affect the outcome of the suit under the governing law.” 3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of 4

fact is “genuine” if “the evidence is such that a reasonable jury could 5

return a verdict for the nonmoving party.” Id. 6

II. Statutory Framework 7

This appeal requires us to address the 1988 Amendments to 8

the FHA, which extended the Fair Housing Act’s protections against 9

housing discrimination to disabled individuals. See Fair Housing 10

Amendments Act of 1988, Pub. L. No. 100

‐ 430, 102 Stat. 1619 11

(codified at 42 U.S.C. § 3601 et seq. ). We are guided by our decisions 12

interpreting similar language that appeared in the Americans with 13

9 We note that the 2010 amendments to the Federal Rules of Civil Procedure

replaced “issue” with “dispute” because “‘[d]ispute’ better reflects the focus of a

summary

‐ judgment determination.” See Fed. R. Civ. 56(a) advisory committee’s

note to 2010 amendment.‐ 18

‐ Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq

., prior to the 1

ADA’s amendment in 2008. 10 2

A. Definition of “Handicapped” 3

The FHA makes it unlawful “[t]o discriminate in the sale or 4

rental, or to otherwise make unavailable or deny, a dwelling to any 5

buyer or renter because of a handicap” or “[t]o discriminate against 6

any person in the terms, conditions, or privileges of sale or rental of 7

a dwelling, or in the provision of services or facilities in connection 8

with such dwelling, because of a handicap.” 42 U.S.C. § 3604(f). The 9

Act also forbids the representation “to any person because of

. . . 10

handicap

. . . that any dwelling is not available for inspection, sale, 11

or rental when such dwelling is in fact so available.” Id. § 3604(d). 12

10 Until 2008, the ADA definition of “disability” was virtually identical to the

FHA definition of “handicap,” and so the Court’s interpretation of the ADA was

frequently applied to the FHA. Compare 42 U.S.C. § 3602(h), with the ADA, § 3,

104 Stat. at 329

‐ 30. Congress amended the ADA, including its definition of

“disability,” in 2008. See ADAAA, § 4, 122 Stat. at 3555

‐ 57. The FHA, however,

was not similarly amended and so our FHA interpretation is still guided by pre

‐

ADAAA cases. See Bhogaita

, 765 F.3d at 1288 (holding that the FHA should still

be interpreted in line with the preamendment ADA).‐ 19

‐ Both provisions prohibit action taken “because of

. . . handicap,” 1

and, as such, require that plaintiffs show the existence of a disability 2

within the meaning of the FHA in order to state a claim under these 3

subsections. 11 4

To demonstrate a disability under the FHA, a plaintiff must 5

show: (1) “a physical or mental impairment which substantially 6

limits one or more

. . . major life activities”; (2) “a record of having 7

such an impairment”; or (3) that he or she is “regarded as having 8

such an impairment.” 42 U.S.C. § 3602(h); see RECAP

, 294 F.3d at 46. 9

Prongs 1 and 3, which we will refer to as the “actually disabled” test 10

11 We evaluate claims that a defendant discriminated “because of” a disability

under the burden

‐ shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under that framework, the plaintiff must first establish

a prima facie case of housing discrimination by showing, among other things,

that a relevant person is a member of a protected class

– in this case, that the

plaintiffs’ child is disabled. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003).

Once the plaintiff establishes “a prima facie case of discrimination, the burden

shifts to the defendant to assert a legitimate, nondiscriminatory rationale for the

challenged decision. If the defendant makes such a showing, the burden shifts

back to the plaintiff to demonstrate that discrimination was the real reason for

the defendant’s action.” Id. (citation omitted).‐ 20

‐ and the “regarded as” test, respectively, are the two definitions 1

relevant here. 2

B. Subsection 3604(c) 3

Subsection 3604(c) of the FHA prohibits “mak[ing], print[ing], 4

or publish[ing], or caus[ing] to be made, printed, or published any 5

notice, statement, or advertisement, with respect to the sale or rental 6

of a dwelling that indicates any preference, limitation, or 7

discrimination based on

. . . handicap

. . . , or an intention to make 8

any such preference, limitation, or discrimination.” 42 U.S.C. § 9

3604(c). This Court has interpreted this provision in the context of 10

racial discrimination to mean that “a plaintiff could bring an action 11

. . . if the defendant’s [statements] ‘suggest[ed] to an ordinary reader 12

that a particular race [was] preferred or dispreferred for the housing 13

in question,’ regardless of the defendant’s intent.” Ragin v. Harry 14

Macklowe Real Estate Co.

, 6 F.3d 898, 905 (2d Cir. 1993) (“ Ragin II ”) 15

(third and fourth alterations in original) (emphasis added) (quoting 16

Ragin v. N.Y. Times Co.

, 923 F.2d 995, 999 (2d Cir. 1991) (“ Ragin I ”)). 17‐ 21

‐ III. Whether A.R. is Disabled 1

The plaintiffs argue that A.R. is disabled under the FHA 2

because her impairments substantially limit the major life activity of 3

learning or, in the alternative, because Aponte treated A.R.’s 4

impairments as if they substantially limited a major life activity. 12 5

We hold that the district court erred in granting summary judgment 6

to defendants on the ground that A.R. did not have a disability 7

12 The defendants, on appeal, challenge the plaintiffs’ standing to bring this suit.

Although the plaintiffs contend this issue is not properly before the Court due to

the defendants’ lack of cross appeal, standing is necessary to our jurisdiction.

RECAP

, 294 F.3d at 46 n.2. That said, the plaintiffs’ allegation that Aponte forced

them to leave their home because of their daughter’s disability and the emotional

harm they suffered as a result of Aponte’s statements concerning A.R. are

sufficient to satisfy the “injury in fact” requirement. See Leibovitz v. N.Y.C. Transit

Auth.

, 252 F.3d 179, 184

‐ 85 (2d Cir. 2001); see also LeBlanc

‐ Sternberg v. Fletcher

, 67

F.3d 412, 424

‐ 25 (2d Cir. 1995) (“The FHA confers standing to challenge such

discriminatory practices on any ‘aggrieved person,’ 42 U.S.C. §

3613(a)(1)(A).

. . . This definition requires only that a private plaintiff allege

‘injury in fact’ within the meaning of Article III of the Constitution, that is, that

he allege ‘distinct and palpable injuries that are “fairly traceable” to [defendants’]

actions.’ An injury need not be economic or tangible in order to confer standing.”

(quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 375–76 (1982))); cf. Ragin II

,

6 F.3d at 904 (holding that plaintiffs “confronted by advertisements indicating a

preference based on race” had standing to raise a claim under section 3604(c) of

the FHA). Defendants also argue that the plaintiffs lack standing because A.R. is

not disabled within the meaning of the FHA and therefore the plaintiffs’ injuries

do not bear a sufficient nexus to discrimination based on disability; we need not

reach this argument, though, because

– as will be discussed

– we find that the

plaintiffs have raised a genuine dispute as to whether A.R. is disabled.‐ 22

‐ within the meaning of the FHA because there is sufficient evidence 1

from which a reasonable jury could conclude that A.R. was either 2

substantially limited in the major life activity of learning or that 3

Aponte regarded A.R. as substantially limited in the major life 4

activities of learning or obtaining housing. 5

A. “Actually Disabled” Under Section 3602(h)(1) 6

“[A]n individual is considered disabled [under 42 U.S.C. 7

§ 3602(h)(1)] if he or she: (1) suffers from a physical or mental 8

impairment, that (2) affects a major life activity, and (3) the effect is 9

‘substantial.’” RECAP

, 294 F.3d at 46. “Major life activities include 10

‘functions such as caring for one’s self, performing manual tasks, 11

walking, seeing, hearing, speaking, breathing, learning, and 12

working.’” Id

. at 47 (quoting, inter alia

, 24 C.F.R. § 100.201(b)). 13

The applicable regulations define a “[p]hysical or mental 14

impairment” to include epilepsy and autism. 24 C.F.R. 15

§ 100.201(a)(2). Epilepsy is a brain disorder that causes recurring 16

seizures. U.S. Nat’l Library of Med., Epilepsy

, MedlinePlus, 17‐ 23

‐ http://www.nlm.nih.gov/m edlineplus/epilepsy.html (last updated 1

Apr. 14, 2015). People with epilepsy can experience different types 2

of seizures, including grand mal and petit mal seizures. U.S. Nat’l 3

Library of Med., Absence Seizure

, MedlinePlus, 4

http://www.nlm.nih.gov/medline plus/ency/article/000696.htm (last 5

updated May 12, 2015). Grand mal seizures typically result in rigid 6

muscles, followed by violent muscle contractions and loss of 7

consciousness. U.S. Nat’l Library of Med., Generalized Tonic

‐ Clonic 8

Seizure

, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/ 9

article/000695.htm (last updated May 12, 2015). Petit mal seizures, 10

also known as absence seizures, generally involve staring episodes 11

lasting fewer than 15 seconds. U.S. Nat’l Library of Med., Absence 12

Seizure

, supra

. People experiencing this type of seizure undergo a 13

change in consciousness or alertness. Id. 14

Autism spectrum disorder is a neurological and 15

developmental disorder that “affects how a person acts and interacts 16‐ 24

‐ with others, communicates, and learns.” U.S. Nat’l Library of Med., 1

Autism Spectrum Disorder

, MedlinePlus, 2

http://www.nlm.nih.gov/medlinepl us/autismspectrumdisorder.html 3

(last updated May 26, 2015). The “essential features” of the disorder 4

are “persistent impairment in

. . . social interaction” and “restricted, 5

repetitive patterns of behavior, interests, or activities.” Am. 6

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 7

53 (5th ed. 2013) (“DSM

‐ 5”). “Manifestations of the disorder

. . . vary 8

greatly.” Id

. Deficits in social communication can range from 9

abnormalities in eye contact to failure to initiate or respond to social 10

interactions. Id

. at 50. One example of characteristic repetitive 11

behavior is “[h]ighly restricted, fixated interests that are abnormal in 12

intensity.” Id

. A diagnosis of autism spectrum disorder requires that 13

these symptoms “limit or impair everyday functioning.” Id

. at 53. 14

“In young children with autism spectrum disorder, lack of social 15

and communication abilities may hamper learning, especially 16‐ 25

‐ learning through social interaction or in settings with peers.

. . . 1

Extreme difficulties in planning, organization, and coping with 2

change negatively impact academic achievement, even for students 3

with above

‐ average intelligence.” Id. at 57. 4

The first question is whether the plaintiffs have provided 5

sufficient evidence to create a genuine dispute that A.R. suffers from 6

an impairment. The plaintiffs’ evidence includes a sworn declaration 7

from A.R.’s pediatrician, Dr. Irene Flatau, which states: 8

A.R.’s medical history shows that she has 9

been diagnosed with epilepsy since 2010. 10

This causes her to experience grand mal 11

seizures, the most intense type of seizure, 12

during which she loses consciousness and 13

suffers violent muscle contractions, as well 14

as petit mal seizures, also known as 15

“absence” seizures, during which a person 16

briefly and suddenly lapses into 17

unconsciousness. 18

19

. . . In addition, A.R. has been diagnosed 20

with Autism Spectrum Disorder[.] 21

J.A. 229. Ms. Rodriguez also testified that A.R. has been diagnosed 22

with autism, suffers from petit and grand mal seizures, and receives 23‐ 26

‐ medical treatment and special services in school for these conditions. 1

This evidence is sufficient to create a genuine dispute as to whether 2

A.R. has a “physical or mental impairment” under the FHA. See 24 3

C.F.R. § 100.201(a)(2). 4

We must then determine whether the district court erred in 5

holding that there was insufficient evidence from which a 6

reasonable jury could conclude that A.R.’s impairments substantially 7

limited her ability to learn. In Toyota Motor Manufacturing, Kentucky, 8

Inc. v. Williams

, 534 U.S. 184 (2002), superseded by statute ADAAA, § 4, 9

122 Stat. at 3554, the Supreme Court decided that “substantially 10

limit[s]” in the ADA’s definition of “disability” required that an 11

impairment “prevent[] or severely restrict[]” an individual’s major 12

life activity. Toyota Motor

, 534 U.S. at 198; accord Capobianco v. City of 13

N.Y.

, 422 F.3d 47, 57 (2d Cir. 2005) (“[T]he mere fact that an 14

impairment requires an individual to perform a task differently 15

from the average person does not mean that she is disabled within 16‐ 27

‐ the meaning of the ADA

. . . .”). “The impairment’s impact must

. . . 1

be permanent or long term,” Toyota Motor

, 534 U.S. at 198, and it 2

must be evaluated “with reference to measures that mitigate the 3

individual’s impairment,” Sutton v. United Air Lines, Inc. 527 U.S. 4

471, 475 (1999), superseded by statute

, ADAAA, § 4, 122 Stat. at 3556. 13 5

Defendants argue that this Circuit requires the submission of 6

medical evidence to establish a disability under the FHA and that 7

plaintiffs’ claims fail for their failure to present admissible medical 8

evidence concerning how A.R.’s epilepsy and autism affected her 9

learning. However, medical evidence as to the extent of an 10

individual’s impairment is not always required to survive summary 11

judgment. Neither the ADA or the FHA’s text, nor the respective 12

13 Congress amended the ADA in 2008 “to reject the standards enunciated by the

Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534

U.S. 184 (2002),” and “to reject the requirement enunciated by the Supreme Court

in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases

that whether an impairment substantially limits a major life activity is to be

determined with reference to the ameliorative effects of mitigating measures.”

ADAAA, § 2(b)(2), (4), 122 Stat. at 3554. As mentioned previously, though, the

FHA was not similarly amended and so our FHA interpretation is still guided by

pre

‐ ADAAA cases, including Toyota Motor and Sutton

. See Bhogaita

, 765 F.3d at

1288.‐ 28

‐ implementing regulations require medical evidence to establish a 1

genuine dispute of material fact regarding the impairment of a 2

major life activity at the summary judgment stage. Instead, Toyota 3

Motor requires “[a]n individualized assessment” to determine the 4

existence of a disability. Toyota Motor

, 534 U.S. at 199. Medical 5

testimony may be helpful to show that an impairment is 6

substantially limiting, but it is not always necessary. See E.E.O.C. v. 7

AutoZone, Inc.

, 630 F.3d 635, 643

‐ 44 (7th Cir. 2010); Head v. Glacier 8

Nw., Inc.

, 413 F.3d 1053, 1058

‐ 59 (9th Cir. 2005). 9

Our decision in Heilweil v. Mount Sinai Hospital

, 32 F.3d 718 10

(2d Cir. 1994), is not to the contrary, as defendants contend. The 11

statement in Heilweil that “[n]o medical proof substantiate[d]” the 12

plaintiff’s disability claim under the Rehabilitation Act was limited 13

to the context of that case. Id. at 723. In Heilweil

, the issue that 14

required such proof was the extent to which the conceded 15

impairment of asthma limited the plaintiff in the major life activity 16‐ 29

‐ of working. Id. at 722

‐ 23. The plaintiff claimed that her asthma 1

prevented her from working in the hospital where she had been 2

employed. Id. at 723. Both the plaintiff’s own statements and those of 3

her doctor showed, however, that her asthma was only exacerbated 4

in a particular unventilated area in the hospital, and not at different 5

locations with different air quality. Id. It was in this context that we 6

dismissed the plaintiff’s contrary contention that she was unable to 7

work in the general environment of the hospital as mere speculation 8

given the absence of corroborating medical evidence. Id. Thus, 9

because the plaintiff only showed that she was unable to work in 10

one particular area of the hospital due to her asthma, she did not 11

raise a genuine issue of material fact as to whether she was 12

substantially limited in the major life activity of working. Id. at 723

‐ 13

24. 14

As the outcome of Heilweil reflects, conclusory declarations 15

are insufficient to raise a question of material fact. See Davis v. New 16‐ 30

‐ York

, 316 F.3d 93, 100 (2d Cir. 2002). However, non

‐ medical evidence 1

that conveys, in detail, the substantially limiting nature of an 2

impairment may be sufficient to survive summary judgment. 3

Here, the plaintiffs have presented sufficient evidence to 4

create a genuine dispute of material fact as to whether A.R.’s ability 5

to learn was substantially limited by her impairments. The district 6

court concluded that the plaintiffs’ testimony “does not explain how 7

A.R.’s condition may have substantially limited a major life 8

activity,” Rodriguez I

, 2013 WL 5592703, at *6, and that there was “no 9

objective assessment or indication of the degree of any [e]ffect of 10

A.R.’s impairments on her school work or learning ability such that 11

it can reasonably be said that any limitation is substantial,” id. at *8. 12

This summary of the evidence fails “to resolve all ambiguities [or] 13

draw all permissible factual inferences” in favor of the plaintiffs. See 14

Stone

, 118 F.3d at 99. 15‐ 31

‐ In reaching its conclusion, the district court did not note 1

relevant deposition testimony from Ms. Rodriguez. For example, 2

Ms. Rodriguez testified that A.R. was provided with an 3

Individualized Education Plan (“IEP”) 14 at school since summer 2009 4

and was classified as “OHI.” 15 According to Ms. Rodriguez, A.R. had 5

been diagnosed with autism at the beginning of 2009. As a result of 6

her classification as OHI and the provisions of her IEP, A.R. received 7

at her school “counsel[]ing, individual, group counsel[]ing,

. . . 8

14 “A state receiving federal funds under the [Individuals with Disabilities

Education Act (‘the IDEA’), 20 U.S.C. § 1400 et seq. ] must provide disabled

children with a free and appropriate public education

. . . .” R.E. v. N.Y.C. Dep’t of

Educ.

, 694 F.3d 167, 174

‐ 75 (2d Cir. 2012). To ensure compliance, a school district

must create an IEP for each qualifying child. Id. at 175. “The IEP is a written

statement that sets out the child’s present educational performance, establishes

annual and short

‐ term objectives for improvements in that performance, and

describes the specially designed instruction and services that will enable the

child to meet those objectives.” Id. (internal quotation marks and citation

omitted); see also 20 U.S.C. § 1414(d) (setting forth the information to be included

in an IEP).

15 “OHI” stands for “other health impairments” and is one of the categories used

to define a “child with a disability” under the IDEA. See 20 U.S.C. § 1401(3)(A)(i).

“Other health impairment means having limited strength, vitality, or alertness,

including a heightened alertness to environmental stimuli, that results in limited

alertness with respect to the educational environment, that

. . . [a]dversely affects

a child ʹ s educational performance.” 34 C.F.R. § 300.8(c)(9)(ii).‐ 32

‐ [occupational therapy], speech and physical therapy

. . . different 1

testing accommodation[s], note takers, various things being read to 2

her, extra time to complete tasks, extra time to take tests, [and] 3

homework modifications.” J.A. 165

‐ 66. Defendants argue that the 4

receipt of special education services is not, by itself, determinative as 5

to whether a child qualifies as disabled. We agree. A child receiving 6

services under the IDEA “need not be ‘substantially limit[ed]’ in the 7

major life activity of learning,” so “one may therefore qualify as 8

‘disabled’ under the IDEA for purposes of that statute without 9

demonstrating a ‘substantially limit[ing]’ impairment.” Ellenberg v. 10

N.M. Military Inst.

, 572 F.3d 815, 821 (10th Cir. 2009) (alterations in 11

original). Here, however, it is not just that A.R. qualified for an IEP 12

that is dispositive in determining whether she qualifies as disabled. 13

Rather, the nature of the specific services she requires shows the 14

extent to which her impairments affect her ability to learn, and the 15

additional evidence of how she has struggled notwithstanding her 16‐ 33

‐ IEP and the support she receives at school create a triable question 1

of fact precluding summary judgment. Cf. id. at 821 n.6 (noting that 2

the plaintiff “could have used her particular individualized 3

education program to show specific evidence of substantial 4

impairment, but did not”). 5

Ms. Rodriguez also testified that A.R.’s petit mal seizures 6

cause her to “blink[] off” for short periods of time. J.A. 177. For 7

example, when experiencing these seizures, A.R. will stop mid

‐ 8

sentence, having forgotten what she was saying, or she will miss 9

part of a program when watching television and not recall what 10

happened. According to Ms. Rodriguez, A.R. began experiencing 11

petit mal seizures in August or September 2010, when A.R. was 12

entering fifth grade. Ms. Rodriguez testified that A.R. received 13

special academic services throughout fifth grade, and that her 14

grades in sixth grade

– while initially good

– “kept going 15

considerably lower.” J.A. 172. By the time A.R. reached seventh 16‐ 34

‐ grade in September 2012, she was still having petit mal seizures and 1

still struggling with school. This testimony therefore also 2

demonstrates the magnitude of A.R.’s impairment in the area of 3

learning. See Hanneke M. de Boer et al., The Global Burden and Stigma 4

of Epilepsy

, 12 Epilepsy & Behav. 540, 542 (2008) (stating that “[o]ne 5

major area of cognitive malfunctioning in people with epilepsy is 6

memory impairment” and that frequent seizures can “impair 7

learning of new information because of the amount of time the 8

person is unaware of the environment”). 9

In addition, on February 6, 2011

– during the time of the text 10

message exchange with Aponte

– A.R. had her first of two grand 11

mal seizures. She was taken to the hospital and then suffered the 12

second grand mal seizure on the way home. She was again taken to 13

the hospital. Shortly following these seizures, A.R. was removed 14

from her school because her medications were causing her to have 15

“outbursts” and the school was “not able to provide her with a one

‐ 16‐ 35

‐ on

‐ one aide,” making it “more of a safety risk to have her there.” 16 1

J.A. 166

‐ 67. She was then home schooled by a tutor (provided by the 2

school system), who had to “double [her] time because they could 3

not even get through the stuff with her.” J.A. 167

‐ 68. She did not 4

return to school until the last week of June and did not finish her 5

fifth grade course work until August 2011. Although the defendants 6

are correct in observing that A.R.’s grand mal seizures have 7

apparently not recurred since February 2011, it is the impact of her 8

impairment, not its most severe physical manifestations, that must 9

be “permanent or long term.” See Toyota Motor

, 534 U.S. at 198. Ms. 10

Rodriguez testified that A.R. was continuing to struggle to keep up 11

in school as late as September 2012. There is therefore at least a 12

question of fact as to the long

‐ term impact of the grand mal seizures 13

alone and in combination with her other conditions on A.R.’s ability 14

16 See Sutton

, 527 U.S. at 482 (“[I]f a person is taking measures to correct for, or

mitigate, a physical or mental impairment, the effects of those measures

– both

positive and negative

– must be taken into account when judging whether that

person is ‘substantially limited’ in a major life activity and thus ‘disabled.’”).‐ 36

‐ to learn. Cf. Joan K. Austin et al., Does Academic Achievement in 1

Children with Epilepsy Change over Time?

, 41 Developmental Med. & 2

Child Neurology 473, 478 (1999) (finding no trend of improved 3

academic achievement among children “whose seizure conditions 4

changed from high to low severity,” and hypothesizing that “[o]ne 5

possible explanation for this finding

. . . is that these children missed 6

out on learning information during the period when their seizure 7

conditions were severe and [they] were not able to catch up”). 8

In addition to this evidence, the plaintiffs also submitted 9

medical evidence to demonstrate the extent of A.R.’s limitations, 10

including a May 2009 developmental

‐ behavioral evaluation, a June 11

2009 occupational therapy initial evaluation, and progress notes and 12

reports from A.R.’s pediatric neurologists in 2010 and 2011. The 13

plaintiffs offered these documents in opposition to defendants’ 14

motion for summary judgment. The documents were cited in 15

plaintiffs’ opposition brief, quoted in plaintiffs’ response to 16‐ 37

‐ defendants’ Local Rule 56.1 statement, and presented as attachments 1

to the declaration of plaintiffs’ attorney, who attested that they are 2

true and accurate copies, and were produced under a protective 3

order for A.R.’s medical records. 4

The defendants first raised an objection to the admissibility of 5

these records in their reply brief in support of their motion for 6

summary judgment, which was filed on October 4, 2013. On October 7

7, 2013, the district court noted on the docket that the parties’ cross

‐ 8

motions for summary judgment would be decided without oral 9

argument. On October 10, 2013

– just six days after defendants first 10

objected to the admissibility of the medical records

– the district 11

court issued its opinion in Rodriguez I

, in which it found that the 12

records were inadmissible because they were unauthenticated and 13

there was no indication that they were complete and accurate copies 14

of A.R.’s medical records. See Rodriguez I

, 2013 WL 5592703, at *6. It 15

therefore does not appear that the plaintiffs had an opportunity to 16‐ 38

‐ respond to the defendants’ objections or to supplement the record 1

with additional documentation to authenticate and certify the 2

records prior to the district court’s ruling. See Fed. R. Civ. P. 56(c)(2) 3

advisory committee’s note to 2010 amendment (“[A] party may 4

object that material cited to support or dispute a fact cannot be 5

presented in a form that would be admissible in evidence. The 6

objection functions much as an objection at trial, adjusted for the 7

pretrial setting. The burden is on the proponent to show that the 8

material is admissible as presented or to explain the admissible form 9

that is anticipated.”); cf. H. Sand & Co. v. Airtemp Corp.

, 934 F.2d 450, 10

454 (2d Cir. 1991) (stating that Fed. R. Civ. P. 56 “does not

. . . require 11

that parties authenticate documents where [the non

‐ offering party] 12

did not challenge the authenticity of the documents”). 13

Having reviewed these medical records, we note that their 14

appearance, contents, and substance are what one would expect of 15

such records and support plaintiffs’ claim that they are what they 16‐ 39

‐ appear to be. Cf. Fed. R. Evid. 901(b)(4) (stating that the 1

authentication requirement can be satisfied by “[t]he appearance, 2

contents, substance,

. . . or other distinctive characteristics of the 3

item, taken together with all the circumstances”); United States v. 4

Pluta

, 176 F.3d 43, 49 (2d Cir. 1999) (“[T]he burden of authentication 5

does not require the proponent of the evidence to

. . . prove beyond 6

any doubt that the evidence is what it purports to be. Rather, the 7

standard for authentication, and hence for admissibility, is one of 8

reasonable likelihood.” (alteration in original) (internal quotation 9

marks and citation omitted)); United States v. Bagaric

, 706 F.2d 42, 67 10

(2d Cir. 1983) (“The requirement of authentication is satisfied by 11

evidence sufficient to support a finding that the matter is what its 12

proponent claims. This finding may be based entirely on 13

circumstantial evidence, including [a]ppearance, contents, 14

substance

. . . and other distinctive characteristics of the writing.” 15

(alterations in original) (internal quotation marks and citations 16‐ 40

‐ omitted)), abrogated on other grounds by Nat ʹ l Org. for Women, Inc. v. 1

Scheidler

, 510 U.S. 249 (1994). The record also indicates that these 2

records were produced by the medical providers themselves. See 3

Smyth Decl., App’x A, Tab 5 at 2 (facsimile transmittal page from 4

eRiver Neurology); id.

, App’x A, Tab 8 at 2 (HIPAA authorization 5

signed by Ms. Rodriguez authorizing release of A.R.’s records to 6

plaintiffs’ counsel); id.

, App’x A, Tab 9 at 2 (cover letter to plaintiffs’ 7

counsel describing photocopying fee from school district where 8

A.R.’s evaluating occupational therapist was employed). These 9

documents therefore seem like the type that likely could have been 10

authenticated and certified, had plaintiffs had the opportunity to 11

respond. 12

Moreover, although the district court stated that these records 13

were “inadmissible,” the court still considered them, reviewed them 14

in some detail, and concluded that they were “insufficient to 15

establish a medical condition that substantially limits one or more 16‐ 41

‐ major life activities.” Rodriguez I

, 2013 WL 5592703, at *6

‐ 8. 1

Accordingly, although we conclude that the non

‐ medical evidence 2

discussed above is sufficient to raise a genuine dispute as to the 3

extent of A.R.’s limitations, we will consider these medical records 4

as well. Cf. Sony Corp. v. Elm State Elecs., Inc.

, 800 F.2d 317, 320 (2d 5

Cir. 1986) (describing the Second Circuit’s “strong preference for 6

resolution of disputes on their merits” and “preference for resolving 7

doubts in favor of a trial on the merits”); Cargill, Inc. v. Sears 8

Petroleum & Transp. Corp.

, 334 F. Supp. 2d 197, 247 (N.D.N.Y. 2004) 9

(“Because of the preference to have issues and claims decided on 10

their merits, rather than on the basis of a procedural shortcoming, 11

the exclusion of otherwise relevant evidence on technical grounds is 12

generally not favored

. . . .”). 13

We find that the medical records submitted by the plaintiffs 14

further support plaintiffs’ claims of how severely A.R.’s 15‐ 42

‐ impairments affect her ability to learn. 17 In May 2009, at the 1

recommendation of A.R.’s school, the Rodriguezes took A.R. to see 2

pediatrician Dr. Monica R. Meyer for a developmental

‐ behavioral 3

evaluation. Dr. Meyer recorded the Rodriguezes’ concern that A.R.’s 4

“anxieties

. . . have led to a plateauing in her school work and her no 5

longer performing well in school.” J.A. 250. She diagnosed A.R. as 6

having “pervasive developmental disorder” and noted that this 7

condition, along with A.R.’s anxiety, “impact[s] her life in general, 8

her performance at school and her peer interactions.” J.A. 254

‐ 55. Dr. 9

Meyer found that “[a]t school, [A.R.] belongs in an integrated class 10

with a special education teacher who has experience working with 11

children on the autistic spectrum.” J.A. 255. Dr. Meyer also 12

recommended counseling, social skills training, occupational 13

17 These records include progress notes from A.R.’s pediatric neurologists, Drs.

Glenn Y. Castaneda and Faith Goring

‐ Britton; a developmental

‐ behavioral

evaluation by Dr. Monica R. Meyer, a developmental

‐ behavioral pediatrician;

and an occupational therapy initial evaluation by Meg Simmons

‐ Jackson, a

licensed and registered occupational therapist.‐ 43

‐ therapy, and “accommodations that lessen the impact of [A.R.’s] 1

anxiety on her academic performance.” Id. 2

An occupational therapy initial evaluation conducted by 3

A.R.’s school system in 2009 following A.R.’s autism diagnosis 4

found that she had “difficulty registering visual and movement 5

input” and “misses written/demonstrated directions.” J.A. 260. The 6

evaluation also noted that A.R. “requires more external supports 7

than her peers to participate in learning,” “is currently not 8

registering input that will help her attend to the task at hand,” “[has] 9

[t]olerance within the learning environment [that] is less than that of 10

her peers,” and “[has] [a]vailability for learning within the learning 11

environment [that] is less than that of her peers.” J.A. 259. 12

In November 2010, shortly before the events of February 2011, 13

pediatric neurologist Dr. Glenn Castaneda diagnosed and treated 14

A.R.’s epilepsy. His notes confirm that the Rodriguezes observed 15‐ 44

‐ that A.R.’s petit mal seizures were “beginning to affect her school 1

work as her grades [were] deteriorating.” J.A. 247. 2

Finally, Dr. Castaneda’s records from March 2011 state that 3

Ms. Rodriguez reported that A.R.’s conditions were “causing a lot of 4

distress for [A.R.]

. . . and [that] she ha[d] been off of school for at 5

least a couple of weeks.” J.A. 241. At the time of Ms. Rodriguez’s 6

deposition in September 2012, A.R. was in her first week of seventh 7

grade, and she was still experiencing petit mal seizures and was 8

“having struggles [with school] already.” J.A. 172, 176

‐ 77. 9

Whether just considering the non

‐ medical evidence, or also 10

considering this medical evidence, the evidence as to the severity of 11

A.R.’s learning limitations is sufficient to survive summary 12

judgment. A jury could reasonably infer from the extensive 13

educational support A.R. receives that she is significantly limited in 14

her ability to independently register and process information, pay 15

attention to educators, take notes, read, and complete her 16‐ 45

‐ homework. See Gummo v. Vill. of Depew, N.Y.

, 75 F.3d 98, 107 (2d Cir. 1

1996) (“If, as to the issue on which summary judgment is sought, 2

there is any evidence in the record from which a reasonable 3

inference could be drawn in favor of the opposing party, summary 4

judgment is improper.”). These skills are fundamental to learning, as 5

are the ability to remember information and to follow written or 6

demonstrated directions

— abilities that may also be substantially 7

limited by A.R.’s petit mal seizures and autism, according to 8

plaintiffs’ evidence. Where these skills are limited, it follows that 9

A.R.’s ability to learn may be substantially limited. See Emory v. 10

AstraZeneca Pharm. LP, 401 F.3d 174, 181

‐ 82 (3d Cir. 2005) (reversing 11

a grant of summary judgment because evidence that plaintiff’s 12

“limitations interfere with his ability to read and process 13

information, as well as basic math skills or the filling out of 14

paperwork,” was sufficient to create a genuine issue as to whether 15

he was substantially limited in the major life activity of learning); cf. 16‐ 46

‐ Branham v. Snow

, 392 F.3d 896, 903

‐ 04 (7th Cir. 2004) (holding that a 1

reasonable juror could find the plaintiff substantially limited in the 2

activity of eating based on his diabetes, his limitations after 3

receiving treatment, and the side effects of that treatment). 4

Significantly, this conclusion is supported by the fact that, despite 5

the extra help A.R. receives at school, her grades began deteriorating 6

in fifth grade and she has continued to struggle in sixth and seventh 7

grade. See Sutton

, 527 U.S. at 482. Drawing all permissible inferences 8

in favor of the plaintiffs, they have presented sufficient evidence at 9

this stage of the litigation to create a genuine dispute as to whether 10

A.R.’s ability to learn is substantially limited. 11

B. “Regarded as” Disabled Under Section 3602(h)(3) 12

Plaintiffs also challenge the district court’s conclusion that 13

“there is insufficient evidence upon which a fair minded trier of fact 14

could reasonably conclude that Aponte regarded A.R. as having a 15

handicap.” Rodriguez I

, 2013 WL 5592703, at *9. According to the 16

regulations issued by the Department of Housing and Urban 17‐ 47

‐ Development, one is regarded as having an impairment if, inter alia

, 1

she “[h]as a physical or mental impairment that does not 2

substantially limit one or more major life activities but that is treated 3

by another person as constituting such a limitation.” 24 C.F.R. 4

§ 100.201(d)(1). Prior to the 2008 enactment of the ADAAA, the 5

regulations implementing the ADA contained a substantially 6

identical provision, which we held required a plaintiff to “show that 7

defendants perceived [the plaintiff’s] impairment as substantially 8

limiting the exercise of a major life activity.” Reeves v. Johnson 9

Controls World Servs., Inc.

, 140 F.3d 144, 153 (2d Cir. 1998). 18 10

18 Following the enactment of the ADAAA,

[a]n individual meets the requirement of “being

regarded as having such an impairment” [under

the ADA] if the individual establishes that he or

she has been subjected to an action prohibited

under this chapter because of an actual or

perceived physical or mental impairment whether

or not the impairment limits or is perceived to limit

a major life activity.‐ 48

‐ “Proving that a[] [plaintiff] is regarded as disabled

. . . is a 1

question embedded almost entirely in the [defendant’s] subjective 2

state of mind.” Ross v. Campbell Soup Co.

, 237 F.3d 701, 709 (6th Cir. 3

2001). 4

This Court has consistently held where 5

subjective issues regarding a litigant ʹ s state 6

of mind

. . . are squarely implicated, 7

summary judgment would appear to be 8

inappropriate and a trial indispensable.

. . . 9

Furthermore, a sojourn into an adherent ʹ s 10

mind

‐ set will inevitably trigger myriad 11

factual inferences, as to which reasonable 12

persons might differ in their resolution. 13

Traditionally, this function has been 14

entrusted to the jury. 15

Patrick v. LeFevre

, 745 F.2d 153, 159 (2d Cir. 1984) (citations omitted). 16

The first step of our analysis is to determine the major life 17

activity at issue. Cf. Reeves

, 140 F.3d at 153

‐ 54. The plaintiffs 18

primarily contend that Aponte’s text messages show that she 19

perceived A.R.’s epilepsy as substantially limiting her in the major 20

42 U.S.C. § 12102(3)(A); see also Hilton v. Wright

, 673 F.3d 120, 128

‐ 29 (2d Cir.

2012) (per curiam) (discussing the amendment to the ADA’s “regarded as”

provision). As noted above, the FHA was not similarly amended.‐ 49

‐ life activity of obtaining housing. They also argue that she regarded 1

A.R. as substantially limited in her ability to learn. 2

This Court has not determined whether “obtaining housing” 3

is a major life activity, but the Fourth Circuit has held that it is. 4

United States v. S. Mgmt. Corp., 955 F.2d 914, 919 (4th Cir. 1992). We 5

agree. “Major life activities means functions such as caring for one ʹ s 6

self, performing manual tasks, walking, seeing, hearing, speaking, 7

breathing, learning and working.” 24 C.F.R. § 100.201(b). But this list 8

is “not exclusive.” Reeves

, 140 F.3d at 150; see also Bartlett v. N.Y. State 9

Bd. of Law Exam’rs

, 226 F.3d 69, 79

‐ 80 (2d Cir. 2000). Major life 10

activities are “those activities that are of central importance to daily 11

life,” Toyota Motor

, 534 U.S. at 197, including reading, Bartlett

, 226 12

F.3d at 80, and interacting with others, Jacques v. DiMarzio, Inc

., 386 13

F.3d 192, 202

‐ 04 (2d Cir. 2004). On the other end of the spectrum are 14

those activities that are “insufficiently fundamental,” such as 15

performing housework and shopping. Colwell v. Suffolk Cnty. Police 16‐ 50

‐ Dep’t

, 158 F.3d 635, 642

‐ 43 (2d Cir. 1998). The ability to obtain shelter 1

is among the most basic of human needs and thus is a “major life 2

activity” for purposes of the FHA. We note that a person is not 3

substantially limited in the major life activity of obtaining housing 4

simply because she is unable to, or regarded as unable to, live in a 5

particular dwelling. Rather, a person is substantially limited if, due 6

to her impairment, she cannot live or is regarded as unable to live in 7

a broad class of housing that would otherwise be accessible to her. 8

Cf. Sutton

, 527 U.S. at 491

‐ 92. 9

We now turn to whether the plaintiffs’ evidence is sufficient 10

for a reasonable juror to conclude that Aponte perceived A.R.’s 11

impairments as substantially limiting her in the activities of learning 12

or obtaining housing. The district court concluded that “the only 13

limitations expressed” by these messages were with respect to the 14

ability of an ambulance to reach the property, “not whether A.R. 15‐ 51

‐ was limited with respect to a major life activity.” Rodriguez I

, 2013 1

WL 5592703, at *9. We disagree. 2

First, there is sufficient evidence to create a genuine dispute as 3

to whether Aponte perceived A.R. as substantially limited in her 4

ability to learn. Aponte knew from Drost

– the Rodriguezes’ 5

neighbor and A.R.’s aide at school

– that A.R. was autistic and 6

received special education services at school. Aponte learned from 7

Ms. Rodriguez, and likely from Morelli as well, that A.R. is epileptic. 8

Although Aponte’s statement in her text messages that “[t]he 9

prospective new owner is very concerned about continuing your 10

lease with you Childs medical situation and will probably not want 11

to rent to you,” J.A. 232, does not illuminate what medical condition 12

is at issue or why she thought the condition would be of concern, 13

answering those questions and determining Aponte’s mental state 14

should be left to the jury. See LeFevre

, 745 F.2d at 159. 15‐ 52

‐ Second, there is also evidence that Aponte perceived A.R. as 1

substantially limited in her ability to obtain housing. Aponte wrote 2

in her text messages to Ms. Rodriguez: 3

 “The new owner has decided not to 4

continue to rent to you because your 5

daughter should be in a more convenient 6

location to medical treatment[.]” J.A. 233. 7

 “The new owner is concerned by your 8

statement that emergency vehicles cannot 9

reach you should your daughter be at risk.” 10

Id

. 11

 “ When all these concerns came up about 12

your daughter being seriously ill and 13

emergency vehicles not being able to get to 14

her! That is of major concern as to liability 15

which you raised!!” Id. at 235. 16

Arguably, Aponte expresses through these messages a belief 17

that, because of her epilepsy, A.R. could only live close to facilities 18

providing medical treatment. If true, this could certainly be a 19

perceived substantial limitation on A.R.’s ability to obtain housing. 20

By including in the definition of “handicap” “not only those who are 21

actually physically impaired, but also those who are regarded as 22‐ 53

‐ impaired

. . . , Congress acknowledged that society’s accumulated 1

myths and fears about disability and disease are as handicapping as 2

are the physical limitations that flow from actual impairment.” Sch. 3

Bd. of Nassau Cnty., Fla. v. Arline

, 480 U.S. 273, 284 (1987) (referring to 4

section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93

‐ 112, 87 5

Stat. 355 (1973) (codified as amended at 29 U.S.C. § 701 et seq. )). The 6

1988 Amendments to the FHA, which extended coverage of the Act 7

to disabled individuals, were specifically aimed at rejecting 8

“[g]eneralized perceptions about disabilities and unfounded 9

speculations about threats to safety

. . . as grounds to justify 10

exclusion.” H.R. Rep. No. 100

‐ 711, at 18 (1988), reprinted in 1988 11

U.S.C.C.A.N. 2173, 2179. A conclusion that one with epilepsy can 12

only safely live in a property close to medical care is the sort of 13

“unfounded speculation” about a disability against which the FHA 14

is designed to protect, and any denial of housing resulting from such 15

speculation would be “as handicapping as

. . . the physical 16‐ 54

‐ limitations that flow from [A.R.’s] actual impairment.” Arline

, 480 1

U.S. at 284. 2

Aponte’s text messages can also be read to suggest that she 3

believed the new owner would find A.R.’s medical needs, in her 4

words, a “liability” and a “risk.” In extending coverage to those 5

individuals who are “regarded as” having a physical or mental 6

disability, Congress was concerned with impairments that “might 7

not diminish a person’s physical or mental capabilities, but could 8

nevertheless substantially limit that person[ ]

. . . as a result of the 9

negative reactions of others to the impairment.” Id. at 282

‐ 83 & n.10. 10

One reasonable interpretation of Aponte’s texts is that she believed 11

A.R.’s impairment made her an undesirable tenant, restricted in her 12

ability to obtain housing because property owners would not wish 13

to rent to her. 19 14

19 As mentioned above, any such concerns would have originated with Aponte

herself, as she had no basis to believe that the prospective purchaser of the

property felt this way.‐ 55

‐ Because there is sufficient evidence to create a genuine 1

dispute as to whether A.R. qualifies as disabled for purposes of the 2

FHA, we vacate the district court’s grant of summary judgment on 3

plaintiffs’ claims under 42 U.S.C. § 3604(f) and remand. 20 4

C. Subsection 3604(d) 5

The district court also dismissed the plaintiffs’ subsection 6

3604(d) claim. The court found that 7

for the § 3604(c) claim, Plaintiffs must 8

demonstrate that an ordinary listener 9

would believe that, in light of all the 10

circumstances, Aponte ʹ s statements 11

indicated a preference, limitation or 12

discrimination based on “handicap,” as 13

defined by statute. Similarly, for the 14

§ 3604(d) claim, Plaintiffs must 15

demonstrate that Aponte represented that 16

the apartment was not for rent because of 17

“handicap,” as defined by the statute. 18

20 Defendants urge that we affirm the district court on the ground that Aponte’s

alleged conduct was insufficient “to qualify as rendering a house unavailable

and/or imposing discriminatory terms and conditions for continued renting”

under 42 U.S.C. § 3604(f)(1) and (2). As the district court did not reach this

question, we decline to address it in the first instance on appeal. See Hartford

Courant Co. v. Pellegrino

, 380 F.3d 83, 90 (2d Cir. 2004) (“In general, we refrain

from analyzing issues not decided below

. . . .”).‐ 56

‐ Rodriguez II

, 2013 WL 6058577, at *3. The court

– discussing and 1

dismissing both claims together

– concluded that Aponte’s 2

statements were not “based on handicap” as defined in the FHA 3

because there was insufficient evidence (1) that A.R. was disabled 4

within the meaning of the FHA or (2) that “Aponte expressed a 5

preference, limitations, or discrimination against disabled persons 6

generally or persons whom she regarded as disabled or had a record 7

of disability.” Id. In doing so, the district court conflated subsection 8

(c) with subsection (d). This was also error. 9

Subsection (d) makes it unlawful “[t]o represent to any person 10

because of

. . . handicap

. . . that any dwelling is not available for 11

inspection, sale or rental when such dwelling is in fact so available.” 12

42 U.S.C. § 3604(d) (emphasis added). The italicized language 13

mirrors subsection 3604(f), which prohibits discrimination “because 14

of a handicap.” Id. § 3604(f). It is not the same as subsection 3604(c), 15

which prohibits statements that “ indicate [] any preference

. . . based 16‐ 57

‐ on ” disability. See Ragin I

, 923 F.2d at 999 (relying on the “critical

. . . 1

verb ‘indicates’” to support adoption of the “ordinary reader” 2

standard). It is the “actually disabled” or “regarded as disabled” 3

standards

– not the ordinary listener standard

– that is applied to 4

subsection 3604(d). Because the “ordinary listener” standard does 5

not apply and there is sufficient evidence to show that A.R. is 6

disabled, we also vacate and remand the district court’s dismissal of 7

plaintiffs’ subsection 3604(d) claim. 8

IV. Subsection 3604(c) 9

In dismissing plaintiffs’ claim under subsection 3604(c), the 10

district court held on reconsideration that an “ordinary listener” 11

could not have understood Aponte’s statements concerning A.R. to 12

indicate a preference based on disability. The court based its 13

determination on the fact that Aponte’s statements were aimed 14

exclusively at A.R., and that the court had already determined that 15

the evidence was insufficient to establish that A.R. was in fact 16‐ 58

‐ disabled under the FHA definition. Rodriguez II

, 2013 WL 6058577, at 1

*3. However, regardless of whether A.R. is disabled under the FHA 2

definition, the “ordinary listener” could understand Aponte’s 3

statements to A.R.’s mother as classifying A.R. as such and 4

expressing discrimination on that basis. For the reasons that follow, 5

we hold that section 3604(c) can be violated by statements targeted 6

at an individual that convey to an ordinary listener that the 7

individual is disabled. In other words, it is not determinative that 8

the individual being addressed is or is not disabled under the FHA; 9

what matters is whether the ordinary listener would understand the 10

statements as considering her as such and expressing discrimination 11

or a preference against her on that basis. 21 12

21 This analysis of our “ordinary listener” standard is necessitated by the unique

circumstances of a case alleging discriminatory statements targeted at an

individual based on disability

. While the “ordinary listener” standard is well

established in the context of racial discrimination, disability is often a much more

contested classification that requires a fact intensive, case

‐ by

‐ case inquiry. See

Toyota Motor

, 534 U.S. at 198

‐ 99. The determination becomes even more

complicated when applying the “ordinary listener” standard to statements made

directly to an individual.‐ 59

‐ This approach is supported by our decisions that have 1

emphasized that subsection 3604(c) “‘protect[s] against [the] psychic 2

injury’ caused by discriminatory statements made in connection 3

with the housing market.” United States v. Space Hunters, Inc.

, 429 4

F.3d 416, 424

‐ 25 (2d Cir. 2005) (alterations in original) ( quoting 5

Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c): 6

A New Look at the Fair Housing Act’s Most Intriguing Provision

, 29 7

Fordham Urb. L.J. 187, 250 (2001)); see also Schwemm, supra

, at 249 8

(noting that courts have ruled that section 3604(c)’s goals include 9

reducing the market

‐ limiting effect of discriminatory statements and 10

protecting “home seekers from suffering insult, emotional distress, 11

and other intangible injuries”). 12

We believe this approach alleviates the difficulty in applying 13

section 3602(h)’s definition of “handicap

. . . with respect to a 14

person” to subsection 3604(c), the only prohibition in section 3604 15

that does not refer to a “person” or “buyer or renter.” In Toyota 16‐ 60

‐ Motor

, the Supreme Court pointed out that the “the [ADA] defines 1

‘disability’ with respect to an individual.” Toyota Motor

, 534 U.S. at 2

198. The same is true of the FHA’s definition of handicap. See 42 3

U.S.C. § 3602(h). According to the Court, this language in the ADA 4

“ma[de] clear that Congress intended the existence of a disability to 5

be determined in

. . . a case

‐ by

‐ case manner,” requiring “[a]n 6

individualized assessment of the effect of an impairment.” Toyota 7

Motor

, 534 U.S. at 198

‐ 99. The Toyota Motor Court, however, was 8

considering a pre

‐ amendment version of a section of the ADA that 9

prohibited “not making reasonable accommodations to the known 10

physical or mental limitations of an otherwise qualified individual 11

with a disability who is an applicant or employee

. . . .” ADA, § 12

102(b)(5)(A), 104 Stat. at 332 (emphasis added). In referring to an 13

“individual,” this provision of the pre

‐ amendment ADA is similar to 14

42 U.S.C. § 3604(a)

‐ (b), (d)

‐ (f), all of which refer to a “person” or 15

“buyer or renter.” But subsection 3604(c) of the FHA

– as noted 16‐ 61

‐ above

– is different. Subsection 3604(c) does not refer to attributing a 1

disability to a particular person, making the definition of 2

“handicap

. . . with respect to a person ” and Toyota ’s individualized 3

analysis inapt. Indeed, a statement implicating subsection 3604(c) 4

need not be targeted at a single, identifiable individual at all. Thus, 5

holding that a statement, even when targeted at a non

‐ disabled 6

individual, can still violate subsection 3604(c)

– as long as it conveys, 7

to the ordinary listener, a preference against those who are disabled 8

as defined by the FHA

– accomplishes the goal of subsection 3604(c). 9

This view of subsection 3604(c) also recognizes that subsection 10

3604(c) “prohibits all ads that indicate a [disallowed]

. . . preference 11

to an ordinary reader whatever the advertiser’s intent.” Ragin I

, 923 12

F.2d at 1000; cf. Soules v. U.S. Dep’t of Hous. & Urban Dev.

, 967 F.2d 13

817, 825 (2d Cir. 1992) (“[F]actfinders may examine [the speaker’s] 14

intent, not because a lack of design constitutes an affirmative 15

defense to an FHA violation, but because it helps determine the 16‐ 62

‐ manner in which a statement was made and the way an ordinary 1

listener would have interpreted it.”). It would contradict the 2

language of subsection 3604(c) to hold that what matters is whether 3

a person was “regarded as” disabled by the speaker, an inquiry that 4

depends on the speaker’s state of mind. See Reeves

, 140 F.3d at 153. 5

Under subsection 3604(c), the speaker’s subjective belief is not 6

determinative. What matters is whether the challenged statements 7

convey a prohibited preference or discrimination to the ordinary 8

listener. 22 9

In the end, the “touchstone” of the inquiry is the message 10

conveyed. Ragin I

, 923 F.2d at 1000. Aponte responded to learning 11

that A.R. had autism and epileptic seizures with a series of text 12

messages stating concerns about renting to the Rodriguez family, 13

including fear that their tenancy would be a “liability.” The district 14

22 This discussion addresses the particular issues raised by the “regarded as”

definition of disability under subsection 3602(h)(3), but a statement directed at an

individual can also violate subsection 3604(c) when it conveys to the ordinary

listener that the individual is actually disabled under subsection 3602(h)(1).‐ 63

‐ court acknowledged that Aponte’s “statements superficially appear 1

to be discriminatory on their face because they indicate a desire not 2

to rent to Plaintiffs on account of A.R.’s ‘illness,’ ‘medical condition,’ 3

‘situation,’ or proximity to medical treatment.” Rodriguez II

, 2013 WL 4

6058577, at *3. The ordinary listener, who “is neither the most 5

suspicious nor the most insensitive of our citizenry,” Ragin I

, 923 6

F.2d at 1002, very well could have interpreted these messages as 7

stating a desire not to rent to anyone with such limitations. This 8

preference could cover many people who qualify as disabled under 9

the FHA, and thus Aponte’s statements conveying this preference 10

would violate subsection 3604(c). 11

CONCLUSION 12

We hold that the district court erred in granting defendants 13

summary judgment because there is sufficient evidence that A.R. is 14

disabled under the FHA. Furthermore, we hold that the “ordinary 15

listener” standard is not applicable to claims under 42 U.S.C. § 16‐ 64

‐ 3604(d). Therefore, this claim also survives summary judgment 1

based on the evidence that A.R. was either actually disabled or 2

regarded as such. Finally, we hold that statements directed at an 3

individual may violate the FHA’s prohibition against statements 4

that indicate a preference or discrimination based on handicap, 42 5

U.S.C. § 3604(c), even if that individual is not disabled under the 6

FHA. Here, the ordinary listener could understand Aponte’s 7

statements as classifying A.R. as disabled under the FHA and 8

indicating discrimination or a preference against her on that basis. 9

Accordingly, we VACATE the judgment of the district court 10

and REMAND

. 11