DRAFT FOR ATTORNEY REVIEW — NOT FINAL

§ 290

Citation
§ 290
Parent Document
Francis v. Kings Park Manor, Inc., 992 F.3d 67 (2021)
Effective Date
2021-03-25
Original Source
https://www.courtlistener.com/opinion/4867798/francis-v-kings-park-manor-inc/ ↗

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28  The dissent suggests that “the majority opinion . . . assumes a landlord
may be liable for being deliberately indifferent to the general circumstances Francis
alleges.” [RJL Dissent, 2:3-5]. Not so. We assume, without deciding, that deliberate
indifference may be used to ground an FHA claim when a plaintiff plausibly alleges
that a defendant had the requisite control over both the alleged harasser and the
context in which the harassment occurs. See Davis, 526 U.S. at 646. As set forth
herein, no such control is present in the typical landlord-tenant relationship, nor
does the Complaint suggest that the KPM Defendants had such control here.
       29 Davis, 526 U.S. at 645. One of our dissenting colleagues takes issue with
the different courses taken by our Court in granting en banc rehearing here in Francis
and denying it in Mandala v. NTT Data, Inc., No. 19-2308. This analogy, made in an
attempt to show “inconsistently applied . . . legal standards,” is misplaced. Chin, J.
Dissenting Op. at 5 (hereinafter, “Chin Dissent”). To put it plainly, Francis and
Mandala are different cases. While both cases involve similar statutory schemes and
were disposed of at the pleading stage, that is where the similarities end. One
presents a novel FHA intentional discrimination claim, while the other is a Title VII
disparate impact case—and they feature completely different legal and factual