Heights Community Congress v. Hilltop Realty, Inc.

TABLE OF CONTENTS

PAGE

I. BACKGROUND 1241

II. ALLEGED SECTION 3604(a) VIOLATIONS 1249

III. ALLEGED SECTIONS 3604(c) AND 3604(e) VIOLATIONS 1294

IV. STATUTE OF LIMITATIONS 1303

V. LIABILITY OF VINCENT T AVENI 1303

VI. INJURIES AND RELIEF 1305

VII. ORDER 1309

MEMORANDUM AND ORDER

WILLIAM K. THOMAS, Senior District Judge.

Tried to this court, the action of plaintiffs Heights Community Congress (also HCC or the Congress) and the City of Cleveland Heights (also City or Cleveland Heights) is based on Title VIII of the Civil Rights Act of 1968, otherwise known as the Fair Housing Act, section 801

et seq.,

42 U.S.C. § 3601 ,

et seq.

(1977). Plaintiffs assert claims against Hilltop Realty, Inc. (now known as HGM/Hilltop), its president and certain sales agents.

Plaintiffs allege that Heights Community Congress, a not-for-profit corporation orga

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nized under the laws of the State of Ohio, seeks to promote and maintain Cleveland Heights as an open and integrated community, and has “endeavored to achieve this objective through the processes of education, negotiation, publication, community organization and litigation.” Plaintiffs further allege that the City of Cleveland Heights is a municipal corporation organized and existing under the laws of the State of Ohio. Plaintiff City seeks to continue to be a stable, integrated community, without resegregation in any part, for the benefit of its residents and all those who choose to live there'. The City has expended substantial monies, primarily through federal grants, on programs designed and implemented to accomplish these objectives.

The case proceeded to trial on Counts II and III of the plaintiffs’ complaint.

1

In their second cause of action, plaintiffs allege:

Plaintiff Heights Community Congress has monitored the activities of the defendants since 1973 and found a pattern and practice of racially discriminatory housing practices by the defendants including locational steering by race, racial remarks, racial disparity in financing, racial differentiation in treatment and racially inconsistent advertising.

In prosecuting this cause of action, plaintiffs charge defendants Hilltop, Vincent T. Aveni, John Mayfield, Evelyn Gardner and Shirley Bernstein with violations of 42 U.S.C. § 3604 (a) and (c).

In the third cause of action, plaintiffs assert unlawful discriminatory housing practices against sales agents of the defendant Hilltop Realty, noting among other things that within six months of the filing of the complaint “two (2) of defendant’s agents have been convicted in the Cleveland Heights Municipal Court of violations of the City’s anti-solicitation ordinance.” In prosecuting this cause of action, plaintiffs charge a violation of 42 U.S.C. § 3604 (e) against defendants Val Vrana and Bruce Johanns.

The defendants generally deny the allegations of plaintiffs in the second and third causes of action. In addition, defendants continue to assert that neither the City nor Heights Community Congress has established the necessary elements of standing to assert their claims in this action. The defendants further assert that both the City and HCC have failed to establish a causal relationship between alleged conduct of defendants and any alleged injuries.

After a 12-week trial, counsel submitted post-trial briefs and argued the case orally on June 17, 1983. Thereupon, the case was submitted to the court for decision.

I. BACKGROUND

A. Cleveland Heights

Plaintiff City of Cleveland Heights is a municipal corporation organized and existing under the laws of the State of Ohio and was chartered in 1921. The City is continguous to Cleveland on the west, East Cleveland and Cleveland on the north, South Euclid and University Heights on the east, and Shaker Heights on the South. The City’s government includes a council, a council-elected mayor and a council-appointed city manager.

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Professor Oliver Schroeder

2

testified as to the diversity of the City. He described Cleveland Heights as a “built-up community” of used homes with a wide variety of styles and with house prices ranging from $30,000 to $250,000. Professor Schroeder observed that Cleveland Heights has “unique citizens,”

e.g.,

“45 percent of the Cleveland Orchestra live in Cleveland Heights.” The City is “heavily professional,” and among its residents are employees of the Cleveland Clinic and University Hospitals. The City has a broad religious make-up, including a “strong Jewish population,” a “sizeable Catholic population,” and “strong Protestant churches.”

Professor Schroeder described two home bombings in Cleveland Heights that were related to race. In October 1965, a house near Euclid Heights Boulevard was bombed. It was the home “in which the new director of the Karamu Theater, a black man and his family, had moved in.” The mayor and council issued a proclamation. As its author, Professor Schroeder remembers that the proclamation declared that the community was an open community, that any individuals who wished to conduct themselves in an orderly manner could buy in Cleveland Heights, and that all of the forces of police investigation would be used to prohibit “this kind of violation occurring in the community.”

While Professor Schroeder was mayor in 1972, a home on Brinkmore in the northeast section of Cleveland Heights, owned by a black family, was bombed. When the bombing occurred, the mayor visited Mrs. Appling’s home and viewed the destruction. He reported:

I assured her that just because she was black, this should never have happened, that we wanted her as a citizen and a resident of Cleveland Heights, and we hoped that we could help her get her home restored.

A meeting of residents of the street was organized, which the mayor attended. He recommended that the residents create a street club to “give themselves protection and to build up an esprit de corps for their street and for their neighborhood that would continue to make it a very worthwhile place in which to live.”

The change in demographics in Cleveland Heights in the decade 1970-1980 is demonstrated in the evidence. According to the United States census, Cleveland Heights had a population in 1970 of 57,767 and in 1980 a population of 56,438. In 1970, the census percentage of black residents in Cleveland Heights was 2.5 percent. By 1980, the census showed that the percentage of blacks in Cleveland Heights had grown to 24.9 percent (other minorities comprised an additional 2.1 percent).

3

Census data for the 17 census tracts within the City reveal that in 1970 census tracts 1401 and 1405 each had zero percent black. The remaining 15 tracts ranged from a low of .5 percent black in census tract 1402, to 9.0 percent in census tract 1406. Census data for 1980 show a black population in each of the 17 census tracts. However, as the court noted in its March 17, 1983 memorandum and order, using the average black population for the City “conceals substantially higher non-white percentages in certain areas of the city.” Cen

*1243

sus tract 1413 had a black population of 5.8 percent, while census tract 1403 had a black population of 53.7 percent. Breaking the census tracts into two groups, eight range from 5.8 percent black to 15.9 percent black, and nine census tracts range from 24,0 percent black to 53.7 percent black, as the chart in the margin illustrates.

4

Adjacent to Cleveland Heights, to the north, the city of East Cleveland experienced a dramatic rise in the black population in the late sixties. The 1970 census showed the black population at 58.6 percent. By 1980 the census showed a black population increase to 86.5 percent. This percentage indicates that overall, East Cleveland has become resegregated.

5

Cleveland Heights census tract 1403 is 53.7 percent black, the highest concentration of blacks in a Cleveland Heights tract. It rose from .7 percent in 1970. Tract 1403 is adjacent to East Cleveland census tract 1502, which had an increase in its black population from 10.4 percent in 1970 to 65.3 percent in 1980. It is interesting to note that within Cleveland Heights tract 1403 there also is an ascertainable housing pattern. Within tract 1403, census block group 2 is 12 percent black according to 1980 census data. Block group 2 is located in the southeast corner of 1403 and at the point furthest away from East Cleveland. Moving toward East Cleveland, the next census block group is block group 1. Its population is 39.5 percent black. Successively closer to East Cleveland the percentages of blacks in block groups 3, 4, 6 and 5 are 55, 80, 80, and 67, respectively.

Social statistician Edward J. McNeeley of the Cuyahoga Plan of Ohio, Inc.,

6

was

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asked on cross-examination by counsel for defendants, “Now, again, looking at Cleveland Heights figures as a whole, if we look at the figures from 1970 in your first report, which goes, I believe to ’77, and in your last report which takes it to 1980, is it fair to say that the greatest rate of change in the non-white minority population was in the early part of the decade, the first part of the decade, ’70 — ’75?” Mr. McNeeley answered, “I would say until ’76 but, yes.” Answering a follow-up question as to whether this rate of change “lessened substantially” in the period ’76-’80, Mr. McNeeley answered, “in most of the census tracts.”

Professor Schroeder described action taken by the Cleveland Heights City Council to meet problems relating to race and housing. The first problem concerned real estate solicitation in the years 1966 and 1967. He recalled that on a particular street, “all of a sudden over a weekend, 19 for sale signs came up on the street, which had about 35 or 40 homes on it.” At a street club meeting he learned that “the whole street had been solicited and urged to put their homes up for sale.” The solicitation had been by real estate companies. Hilltop was not one of them.

In 1967 City Council adopted an emergency ordinance which addressed “the problems created by racial discriminations in the real estate area,” according to Professor Schroeder. This ordinance forbade for sale signs on private residences. This ban became part of the 1970 zoning ordinance.

Professor Schroeder stated that in 1972, while he was mayor, “there was a tremendous influx of telephone solicitations in several areas.” One area was the northeast Oxford area where the Brinkmore bombing occurred, and another was east of Lee Road between Mayfield and Cedar Roads. Many of the street club representatives came to Council and demanded that it stop the telephone solicitation. Council responded by passing an emergency anti-telephone solicitation ordinance which put the burden on the citizens: “If you don’t want to be called, you sign this card. Your name will go on the no-call list and you will not be solicited.”

7

At the six-month expiration of the emergency anti-solicitation ordinance, a voluntary PAL program was ' instituted. The program provided a listing of “preferred” agents who the City would advertise as “the people to see if you desire to live or buy a home in Cleveland Heights.” In return, the agent would take a training course on the benefits of Cleveland Heights and agree not to solicit. The voluntary plan “worked modestly.”

City Council in 1976 adopted Resolution No. 26-1976 and Ordinance No. 27-1976. Resolution No. 26-1976 established the components of a comprehensive real estate program. One component was the preferred agent program, and another was expanded community and public relations. The resolution also established a Financial Institution Advisory Committee (FIAC) and provided for cooperation with other municipalities and organizations in the county area “seeking to open up all of the Cuyahoga County to open housing, completely free market.”

Ordinance No. 27-1976, still in force, prohibits discrimination in housing, block busting, and real estate steering. Home solicitations are barred if the homeowner has filed a written notice not to be solicited. The ordinance also provides for the establishment of the Cleveland Heights Housing Board to monitor the operation of the ordinance. The ordinance further provides misdemeanor penalties for persons who violate the various prohibitions.

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Mrs. Barbara Roderick

8

became housing coordinator for Cleveland Heights in November 1970. Her major responsibility was to assist in organizing street clubs and neighborhood meetings, to receive complaints from residents, and to try to reduce anxiety associated with black families moving into Cleveland Heights. Her office also worked with the real estate brokers who were most active in Cleveland Heights to “create a stable real estate market and not a panicked one.”

After the adoption of the resolution and ordinance, Mrs. Roderick, in April 1976, assumed the title of Commissioner of Real Estate Programs. She supervised the Housing Service “to establish ... a Preferred Agents Program, to work with the industry and [to] work with residents around real estate issues.” In November 1979 Mrs. Roderick ended her Cleveland Heights employment to engage in private business.

The foregoing summary of evidence demonstrates the City’s affirmative efforts to maintain Cleveland Heights as an open, stable, integrated community and to prevent resegregation.

B. Heights Community Congress

In 1972 a group of women members of St. Ann’s Roman Catholic Parish in Cleveland Heights became interested in housing patterns in Cleveland Heights and other suburbs. They formed the St. Ann’s Social Action Housing Committee. After receiving instruction from Dr. Julia Saltman, see

infra

pp. 19-20, the committee performed an audit of ten real estate firms, including Hilltop Realty, between June and August 1972.

The Housing Committee prepared a written report and made oral reports to the city councils of Cleveland Heights and Shaker Heights. A copy of the report of the audit was sent on September 1, 1972 to Vincent T. Aveni, president, Cleveland Area Board of Realtors (CABOR), indicating that it was a “Real Estate Audit in the eastern suburbs of Cleveland.” Subsequently, representatives of the St. Anne’s Social Action Housing Committee met with Mr. Aveni.

9

Formed in the last months of 1972, a group called the Housing Task Force became the Housing Task Force of the Heights Community Congress. The latter organization was formally chartered as an Ohio corporation not for profit on January 4, 1973. As stated in the HCC’s code of regulations:

The Heights Community Congress is a non-partisan coalition of religious, civic, educational, neighborhood and community organizations in the Cleveland Heights, University Heights area and representatives of city government, with a common objective of promoting and

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maintaining an open and integrated community of the highest quality.

Membership in the corporation includes designated classes of membership and neighborhood organizations.

10

Activities of the Congress are primarily carried on through 13 task forces. Only the activities of the Housing and Open Housing Task Force are of relevance in this case.

By agreement dated May 30, 1974, the City engaged the Congress to provide a “Heights Housing Service” for a period of six months beginning June 1, 1974 for stipulated monthly payments. Pursuant to this agreement, the “Heights Housing Service” was established to escort prospects throughout the entire City before looking at specific homes for purchase, to assist buyers and sellers with their housing needs, and to “promote an open community whereby access to housing will be available to all home seekers in the total city.” As part of the comprehensive program established by Resolution No. 26-1976, the City took over the Heights Housing Sérvice in June 1976. Thereafter, the City administered the escort service.

11

The Open Housing Task Force performed an audit of Hilltop and other firms from approximately July through September 1973 under the direction of Susan Nigro.

12

After the results were compiled and a report was prepared, representatives of HCC met with the City to discuss the results.

Charles H. “Chip” Bromley started to work for HCC in mid-1973 as a community organizer. After Mrs. Nigro shifted her duties from the Open Housing Task Force to organizing and directing the Heights Housing Service, Mr. Bromley became the HCC staff person working with the Open Housing Task Force. Under Mr. Bromley’s direction, real estate firms who were members of the exclusive multiple listing exchange and parties to the U.S. District Court consent decree, see

supra

note 1, were audited in the summer of 1975. Based on the results of the audit, Mr. Bromley prepared a report and recommendations which were submitted to the City in late 1975 or early 1976. He noted that some of the written recommendations to the City were embodied in the comprehensive housing program legislation.

Under HCC’s May 1976 contract with the City to monitor real estate practices in the City of Cleveland Heights, see

supra

note 11, the Open Housing Task Force conduct

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ed an audit of Hilltop and seven other real estate companies in August 1976.

13

The Open Housing Task Force completed another audit of fair housing practices in Cleveland Heights in July 1977, as evidenced by letters of September 15, 1977 and February 16,1978 to checkers from the chairperson of the Open Housing Task Force. Within the limited purpose for which this letter was received in evidence, the letter records that “[nineteen real estate companies (31 completed agent checks) were audited between April and December 1977.”

Pursuant to Resolution No. 16-1976, which provided for a “study to be conducted by the City of the availability of housing within the community and other aspects of the housing delivery system within the community,” the City entered an agreement with HCC on February 24, 1978. For the fee of $9,500 the Congress agreed to “complete a minimum of sixty (60) housing survey checks, said checks to be made by matched pairs of white and black personnel.” The Congress further agreed to “work under the direction and supervision of Juliet Saltman, Ph.D., a consultant under contract to the City.”

Dr. Saltman had served as a consultant

14

with the HUD National Audit of Housing Opportunity. Dr. Saltman explained that the HUD audit was “designed to measure the extent of equal housing opportunity in the country as a way of determining the impact of the fair housing law” and not “for litigation, per se.”

15

Dr. Saltman agreed that the “gist or the premise of the methodology used in the HUD audit” is thus correctly stated in the audit executive summary entitled “Measuring Racial Discrimination in American Housing Markets:”

Two individuals of the same sex are matched as closely as possible in terms of age, general appearance, income and family size; that is, in every relative way except skin color. The two individuals request identical housing and carefully record their respective experiences on standardized reporting forms. The quantity and quality of information and service provided to each are then compared and any systematic difference in treatment accorded black auditors and white auditors is presumed to be because of race.

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Asked if the black and white checkers should have similar educational background, Dr. Saltman stated “only commensurate with their occupational status.” However, the “size of housing” and “the area preferred” both “had to be the same.” However, the checkers were instructed not to use exactly the same words in giving “the area preferred.”

16

She agreed that the “price range also had to be identical.” The “down-payment” is not to be identical but “had to mean the same things.” Dr. Saltman agreed that the purpose of making these factors “identical between the black and the white checker was so that you could determine whether the difference in treatment was then attributable to race.”

This court concludes that the HUD-type audit, used nationally in 1977 and employed in the Cleveland Heights 1978 spring audit, is a generally valid method of detecting disparate treatment of prospective home owners based on race. However, as one of its specifications, the audit methodology limits the number of homes shown that the checker must report in the audit form to three, although she may have been offered or shown more by the agent. Three home showings before a purchase is not reflective of the experience of the large majority of actual home buyers called as witnesses by both plaintiffs and the defendants.

17

Hence, in evaluating each audit, the court has taken into account any homes in excess of three that were offered to be shown by an agent to a particular checker.

During the 1978 spring audits, 35 randomly selected real estate companies were audited in 60 office visits by the 14 checkers (seven black, seven white, all female) from Tuesday, April 4 through Saturday, April 8, and from Monday, April 10 through Friday, April 14. Company real estate sales agents showed homes to the checkers by following up on the office visits. Each checker was directed to limit home showings reported in the audit to three. The seven black checkers and the seven white checkers formed seven pairs, with each counterpart checker auditing the same company. After the white checker had visited the real estate company office, the black checker was to complete her separate audit within 24 hours of the white checker’s audit.

Each checker completed a multiple choice audit report, a narrative statement, and a supplementary report immediately after the audit. No more than three homes shown to the checker were reported in the audit form. The checkers took the completed forms to the office of the Heights Community Congress where the audit supervisors reviewed the forms. The supervisors made their determinations with reference to the presence or absence of differences of treatment between the black and white checkers.

With respect to the spring 1978 audits, Dr. Saltman “analyzed the summaries, examined some of the individual audits, and went over the evaluation of the supervisors of the audits in reaching conclusions which are contained in [her 70-page report submitted to the City].” On grounds stated by the court, but which need not be repeated here, the court ruled that the report was inadmissible.

In conducting the fall 1978 audits, HCC acted independently of the City. From October 18 through October 21 and from October 24 through October 28, 1978, eight checkers (four black, four white, all female) completed audits of 17 real estate companies, including Hilltop Realty. Later, on November 19, open house audits of particular agents were conducted.

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Except for the inclusion of some individual agent audits, the fall audits followed the methodology of the 1978 spring audit. The spring 1978 auditor’s manual was given to the checkers to read, and other training procedures used in the spring were followed in the fall. At the conclusion of each audit, the checker filled out the auditor’s report form and turned it in to a supervisor for review and evaluation. It is determined that HCC applied the HUD-style methodology found to be generally valid by this court.

Based on the results of the spring and fall audits, the HCC requested that the City join it in filing a law suit against Hilltop. The city manager and law director made the decision to file the lawsuit after the City had been told by HCC the results of the fall 1978 series of audits.

C. Hilltop Realty

Hilltop Realty, Incorporated, an Ohio corporation for profit, incorporated in 1953, now carries on its business as “HGM/Hilltop.” Its principal office is in the Hilltop building in Lyndhurst, Ohio. The Lyndhurst or Hillcrest office of Hilltop is also located in the same building. At times relevant to the events of this law suit, Hilltop maintained a Cleveland Heights office at Mayfield Road and Warrensville Center Road. This office was closed in 1980. Hilltop has offices in other communities in the eastern suburbs of Cleveland.

II. ALLEGED SECTION 3604(a) VIOLATIONS

A. The Law

Racial steering, while not specifically mentioned in the Act, is proscribed by that portion of 3604(a) which makes it unlawful to “otherwise make unavailable or deny a dwelling to any person because of race____”

United States v. Mitchell,

580 F.2d 789 (5th Cir.1978);

Zuch v. Hussey,

394 F.Supp. 1028 (E.D.Mich.1975),

aff'd and remanded,

547 F.2d 1168 (6th Cir.1977).

Unlawful racial steering was defined in

Zuch

as follows:

the use of a word or phrase or action by a real estate broker or salesperson which is

intended

to influence the choice of a prospective property buyer on a racial basis. [Emphasis added.]

Zuch,

394 F.Supp. at 1047 . Under this definition, intent to steer must be shown to prove unlawful racial steering.

United States v. Welles-Bowen Co.,

Equal Opportunity in Housing (P-8), ¶ 15,314, at 15,762 (N.D.Ohio 1979) (citing

Zuch), aff'd,

673 F.2d 1331 (6th Cir.1981).

Courts have held that if there is proof of significant “discriminatory effect,” then this may be sufficient to show a violation of the Fair Housing Act, even without direct proof of discriminatory intent.

Mitchell,

580 F.2d at 791 ;

United States v. City of Parma, Ohio,

494 F.Supp. 1049 (N.D.Ohio 1980);

aff'd in relevant part,

661 F.2d 562 (6th Cir.1981),

cert. denied,

456 U.S. 926 , 102 S.Ct. 1972 , 72 L.Ed.2d 441 (1982). The statistical evidence presented in this case is not sufficient to permit a finding of “significant discriminatory effect.” Therefore, in the instant case plaintiffs must show intent to racially steer.

18

It is not necessary for the steering to be successful in order for the act to violate section 3604(a), for attempts to steer are also proscribed.

Zuch,

394 F.Supp. at 1048 . In

Zuch ,

the court held:

The fact that the defendants did not succeed in steering the plaintiffs away from the transitional neighborhoods of Detroit is not relevant; the law makes it unlawful even to attempt.

Smith v. Sol D. Adler Realty,

436 F.2d 344, 349-50 (7th Cir.1971)...;

Brown v. State Realty

*1250

Company,

304 F.Supp. 1236, 1241 (N.D.Ga.1969)____ Were it otherwise, the damage to be done by steering would have to be inflicted first before the actions could be challenged. Such a requirement would fail to serve the purpose of the Act.

Id.

Furthermore, the test used to determine whether a statement constitutes' racial steering in violation of section 3604(a) is not the effect of the racial statement on the hearer of the statement, but rather the effect the statement would have if heard by a reasonable person under the circumstances who is seeking housing.

A broker may be held liable for the racial steering of its agents. If an individual sales agent engages in an act of racial steering, and if that act or statement is made within the sales agent’s course and scope of employment with a real estate broker, it may be imputed to the broker.

Marr v. Rife,

503 F.2d 735, 740-42 (6th Cir.1974);

Northside Realty Assoc., Inc. v. United States,

605 F.2d 1348 , 1354 (5th Cir.1979).

In their post-trial brief, plaintiffs support their second cause of action, which alleges “a pattern and practice of racially discriminatory housing practices by the defendants, including locational steering by race,” by relying on cases which have construed the Attorney General’s right under section 3613. This section allows the Attorney General to bring an action for injunctive or other relief when he has reasonable cause to believe that a person or persons are “engaged in a pattern or practice of resistance to rights granted by the Act.” No similar language is contained in section 3612, which provides for enforcement by private persons of rights secured by section 3604 and other sections.

However, earlier in plaintiffs’ trial brief, and similarly during the trial, they alternatively argued that “the substance of the complaint” is “the concept of the ‘continuing violation’ ” as set out in

Havens Realty Corp. v. Coleman,

455 U.S. 363 , 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982).

Havens,

decided during the life of this case, was a private action for damages and injunctive relief brought under section 3612 in which acts of racial steering in violation of section 3604 were charged by a black renter and two “tester plaintiffs,” for themselves and a designated class, and by the organization Housing Opportunities Made Equal (HOME). As plaintiffs suggest, the Court’s decision on the issue of the 180-day limitations period of section 3612(a) affects this court’s treatment of the nature of the claim which the plaintiffs are bringing.

19

The Court refused to literally read the Act so that alleged violations that occurred prior to 180 days of the filing of the suit were time barred. The Court dismissed so strict a reading by stating that a “wooden application of 812(a), which ignores the continuing nature of the alleged violation, only undermines the' broad remedial intent of Congress embodied in the Act.”

Id.

at 380 , 102 S.Ct. at 1125 . Finding that the statute of limitations was meant to bar only stale claims, the Court concluded that where

a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within 180 days of the last asserted occurrence of that practice.

Id.

Since the

Havens

holding on the statute of limitations issue is controlling,

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this court need not rule on whether or not a pattern or practice action as defined in section 3613 cases may be brought by the plaintiffs under section 3612, and if so, whether such a claim has been proved. Applying

Havens,

455 U.S. at 380 , 102 S.Ct. at 1125 , the court treats plaintiffs’ claim as one which charges separate acts of racial steering by Hilltop agents which comprise “an unlawful practice that continues into the limitations period.” Accordingly, those alleged violations that occurred prior to 180 days of the filing of this suit will not be time barred if plaintiffs can show that the alleged incidents violated the Fair Housing Act and constituted an unlawful practice which continued into the 180-day limitations period.

The court turns to the audits chronologically beginning with the 1976 audits.

B. Claimed Steering Incidents

(1) Spagnolo-Kuzma

Plaintiffs compare the treatment of white checker Edward Kuzma with the treatment of black checker Hattie Spagnolo as a first steering incident. Edward Kuzma and his wife visited an open house on Dorset Road in Lyndhurst on August 15, 1976. As a result of that open house, Mr. Bill Weir of the Hillcrest office of Hilltop showed the Kuzmas four houses in South Euclid, Highland Heights, and Richmond Heights.

Mrs. Spagnolo had been told to go to the open house and learned from an advertisement in the Sunday paper of its location on Dorset Road in Lyndhurst. Instead of attending the same Sunday open house as told, Mrs. Spagnolo called on Monday and made an appointment for Tuesday at 11:00 a.m. That morning she postponed the appointment until 3:00 p.m. At 2:45 p.m. a lady from the office called to say that Mr. Weir was not in the office. Mrs. Spagnolo said that she immediately called back “in a white tone of voice” and asked if Mr. Weir was there. He was. She hung up and immediately called again and identified herself. She asked him when she could see the house on Dorset. He answered, “I don’t think you can see it.” However, he told her to call him back at 6:00 p.m. At 6 o’clock she called him back, and he told her that it was not possible because the seller’s child was ill. When Mr. Weir offered to show her another house in the same area, she told him that she didn’t want to go because it was too late. Mr. Weir testified that he did not show Mrs. Spagnolo any homes because she broke their appointment.

Plaintiffs argue:

Spagnolo, the black checker, was denied access to the Dorset house in Lyndhurst through cancellation of her afternoon appointment (and the agent’s inartful attempt to pass it off as the checkers doing), and the later excuse about a sick child which prevented a showing of the house that evening, without an accompanying offer by the agent to show the house at a later time.

Plaintiffs contrast the showing of four homes to the Kuzmas. When Mrs. Spagnolo was asked if she told Mr. Weir that she was black, she answered, “I have never told anyone I was black.”

20

Moreover, her account of the various conversations with persons at the Hillcrest office of Hilltop and with Mr. Weir offers nothing from which the court may infer that Mr. Weir knew that Mrs. Spagnolo was black. Not finding that plaintiffs have proved that Mr. Weir knew that Mrs. Spagnolo was black, the court cannot and does not reach the question of whether in dealing with Mrs. Spagnolo, Mr. Weir intended to racially steer her from access to the Dorset Road home in Lyndhurst.

It is concluded that plaintiffs have failed to prove by a preponderance of the evidence that Hilltop Realty engaged in racial steering in the circumstances of the Kuzma-Spagnolo audit of Hilltop in August 1976.

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B.(2) Tufts — Pap

Black checker Sheryl Porter Tufts and white checker Patricia Pap audited Hilltop sales agent John Mayfield. The audit began on August 22, 1976 when each checker visited an open house at 1688 Maple Road, Cleveland Heights.

The two checkers gave Mr. Mayfield substantially the same specifications. Mrs. Tufts said she was looking for a home in Cleveland Heights or South Euclid while Ms. Pap and Ken Kowaleski requested the eastern suburbs.

21

At the end of her inspection of the home on Maple Road, Mr. Mayfield gave Ms. Tufts his card and mentioned that “we would be getting back together.” When Mr. Mayfield did hot call Ms. Tufts by August 31, 1976, nine days later, she called him. He told her that he was going on a Labor Day vacation and would get back to her after that. On September 9, Mr. Mayfield called Ms. Tufts. He told her that “he had a house that he would like to show [her] that was on 175th and South Miles.” She told him “[she] wouldn’t be able to see that one.” Asked about the racial composition of that area, she answered, “I believe it was predominantly black in that area.”

Mr. Mayfield then invited her to an open house at 2159 Taylor Road attended to by him. When she arrived at the open house, he let her wander around on her own. She testified that Mr. Mayfield stated “he did want to get together with my husband and myself.” Ms. Tufts admitted that on at least two occasions Mr. Mayfield asked her to come to the office so he could “run [information on her housing requirements] through the computer, and [she] did not do that.” Asked why not, she stated: “Well, I didn’t have — he wanted to meet my husband, and I didn’t have a husband to take with me.”

Defendants argue:

There is simply no viable claim of lack of service to Tufts. Mayfield tried to service her, but she simply was not willing to meet with him.

The evidence bears out this contention. But this argument does not meet plaintiffs’ claim of racial steering with reference to Ms. Tufts. Mr. Mayfield on September 9 suggested a home to Ms. Tufts at 175th and Miles, “predominantly black in that area” and also an area in which she had expressed no interest to Mr. Mayfield. The other home he suggested was the home at 2159 Taylor Road, which she stated in her checker’s report was “on the edge of Cleveland Heights.” The court judicially notes that 2159 Taylor Road (North Taylor Road) is adjacent to East Cleveland, whose population in 1977 was 77 percent black. It is inferred that the home at 2159 Taylor Road was in a neighborhood more integrated than the Cleveland Heights city-wide average level of integration.

22

In conjunction with Mr. Mayfield’s suggestion of the South Miles Road house and the Taylor Road house to Ms. Tufts, statements made by Mr. Mayfield to Ms. Tufts at the Maple Road open house bear on his intent and frame of mind. Ms. Tufts testified that in her discussion with Mayfield,

he started telling [her] that there had been a white lady that had looked at the house, and she decided not to take the house because there were too many black people in the area.

She also stated that he “started pointing out some of the houses where the white people lived and where black people lived.” During defendants’ examination of Mr. Mayfield, he denied discussing the “racial make up of [the] neighborhood around [the]

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Maple Road home” with any prospect at anyone of his open houses. This broad denial of the specific quotation attributed to him by Ms. Tufts is not credited. Ms. Tufts’ report of Mr. Mayfield’s statements at the open house is credited.

These statements of Mr. Mayfield, considered together with the showings, are deemed to have been made by Mr. Mayfield to influence the housing choices of Ms. Tufts. Therefore, it is concluded that in violation of section 3604(a), Mr. Mayfield racially steered Ms. Tufts toward both a predominantly black area outside of Cleveland Heights and to a more integrated area within Cleveland Heights.

Mr. Mayfield also made racial statements to Ms. Tufts’ white counterparts, Patricia Pap and Ken Kowaleski, on August 22, 1976 at the Maple Road open house and later at his office. At the open house he told a story about his brother-in-law buying from a black family a house which he needed to fumigate before moving into it. At the office, while going over house listings, Mr. Mayfield said that they were lucky to be white because they could get a better deal. When asked why, “he said it was just human nature, that owners prefer selling to whites.” He added that “they sold to whites 80 percent of the time, and that was the way it should be.”

On August 25, 1976, Mr. Mayfield showed homes to Ms. Pap and Mr. Kowaleski on 3730 Monticello Boulevard, 1005 Englewood Road, and 2054 Revere Road in Cleveland Heights. As Mr. Mayfield stated to Ms. Pap after they left the house on Englewood, “The neighborhood wasn’t very integrated.” Ms. Pap testified that Mr. Mayfield noted:

There was a high demand for white buyers and that all of the agents knew this and showed them the neighborhood first.

Further, on leaving the Revere Road property, Mr. Mayfield stated that:

[H]e preferred the Englewood area. He said that it wasn’t as integrated as the area around Revere and never would be.

23

Mr. Mayfield’s comments to Ms. Pap and Mr. Kowaleski relating to Revere and Englewood are weighed in connection with their request to see properties in the eastern suburbs. In other words, they did not specifically ask to see properties in Cleveland Heights, although they did fix a price range of $25,000-$30,000. Ms. Pap’s testimony further shows that Mr. Mayfield passed over three homes in their stated price range: 18005 Chagrin Boulevard in the Lomond school district and 3733 Menlo Road in the Moreland school district in Shaker Heights; and 927 Caledonia, Cleveland Heights, in the Caledonia school district. These properties were listed on the computer print-outs obtained by Mr. May-field for Ms. Pap and Mr. Kowaleski at his office Sunday afternoon, August 22, 1976. With reference to these three properties, Mr. Mayfield stated that “[you] wouldn’t be interested in them.” Asked why, Ms. Pap said he answered, “Those neighborhoods weren’t integrated anymore, that they were black, and that even blacks were reluctant to buy in the

neighborhood.”

24

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Mr. Mayfield’s statements, which diverted Ms. Pap and Mr. Kowaleski from consideration of those three properties located inside and outside of Cleveland Heights in “neighborhoods [that] weren’t integrated anymore” and his comments relating to Revere and Englewood together constitute actions on his part which “ma[d]e unavailable or denped] a dwelling to [a] person because of race” in violation of section 3604(a). It is so concluded. The statements of Mr. Mayfield, made on August 22, 1976 to Ms. Pap at the Maple Road open house and to her and Mr. Kowaleski in his office, corroborate Mr. Mayfield’s locational steering with reference to checkers Pap and Kowaleski.

B.(3) McGee — Butterfield

The next audit claimed to involve racial steering was of John Mayfield. This audit, conducted by black checker Sandra McGee and white checker Hester Butter-field, began with an open house in May 1977 at 3395 DeSota Avenue, Cleveland Heights.

Mrs. McGee visited the open house on DeSota about 3:30 in the afternoon. As she viewed the house, Mrs. McGee informed Mr. Mayfield that she presently owned a home on Berkeley, the street next to DeSota, and that she was “looking for a brick or an exceptional frame ... in the Hillcrest/Heights area.” She gave Mr. Mayfield a price range in the “upper $30’s and lower SjS40’s.” He asked where she was interested, and she told him, “South Euclid, Lyndhurst and Cleveland Heights.” He told her that “Lyndhurst would be a little bit on the high side for [her] price.” As for South Euclid, he said “that’s on the Lyndhurst side.” He said that something could be done in Cleveland Heights.

Three days later she called Mr. Mayfield and arranged for him to give her a computer print-out at her home. He brought over a print-out of South Euclid and went over it with her. When she asked where the printout for Cleveland Heights was, he said he would bring it to her the next day, but did not.

On May 18 she called him and said she was interested in five or six homes on the South Euclid print-out which he had left with her. He told her that the homes were “sold or sales pending.” Arrangements to go out and see homes were then discussed. He suggested they meet on Friday at 11:00 a.m., but she told him “that wasn’t a good day.” She then suggested Saturday, and he responded that he “would call her on Thursday and we could arrange something.” However, at no time did he later get in touch with her.

At trial, Mr. Mayfield remembered the open house on DeSota but had no recollection of Sandra McGee. In view of his nonrecollection of Sandra McGee, no evidentiary basis is perceived for defendants’ argument that

there is a substantial likelihood that he would have viewed her simply as a “shopper” since she came from church on a Sunday and lived on the adjacent street.

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Although Mrs. McGee no longer has the South Euclid computer print-out, it is determined that Mr. Mayfield, delivered it to her as she testified. It is not probable that on May 11 the homes on the South Euclid print-out were apparently available, and on May 18 all five or six properties she inquired about were “sold or sales pending,” as Mr. Mayfield told Mrs. McGee. However, in the absence of the print-out it is impossible to determine the accuracy of his report.

Nonetheless, it is found from the evidence that Mr. Mayfield’s failure to provide a further South Euclid print-out, his failure to deliver a Cleveland Heights printout as promised, and his failure to call her back after Thursday, May 18, as promised, or at any other time to arrange a time to show homes to Sandra McGee, combine to “make unavailable or deny a dwelling to” her “because of race.” It was, therefore, a violation of section 3604(a).

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When Mr. Mayfield’s treatment of Sandra McGee is compared with his treatment of white checkers Don McKelvey and his wife Hester Butterfield, Mr. Mayfield’s lack of service to Sandra McGee is even more pronounced. Even though Mr. McKelvey did not go to-the open house, he was able to arrange a viewing of the same house, and later he and his wife met with Mr. Mayfield at the Hilltop office. There, some ten homes were jointly selected by Mr. Mayfield, Mr. McKelvey and Hester Butterfield. Mr. Mayfield showed them three of those homes, all located in Cleveland Heights.

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B.(4) Embry — Caron

Black checker Dorothy Embry and white checker Brian Caron each visited the November 13, 1977 open house at 2086 North Taylor, Cleveland Heights, close to the Cleveland Heights — East Cleveland border. The Hilltop agent “sitting” at the open house was William Howard.

Dorothy Embry stated that she arrived at the open house at “4:14.” When Mr. Howard asked her what type of house she was looking for, she answered: “a four-bedroom house in the mid $50’s to lower $60’s.” As to location she recalled saying eastern suburbs. She did not recall whether she said Cleveland Heights and eastern suburbs or “merely eastern suburbs.” At trial she did not recall at first asking Mr. Howard for the school district, but did recall this when her memory was refreshed from her deposition. The school district is the Caledonia school district of East Cleveland. After Mr. Howard took her around the house, she left.

Two days later, Mr. Howard called to ask her if she was “really interested in purchasing the house on Taylor, because he had another offer, and that he had lined up some other homes for us to see.” An appointment was set up for the next Friday at the Hilltop office on Mayfield Road. Mr. and Mrs. Embry and their two sons went to the office where they met Mr. Howard. After answering several of Mr. Howard’s financial qualifying questions, they left to see the homes which he had selected.

The first house was on Henley in East Cleveland, the second at 1231 Hereford in Cleveland Heights, and the third was at 2086 North Taylor Road in Cleveland Heights where the open house had been held. After visiting the house at 2086 North Taylor Road, they returned to the Hilltop office. In her comments on her audit report she stated:

As we returned to the office Mr. Howard said he would line up other houses in some other eastern suburbs. He did not give any specifics.

When Mr. Howard called Mrs. Embry, she told him that she was no longer interested in seeing any other homes. The homes he showed to Mr. and Mrs. Embry were all in the predominantly black Caledonia school district, either in predominantly black East Cleveland or in an adjacent more integrated area of Cleveland Heights. However, any inference of racial steering of Mr. and Mrs. Embry by agent Howard is neutralized by Mrs. Embry’s admission that Mr. Howard offered to show them homes in the eastern suburbs, but they rejected this offer.

White checker Brian Caron also spoke to agent Howard at the Taylor Road open house. He had a conversation with Mr. Howard in which the housing characteristics that he gave were generally the same as those Mrs. Embry gave to Mr. Howard. Before leaving the Taylor Road open house, he told Mr. Howard:

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It’s probably not exactly what we were looking for, we generally would like to see more houses on the east side, we do like the feature of the land, but we would like to look at more houses, would you please contact us relative to showing us more houses and seeing if we can find something that we like.

When Mr. Caron did not hear from Mr. Howard, he called him on November 16. Mr. Howard returned his call on the 18th and explained that he would “not be able to show [him] houses as he had prior engagements out of town or was planning to be out of town.” He then explained that

there was a realtor available that could show me houses I would be interested in, a Mr. Mayfield, it was a type of a three-way conversation where I was introduced to Mr. Mayfield and told that he would be happy to show me anything I would be interested in.

After several unsuccessful attempts to arrange a mutually convenient appointment time, Mr. Mayfield rescheduled the appointment for December 3. Mr. Caron said that he met Mr. Mayfield at the Hilltop office. Mr. Mayfield then drove him to a home at 374 Belvoir in South Euclid. It was Mr. Caron’s understanding that “there was a specific house that [Mr. Mayfield] wished to show [him] and that he thought met [his] needs.” Although Mr. Mayfield did not recall Brian Caron by name, he did recall showing Bill Howard’s prospect a ranch on Belvoir. Mr. Mayfield also remembered that after Mr. Howard came back to town he “gave [Mr. Howard] the prospect back.” Mr. Caron has lost all recollection as to whether it was Mr. Howard who picked out the house on Belvoir. However, his audit report, shown to him at trial, indicated that “Howard talked about a house in Forest Hills as well as the house in South Euclid,” and Mr. Caron said that sounded correct.

Upon returning to the Hilltop office, Mr. Mayfield prepared a computer print-out of additional homes as suggestions to Mr. Caron. The homes on this list were in Cleveland Heights, University Heights and one in Shaker Heights. Most, however, were in Cleveland Heights. Mr. Mayfield gave him a computer print-out, but later Mr. Caron called Mr. Mayfield to say that he had no interest in purchasing a home.

Upon all the relevant evidence, it is concluded that it was Mr. Howard and not Mr. Mayfield who recommended the Belvoir home to Mr. Caron, the white checker. Thus, Mr. Howard was responsible for the showing of a home outside of Cleveland Heights in a predominantly white eastern suburb to Mr. Caron. Nevertheless, any inference that Hilltop, through the combined conduct of Mr. Howard and Mr. May-field, steered Mr. Caron into a suburb east of Cleveland Heights is rebutted by Mr. Mayfield’s submission of a list of homes to Mr. Caron on December 3, the majority of which were in Cleveland Heights. Hence, it is concluded that the plaintiffs have not established racial steering on the part of either Mr. Howard or Mr. Mayfield with reference to either black checker Dorothy Embry or white checker Brian Caron.

B.(5) Perry-Blaser (April 4,1978)

Black checker Anita Perry and white checker Linda Blaser conducted an audit of the Hilltop office in Cleveland Heights on April 4, 1978. This audit was part of the 1978 spring audits using the HUD procedures. Anita Perry was interviewed by Phyllis Williams, while Linda Blaser dealt with John Mayfield.

Anita Perry relied on her audit report to refresh her recollection of her meetings and telephone conversations with Mrs. Phyllis Williams, who greeted her when she entered the Hilltop office. She told Mrs. Williams that she was interested in property in the eastern suburbs priced from $55,-000 to $60,000. She also stated that she lived in and liked Cleveland Heights. While she had lived in Cleveland Heights on Coleridge, she and her family for five years prior to 1978 had been living in a home on Washington Boulevard in University Heights.

From a multiple listing book, Mrs. Williams suggested certain homes and “urged [her] to pick others.” Of the four or five

*1257

homes that were suggested, Mrs. Williams showed her homes at 2895 Meadowbrook in Cleveland Heights and 3586 Meadowbrook in University Heights, several homes from the Cleveland Heights — University Heights line.

27

Both homes met Mrs. Perry’s space requirements, each having more than four bedrooms.

When Mrs. Perry’s deposition testimony was called to her attention, she agreed that Mrs. Williams called her back several times to try to show her additional homes. Mrs. Perry made a list of the homes suggested to her: 3536 Woodridge, 652 Quilliams, and 1496 Middleton, all in Cleveland Heights. However, this list was attached to her audit report, and Mrs. Perry agreed that these homes were suggested to her “during the actual audit ... rather than a phone call that occurred days later.”

While Mrs. Perry had requested homes in the eastern suburbs, she singled out Cleveland Heights. Since she said that she liked Cleveland Heights, it was understandable that Mrs. Williams showed her homes in Cleveland Heights and one just over the boundary line of University Heights. Bearing in mind also that Mrs. Williams called her back several times after the audit to show her additional homes, offers which Mrs. Perry declined, it is concluded upon all the evidence that no inference of intentional racial steering may be drawn.

On April 4, 1978, Linda Blaser met with John Mayfield at the Heights Hilltop office. She asked to see homes in the Heights-Hillerest area. Mr. Mayfield obtained a computer print-out and suggested six or more homes from it. At Mrs. Blaser’s insistence, Mr. Mayfield “picked” three homes from the six or more, but no others. Of those three, Mr. Mayfield was able to show the inside of a home at 1440 Gordon in Lyndhurst and a home at 4931 Westbourne, Lyndhurst. He drove her by to see the exterior of a home at 1607 Oakmount in South Euclid.

Refreshing her recollection from her audit report, Mrs. Blaser indicated that Mr. Mayfield talked down both of the Lyndhurst homes and also told her that homes in Mayfield Heights were too expensive. Mrs. Blaser agreed, and her audit narrative corroborates, that “Mr. Mayfield encouraged her to look in Cleveland Heights but actually showed some houses in Lyndhurst.” Since he showed her no homes in Cleveland Heights, the encouragement to look- in Cleveland Heights was only talk. Mrs. Blaser further recorded in her audit report the following statement by Mr. May-field:

You probably won’t want your kids to go to East Cleveland schools. They are mostly black but some white home buyers are buying there for the lower prices.

While she did not remember the context in which this statement was uttered, it is nonetheless concluded that she accurately recorded the statement made by Mr. May-field. Since a portion of Cleveland Heights is in the Caledonia School District of East Cleveland’s school system, the remark, stressing the “mostly black” character of East Cleveland’s school system, the remark, stressing the “mostly black” character of East Cleveland’s schools, would tend to disparage living in the portion of the City which comprises the Caledonia school district.

As a sales agent in the Heights-Hilltop office, Mr. Mayfield’s making of this remark and his showing of houses only outside of Cleveland Heights, even though she had asked for the Heights — Hillcrest area, which includes Cleveland Heights, persuades this court that Mr. Mayfield racially steered Mrs. Blaser away from Cleveland Heights in violation of section 3604(a).

B.(6) Perry-Blaser (April 10, 1978)

Anita Perry and Linda Blaser on April 10, 1978 audited Hilltop’s Hillcrest office in Lyndhurst, Ohio. Anita Perry dealt with William Weir, and Linda Blaser dealt with Violet (Vi) Costello.

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Anita Perry arrived at the Hillcrest office at 3:10 p.m. and departed at 4:50 p.na. She testified as to what occurred during this period only by refreshing her recollection from her audit report. Using the site visitation assignment sheet, Mrs. Perry testified that she had indicated to agent Weir that her price range was $55,000 to $60,-000. While Mr. Weir testified that he did not recall her telling him that, her statement is credited.

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Mrs. Perry also testified that she had told Mr. Weir that she was “looking for a home in the eastern suburbs.”

No homes were shown to Mrs. Perry on Monday afternoon, April 10. Two homes in Cleveland Heights, at 2383 Lee Road and 3283 Meadowbrook Boulevard, were shown to Mrs. Perry on the morning of Wednesday, April 12. A critical question is how these two homes were chosen for viewing.

Mrs. Perry’s testimony indicates that Mr. Weir suggested the homes shown to her, even though Mr. Weir at one point showed her a multiple listing book “and urged [her] to pick [homes] out.” Mr. Weir testified that in going over the multiple listing book, Mrs. Perry selected “a couple of properties.” But on cross-examination he stated that “we both picked them out.” Given the forceful personality Mr. Weir exhibited throughout his testimony and other testimony which challenged his credibility,

29

it is determined that as Mrs. Perry testified, Mr. Weir “suggested both the two [houses] he showed me.” These houses were on Meadowbrook Boulevard and Lee Road in Cleveland Heights.

On the basis of the relevant evidence in the record, it is inferred and concluded that by selecting two Cleveland Heights homes, each in a more integrated area,

30

and by failing to suggest a home which met Mrs. Perry’s specifications in an eastern suburb other than Cleveland Heights, although homes were then available, as later found, Mr. Weir engaged in racial steering by making unavailable or denying a dwelling to Mrs. Perry because of race.

The question arises whether there is other evidence to rebut the finding of locational steering by Mr. Weir. Because Mrs. Perry was not sure whether she told Mr. Weir she would let him know whether she liked either home she saw after she talked to her husband, she never called Mr. Weir back. Mr. Weir, on the other hand, testified that he told Mrs. Perry he would call for another appointment, called at least three times, and was always given “an excuse not to go out again.” He said he told her that he had a home available “in the Birchwald-Mackall area of South Euclid.”

On cross-examination Mr. Weir was asked if he remembered that Mrs. Perry asked to see the eastern suburbs. He answered, “I tried to show her the eastern

*1259

suburbs.” Asked if he considered showing her a home on either Clearview or Westbourne (both homes in Lyndhurst), he answered, “Not that I can recall.” As part of the April 10, 1978 audit of the Hillcrest office of Hilltop, Linda Blaser, the white counterpart of Anita Perry, was shown the Westbourne home in Lyndhurst, a four-bedroom house priced at $59,900. This was also within Mrs. Perry’s price range.

Thus, there is evidence that the Westbourne four-bedroom property in Lyndhurst was available but not shown to Mrs. Perry on or about April 12, 1978, the time Mr. Weir stated that he was trying to show Mrs. Perry homes in the eastern suburbs. Further, there is no evidence on the record indicating that a home on Birchwald was available and within the specifications of Mrs. Perry. Neither Mr. Weir’s claimed offer to show her a home on Birchwald nor a general offer to show her homes in the eastern suburbs is credited. The inference of racial steering on the part of Mr. Weir is not rebutted.

The court turns now to the other half of the audit of the Hilltop Hillcrest office, which was performed on April 10, 1978. Linda Blaser walked into the office at 11:00 o’clock and spoke with agent Vi Costello about looking at houses, according to her audit report. Agent Costello testified that Mrs. Blaser could not'have come in at 11:00 because she had “floor duty that afternoon.” Resolving the conflict, it is concluded that the audit began at 11:00 a.m. on the morning of April 10, as recorded contemporaneously on Mrs. Blaser’s audit report.

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Mrs. Blaser’s testimony of her various conversations with Mrs. Costello was not remembered independently of her written audit report but was given after her recollection was refreshed from it. Upon the agent’s request, she gave her telephone number and address on Rolliston Road in Shaker Heights, Ohio. Mrs. Blaser testified that she told the agent that she was seeking housing in the Heights-Hillcrest area. Mrs. Costello recalled that Mrs. Blaser said “she liked the Hillcrest area.”

Mrs. Blaser said that the agent showed her a multiple listing book and “suggested some houses and urged [her] to pick others.” Mrs. Costello said six houses were picked out from the multiple-listing book, and then computer print-outs were obtained on them. One of the six was a house which Mrs. Costello picked out on Quilliams in Cleveland Heights. Mrs. Costello said the six homes were all Hilltop listings, which she had already seen on Hilltop’s weekly tour. When Mrs. Blaser told her that she only had time to see three homes, Mrs. Costello stated that “[I] picked the ones that I thought were the nicest and that she would like.” She selected a three-bedroom home on Clearview in Lyndhurst, a four-bedroom home on Westbourne in Lyndhurst, and the four-bedroom home on Quilliams Road in Cleveland Heights. The remaining three were on Avondale in South Euclid, on Gordon in Lyndhurst, and on Ranchland in Mayfield Heights.

Mrs. Costello indicated the she did not group Cleveland Heights in the Hillcrest area. Bearing that in mind and that Mrs. Costello included a home on Quilliams Road in Cleveland Heights among the three homes to show Mrs. Blaser, it is concluded that Mrs. Blaser did designate the HeightsHillcrest area as the area in which she was seeking housing. Inasmuch as the three homes picked out by Mrs. Costello fell within the Heights-Hillcrest area, the selection of these homes, standing alone, did not constitute racial steering.

However, these showings must be considered in conjunction with certain statements made by Mrs. Costello in the course of the showings. At a point in her audit report, Mrs. Blaser wrote:

Agent said a lovely black woman was looking at this house a couple of days

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ago. I thought she might buy it but I haven’t heard from her.

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Mrs. Blaser noted in her audit report two other conversations with Mrs. Costello concerning race. While the Quilliams Road property was being discussed in the office, Mrs. Blaser recorded that Mrs. Costello asked her “if the school my kids go to is integrated and how much,” to which she answered, “Yes.” Mrs. Costello then stated, “Just about every place is integrated now. I think they ought to be able to live wherever they want.” Mrs. Costello denies making these statements. The court finds no basis for discrediting the accuracy of the statement attributed to Mrs. Costello which Mrs. Blaser recorded in her audit report.

With her recollection refreshed, Mrs. Blaser said that at the Quilliams Road property, the “agent said, your kids would go to Cleveland Heights High. Do you want your kids to go there?” Mrs. Blaser believes that she “would have said something vague in response.” Denying such a statement, Mrs. Costello said that in the car going back from Quilliams to the office, Mrs. Blaser “said that she lived in Cleveland Heights; if she stayed there her children would be going to Cleveland Heights High.” In response, Mrs. Costello stated, “Do you want them to — don’t you want them to go to Cleveland Heights?” She does not remember what Mrs. Blaser said after that.

Mrs. Costello’s recollection of this car conversation with Mrs. Blaser falters since Mrs. Blaser had told her she lived in Shaker Heights, not that “she lived in Cleveland Heights.” On the other hand, having been told by Mrs. Blaser that she lived in Shaker Heights, it was consistent that Mrs. Costello, in showing the Quilliams Road property, would say to Mrs. Blazer, “your kids would go to Cleveland Heights High,” as Mrs. Blazer reported. It is found that the statement of Mrs. Costello as recorded by Mrs. Blaser in her audit report is the accurate version of the conversation.

It is concluded that the agent’s statement at the Quilliams Road property with her other statements made at her office are not sufficient to influence housing choices and do not prove intent to steer.

B.(7) Drake-Bartoo

Black checker Adrienne Drake and white checker Ruth Bartoo audited the Heights office of Hilltop Realty on April 14, 1978. Ruth Bartoo met agent Norman Hott, and Mrs. Drake met agent Ann Gilmore.

According to her completed audit report, Mrs. Drake arrived at the Heights office at about 2:15 p.m. Mrs. Drake had specified on her report that she requested a three-bedroom house in the “50’s.” Mrs. Drake testified that in response to the question on her audit report about whether the agent requested information on “location by neighborhood or jurisdiction,” she had circled “yes.” In her trial testimony, Mrs. Drake was asked further about this request. She answered:

If she requested and if it says that, I told her what was on the front page.

Q. And what was that?

A. Lyndhurst, Cleveland Heights, Shaker Heights, South Euclid.

On cross-examination Mrs. Gilmore was asked, “Do you remember her saying to

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you that she would like to look in Lyndhurst, Cleveland Heights, Shaker Heights and South Euclid area?” She answered, “No, she never said that.” Asked if she was sure, she responded:

I’m positive. She didn’t seem to know any of these areas. I thought maybe she was from out of town or new, and I suggested that we tour — each time we’d go out we’d tour a new area.

Since Mrs. Drake’s assignment was to say that she was seeking homes generally in the eastern suburbs and “if the agent pins you down, then you narrow it,” it is concluded that Mrs. Drake did mention the eastern suburbs and then specified Lyndhurst, Cleveland Heights, Shaker Heights and South Euclid.

The testimonies of Mrs. Drake and Mrs. Gilmore indicate that Mrs. Gilmore “volunteered to [Mrs. Drake] as serious possibilities three houses.” These were at 3536 Woodridge, 2383 Lee Road and 3583 Blanche, all in Cleveland Heights. They inspected the Woodridge home on the inside. As for.the home at 2383 Lee Road, Mrs. Drake told Mrs. Gilmore “to keep moving” when they drove by.

Mrs. Drake stated that on that first day (April 14) she and Mrs. Gilmore just looked in the window of the Blanche Road property “because she didn’t have a key.” But she said that they met the next day at which time they inspected the insides of both the Blanche Road property and property on Shannon Road. Having a different recollection of the matter, Mrs. Gilmore said that she “showed her two houses on one day, then we went past a third house [Blanche] that was already sold.” The question was then asked, “so you were never inside the house on Blanche with Adrienne Drake?” She answered, “We were standing outside on the curb. I thought it was strange that she wanted to go in that house.” It seems likely that Mrs. Gilmore is describing their visit to the Blanche Road property the night before when they could not enter the house because she didn’t have a key. As Mrs. Gilmore stated, records could have been checked by Hilltop to confirm or contradict her statement that the “house was sold.” However, in the absence of support for Mrs. Gilmore’s statement, and since Mrs. Drake answered several questions in her audit report which showed that she had been shown the inside of the Blanche Road property, her statement that she viewed the inside of the property on the next day (April 15) is credited.

Through Hilltop, Mrs. Drake was shown four homes during the audit period, all in Cleveland Heights. Subsequent to returning her audit materials to HCC, she was contacted again by Mrs. Gilmore. Mrs. Drake was then shown a house in Cleveland Heights off Mayfield Road, “a couple of streets over from the real estate office.” Given that Mrs. Drake requested to be shown the “Eastern suburbs” and in particular Lyndhurst, Cleveland Heights, Shaker Heights and South Euclid, yet was shown five homes in Cleveland Heights, it may be reasonably inferred that Mrs. Gilmore racially steered Mrs. Drake into viewing homes only in Cleveland Heights. This inference is further supported by the fact that Mrs. Drake’s white counterpart Ruth Bartoo gave generally the same qualifications but was shown homes all outside of Cleveland Heights.

The question arises whether other relevant evidence rebuts this inference of racial steering. Mrs. Drake was asked if after she was shown the home off May-field, Mrs. Gilmore called her and “again suggested that she wanted to show [her] some other homes.” She answered: “I can’t say yes, and I can’t say no. Probably.” On redirect examination, Mrs. Gilmore was ■ specifically asked the question “why didn’t you show Mrs. Drake any homes outside of Cleveland Heights?” She answered:

Mrs. Adrienne Drake did not know where she wanted to live. My main purpose at that point was to find out what kind of home she was looking for. Then I was encouraging her to bring her husband so that her husband then would be able to give me more data. Between one house

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and another it could be $300, $400 a month on your monthly payment. It’s important to find out exact price range. So I had mentioned it to her, the same as I did in the deposition, why don’t we just tour each suburb and area and then look over the area and decide what you want____

Mrs. Gilmore’s recollection of the details of her contacts with Mrs. Drake was shown to be faulty on a number of different details. Nonetheless, her suggestion to Mrs. Drake that “we just tour each suburb and area and then look over the area and decide what you want” stands unchallenged in the record. .

Mrs. Drake’s acknowledgment that it was “probably” true that Mrs. Gilmore called to again suggest that Mrs. Drake see “some other homes,” combined with Mrs. Gilmore’s unchallenged testimony that she suggested to Mrs. Drake that they “tour each suburb and area” to determine Mrs. Drake’s housing preferences, act to rebut any inference that Mrs. Drake was racially steered from seeing homes outside of Cleveland Heights.

Ruth Bartoo, the white counterpart of Adrienne Drake, audited the Heights office of Hilltop Realty on April 14, 1978. Her characteristics and specifications given in the site assignment form were similar to those of Mrs. Drake. Listed under the heading “Neighborhood” was “Shaker, Cl. Hts, Lyndhurst, May,” and the price range was “50-60.”

With her recollection refreshed by her audit report, Mrs. Bartoo testified that she arrived at the Heights office of Hilltop at about 10:00 o’clock without first calling for an appointment. Although Mr. Hott testified that Mrs. Bartoo called the office that morning before she came that afternoon, the court credits Mrs. Bartoo’s recollection.

33

Mrs. Bartoo testified that she told Mr. Hott that she “was interested in the Heights area, Mayfield, Lyndhurst.” She further said that she knew that she wrote “those three down on a sheet and apparently did not say South Euclid.” Asked if she recalled for sure from her own independent recollection, she answered, “Only from what I reviewed on my forms.” At trial Mr. Hott testified:

I recall she called in, said that she was looking for a home in the eastern suburbs in the approximately $50,000 range, that her husband was a professor at the University, and that she lived in Cleveland Heights in the Coleridge area.

Given Mr. Hott’s confusion as to whether Mrs. Bartoo first called or came into the office, Mr. Hott may also have been confused when he said that she requested the eastern suburbs. While Mrs. Bartoo may first have mentioned the eastern suburbs, it is found that she became more particular and named the Heights area (Shaker and Cleveland Heights), Lyndhurst and May-field Heights, the communities listed on her site visit assignment sheet.

Mrs. Bartoo testified that during the time she was at the office that morning, Mr. Hott suggested that they see homes on Westbourne in Lyndhurst, on Avondale in South Euclid, and on Edison in Cleveland Heights. That afternoon, Mr. Hott and she visited two homes in Lyndhurst, the suggested one on Westbourne Road and another on Gordon Road, and the Avondale home in South Euclid.

On cross-examination, Mrs. Bartoo acknowledged that in addition to the three homes suggested in the morning, (Westbourne, Lyndhurst; Avondale, South Euclid; and Edison, Cleveland Heights), there were two other houses suggested as serious possibilities. Counsel asked her “where was the fourth or fifth house that was suggest

*1263

ed to you as a serious possibility?” She answered, “I only wrote down the first three. I didn’t record others suggested to me in the office.” Moreover, she had no independent recollection of “where those other homes were” and said she had “no idea what community they were located in.” However, when asked “was the Gordon home one of the four or five homes suggested to you in your first meeting,” she answered “it may have been.” Concerning the Edison Road house in Cleveland Heights, she was asked, “Did Mr. Hott tell you why he did not show you the Edison Road house in Cleveland Heights?” She answered, “I don’t remember if he told me or not.” Nor did she remember asking him about it.

Mr. Hott was asked on direct examination, “where were the homes that you had selected?” Mr. Hott answered, “Lyndhurst, South Euclid and Cleveland Heights.” He testified that they started in the Lyndhurst area with the Westbourne house and then saw the Ardmore house in South Euclid. At this point he said, “We ran out of time and she said that was all the time she had, she had to go some place else and we went back to the office.” When Mr. Hott was asked why he did not first show the home in Cleveland Heights, he answered, “Just a matter of going out to Lyndhurst and coming back in, that’s all.”

It is found that Mr. Hott had planned to show Mrs. Bartoo a home in Cleveland Heights but that they did not see it because Mrs. Bartoo said that she had run out of time. Although there is evidence from Mrs. Drake’s audit that there were other homes in Cleveland Heights of comparable requirements, Mrs. Bartoo has no recollection of the location of two other homes that Mr. Hott suggested.

34

Since Mr. Hott had planned to show her a Cleveland Heights home, since Mrs. Bartoo said that she had run out of time, and since Mr. Hott at no time made any mention of race, the totality of the evidence does not permit a finding that any preference which Mr. Hott disclosed in showing homes outside of Cleveland Heights and in not showing homes within .Cleveland Heights was because of race.

35

B.(8) Newsom — Horrigan

Black checker Juanita Newsom and white checker Diana Horrigan audited the Heights office of Hilltop in mid-October 1978. Mrs. Newsom dealt with Leo Lee

36

on the evening of Wednesday, October 18, 1978. The next morning, October 19 at 9:30 a.m., Mrs. Diana Horrigan met with John Mayfield.

As arranged, Mrs. Newsom met with Mr. Lee at the Heights office of Hilltop at about 1:30 p.m., Thursday, October 19, 1978. Mr. Lee asked Mrs. Newsom the area in which she was looking for a house. Mr. Lee testified that she wanted the eastern suburbs, and when he asked her to name communities, she indicated she was not interested in Shaker Heights, but mentioned University Heights, South Euclid, Lyndhurst, Mayfield (Heights), Cleveland Heights and Beachwood. She said she was looking for a home in the low seventies that was 30 years old or less.

Mr. Lee obtained computer print-outs on two homes in Beachwood, two homes in Lyndhurst, one home in Mayfield Village, two homes in South Euclid, three homes in Richmond Heights, and two homes in May-

*1264

field Heights. Mr. Lee and Mrs. Newsom looked at the listings and deleted some because they did not fit her specifications.

37

Through this process of selection and elimination, six homes remained on the list. Two were on Concord Drive in Beachwood, and one each on Clearview Road in Lyndhurst, SOM Center Road in Mayfield Village, Monticello Boulevard in Richmond Heights, and Birchwold Road in South Euclid. Because Mrs. Newsom was going to be out of the city for the next three days, arrangements were made to meet at 10:00 a.m. on Monday, October 23 to see homes.

The following appears in Mr. Lee’s notes:

Monday, 10:00

to see houses

Make appts Sunday

Based on this note he stated, “I was supposed to make those appointments on Sunday to see houses on Monday.” It is unclear when he made the appointments. Asked whether he recalled whether he had “three or four days to make those appointments,” he answered, “No.” He further testified he “couldn’t get an appointment for the other numbers,”

i.e.,

other than the two properties on Concord and the property on Birch-wold. However, two of the remaining three homes for which he says he could not get appointments were Hilltop listings (the home on Clearview in Lyndhurst and the home on SOM Center in Richmond Heights). Mr. Lee did not provide a satisfactory answer for his failure to make appointments to see these two homes.

38

Furthermore, defendants did not offer any other evidence to explain the failure of Mr. Lee to secure appointments for these two Hilltop-listed homes. Thus, it was Mr. Lee who actually picked the homes that he showed to Mrs. Newsom.

Mr. Lee testified that he still does not know today “the specific make up of the [Concord-Beacon] community.” Mrs. Newsom saw a black woman across the street from the first home visited on Concord. On the evidence in the record, the court finds that the Concord-Beacon area was substantially integrated in 1978

39

and that despite his professed lack of knowledge of the “specific makeup of that community,” Mr. Lee knew black families resided in that area. The court finds that Mr. Lee showed Mrs. Newsom two homes on substantially integrated Concord Drive without making an effort to show her the two Hilltop listed homes on unintegrated Clearview and SOM Center Roads, which also met her specifications.

Moreover, sales agent John Mayfield on October 19 showed to white checker Horrigan the house at 1218 Cordova in Mayfield Heights, a home on Mr. Lee’s computer printout which Mr. Lee did not show to Mrs. Newsom. Mr. Mayfield also showed Mrs. Horrigan the home at 1204 Ford in Lyndhurst, a home on Mr. Lee’s computer print-out which he did not show to Mrs. Newsom.

40

*1265

Mrs. Newsom testified about a conversation with Mr. Lee which took place in the office when they were looking at the computer print-out. At that time, she said Mr. Lee stated that “Mayfield Heights was an all-white community and would I be comfortable in an all-white community.” She responded “yes” to this question. Asked on cross-examination if he made this statement, Mr. Lee stated:

I asked her as we were driving down Ridgebury Road in my car, about Iroquois [Mayfield Heights] which is a street, I actually asked her how she felt about living in a mostly white community.

Since Mrs. Newsom’s recollection of Mr. Lee’s statement that it was made in the office was recorded by her in her auditor’s report on the day of the visit to the office, and Mr. Lee’s recollection was based solely on his memory of a 1978 event, her recollection is credited.

41

The court concludes that Mr. Lee made the racial statement as reported by Mrs. Newsom.

Thus, Mr. Lee failed to show at least two homes on the list of homes which he and Mrs. Newsom selected; yet those homes were shown by Hilltop sales agent May-field to Mrs. Horrigan, Mrs. Newsom’s white counterpart checker. Defendants gave no reason why Mr. Lee could not make appointments for these homes or the Hilltop listed homes on Clearview and SOM Center Roads, which also met her specifications. The weight of the foregoing facts are not outweighed by Mr. Lee’s showing of the Birchwold house in South Euclid. Based on this conduct of Mr. Lee and his racial statement to Mrs. Newsom, it is con-eluded that this strong evidence establishes that Mr. Lee racially steered Mrs. Newsom away from homes which were available in less integrated areas of Beachwood and other communities she requested, to the substantially integrated Concord-Beacon area of Beachwood. This conclusion, because of its strong underlying evidence, is not rebutted by Mr. Lee’s later offer to show Mrs. Newsom additional homes.

Nevertheless, although Mrs. Newsom was steered to a substantially integrated area in Beachwood, there is no evidence which shows she was steered into Cleveland Heights. Because plaintiffs have failed to prove that this racial steering incident was steering into Cleveland Heights, plaintiffs may not rely on this audit to establish their claim of racial steering. However, the court does consider this incident, see

infra

p. 1281.

This court has previously ruled in its memorandum and order of March 17, 1983 that in the audit of the Heights office of Hilltop by white checker Diana Horrigan, the “black statue — white statue” remark of sales agent John Mayfield “does not constitute a violation of section 3604(a) or any other provision of the Fair Housing Act.” See

infra

p. 1296. Plaintiffs have again raised the legality of that remark. For the reasons stated in its previous ruling, this court reaffirms its conclusion.

B.(9) Jones-Radgowski

Black checker Constance Jones and white checker Roseanne Radgowski were counterparts in auditing Evelyn Gardner, sales agent at Hilltop’s Hillcrest (Lyndhurst) office. Each checker had no independent rec

*1266

ollection of the audit, and each refreshed her recollection by reading the audit report. The audits by Mrs. Radgowski and Mrs. Jones were conducted in 1978 on October 20 and October 21, respectively. Both checkers completed their audit reports immediately after the conclusion of the audit.

The specifications for housing which each checker asked for, as listed on their site visitation forms, were substantially the same. Each asked for a three-bedroom house with a two-car garage. Mrs. Jones asked also for a TV room while Mrs. Radgowski asked for a family room. Mrs. Jones asked for a newer house, less than 30 years old, while Mrs. Radgowski asked for a house “post-1945.”

With respect to the location of the housing sought, the site visitation assignment form indicated that Mrs. Jones was to ask for homes in the eastern suburbs while Mrs. Radgowski was to ask for homes on the east side. As a reason for moving, Mrs. Jones specifications included “new job,” employer was “GE.” As Mrs. Radgowski’s reason for moving, the form stated “want to be in eastern suburbs,” and inserted above was a note, “a little south of Mentor.” When her recollection was refreshed on cross-examination by deposition testimony, Mrs. Jones agreed that she had told Mrs. Gardner that she and her husband were moving to be close to his new job at GE in Nela Park. In mentioning Nela Park as the location of the GE plant, Mrs. Jones augmented the “reason for moving” specification, yet she acknowledged that she had been instructed not to deviate from that “whatsoever.”

Connie Jones was shown three homes, one on Grosvenor in South Euclid, another on Bayard in South Euclid, and a home on Quilliams in Cleveland Heights. A computer print-out gives the specifications of each of these homes. The street atlas in evidence shows that Nela Park is approximately one mile from the Quilliams Road home, lVsths miles from Bayard, and 2V2 miles from Grosvenor. Mrs. Gardner testified that she showed Mrs. Jones other streets, for example, Merrymound and Freemont. She said that other homes “were within [her] list of appointments,” but “[they] just didn’t get in all of them.”

On the next day, Mrs. Gardner called back. She had given Mrs. Jones the lengthy computer list and suggested that she show it to her husband: As noted on the prospect interview record, Mrs. Jones informed her that they were “not interested, husband decided not to move.”

In overruling defendant Evelyn Gardner’s Fed.R.Civ.P. 41(b) motion at the end of the plaintiffs’ case, this court noted that the admissions of Connie Jones, relating to their reason for moving, “would have a bearing on the sales person’s selection of 656 Quilliams as a home for Mrs. Jones to see since it is close to Nela Park.” This conclusion is reinforced by testimony of Evelyn Gardner and particularly by the information contained on the “prospect interview record,” which she prepared on or about October 23,1978 relative to her interview of Connie Jones. Under the heading “Location Desired,” Mrs. Gardner inserted “C Hts S Euclid Nearer To Noble [Nela Park] GE.” In her testimony, Mrs. Gardner testified that she showed the properties in South Euclid to Mrs. Jones because her emphasis “was on the proximity and closeness of a bus line to Nela Park GE.” The Warrensville Center — Noble Road bus line was direct while buses from Lyndhurst to the Noble Road GE plant involved two transfers. Mrs. Jones, on deposition, agreed that Mrs. Gardner showed her both the Grosvenor home and the Bayard home because it was “fairly close to GE.”

42

*1267

Based upon all the evidence, the court concludes that Mrs. Jones indicated to Mrs. Gardner that she and her husband wanted to move to be nearer to his new place of work at GE Nela Park. Under these circumstances, it is concluded that the inference of racial steering that was permissible at the end of plaintiffs’ evidence

43

is now fully rebutted. In addition, the unavailability of other homes for inspection on October 21 and Mrs. Jones’ unwillingness to see any additional homes beyond the three that were seen further supports the finding that Mrs. Gardner did not racially steer Mrs. Jones. Mrs. Jones at several points in her testimony acknowledged the courteousness of Mrs. Gardner and stated that she was satisfied with the treatment that-she received from Mrs. Gardner.

- The court turns to the issue of whether Evelyn Gardner steered white checker Roseanne Radgowski by selecting all Lyndhurst homes to show her. On cross-examination, Mrs. Radgowski was confronted with testimony that she gave at her deposition. Recalling that Mrs. Gardner asked her why she was interested in moving, she stated in her deposition, “I think I told her that I wanted to be closer to relatives.” At trial, she agreed that she “might have” told Mrs. Gardner that she “wanted to move to be closer to [her] parents or relatives” though she did “not remember for a fact.” When asked if that “deviated from the instructions given to you,” she answered:

Well, we were also instructed to be plausible home seekers, and I guess I felt at that time, if I did say that, that that was what I was trying to do.

The court concludes that she did make such a statement to Mrs. Gardner when asked why she was moving from her Mentor home, and this was a material deviation from the specification given her.

Evelyn Gardner described her introductory conversation with Mrs. Radgowski in the Hilltop Lyndhurst office. Mrs. Radgowski explained that she lived in Mentor, that she and her husband were interested in looking at homes, and that “she had just dropped her kids off at her mother’s house.” Mrs. Gardner said she responded, “Oh. Where does your mother live?” To this, Mrs. Radgowski stated, “Right around here. That’s why we’d like to look at homes, because we’d like to live near my mother right around here.” At the same time, Roseanne Radgowski indicated a circle with her hands. Asked why she did not show homes in Cleveland Heights to Mrs. Radgowski, Mrs. Gardner answered, “Because it was indicated that she wanted Lyndhurst, and that’s all I showed her.”

44

'Weighing the testimony of Roseanne Radgowski and Evelyn Gardner as well as other relevant evidence, it is concluded that Evelyn Gardner showed homes to Mrs. Radgowski in Lyndhurst because she reasonably believed Mrs. Radgowski was only interested in buying a home in Lyndhurst. Upon consideration of all the evidence, it is determined that the inference of racial steering which this court drew at the end of the plaintiffs’ evidence is fully rebutted. Plaintiffs have failed to establish that Evelyn Gardner engaged in racial steering in

*1268

her dealings with black checker Constance Jones and white checker Roseanne Radgowski.

B.(10) Johnson-Rust

On October 26, 1978, black checker Marion Hortense Johnson began an audit of Elayne Liff, an agent of Hilltop’s Hill-crest (Lyndhurst) office. On October 25, 1978, Mrs. Johnson’s white counterpart, Susan Rust, began her audit of Mary Booher (formerly Hasselbach), also an agent of Hilltop’s Hillcrest office.

Mrs. Johnson refreshed her recollection from her audit report before testifying.

45

Asked if she remembered the conversation about her housing needs with Mrs. Liff without looking at the documents, she answered:

Maybe I can remember some of them. I wanted to look at houses in the price range of $70,000 to $75,000. I needed three to four bedrooms and maybe a den; a two-car garage. Normally I would ask for a fireplace if it was possible.

As to the location she sought, she answered, “Well, I was seeking a house in the eastern suburbs, near Richmond Mall, not too far out, but maybe in the Heights area.” She stated that she told all of this to Mrs. Liff.

Hilltop counsel asked Mrs. Liff whether Mrs. Johnson indicated “what area she was interested in.” Mrs. Liff responded: “I don’t think so. I don’t think she did at the time. I can’t just remember that.” However, on cross-examination, City’s counsel asked Mrs. Liff if Mrs. Johnson’s statement that she was “looking for the Heights and Hillcrest area and particularly around the Richmond Mall area” would refresh her recollection, Mrs. Liff answered, “If you say that she asked me, sir, it’s very possible. I cannot remember specifically.”

46

Since Mrs. Johnson contemporaneously recorded what she told Mrs. Liff about the area in which she wanted to look and Mrs. Liff did not deny that Mrs. Johnson made the statement, it is concluded that Mrs. Johnson told Mrs. Liff that she was looking for a house “near Richmond Mall, not too far out, but maybe in the Heights area.”

Mrs. Johnson’s mention of a house “near Richmond Mall” was broad enough to include Richmond Heights in which the mall is located and Lyndhurst and South Euclid. These municipalities are adjacent to Richmond Heights and “not too far out.” Mrs. Johnson’s mention of the “Heights area” was also broad enough to embrace Cleveland Heights. Hence, Mrs. Johnson’s area specifications permitted Mrs. Liff 'to attempt to show her the home on Langton Road in Cleveland Heights owned by a black family, broker Isaac Haggins and his wife. Both Mrs. Johnson and Elayne Liff agreed that Mrs. Liff attempted to locate Mr. Haggins in the Hilltop offices to arrange for a showing of the Langton Road home.

47

Mrs. Liff returned to Mrs. Johnson with the report that the Haggins’ house had been taken off the market.

Because Mrs. Liff attempted to show the Haggins’ home to Mrs. Johnson on October 26, it was contradictory for Mrs. Liff to testify that she did not make arrangements to show Mrs. Johnson homes

because [Mrs. Johnson] was in a hurry. She — I hope I remember correctly, that she was to pick up a child somewhere. I thought that’s what she told me.

*1269

This statement is also contradicted by Mrs. Liff’s testimony that she probably asked Mrs. Johnson “how many there were in her family, if she had children,” but she didn’t “recall whether she said she had children or not.” Upon consideration of all the relevant evidence, it is concluded that Mrs. Johnson did not tell Elayne Liff that she was in a hurry, nor did she tell her that she had to pick up a child. Thus, there was no basis for Mrs. Liff to say, “I don’t think she actually wanted to see houses that particular day.”

48

Agent Liff stated that she was suspicious of Mrs. Johnson, and gave this explanation:

[S]he kept insisting that her husband had gotten my name at a party the night before. And, of course, that made me suspicious, because I don’t think my name is thrown around at parties. And I just was suspicious of the lady.

49

Mrs. Johnson’s “story” reasonably warranted Mrs. Liff in being “suspicious” of Mrs. Johnson. Despite her suspicion, Mrs. Liff stated that she “still went about [her] business in the usual manner.” The court concludes that there was no basis for Mrs. Liff to not show homes to Mrs. Johnson on the afternoon of October 26, and had Mrs. Liff gone about her business “in the usual manner” she would have obtained listings to suit Mrs. Johnson’s specifications.

To determine whether this variance in Mrs. Liff’s usual course of business can be construed as a section 3604(a) violation, the treatment of Mrs. Johnson must be compared with the treatment of her white counterpart, Susan Rust, who had generally the same housing requirements. On October 25, Susan Rust requested that agent Mary Booher of the Lyndhurst office of Hilltop show her homes in the low $70,000 price range. Mrs. Johnson asked Mrs. Liff of the same office to see houses in the price range of $70,000-$75,000. Each asked for a three or four-bedroom house, a two-car garage, and either an extra room or a den. Mrs. Johnson added a fireplace “if it was possible.” Agent Booher testified that there were approximately 30 houses in the computer fitting the specifications of Mrs. Rust that were available for sale on October 25. Mrs. Liff agreed that had she gone to the computer and “punched in the Heights area and the Hill-crest area in October, 1978,” she “probably would have found at least 30 homes” which fit the specifications of Mrs. Johnson.

50

Defendants argue that the “Rust audit of Booher-Gardner simply cannot be compared with the Johnson audit of Liff” because

Ms. Booher had almost seven hours of lead time to arrange showings for Ms. Rust, whereas Ms. Liff had none prior to Ms. Johnson’s arrival that afternoon.

However, agent Booher said she used no more than three and a quarter hours to obtain the computer listings used to select those homes for which appointments were arranged to show to Mrs. Rust.

51

While it

*1270

seems likely that Mrs. Liff could have successfully obtained appointments for some houses to be shown to Mrs. Johnson on the afternoon of Thursday, October 26, had she done nothing more than display the multiple listing book she would have taken some steps towards showing her available housing. Mrs. Liff said this would be her “normal procedure.” Mrs. Johnson testified that Mrs. Liff did neither. Further, Mrs. Liff does not remember even showing her a multiple listing book.

Instead, on Thursday, October 26, Mrs. Liff told Mrs. Johnson, according to her audit report, “she would check my needs and get back with me.” Having received no call “in the [four] interim days,” Mrs. Johnson called Mrs. Liff at her office on Monday, October 30. Mrs. Johnson reported that whoever answered the phone said “hold on for a minute.” The person then said to her that Mrs. Liff was not in — “do you want to leave a message?” Mrs. Johnson responded “yes, to return my call.” Late on the next afternoon (Tuesday) Mrs. Liff called Mrs. Johnson. Mrs. Johnson reported:

That day she was very busy preparing herself for a trip to Hawaii and was telling me about that, and she really. hadn’t had time to check over her computer print-out or her listings for me, but as soon as she returned she would get back with me.

After acknowledging the existence of “the buddy system,” Mrs. Liff testified that she thought “most of [her] buddies went on the trip with [her].” She was then interrogated:

Q. So if you had asked someone to take care of this lady while you were away— Hortense Johnson — they would of done it, wouldn’t they?

A. I would have under normal procedures, sir, but I don’t remember.

Q. You don’t remember whether you asked anyone or not?

A. I don’t believe I did.

In contrast, agent Booher arranged for agent Evelyn Gardner to meet Sue Rust should she not return to the office at the appointed hour. When agent Booher did not return, agent Gardner showed Mrs. Rust the homes that had been selected and arranged another appointment for her with agent Booher.

52

Agent Liff mentioned only one home for possible showing to Mrs. Johnson and that was owned by a black family on Langton Road in the Oxford School district of Cleveland Heights. Further, by Tuesday afternoon, October 31, five days after Mrs. Johnson first met with Mrs. Liff, no other homes were suggested to Mrs. Johnson for possible showing. In addition, agent Liff did not arrange for another agent to show homes to Mrs. Johnson when Mrs. Liff departed for a week’s vacation, contrary to Hilltop’s “buddy system” policy. It is determined, therefore, that agent Liff denied showing available homes

53

to Mrs. Johnson on the basis of race, a violation of section 3604(a).

A question has been raised as to whether a statement made by Evelyn Gardner while showing Sue Rust a home in

*1271

Forest Hills at 2065 Lee Boulevard

54

violates section 3604(a). Mrs. Rust asked the owner what schools the children would go to, and the owner answered, “Well, this is a private school area, and the agent told me to say that.” The owner was referring to the listing agent (a broker other than Hilltop). In the car, after leaving the Forest Hills home, Mrs. Rust said that she asked agent Gardner about the schools that the children would be attending in East Cleveland, and “Evelyn said that the East Cleveland schools were not as well rated.” Mrs. Gardner recalls that when they got back in the car, Mrs. Rust made some reference to the owner’s remark that “this was a private school area.” Mrs. Gardner said that she responded:

East Cleveland schools were not rated as highly as Cleveland Heights or South Euclid — Lyndhurst schools. Those were the two areas she was looking at also. And I said that’s based on the SAT scores and academic scores and things like that.

On cross-examination Mrs. Gardner stated that

I told her what I had read [in a newspaper article]; it was not my opinion.

She was later asked on cross-examination “the only reason you are stating that this might not, that this wouldn’t be considered steering, is because race wasn’t mentioned?” She answered:

Here again,- it is a response, not — I want to say this just right. It is a response to a question rather than information put out with the intent to change the situation.

55

Answering inquiries of a home seeker in a responsive and helpful manner would seem to be essential to selling or brokering real estate. If the home seeker receives an accurate response, it aids the person in making a housing choice. Moreover, an answer or other statement not made to deny housing based on race is not violative of section 3604(a).

The statement of Evelyn Gardner would be violative of section 3604(a) only if it might reasonably influence a housing choice on the basis of race, color or national origin. In this case, race was not expressly mentioned -or implied in Evelyn Gardner’s answer. Therefore, plaintiffs have failed to prove that Evelyn Gardner’s answer to Susan Rust’s query violated section 3604(a). Moreover, plaintiffs have not shown that in providing service to Susan Rust, either agent Gardner or agent Boo-her racially steered Mrs. Rust or otherwise violated the Fair Housing Act.

B.(ll) Riggs-Butterfield

Hilltop Realty sales agent Sandra Goldberg conducted an open house on Sunday afternoon, November 19, 1978 at 3258 Berkeley Road, Cleveland Heights. Her mother, Shirley Bernstein, also a Hilltop sales agent, sat in at the open house for her. Mrs. Patty Riggs, a black checker, and Mrs. Hester Butterfield, a white checker, visited the open house to audit Mrs. Bernstein.

Mrs. Butterfield arrived at the open house at 4:45 p.m. and left the open house at 5:30, according to her audit report. Before Mrs. Butterfield left, she and Mrs. Bernstein made an appointment for Mrs. Butterfield to come to the Hilltop office to go through the multiple listing book.

*1272

Mrs. Butterfield and Mrs. Bernstein agree that they met at the Hillcrest (Lyndhurst) office on Monday evening at which time selection of houses occurred.

56

Mrs. Butterfield remembers saying “... that we were looking ... in areas that would allow us access to the recreation programs in those three cities [Cleveland Heights High, Shaker High and Brush High].” It is concluded that she told this to Mrs. Bernstein on Sunday afternoon at the.open house. Mrs. Butterfield said that

when I got to her office, she had already picked the- homes, she had marked them in the book for us to look at, preliminarily, and we looked through them and commented on them.

She said that Mrs. Bernstein would have “volunteered me many more. We ended up with three.” One of these homes was on Eastway in South Euclid. When an appointment could not be arranged for that home, Mrs. Bernstein arranged to show a home on Elmwood in South Euclid. On the next night, Tuesday, Mrs. Bernstein showed Mrs. Butterfield the Elmwood home and homes on Powell Road and Cedar Road in Cleveland Heights.

Bearing in mind that two out of the three houses which Mrs. Bernstein showed to Mrs. Butterfield were in Cleveland Heights, it is concluded that any claim that Mrs. Butterfield was steered away from Cleveland Heights is not supported.

57

Turning to the audit by Patty Riggs, according to her audit report from which she refreshed her recollection while testifying, she stated she arrived at the Berkeley Road open house at “4:00 o’clock” and left the open house at “4:50.” Mrs. Riggs testified that she and a white lady arrived at the open house at the same time, and the agent asked both of them into the house and took their names. She said that once the white lady left, the agent asked her what she was looking for, and she told her “homes in Lyndhurst, South Euclid or Cleveland Heights.” However, she admitted she told the agent that she might want to rent her “old house” which was on Oak Road in Cleveland Heights. Mrs. Riggs agreed that the agent said it would be nice if she could be close by to watch over the property that she would be renting. The record does not show that Mrs. Riggs rejected this suggestion. Thus, she left the impression that she was primarily interested in Cleveland Heights.

Four homes were selected to be seen. One was on Elmwood in South Euclid while three were in Cleveland Heights on Rad-nor, Brunswick, and Englewood. On direct examination Mrs. Riggs stated that the agent asked her if she would like to pick out any homes to see, and “eventually, I ended up picking out one house.” Her audit report stated, “Four houses were suggested. One I chose and the others she did.”

58

The home Mrs. Riggs chose was on Radnor.

Hilltop sales agent Sandra Goldberg, Mrs. Bernstein’s daughter, showed the homes to Patty Riggs. Sandra Goldberg stated that on Sunday evening, November 19, her mother gave her a sheet of paper that “gave me the name, address, phone

*1273

number and homes that Mrs. Riggs wanted to see.” Prior to Tuesday, she made appointments to show the four homes. On Tuesday morning Mrs. Goldberg showed her three of the four homes, the Elmwood home, the Radnor home and the Englewood home. The seller of the Brunswick Road home was not there to let them in, and they did not go inside.

Mrs. Riggs reported in her audit report that at the open house Mrs. Bernstein stated that “there were also homes available in East Cleveland that I could see, and the school district there was Caledonia School.” This referred to a conversation at the open house. At trial Mrs. Bernstein was asked by her counsel, “At the open house, was there any suggestion of any homes in East Cleveland by you?” She answered, “No. There was no reason for it, no.” She was further asked, “Did you discuss her living in East Cleveland?” She answered, “No, I did not.” These denials are unconvincing. It is concluded, therefore, that Mrs. Bernstein made the statement attributed to her by Mrs. Riggs.

However, Mrs. Bernstein’s East Cleveland remark must be weighed in connection with the following facts and not as an isolated incident: Mrs. Riggs left the impression that she was primarily interested in Cleveland Heights; Mrs. Riggs herself agrees she picked out the Radnor home in Cleveland Heights; as seen in an earlier audit, Englewood (one of the homes shown) was in a less integrated area of Cleveland Heights; and Mrs. Riggs was shown a home in predominantly white South Euclid. Therefore, it is found that plaintiffs have not carried their burden of producing facts from which racial steering may be inferred.

59

This conclusion is corroborated by Mrs. Goldberg’s offer to show Mrs. Riggs additional homes in South Euclid, Lyndhurst and Mayfield Heights.

60

Mrs. Riggs refused that offer. This court has found that only infrequently is a home sold to a prospective buyer after seeing only three houses. When, as here, there is an offer to show more than three homes in the requested areas and the offer is rejected by the checker, this rejected offer is a further fact which militates against any inference of racial steering.

Upon consideration of all the evidence, it is concluded that Hilltop agents Bernstein and Goldberg did not violate .section 3604(a).

B.(12) Jerome Emoff

Plaintiffs offer the experiences of actual home buyers who sought homes through Hilltop agents as further proof of locational steering on the part of Hilltop. Plaintiffs first call attention to a statement made during the summer of 1978 attributed to agent Delores Russo by home buyer Jerome Emoff. Mr. Emoff testified that while he and Hilltop agent Delores Russo were driving on Monticello Boulevard in the vicinity of Forest Hills, Mrs. Russo asked him whether he was “aware that the Forest Hills area was more than one half black.”

Mrs. Russo’s records of showings to Mr. Emoff reflect that on September 7 (the third time she showed him homes) she showed him two homes on Bradford, one on Woodridge and one on Boynton, all in Cleveland Heights. When questioned about the route she took to drive from the Bradford home to the Woodridge home, Mrs. Russo first denied being on Monticello, and later stated that she did not remember which way she went or whether she drove through the more integrated Forest Hills area. Mrs. Russo also insisted that the two homes shown on Bradford were east of Taylor Road. However, the court

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judicially notes that the homes at 3246 and 3383 Bradford are actually west of Taylor Road, between Lee Road and South Taylor. Thus, it is concluded that it is likely that Mrs. Russo drove the more direct route from 3246 Bradford Road (close to Lee Road) via Lee Road and Monticello to Woodridge and that Mrs. Russo and Mr. Emoff were on Monticello in the Forest Hills area, as Mr. Emoff testified.

It is concluded that Mrs. Russo made the statement attributed to her by Mr. Emoff and that in asking a reasonable home buyer if he was aware that the Forest Hills area of Cleveland Heights was more than half black, she intended to influence the housing choices of this buyer on the basis of race. The statement was, therefore, an act of racial steering in violation of section 3604(a).

Section 3604(a) makes it unlawful “even to attempt” to steer on a racial basis, and success in steering is not relevant. See

supra

p. 1249. Thus, it is immaterial whether or not Jerome Emoff was discouraged from buying in Cleveland Heights as a result of his discussion with Delores Russo and that he purchased a home in a neighborhood not far from Forest Hills.

B.(13) Mr. and Mrs. Calabrese

Joseph George Calabrese moved from Rochester, New York in the spring of 1977 to take a position in Cleveland, Ohio. Gallery of Homes, Inc., through whom Mr. Calabrese and his wife Mary were selling their Rochester home, put them in touch with two Cleveland real estate firms, Hilltop and Bishop Realty. Upon contacting Hilltop, the Calabreses dealt with agent Jack Abbott.

The testimony of Mr. and Mrs. Calabrese and agent Abbott indicates that the Calabrese’s were interested in looking at a home in the eastern suburbs and particularly Cleveland Heights, although Shaker Heights and University Heights may also have been mentioned. Mrs. Calabrese testified that she was fairly certain that in a telephone conversation with someone in the Hilltop office she told the person that she and her husband wanted Cleveland Heights and Shaker Heights. Mr. Abbott’s notes of the conversation of March 8, 1977 mention as to area only “access to downtown — V2 hr.” Mr. Abbott disclosed that the form which he received from Hilltop’s referral department stated “eastern suburbs/Cleveland Heights.” Mr. Abbott further testified that he asked Mr. Calabrese, “are you interested primarily in Cleveland Heights?” He said that Mr. Calabrese replied, “Oh, no, no. I want to see all the eastern suburbs.” It is concluded that the Calabreses requested to see the eastern suburbs, including Cleveland Heights.

The Calabreses came to Cleveland on a Saturday at the end of March. Mr. Abbott arranged to show them homes. Mr. Calabrese recalled that they saw seven or eight homes, while his wife said they saw five or six. One home was on Cummings Road in Cleveland Heights, and the rest were in Lyndhurst, Mayfield Heights, and South Euclid. Mr. Calabrese stated that among the reasons he did not like the Cummings Road home was that he' has two small children, and there was a ravine close to the back door. Hence, the only home shown to the Calabreses in Cleveland Heights did not meet Mrs. Calabrese’s specification that the home have a “decent size” backyard.

After looking at homes, the three returned to the Hilltop office. When Mrs. Calabrese told Mr. Abbott that they did not like any of the homes and that she would like to be shown other homes, he gave her a multiple listing book to examine. She picked out homes, some of which she believed were in Cleveland Heights. She said that when she asked about specific homes, Mr. Abbott would go into another room and would come back and say that the house was sold.

Mr. Calabrese testified that after he observed that “Mr. Abbott would walk back and forth, in and out of the office,”

I got up and met him at the door as he came in, and my wife was still reading the book, going over the book, and I asked him more specifically why he wasn’t showing us homes in those three

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particular towns [Cleveland Heights, Shaker Heights and University Heights]. He asked, how do you feel about blacks, specifically.

Mr. Calabrese then stated:

I was taken [back] by the question, and I asked him, what did he mean?

He said, did you know that those towns were integrated?

I, at that point, I didn’t much listen to him in terms of what other homes he would like to show us.

Asked whether Mr. Abbott said anything derogatory about Cleveland Heights or Shaker Heights, Mrs. Calabrese answered, “not in my hearing.” However, she said that her husband told her “about a statement that Mr. Abbott had made that [she] did not hear.” Asked what was the statement, she answered, “how do you feel about living near blacks?” Mr. Abbott denied making the statement. When asked if he was certain of that, he answered, “I am positive. I never said that in my life to anyone.” For the reasons discussed below, the court concludes that Mr. Abbott did make that statement.

First, no reason is disclosed in the record that would have caused Mr. Calabrese to invent the disputed conversation. While it is believed and found that Mr. Abbott and Mr. Calabrese conversed by telephone on March 8, Mr. Calabrese had never met Mr. Abbott before Saturday, March 26. There is no evidence in the record of any personal animus or hostility towards Mr. Abbott that would have motivated or caused Mr. Calabrese to fabricate the conversation. Asked if Mr. Calabrese said anything that would indicate any ill feeling towards him, Mr. Abbott answered, “He didn’t actually say anything, no.”

Second, Mr. Abbott testified that he “had an ill feeling toward [Mr. Calabrese]” because he “had taken my time.” Mr. Abbott said that on Sunday, March 27, he prepared a list of Cleveland Heights homes to show the Calabreses. He called, he believed, “the Smythe Cramer office and asked to show a home that they had listed on Fenley Road in Cleveland Heights.” The court did not permit him to give the content of the conversation; however, as a result of that call, he said he did not make an appointment to show that house to the Calabreses. After the Smythe Cramer call, Mr. Abbott said he called Mr. Calabrese and asked him if they would like to look at any more homes. Mr. Calabrese told him, “Well, I’m not really interested in looking any more at this time.” Mr. Abbott testified that he said to Mr. Calabrese, “Joe, how did you like the home that you saw this morning on Fenley Road?” He answered, “As a matter of fact we liked that home very much. We’re thinking about putting an offer in on it.” At this point Mr. Abbott reminded Mr. Calabrese that they had agreed that Mr. Calabrese “was not going to be looking at homes with anyone else and that I was going to be exclusively his agent in this area.” The court does not credit these statements of Mr. Abbott.

Through contacts made by the Gallery of Homes in Rochester, the Calabreses made contact not only with Hilltop Realty but also with Bishop Realty. In view of this, it is improbable that Mr. Calabrese would have entered into an informal, exclusive agreement with Mr. Abbott. Further, other evidence demonstrates that the Calabreses did not believe that they had an exclusive agreement with Mr. Abbott. Mrs. Calabrese testified that on Sunday, March 27, the Bishop Realty agent showed them homes in Cleveland Heights. Further, she testified that they did not see Smythe Cramer until April. It was through Smythe Cramer that they saw five homes in Cleveland Heights, one of which was a home on Fenley that they eventually bought. Thus, Mr. Abbott was mistaken when he testified that on Sunday, March 27 they saw the house on Fenley through Smythe Cramer.

Finally, the reasons given by Mr. and Mrs. Calabrese to Mr. Abbott for the termination of their relationship with Mr. Abbott are consistent with the statement which Mr. Calabrese attributes to Mr. Abbott. Mrs. Calabrese testified that when, at a later time, Mr. Abbott called back to ar

*1276

range a second meeting, she and her husband told Mr. Abbott:

We were dissatisfied with his - services, and that we had seen some homes from another real estate agent that were more of what we had in mind, that we didn’t want him to show us anything else.

Asked to say why they were dissatisfied with his services, she answered:

Because he wasn’t showing us houses that were the type that we liked, or he wasn’t showing us houses in Cleveland Heights, and we wondered why.

Based upon the findings of this subsection it is concluded that the statements of Mr. Abbott to Mr. Calabrese would influence the housing choices of a reasonable prospective home buyer on the basis of race. Both the nature of his statement and his failure to show the Calabreses homes in Cleveland Heights that met their specifications establish racial steering in violation of section 3604(a). Since an attempt to steer is violative of section 3604(a), see

supra

p. 1249, it is immaterial that the Calabreses purchased a home on Fenley Road in Cleveland Heights.

B.(14) Mr. and Mrs. Gordon

As another “steering incident” the plaintiffs offer statements which allegedly were made by Hilltop agent Steven Paul Francis to prospective home buyers Belita Tisder, a black, and Howard Gordon, a white, when they first met with Mr. Francis in late February 1979. Ms. Tisder of Columbus and Mr. Gordon of the Cleveland area were engaged to be married, and Ms. Tisder had five black children from a previous marriage. They were looking for a home to purchase in the Cleveland area. Hereafter called Mr. and Mrs. Gordon, they contacted sales agent Francis after seeing his name in a Sunday newspaper (Hilltop) ad. On the same day they met him at the Hilltop Heights office.

Mrs. Gordon testified that while in the office she told Mr. Francis that she and Mr. Gordon had driven around several communities. She had looked at houses in Lyndhurst and in “Euclid Heights [sic],” and she herself preferred a newer house. In response, Mr. Francis told them about an incident that had occurred in the Lyndhurst area:

He told us that there was a family that lived there — a black' family that had moved in the Lyndhurst area, and their children or something in the high school had been beaten up, and how the family had to sell their house and move, and they had just recently purchased a home.

And he also said that there would be times when something happened at the school where my husband could not go there to represent my kids because of him being white.

Mrs. Gordon said that after he told her about the incident, she “was worried.” She then told him: ■

We did not want to live in a predominantly black neighborhood. We just wanted to live, period.

Mr. Gordon’s testimony corroborated her testimony in all essential respects.

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Mr. Francis acknowledged the Sunday meeting with the Gordons in the Heights office of Hilltop. He remembered Mr. Gordon was very interested in living in Cleveland Heights, having grown up there. He recalled Mrs. Gordon “had a desire for Lyndhurst, and she also mentioned Char-don.” Mr. Francis was asked whether when they met on the first day he said to them “that the children of a black family that had moved into Lyndhurst were beaten up in the high school and that the family had to move.” He answered “no.” He also denied that he told them that “Mr. Gordon could not go to the high school if they moved into Lyndhurst to represent his kids because he was white.”

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On the day of their first meeting, Mr. Francis also showed them several homes in Cleveland Heights. Mr. Francis continued to show homes to the Gordons until April 22, 1979, when they entered into a contract through Mr. Francis to purchase a home at 2112 Miramar Boulevard in South Euclid. During the intervening period, agent Francis had shown the Gordons a total of 45 to 60 homes. Approximately 25 to BO of these were shown only to Mr. Gordon.

Agent Francis testified that the subject of a black child being beaten up at Brush High School (South Euclid — Lyndhurst school district) first came up when Mr. Gordon called him to ask his assistance in getting out of his contract to purchase the South Euclid home. After discussing several financial reasons which Mr. Gordon offered for withdrawing from the contract, he said he asked Mr. Gordon “isn’t there some other reason?” Mr. Gordon told him

he had been informed by a co-worker of violence to a student in Brush High School, and that since his kids would be going there if he concluded the sale of that house, that he did not want to be responsible for the safety of his children going to Brush High School.

He stated he was aware “that had happened” because the newspapers had reported “that a student had been beaten in a washroom at Brush High School.”

Some time after April 22, 1979 when he and his wife signed an agreement to purchase the South Euclid home, Mr. Gordon stated he had a “phone conversation with Mr. Francis about the fact [they] wanted to get out of this offer.” The reasons given by Mr. Gordon for not wanting to live in the house were “that it went beyond [their] income, and [they] were afraid for the kids.” About this time he learned some other information about Brush High School:

A woman that [he] had casually known at work told [him] that she lived in South Euclid, and the kids would have a rough time in that school system.

He then said “I added [that] to what Mr. Francis had told me earlier,” and passed this information along to his wife. Although they had increased their offer on the South Euclid house, as encouraged by Mr. Francis, “a mutual decision” was made by him and his wife to withdraw the offer.

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As seen above, Mr. Francis testified that he had told Mr. Gordon he was aware of the Brush High School incident because it had been in the newspapers. Having learned from the newspapers about the Brush High School incident, presumably at the time it happened, it is concluded that Mr. Francis knew about the incident in late February when he first met the Gordons. Mr. Francis also knew that the Gordons were a biracial couple, and in connection with their housing needs he would have known about Mrs. Gordon’s children. It is likely and it is determined that Mr. Francis brought up the Brush High School incident at the first meeting when Mrs. Gordon indicated her interest in seeing homes in Lyndhurst. Further, though they were shown 45 to 60 homes, neither on that first day of home visitation nor on any other time did Mr. Francis show them any homes in Lyndhurst even though Mrs. Gordon wanted to see homes in Lyndhurst. The only reasonable explanation supported by the evidence is that Mr. Francis’ story of physical violence to a black student and an inability of Mr. Gordon to represent his children at Brush High School in Lyndhurst deterred the Gordons from pressing Mrs. Gordon’s request to see homes in Lyndhurst.

63

*1278

It is concluded that the statement of Mr. Francis made to Mr. and Mrs. Gordon, as Mrs. Gordon reported it, would tend to influence, based on race, the housing choices of a reasonable prospective home buyer seeking housing in Lyndhurst. Volunteering such information in that context would be likely to discourage a reasonable home buyer from pursuing housing in Lyndhurst. Moreover, its intentional nature was expressly acknowledged by Mr. Francis, who told the Gordons “not to say anything about him telling us that, because it would be called steering.” Hence, it constitutes racial steering away from Lyndhurst, but the matter does not end there.

Plaintiffs condensed their claim involving the Gordons as follows:

The testimony of both Belita Gordon and her husband, Howard Gordon, was that the remark about the Lyndhurst family frightened them____ The Gordons subsequently purchased a home on Bendemeer in Cleveland Heights. In this action, the influence and effect of racial information by the Hilltop agent had a concrete effect on these homeseekers and constituted a violation of section 804(a).

Plaintiffs seem to be saying that by the statement and acts of agent Francis, the Gordons were not only steered away from Lyndhurst but that they were steered into Cleveland Heights. However, there is nothing about the statement of agent Francis or acts that said or suggested that he was seeking to steer the Gordons into Cleveland Heights. • In addition, showing the Gordons 45 to 60 homes in several communities, including South Euclid, the location of the Miramar home which they contracted to buy, refutes any claim that he attempted to steer the Gordons into Cleveland Heights. Because the plaintiffs have failed to prove that this racial steering incident was steering into or away from Cleveland Heights, the plaintiffs may not rely on the incident to support their claim of racial steering.

In sum, in eight separate incidents, Hilltop’s agent violated section 3604(a), and these violations were found to have impacted on Cleveland Heights. Each of these violations were committed within the agent’s course and scope of employment with defendant Hilltop Realty, Inc. Applying

Marr v. Rife,

503 F.2d 735, 742 , the acts or statements of these agents are imputed to Hilltop.

C. Financial Qualifications

Plaintiffs allege that defendant Hilltop violated the Fair Housing Act by unequally applying its financial qualification procedures based on race. To support their allegations, they present evidence of five HCC sponsored audits and one Cuyahoga Plan audit,

64

all performed in 1978. Plaintiffs assert that these audits are designed to “ascertain whether real estate agents qualified persons equally.”

Defendant Hilltop asserts that it did not engage in disparate treatment based on race through its financial qualification procedures. Defendant contends that “differences in the way a set of checkers were treated by two different agents could very easily be attributable to differences in the practices of the real estate agents.”

While the court finds that there were differences in the timing and the method of financial qualification by various agents, these differences do not relieve the court of the duty of examining plaintiffs’ several claims of unequal application of Hilltop’s financial qualification procedures.

Section 3604(a) provides that it shall be unlawful to “... otherwise make unavailable or deny, a dwelling to any person because of race____” The language of this section is broad in scope and prohibits all practices which make dwellings unavailable due to race. Accordingly, it prohibits “the imposition of more burdensome applications procedures, of delaying tactics, and of

*1279

various forms of discouragement.”

Zuch v. Hussey,

366 F.Supp. 553, at 557 (E.D.Mich.1973).

Accord, Williams v. Matthews,

499 F.2d 819, 826 (8th Cir.1974);

U.S. v. Youritan,

370 F.Supp. 643, 648 (N.D.Cal.1973),

aff'd in relevant part,

509 F.2d 623 (9th Cir.1975).

However, the mere requirement process of financially qualifying a buyer can hardly be considered to be either a form of discouragement or an unwarranted imposition. All prospective home buyers should expect to be asked questions pertaining to their financial capability. It is only when those questions or comments are racially motivated and used in a disparate fashion that the financial qualifying process would become the “more burdensome application procedures” or “form of discouragement” that the statute disallows.

On April 4, 1978, black checker Anita Perry and white checker Linda Blaser audited the Hilltop office at 3950 May-field Road. Mrs. Perry was qualified by agent Phyllis Williams while Mrs. Blaser was qualified by agent John Mayfield.

Checker Perry testified that agent Williams asked about her husband’s income and employment and whether they owned a home. Though it is not clear from Mrs. Perry’s testimony who initiated it, there was “a discussion about the down payment [they] would be required to make or that [they] had available to make.” Checker Perry further testified that Mrs. Williams “said we would go into the financing after we had found the house.”

The white checker Blaser testified that the only financial qualifying question John Mayfield asked her was about her husband’s employment. Mr. Mayfield also offered his assistance in obtaining financing. Although the black checker was asked more qualifying questions than was the white checker, these questions were race neutral and were ones which the agent might reasonably believe would help him determine the prospect’s financial ability to buy a house.

In their April 10, 1978 audit of Hilltop’s Lyndhurst office, checkers Perry and Blaser saw agents Bill Weir and Vi Costello. Checker Perry testified that agent Weir asked her about her occupation, her and her husband’s income, their debts and obligations, and whether they owned and planned to sell their present home. Though she did not indicate who initiated it, Mrs. Perry testified that she and agent Weir discussed the amount of down payment available. She also said that Weir offered to assist in obtaining financing. Agent Weir similarly testified that he asked Mrs. Perry about her and her husband’s income, but recalled asking no other questions pertaining to their financial capabilities.

Checker Blaser testified that Vi Costello only asked her about her and her husband’s employment. She also said that agent Costello offered to help them obtain financing. Agent Costello testified that

I was discussing price ranges, her husband’s job, how much money she was going to devote to buying a home. She said that she had already been qualified by [John Mayfield] in our Heights office, and she told me she qualified for thé upper 50’s and low 60’s.

Linda Blaser was not called on rebuttal to dispute this testimony. Therefore, the court finds that checker Blaser told agent Costello that she had already been qualified by agent Mayfield for homes in “the upper 50’s and low 60’s.” Hence, agent Costello was justified in asking fewer question than agent Weir asked black counterpart Perry.

On April 14, 1978 black checker Adrienne Drake met Hilltop agent Ann Gilmore while white checker Ruth Bartoo met agent Norman Hott.

Checker Drake testified that agent Gilmore asked her about her husband’s income, her and her husband’s employment, their debts and other obligations, and whether they had a house to sell. Mrs. Drake further testified that agent Gilmore said mortgage financing may be difficult to obtain, and she would help them obtain

*1280

financing. Agent Gilmore testified that she asked Mrs. Drake where her husband worked, his income and their price range.

Mrs. Drake’s white counterpart, Ruth Bartoo, testified that agent Hott asked her whether her present house was to be sold. There was also a discussion about down payments, but checker Bartoo’s testimony gave no clear indication as to who initiated it.

In October 1978 black checker Juanita Newsom and white checker Diana Horrigan performed an audit of agents Mayfield and Leo Lee at the Hilltop office at May-field and Warrensville Roads in Cleveland Heights.

When checker Newsom first arrived at the office she was asked a few questions by both agent Mayfield and agent Leo Lee. Mrs. Newsom testified that at her initial visit she was asked about a down payment and whether they owned a home. She further testified that Mr. Lee said that a “legal”

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would have to be run on her home. At her next visit, and still before seeing homes, Mr. Lee asked Mrs. Newsom about family debts and other obligations and her husband’s employment. She further testified that Mr. Lee said he would assist them in obtaining financing. Agent Mayfield asked white checker Horrigan where her husband worked and whether they owned and planned to sell their home.

Also in October 1978, black checker M. Hortense Johnson met Hilltop agent Elaine Liff, and white auditor Susan Rust met agents Evelyn Gardner and Mary Hasselbach. Mrs. Johnson was asked for information on her husband’s occupation and income, and the couple’s debts and other obligations. Mrs. Johnson testified that agent Liff told her that she did not anticipate any problems with financing given the size of the down payment Mrs. Johnson indicated was available. Checker Johnson further testified that agent Liff offered to take her and her husband to the bank “to work out the financial procedures.” Susan Rust testified that she was asked her husband’s income and whether she was employed.

The evidence reveals that in the DrakeBartoo, Newsom-Horrigan and Johnson-Rust 1978 audits, black checkers were asked more financial qualifying questions than white checkers.

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The black checkers were asked more questions on income and occupation than white checkers. In the April 1978 Drake-Bartoo audit and the October 1978 Newsom-Horrigan audit, the black checker was asked about debts and other obligations. No white checkers were asked those questions. Nevertheless, there are several factors which weigh against finding disparate treatment.

First, it must be noted that there was lack of uniformity in the qualifying methods of the various agents who testified, and in each case the black checker audited a different agent than the white checker. Further, even where more questions were asked by one agent than the other in the same audit, the questions were those that all prospects should expect to encounter when buying a home. A real estate agent is not prohibited from asking race-neutral questions which he or she reasonably believes will help determine the prospect’s financial ability to buy a house. In summary, the court finds that Hilltop’s financial qualification procedures as applied did not violate section 3604(a). Furthermore, Hilltop agents frequently offered to assist the black checkers with financing. This is clearly not discouragement based on race that is prohibited by section 3604(a).

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D. Corporate Intent

Violations of section 3604(a) that occurred prior to 180 days before the filing of this action are not time barred if these incidents represented an unlawful practice which continued into the 180-day period. See

supra

pp. 1250-1251. To make such a determination, it is essential to find that Hilltop had a corporate intent to continue to “make unavailable or deny a dwelling to any person because of race____”

Considered together, the eight 3604(a) violations previously found, each of which is imputed to defendant Hilltop, reflect such a corporate intent. The court now considers additional pieces of evidence which also bear on Hilltop’s corporate intent.

D.(l.) Racial Steering Incidents

First to be considered are four incidents of racial steering which this court imputes to Hilltop. These acts are not ones on which the plaintiffs may base their claims of racial steering because in each incident the checker or home seeker was neither steered to nor away from Cleveland Heights. However, taken together, these incidents of racial steering support a corporate intent to continue to engage in racial steering.

Chronologically, the first of these racial steering incidents is a statement made by agent John Mayfield to white checker Hester Butterfield and her husband in May 1977. See

supra

note 26. Agent John Mayfield by his statement attempted to steer them away from a home on Scottsdale near the Cleveland — Shaker Heights border because that “end of Scottsdale is over integrated.” In the next incident of racial steering, see

supra

p. 1263, agent Leo Lee racially steered black checker Juanita Newsom away from homes which were available in less integrated areas of Beach-wood and other communities which she requested, to the substantially integrated Concord-Beacon area of Beachwood. The third incident, see

supra

p. 1276, is a conversation including Howard and Belita Gordon and Hilltop agent Francis, where agent Francis related a story to them about a black youth from a Lyndhurst family who was beaten in school. He also said that Mr. Gordon, a white, would have trouble representing his black children in the Lyndhurst — South Euclid schools. The court concluded that this statement racially steered the Gordons away from Lyndhurst.

Finally, in the Cuyahoga Plan’s June 1978 “HUD-style” audit of the Euclid office of Hilltop,

67

white checker Judith Way-man audited agent Frances Fee on June 14, 1978. Black checker Lucille Davis audited agent Angela Stritof of the same office on the afternoon of June 16, 1978.

When Mrs. Wayman called the Euclid office, sales agent Fee agreed to an immediate appointment, and Mrs. Wayman arrived at the office ten minutes later. Mrs. Wayman indicated to agent Fee that she wanted a three-bedroom house in the “low 60’s” in Euclid or surrounding areas. That afternoon agent Fee showed her three homes, all located in the city of Auclid. One was on East 211th Street, the second on Champ, and the third on Upper Valley. Within a week after their first appointment, the sales agent called Mrs. Wayman and asked if she would like to see some more houses. Mrs. Wayman replied that they were having company that weekend, and she would not be able to look for a while.

Black checker Lucille Davis, and agent Angela Stritof agreed that their first contact was in a telephone call from Mrs. Davis to the Hilltop office. The court determines the call occurred on June 15.

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*1282

Over the phone, Mrs. Davis asked for a three-bedroom house between $55,000 and $65,000 in Euclid and surrounding areas. Mrs. Stritof testified and it is not disputed by Mrs. Davis that she did not tell Mrs. Stritof that she was black. Mrs. Stritof made appointments for the Upper Valley Road and the Chatworth Road homes, both in Euclid, and the Lawrence Road house in Clarkwood Estates, Warrensville Heights. On the afternoon of June 16, she showed the three homes to Mrs. Davis.

Plaintiffs do not claim that there is any disparate treatment of the two checkers with reference to the homes shown in Euclid. Indeed, as seen, one of those, the home on Upper Valley Road, was shown to both Mrs. Davis and Mrs. Wayman. Plaintiffs claim of disparate treatment involves the home on Lawrence Road in Warrens-ville Heights.

Undisputed evidence indicates and it is found that the brick ranch on Lawrence Road in Clarkwood Estates was first listed on June 15, 1978. Mrs. Stritof testified that she took the listing off the company telecopier on the morning of June 16.

Agent Strithof said that she took Mrs. Davis to Warrensville Heights because she, Mrs. Stritof, wanted to see the house, not because Mrs. Davis “had shown any interest in Warrensville Heights.” Further, Mrs. Stritof said that she concluded that the Lawrence Road property was a good home to show Mrs. Davis

because [she, Mrs. Stritof] thought it was a good buy at $56,900 when most of the homes in that area — all of Clarkwood Estates were selling for — asking upper $60’s.

Mrs. Stritof stated that her first contact with Clarkwood Estates was a couple of weeks earlier when she showed and sold a brick ranch there to Juana Clark and her husband, a black couple:

Two weeks previous I had sold a home there and I thought it was a lovely area, for one thing. I think I sold it for $61 or $62,500, or something right in that area, and here was a home in an identical area for $56,900. I’m a bargain hunter. I want to see it ... I don’t care who it had been, they would of gotten down to Warrensville Heights.

After viewing the two homes in Euclid, Mrs. Davis testified that she was driven “for a long time through the metropolitan park system.” In talking to Mrs. Davis about the home she was going to be shown, Mrs. Stritof told her that it “was really a steal that was just listed that day.” Mrs. Davis said that when they arrived she found the house was on a street that she was familiar with because she “had friends living on the street.” Before they got to the house, Mrs. Stritof had told her that “it was a growing neighborhood and that it was 90 percent white, but everyone got along well.” Mrs. Davis said it was a very nice house and that Mrs. Stritof “gassed over it — ‘oh, look at this. This is so beautiful.’ ” She observed that “it was different than the way she had talked to [her] about the other houses.”

According to Mrs. Davis, on their way back to Euclid, Mrs. Stritof told Mrs. Davis that she wanted her “to put a bid in right away.” She said that “she wasn’t going to let anybody else know about it so that I could grab it the next day if I could bring my husband to see it.” Mrs. Davis further quoted her as saying that the Lawrence Road house would “sell for $89,900 if it were in Euclid, and she said people would be fighting for it.” In her audit report, Mrs. Davis noted that “90 percent of the people were, mostly children, that I saw

*1283

were black.” Mrs. Davis’ quotations of Mrs. Stritof’s remarks are credited. Mrs. Stritof’s denials of these attributed remarks and her statement that she had not seen any blacks in the area either then or when she had shown a home to Juana Clark on Springdale Road are not accepted.

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Mrs. Stritof learned that Mrs. Davis was black when they met at the Hilltop office in Euclid. It is found that she knew that the Clarkwood Estates area was predominantly black. Mrs. Stritof drove Mrs. Davis 16 miles to see a home in an area Mrs. Davis had not asked to visit. She used the pretext that she, Mrs. Stritof, wanted to see the property. Under all these circumstances, it is concluded that Mrs. Stritof’s showing of the Lawrence Road property to Mrs. Davis was an act of racial steering.

Plaintiffs claim that Mrs. Stritof’s sale of the Springdale property in Warrensville Heights’ Clarkwood Estates to Juana Clark and her husband is another racial steering incident. Over the objection of the defendants, the court permitted Mrs. Clark to be called by the plaintiffs to rebut Mrs. Stritof’s statement that it was Mrs. Clark who had led Mrs. Stritof to the Clarkwood Estates area of Warrensville Heights. Plaintiffs made no motion at trial for a reopening of their evidence to introduce the testimony of Mrs. Clark as part of their evidence in chief. Hence, it will be considered solely as rebuttal evidence to impeach the testimony of Mrs. Stritof.

Mrs. Stritof testified that Juana Clark had called the Euclid office and made an appointment with her. She stated that at that time, Mrs. Clark told her that she wanted “a brick, either like a split or a ranch, or something very modern.” Asked if she had sold a home in Warrensville Heights to a black, Mrs. Stritof answered “yes.” Mrs. Stritof further testified, “she actually led me there” and that “she wanted that area.” Mrs. Clark testified that:

I told her that if I deposited “x” amount, could I get a house within $50,000 or $60,000; that it had to be a brick ranch. And we described, you know, three-bedrooms, finished rec room, attached garage, things to that effect.

However, Mrs. Clark testified that she did not at any time tell Mrs. Stritof the areas in which she was looking at properties and that her words were:

It didn’t matter where in Cleveland, as long as it was a brick ranch and something that we wanted. The specific location was not mentioned.

She said they went to Bedford Heights and to Warrensville Heights but that she did not ask to see either place.

With the testimony of Mrs. Stritof and Mrs. Clark in conflict as to which one initiated the visit to Clarkwood Estates in Warrensville Heights, the statement of Mrs. Clark is credited on several grounds. First, when asked if Mrs. Stritof asked her where she was interested in looking, she answered, “No, because I was only five years in Cleveland, you know.”

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Because of her short stay in Cleveland, it is plau-. sible that given the size of the metropolitan area, she would not have known enough about the area to ask specifically about either Bedford Heights or Warrensville Heights.

Second, Mrs. Stritof said that it was Mrs. Clark who mentioned the area of Bedford or Warrensville Heights and that she, Mrs. Stritof, “had never been there before.” Yet, Mrs. Stritof showed her knowledge of the housing in those cities when she said “what [Mrs. Clark] wanted was a brick, preferably a ranch. You have to go where they are.” Third, there was implicit conflict in her testimony about Euclid. Asked

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if she showed Juana Clark homes in Euclid, Mrs. Stritof answered, “I’m sure I did. I just don’t recall.” Later, when asked if there were ranches in Euclid, she answered, “Not in the price range she wanted.”

Finally, Mrs. Stritof’s testimony and her demeanor revealed that she made statements to protect her self-interest as a Hilltop agent. Mrs. Clark, subpoened as a witness and showing a reluctance to testify, had no interest in the law suit and lacked any motive to misstate her conversations with Mrs. Stritof.

Weighing the testimony of Mrs. Stritof and Mrs. Clark, it is concluded that it was Mrs. Stritof who led Mrs. Clark to Bedford Heights and Clarkwood Estates. Since Juana Clark’s testimony throughout her appearance as a witness was treated solely as rebuttal testimony, it may not be used as proof of another steering incident. Nevertheless, it further impeaches the testimony of Mrs. Stritof and reinforces the court’s findings with reference to her steering Lucille Davis to Warrensville Heights.

D.(2) Stephanie Nicholes

Stephanie Nicholes, a Hilltop agent in the Heights office during four months in 1974, was called as a witness to describe her transactions with Heights office manager Dominic Sabatino and Hilltop agent Julian Vanni. Defendants objected to her testimony on the ground that her experience with Hilltop was “far removed in time from the claims” in this action. Plaintiffs stated that they offered the testimony to show “admissions made by Hilltop officers in terms of racial conduct of the Heights office.” Overruling the objection, this court in part stated that “intent can be shown for any period of time.”

Based on the testimony of Stephanie Nicholes (formerly Stephanie Muenger), the contradictory testimony of Julian Vanni and Dominic Sabatino, and the record, the court makes the following findings.

Julian Vanni, agent in the Lyndhurst office of Hilltop Realty, was the listing agent of a home at East 152 Street and Lake Shore Boulevard. An attorney was handling an estate’s sale of the property. Hilltop agent- Nicholes called Hilltop agent Vanni to report that she had an offer on the house and that she wanted to make an appointment to present the offer. According to agent Nicholes, Mr. Vanni’s first question was, “Are the buyers black or white?” She responded, “You’re not allowed to ask me that.” She stated that Mr. Vanni also told her that the people were not going to sell to blacks and that “if my buyers were blacks, we may as well forget it.” Her buyers were white, and the house was sold to them. Concerning this conversation, Ms. Nicholes stated that she “asked Dominic [Sabatino] if Julian had been allowed to ask me that, and he said no” and that “he would take care of it.”

Mr. Vanni testified that he recalls a phone conversation in which Ms. Nicholes told him that she had an offer on the property. He said he explained to her that an attorney represented 16 or 17 heirs. He told her that if she would bring a written offer to his office, he would present the offer to the attorney, “and after the attorney either said yes or no, [he] would get back to her.” Mr. Vanni denied that in the phone conversation with Ms. Nicholes he asked Ms. Nicholes “what the race of the buyers were.”

When Mr. Sabatino was asked if he had discussed with Stephanie Nicholes her conversation with Julian Vanni while she was working at the Cleveland Heights office in 1974, he answered “No sir.” He further denied that Ms. Nicholes had told him that “Mr. Vanni had asked the race of buyers” whom Stephanie Nicholes was representing in making an offer on a home. The court does not credit Mr. Sabatino’s denial and instead finds that Ms. Nicholes told Mr. Sabatino about Mr. Vanni’s statement.

Taking into account the unswerving nature of Stephanie Nicholes’ assertions,

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her follow-up conversation with Mr. Sabatino, Mr. Vanni’s and Mr. Sabatino’s unconvincing denial of the conversations attributed to them, and the lack of proof of any reasons that might have prompted Ms. Nicholes to falsify the several conversations, it is found and determined that Julian Vanni made the statement attributed to him by Ms. Nicholes and that Dominic Sabatino failed to take any action.

Defendant Hilltop presented considerable evidence to show that it instructs its agents in fair housing law and urges them to act accordingly. Yet despite Hilltop’s professed efforts to train agents to protect clients against any denials of housing opportunities based on race, Mr. Sabatino as the manager of Hilltop’s Heights office failed to impose any type of sanction on Mr. Vanni for his statement to Stephanie Nicholes. Manager Sabatino’s failure offers proof of corporate intent to not obey the Pair Housing Act.

Stephanie Nicholes stated that at a later time she was driving with Mr. Sabatino to make an offer on a home on Sheffield Road in South Euclid. Mr. Sabatino told her that if she showed a house in South Euclid to a black, her house would be bombed. Mr. Sabatino recalled a listing on Sheffield that was his listing but denied that she ever accompanied him to that home. Asked if he made the statement attributed to him, he answered “No, sir. I never would say that to her or anybody else.” The court finds that the statement was made.

Mr. Sabatino’s own statement, which may have influenced agent Nicholes to not make properties in South Euclid available to prospective black home buyers, appears to show a corporate intent to not show available homes to black prospective home owners. However, Mr. Aveni’s undisputed testimony contradicts such a conclusion. In late 1974, just a few months after Mr. Sabatino made the statement to Stephanie Nicholes, Hilltop was involved in the sale of a home in South Euclid which was vandalized after it became known in the neighborhood that Hilltop had sold the home to a black couple. Mr. Aveni then took steps to preserve the sale to the black couple by contacting the FBI and the South Euclid police. He also arranged for and held a meeting with owners in- the area “to explain to them thé fair housing laws” and to assure them that “blacks were able to buy anywhere.” He tried “to allay fears” that a black’s entry into the area would cause “price reductions,” noting that the black buyer was “a well-qualified individual.” Finally, Mr. Aveni met with the black buyers and reassured them when they were getting ready “to back out of the transaction.”

Hilltop’s sale of a house to a black couple in South Euclid and Hilltop and Mr. Aveni’s affirmative acts to preserve the sale after the home was vandalized shows that in this instance in late 1974, Hilltop acted to protect the Fair Housing Act rights of this client.

D.(3) Mayfield’s Activities

It is important to ascertain the extent of defendant Hilltop’s knowledge of the activities of agent John Mayfield and what action, if any, it took concerning those activities.

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The Cleveland Heights Housing Board met with Hilltop agent John May-field and his Heights office manager, Grace DiDonato, on January 19, 1977. Commissioner of Real Estate Programs Barbara Roderick and Law Director Donald Barclay

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were also present. Barbara Roderick testified that the housing board members presented their concerns about an audit of Mr. Mayfield in connection with 1688 Maple Road, Cleveland Heights. She reviewed some of the racial statements which the checkers attributed to Mr. Mayfield in their audit reports. She stated that the Board gave Mr. Mayfield an opportunity to respond to the Board’s concerns over “racial comments made to the white checker.” It was her recollection that Mr. Mayfield did not deny the statements.

At trial, after a series of the reported racial remarks had been recited to Mr. Mayfield, he was asked whether he recalled them being discussed at the January 1977 meeting. He answered “no.” To the best of his recollection, Mr. Mayfield recounted that the Board

had some complaints about racial remarks and other complaints, and [they] wouldn’t go into detail to say what they were. They were all confidential.

Manager DiDonato remembered that at the meeting it was stated that John May-field had been audited. She also testified that

John, of course, was trying to explain his position based on what they were saying about him and he just kept asking them and asking them questions about who’s making these statements and where were they made, and they just wouldn’t tell him. They just kept saying that the information was confidential.

When specific remarks of Mr. Mayfield, as reported by the checkers, were separately read to Mrs. DiDonato, she said she did not remember “specifically what was said regarding the audit at all.”

Mr. John J. Boyle, Housing Board member, stated that at the January 19 meeting, as it related to Mr. Mayfield, the Board reviewed “the audit and the New Homeowner complaints with Mr. Mayfield and with Ms. DiDonato.” He said that the Board discussed with them “the unsolicited racial comments.” At several points in his testimony, Mr. Boyle stated that Mr. May-field “said nothing.” It is concluded that those comments and probably other racial comments attributed to Mr. Mayfield by white checker Pap and black checker Tufts, as set forth in the discussion of the August 1976 audit of Mr. Mayfield, see

supra

pp. 1251-54, were divulged to Mr. Mayfield and manager DiDonato. While the names of the checkers were not disclosed to Mr. Mayfield and Mrs. DiDonato, the Board members had met with the checkers at some previous time to verify their reports of Mr. Mayfield’s racial comments. Corroboration that the Board brought the checker reports to his attention is contained in a letter of January 31, 1977, which Mr. John Mayfield received at Hilltop’s Heights office from City Manager Robert A. Edwards. In part, the letter stated:

Members of the Heights Housing Board have written to me of their meeting with you in relation to several complaints about your real estate practices, which they discussed with you on January 19, 1977.

The Board found that the audit specifically indicated that black and white checkers did not receive equal treatment, that racial remarks were frequently introduced by you, and that you failed to promote Cleveland Heights in a positive manner.

The letter further informed him that the Board recommended and Mr. Edwards concurred that Mr. Mayfield was to be placed on probation as a “Preferred Agent” until they were satisfied that he was meeting the “Preferred Agent Agreement.”

Manager DiDonato called Mr. Aveni after the meeting on January 19 and told him what had happened. While her recollection of what she told Mr. Aveni is very general, it is concluded that she undoubtedly reported to him the racial remarks attributed to Mr. Mayfield at the January 19 meeting of the Housing Board. With regard to the January 31 letter to Mr. Mayfield, Mr. Aveni states that he was informed of the letter a few weeks after Mr. Mayfield received it.

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Barbara Roderick and City Manager Edwards met with Mr. Aveni and Dominic Sabatino, who was then a vice president of Hilltop Realty. She stated that she expressed her concerns “about Mr. Mayfield’s —about the audit and our request for the sales information.” In the January 31 letter, City Manager Edwards had requested that Mr. Mayfield produce a written record of his 1976 sales inside and outside of Cleveland Heights, by address and race of buyer. She recalled that Mr. Aveni “again stated that they felt that that would be a violation of confidentiality.”

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Mrs. Roderick further stated that Mr. Aveni “indicated that Mr. Mayfield was a problem agent.”

When he was called by the plaintiffs as an adverse witness, Mr. Aveni recalled the meeting with Barbara Roderick, City Manager Edwards and Dominic Sabatino. However, he said that the findings of the Housing Board were not discussed at the meeting and that “the only thing Mr. Edwards and Mrs. Roderick addressed was the fact the Board had asked for this customer list.” Later, during his direct testimony as part of Hilltop’s case, he denied that “any audits of Mr. Mayfield specifically [were] discussed at this meeting that [he] attended.” On the same point, he contradicted himself during cross-examination.

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Showing lack of recall on other points, Mr. Aveni testified that he did not recall that Mrs. DiDonato had told him “about the racial remarks [Mr. Mayfield] was supposed to have made in that audit,” and he further denied that he indicated to Mr. Edwards that John Mayfield as an agent was a problem to him.

Considering the foregoing evidence, other relevant evidence in the record, and all reasonable inferences therefrom, it is found and determined that Mr. Aveni was told by Mrs. DiDonato about the racial remarks attributed to Mr. Mayfield in the audit that was discussed at the housing board meeting. Further, Mr. Aveni learned first hand in his meeting with Mr. Edwards and Mrs. Roderick about the audit of Mr. Mayfield and the racial remarks attributed to Mr. Mayfield by the checkers who conducted that audit.

When he testified as an adverse witness, Mr. Aveni was not sure whether or not he had talked with John Mayfield after the receipt of the January 31 letter. But later, during his direct examination in Hilltop’s case, Mr. Aveni stated that “he talked with Mr. Mayfield concerning his supplying the records and he did not want to supply those records.” It is believed that Mr. Aveni did talk with Mr. Mayfield. It is further believed that although he knew that racial remarks were attributed to Mr. Mayfield, Mr. Aveni did not take up this matter with Mr. Mayfield or in any way reprimand him. Even if Mr. Mayfield denied making the racial remarks, Mr. Aveni should have made it clear that such remarks would not be tolerated from a Hilltop agent.

Mr. Mayfield continued to be a Hilltop agent until early 1979. When asked, “In all the time that you worked for Hilltop, were you ever told by any management person, . including your office manager, your sales manager, any Hilltop administrative personnel, that you had to stop

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making racial remarks to prospective purchasers,” he answered “no.” Even though Hilltop trained its agents to comply with the law, in the face of full notice of Mr. Mayfield’s history of making racial remarks to prospective customers, brought to the attention of Hilltop on different occasions, Hilltop management failed to even discuss the matter with him, let alone give him an appropriate reprimand or termination warning.

As in

Marr v. Rife,

503 F.2d at 742 , Hilltop and president and chief operating officer Aveni had “the power to control the acts” of Hilltop’s sales agents. Therefore, the failure of Hilltop and Mr. Aveni, as chief executive officer, to take action against Mr. Mayfield is direct evidence of a corporate intent to not obey the Fair Housing Act.

D.(4) Mary Hudson

Further bearing on corporate intent are the reactions of Hilltop Realty to an experience of its black sales agent Mary Hudson.

In April or May 1978, agent Hudson made an appointment to take her client, Mr. Riley, a black male, to an open house on Cato Street in Maple Heights. When they arrived at the Cato home, she was met at the door by a white person whom she believed to be the listing agent. The agent told her to wait outside, entered the house and later returned. He told Mrs. Hudson that the owner did not want them to come into the house. Even though Mrs. Hudson told the listing agent that she had an appointment to show the house to her client, the white male would not allow them to enter.

Mrs. Hudson informed her manager, Grace DiDonato, Heights office manager, of the Cato Street incident. Mrs. Hudson stated that she “found out” that Mr. Riley was not interested in making any problems, that “he wanted to leave it alone.” She remembers that “within the next day” Mrs. DiDonato told her she was “trying to reach ... the broker or the manager of the office.” She believes on one other occasion Mrs. DiDonato said something to her about the incident, but she could not specifically remember what it was.

Subsequently, Mrs. Hudson attempted to show a home to Mr. Riley on Maple Heights Boulevard in Maple Heights. When she set up the appointment to see the house she was told to pick up the key from another real estate company (it was not a Hilltop listing). At their office she was told they did not have a key and that another agent must have forgotten to bring it back. Mrs. Hudson left the office, called her manager, and was told to wait for a return call. Eight or ten minutes later, Mrs. DiDonato called her and told her to go back to the listing office, “there is a key there.” When she returned to the office, she was given a key, but by the time she arrived at the house where Mr. Riley was waiting, he had gone. While office manager DiDonato sought to protect the right of Mrs. Hudson’s client to be shown the home, nonetheless, Mr. Riley’s fair housing rights were impaired.

Because of the interference with the Fair Housing Act rights of a Hilltop client to be shown available properties on two separate occasions, and because Hilltop agent Hudson had promptly brought these experiences to the attention of her manager Mr. DiDonato, and given Hilltop’s professed policy of compliance with the Fair Housing Act, it is reasonable to presume and the court finds that these incidents were reported by office manager DiDonato to chief executive officer Aveni or others in management.

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The failure of management to follow up on the Cato incident involving agent Hudson and to report back to her what it had found and done about it, reflected a corporate intent to not protect the Fair Housing Act rights of a client of Hilltop agent Hudson.

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E. Defendants’ Homeowner Witnesses

Among the witnesses called by the defendants were 22 persons who purchased homes in Cleveland Heights through Hilltop Realty. Six were black, one was Hispanic, and fifteen were white. Twelve of the 22 homeowner witnesses dealt with Hilltop agents John Mayfield,

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Steven Paul Francis, Evelyn Gardner, Delores Russo, and Leo Lee, the conduct of whom was the subject of testimony by plaintiffs’ witnesses. The remaining ten homeowner witnesses called by the defendants dealt with ten other Hilltop sales agents.

Defendants argue that the “testimony of the actual home buyers demonstrates that Hilltop engaged in no pattern practice of violating the Fair Housing Act.” The court is treating plaintiffs’ claims of racial steering not as a pattern or practice claim, but rather as a claim that the incidents represented a continuing violation of section 3604(a) which continued into t

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