Neithamer v. Brenneman Prop. Servs.

81 F. Supp. 2d 1 (D.D.C. 1999)



When a plaintiff offers no direct evidence of discrimination, his claim of discrimination under the Fair Housing Act, 42 U.S.C.S. § 3601 et seq., is to be examined under the burden-shifting framework of McDonnell-Douglas Corp. established in cases under Title VII of the Civil Rights Act of 1964.


Gay, HIV positive plaintiff applied to lease a townhouse through defendant property managers. Plaintiff alleged he told defendants he had had credit problems due to financially supporting his lover, who had died of AIDS. Defendants informed plaintiff that the owner rejected his offer. Plaintiff sued. In order to make a prima facie case of discrimination, plaintiff had to establish that he was disabled, as that word is used in the Fair Housing Act, and defendants knew or suspected he was. Sufficient clues that plaintiff's disability was known or suspected by defendants precluded summary judgment.


Was the plaintiff's burden of proving a prima facie case of perceived disability in a housing discrimination case satisfied in this suit?




There are no cases which address the question of the plaintiff's burden of proving a prima facie case of perceived disability in a housing discrimination case. First, HIV status is not easily identifiable as race usually is. Second, dismissing a case at the summary judgment stage because a plaintiff cannot prove a defendant's suspicions would subject HIV-positive individuals to the very discrimination that Congress sought to prevent, by denying them a remedy even when such discrimination existed. The very fact that this case is brought under the perceived disability section of the FHA informs how the question of the plaintiff's burden of proof at the prima facie stage must be approached. Given the difficulty of identifying a person's HIV status, rarely will another's perceptions of that status be obvious. Even if someone had suspicions of another's HIV status, such perceptions could easily be denied. Therefore, requiring a plaintiff to show definitive proof of a defendant's perceptions at the summary judgment stage creates an impossible burden of proof, one that is inappropriate at the prima facie stage. It is sufficient for a plaintiff to demonstrate that there is a material dispute as to the defendant's perception of him as an individual with HIV or AIDS. Defendant's credibility regarding denials of such perceptions is for the jury to decide.

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