Petition — Houston v. Benttree, Ltd.
Supreme Court brief1981
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ALEXANDER L STEVAS,
IN THE CLERK
Supreme Court of the United States
OctosErR Term, 1980
Alle V. Houston,
Petitioner,
V.
BENTTRER, Lrp., an Oklahoma corporation.
—— — —
— — ——
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JacK GREENBERG
James M. Nasait, III
(Counsel of Record)
Bern J. Lier
10 Columbus Circle
Suite 2030
New York, New York 10019
(212) 586-8397
JoHn W. WALKER
Suite 1191
First National Bank Building
Little Rock, Arkansas 72201
(501) 374-3758
Counsel for Petitioner
February 1981
QUESTIONS PRESENTED FOR REVIEW
I. Whether a violation of the federal fair
housing statutes is proved by a showing that a
sales commission was denied to the black pros pec-
tive buyer's real estate agent but was paid to the
agent of a white purchaser, or by a showing of
conduct by the defendant which delayed, hindered
and discouraged petitioner during a period prior
to the time the defendant was willing to sign a
sales contract but while the property was adver-
tised by a For Sale“ sign, was open to viewing by
the public, and when units were being "informally
reserved" for prospective buyers.
II. Whether a suit was timely under 42 U.S.C.
§3610(d) where it was filed in U.S. District Court
within 30 days after petitioner was notified
that the Department of Housing and Urban Develop-
ment (H.U.D.) was unable to obtain voluntary
compliance, but more than 60 days after the filing
of the administrative complaint with H.U.D.
= if «
PARTIES BELOW
Alice V. Houston, Plaintiff-Petitioner, and
Benttree, Ltd., an Oklahoma corporation, Defen-
dant-Respondent, as cited in the caption of the
case in this Court.
- iii -
TABLE OF CONTENTS
Page
Questions Presented for Revi ese i
arte BGLOW vc „„ ee ii
TOOLS „„ „„ 111
Table of Aatcherit ie 6 v
Gonne eee 1
JURISDICTIONAL STATEMENT rtr 2
FEDERAL STATUTE AND REGULATIONS
INVOLVED oo 2
STATEMENT OF THE CASE wccccccccccccccccces 3
Nessi Below svavcccccviccccvecocce 3
Statement of Facts . 6
REASONS FOR GRANTING THE MM Iilkkk 22
I. THIS COURT SHOULD ARTICULATE THE
PROPER STANDARDS OF PROOF UNDER THE
FAIR HOUSING LAWS IN ORDER TO VINDI-
CATE AN IMPORTANT NATIONAL POLICY..... 22
Page
II. THE DECISION BELOW CREATES A CONFLICT
AMONG THE CIRCUITS ON THE STANDARD OF
PROOF OF RACIAL DISCRIMINATION UNDER THE
FAIR HOUSING LAWS WuVUbVUVLVsssss. 32
III. REVIEW SHOULD BE GRANTED TO RESOLVE
A CONFLICT AMONG THE LOWER FEDERAL COURTS
ON THE TIME LIMITATIONS FOR FILING SUITS
UNDER 42 U.S.C. 13610, PARTICULARLY WHERE
H. U. D. REGULATIONS AND ADVICE TO COMPLAIN-
ANTS CONFLICTS WITH THE TIME LIMITATIONS
ADOPTED BY SOME Corrs. 49
CONCLUS ION e % % % % „ „„ „% „% „„ „„ „% „„ „„ „ „„ „% „„ „„ „„ „„ „% „„ „ „„ „ „„ „ „» 60
9 *
Table of Authorities
Cases:
Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975) „„ „„ „„ „„ „ „ „ „ „„ „„ „„ „ „ „ eee
Bell v. Brown, 557 F.2d 849 (1977) .......
Brennan v. Occupational Safety and
Health Administration, 513 F.2d
lien Cir. 1973)
Brown v. Ballas, 331 F.Supp. 1033
(N. d. Tex. 1971) e*eeeoeeeeeneeeenseneseeeee
Brown v. Blake & Bane, Inc., 402
F.Supp. 620 (E.D. Va. 1975) .........
Bush v. Kaim, 297 F.Supp. 151 (N.D.
Ohio 1969) „ h „ „„ „„ „ „„ „„ „„ „„ „„ „ „ „
Coles v. Penny, 531 F.2d 609 (D.C. Cir.
1976) eeeeeoeeeeaeee eevee eeeeaeeeeeeeeee
Curtis v. Loether, 415 U.S. 189 (1974) ...
Duckett v. Silberman, 568 F.2d 1020
(2d Cir. 1978) „ „ „„ „„ „ „ „„ „„ „ „„ „„ „„ „ „%
Gladstone, Realtors v. Village of
30
59
53
51
52
40
59
23,28
40
Bellwood, 441 U.S 91 (1979) .... 23,28,51,53
Goodman v. Platt, 444 F.Supp. 140
(N.D. Okla. 1978) eeeeoeeeeeeeeeesee eee
Green v. Ten Eyck, 572 F.2d 1233
(8th Cir. 1978) eeeeeeveeeeveeeeneeeeeeene
Griggs v. Duke Power Co., 401 U.S. 424
(1971) eeeeoeveeeeveeeeeeeeeeveneeeeeeeaeeneeee
Haythe v. Decker Realty Co., 468 F.2d
336 (7th Cir. 1972) „ % „ „„ „„ „ „ „„
International Brotherhood of Teamsters
v. United States, 431 U.S. 324
(1977) *eeeseeeeeeeeeeeaeeeeeeeeeeeeeeneee
Johnson v. Jerry Pals Real Estate, 485
F.2d 528 (7th Cir. 1973) „ „ „„ „„ „ „
Jones v. Alfred H. Mayer Co., 392 U.S.
Page
52
51
29
45
30
42
409 (1968) „ 22, 33, 42,47
Kreiger v. Merifield Acres, Inc., 465
F.Supp. 62 (E. D. Vir. 1979) reversed
on other grounds, Civ. Action No.
79-1193 (4th Cir. 1980) (un-
reported opinion
Logan v. Richard E. Carmack & Assoc.,
368 F.Supp. 122 (E.D. Tenn. 1973) eee
Love v. Pullman, 404 U.S. 522
1971ĩ7•7»vlh•i⸗
51
51,58
59
— vii
McDonald v. Verble, 622 F.2d 1227
(6th Cir. 1980) e h „„ „eee „ „ 33,46
McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) % % „„ „„ „„ „„ „e „ee 30
Madison v. Jef fers, 494 F.2d 114
(4th Cir. 1974) eeeeeoeeeeneseeseeeeenseseeeneee 42
Mayers v. Ridley, 465 F.2d 630 (D.C.
1972) @eeeeeeeeeeeee eevee eeeeeeeeeeee? 38,48
Metropolitan Housing Development v.
Village of Arlington Heights, 558
F.d 1283 (1977), cert. denied
434 . 1025 (1978) „eee eee 28
Moore v. Townsend, 525 F. 2d 482 (7th
Cir. 1975) eeeeseeeaeeeeaeeeeeeeeeeeeeeneene 44, 48
Morgan v. Parcener s Ltd., 493 F.Supp. .
180 (V. d. Okla. 1978) „„ „„ „ „„ „„ „ „ „ „% „ 52
Phiffer v. Proud Parrot, F. 24
Prentice-Hall Equal Opportunity in
Housing 115, 356 (9th Cir. November
2h, 1980) cocccceserscccccccececsescces 435,48
Resident Advisory Board of Rizzo,
564 F.2d 126 (3rd Cir. 1977) ........ 48
Robinson v. 12 Lofts Realty, Inc., 610
F.2d 1032 (2d Cir. 1979) „ „„ „„ „„ „ „ „ „6 „„ 40, 48
- viii -
Page
Runyon v. McCrary, 427 U.S. 160
(1976) h ‚— ee eenee eee 47
Seaton v. Sky Realty Company, Inc., 491
F.2d 634 (7th Cir. 1974) „ % „ % „„ „„ „ „ „ 37
Shea v. Vialpando, 416 U.S. 251 (1974) 52
Sims v. United States, 252 F.2d 434 (4th
Cir. 1958), aff'd. 359 U.S.
108 (1959) eeeeeveeeveeeeeeeeeeeeeneeeeee 53
Smith v. Anchor Building Corp., 536
F.2d 231 (8th cir. 1976) 33, 39, 48
Sullivan v. Little Hunt ing Park, 396 4
U.S. 299 (1969) % — ¶ ¶ꝙ „ 23
Suml in v. Brown, 420 F.Supp. 78
(N.D. Fla. 1976) eeeseeeveeeeeeeeeeeeeee 52
Tatum v. Myrick, 425 F.Supp. 809
(M.D. Fla. 1977) o eee ee eee 52
Taylor v. Fletcher Properties, Civil
Action No. 74-M-850 (S.D. Tex.,
Sept. 18, 1975) (unreported
opinion) e „„ „„ 51
Trafficante v. Metropolitan Life, 409
U.S. 205 (1972) e eevee eeee 22,23,28,54
United States v. City of Black Jack, Missouri,
508 F.2d 1179 (8th Cir. 1974),
cert. denied, 422 U.S 1042 (1975) ... 45
Page
United States v. Mitchell, 580 F.2d
789 (5th Gis. 1978) e*eeeoeeaeeeeeeaeeeneenee 48
United States v. Pelzer Realty
Company, Inc., 484 F.2d 438 (5th Cir.
1973), cert. denied 416 U.S.
939 (1974) „„ „„ „„ „„ „„ „„ „„ „„ „ „ 34, 35, 38, 39,48
United States v. West Peachtree Tenth.
Corp., 437 F.2d 221 (5th Cir.
1971) „„ „„ „% „„ „„ „„ „„ „% „ „% „% „ „%% %„ „ „% „ „„ „ „„ „„ „„ „„ „„ „„ „ „6 „%“ 37,46
United States v. Lour it an Construction
Co., 370 F.Supp. 643 (N. D. Cal. 1973),
aff'd 509 F.2d 623 (9th Cir.
eeeeeeeeeeveeeeeeeeeeeneenene 34,37,39,
46,48
Village of Arlington Heithers v. Metro-
politan Housing Development, 429
U.S. 252 (1977) „ „ „ „% „„ „ „ „„ „ „„ „% „ „„ „ „ „ „6 „„ 28
Wang v. Lake Maxinhall Estates, Inc.,
531 F.2d 832 (7th Cir. 1976) ....... 38,41,48
Williams v. Matthews, 499 F.2d 819 (8th
Cir. 1974), cert. denied, 419
U.S 1021 (1974) w.cccccccccccece 37,45, 46,48
Williamsburg Fair Housing Comm. v.
NYCHA, 493 F.Supp. 1225 (S.D. N.T.
1980), aff'd. F.2d Civ. At.
No. 80-6161 (2d Cir. January 15,
/ —⅜ꝓÄͤß; Ä „„ „ 40
Title VIII of the Civil Rights Act
of
1968,
42 U.S.C. 33601 et seq. .. 2,3,22,47,56
42
42
42
42
42
42
42
42
42
*
42
42
U.S.C. 1360oc—¹wwwwWwW 2,3
U.S.C §3604(b) d 33
U.S.C. $3604(d)...ccccccccccccees 44,50
U.S.C. 1360⸗00ͥ3ũ „„ 56
U.S.C 36ohu „„ 56
U.S.C $3610 (5610o)/ 2,4, 49, 55, 56
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
$3610(a) ($810) ........... 49,54
= Kn 49
J A Mae
lll *
Feen BM
$3612(a) eeeeeeeeeeeeeeeeee 57
Page
Regulations
24 C. F. R. 5105. 160( a)) 33
24 C. F. R. 1105.34 (1980: :: 2,433
Legislative History
S. 1358, 90th Congress, 2nd
8066 1oooimnnmn 26
114 Cong. Rec. 2270 (1960) 26,31
114 Cong. Rec. 2273 (196) 206,31
114 Cong. Rec. 9560 (1968) 57
114 Cong. Rec. 9611 (1968) ........... 57
125 Cong. Kec. $636 (daily ed. Jan.
BB, BOTS) ccdoccccccccccccccoceescces 27
Other Authorities
Coleman, Cities, Suburbs and States
(1975) eeeeeeeeeneenereneeeeeeeeeeeneeeeene 23
Danielson. The Politics of Exclusion
(19700 eeeeeeeeseeeseeeeeeeeeneeneeneeeeee 23
- xii -
Falk & Franklin, Equal Housing Oppor-
tunity: The unfinished federal
agenda (1976) eeeeseoeoeeeeeneeeeeeeeeeee
Orfield, Federal Agencies and Urban
Segregation: Steps Toward Coor-
dinated Action in Ford Foundation,
Racial Segregation: Two Policy Views
1977
or field, Must We Bus? (197)
Pettigrew, A Sociological View of the
Post-Bradley Era, 32 WAYNE L.
REV. 813 (1975) „ „ „„ „„ „„ „„ „„ „ „„ „46 „„
Rub inowit a & Trosman, Affirmative Action
and the American Dream: Implementing
Fair Housing Practices in Federal
Homeownership Programs," 74 Nw.U.L.
REV. 491 (1979) „ % % „ „„ „ „% „„ „„ „ „ „„ „ „ „6 ee
Schlei and Grossman, Employment Dis-
crimination Law 5 (197999õů)
Schnare, The Persistence of Racial
27
24
29
Segregation in Housing (1978)....... 23,24,26
- xiii -
Schnare, Residential Segregation by
Race in U.S. Metropolitan Areas:
An Analysis Across Cities and Over
Beme ALBITD svcccccccoveseccsisscves 23,24,26
Schwemm, "Discriminatory Effect and The
Fair Housing Act," 34 N. D. L. 199
(1978) „ „„ „„ „„ „„ „„ „„ „% „% „% „% „ „ „„ „% % „„ „„ „„ „% „„ „ „ „„ „6 „ 24, 30, 58
Sorenson, Taeuber, and Hollingsworth,
Indexes of Racial Residential
Segregation for 109 Cities in the
United States, 1940 to 1979, 8
SOCIOLOGICAL FOCUS 125 (1975) ....... 27
Taeuber, Demographic Perspectives on Hous-
ing and School Segregation, 21 WAYNE L.
REV. 833 (1975) „„ „% „% „„ „ „ „ „ „„ „% „„ „ „„ „„ „„ „ „ „ „ „ „ 24
Taeuber, Negroes in Cities: Residential
Segregation and Neighborhoods
Change (1965) eoeeeeaeeeeeeeeeeeeeeeeeu 26
Wilson, Residential Consumption, Economic
Opportunity, and Race (1979) 23
Note, "Applying the Title VII Prima Facie
Case to Title VIII Litigation, 11]
HARV. L. REV. - C. L. L. Rev. 128
—U—U—U— ³ĩÄV³. ³˙¹0¹à 0 24
- xiv -
Report of the National Advisory Com-
U.S.
9.8.
U.S.
0.8.
U.S.
U.S.
mission on Civil Disorders 1
(1968) „ „„ % „„ „ „% „„ „% „% „„ „% „% „ „% „% „„ „% „„ „% „ „„ „„ „„ „ „%
Commission on Civil Rights, The
Federal Fair Housing Enforcement
Effort (1979) „ „„ „„ „„ „„ „„ „„ „% „„ „„ „„ „„ „ „„ „„ „ „ „„ „ „ „ „ „
Commission on Civil Rights, The State
of Civil Rights: 1979 (January
1980) „„ „„ „„ „e „eee „„ „„ „„ „„ „„
Commision on Civil Rights, Twenty
Years After Brown: Equal Oppor-
tunity in Housing (197590
Department of Housing and Urban
Development, Discrimination Against
Chicanos in the Dallas Rental
Housing Market: An Experimental
Extention of the Housing Practices
Savas TENTS) ciiccvcvcbecdveveoneces
Department of Housing and Urban
Development, Measuring Racial Dis-
crimination in American Markets:
The Housing Market Practices Sur-
rey, p. 200 (May 1979) ..ccesceseees
General Accounting Office, Stronger
Enforcement Needed to Uphold Fair
Housing Laws: A Report to
Congress by the Comptroller General
CROPS) coscceccaccctassccsescccocccse
Page
22
24,30
23
24
25
25,30
54
No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
ALICE V. HOUSTON,
Petitioner,
V.
BENTTREE, LTD., an Oklahoma
corporation.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
OPINIONS BELOW
The opinion of the United States District
Court is unreported and is reprinted in Appendix
at p. 6a. The opinion of the United States Court
of Appeals for the Tenth Circuit is not yet
reported and is reprinted in the Appendix at p.
17a.
JURISDICTION
The judgment of the Court of Appeals was
entered on December 2, 1980 (App. 24a). This
petition for certiorari is filed within ninety
(90) days of that date. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
FEDERAL STATUTES AND REGULATIONS INVOLVED
l. The following sections of the United States
Code are listed in the Appendix at pp. 28a et
seq. ö
42 U.S.C. 1981
42 U.S.C. 11982
42 U.S.C. §3601
42 U.S.C. 13604
42 U.S.C. 13610
42 U.S.C. 13612
2. The Code of Federal Regulations, 24 C. F. R.
53105. 34 (1980) is in the Appendix at p. 39a.
235
STATEMENT OF THE CASE
Proceedings Below
This suit was filed in the United States
District Court for the Western District of
Oklahoma on June 6, 1978 by petitioner, Dr. Alice
V. Houston, against Benttree, Ltd., a corporation,
seeking damages, a declaratory judgment and
injunctive relief for alleged racial discrimina-
tion in the sale of housing. A The complaint
invoked the jurisdiction of the district court
under 28 U.S.C. §1343 and 42 U.S.C. 13612 to
secure relief provided by 42 U.S.C. §§1981,
1982 and 3604. The district court dismissed the
claim under the 1968 Fair Housing Act (42 U.S.C.
$3601, et seq.) as untimely under 53612 because
it was not filed within 180 days of the alleged
act of discrimination (App. la). The complaint
17 me suit against an individual defendant,
John Kilpatrick, President of Benttree, Ltd. was
dismissed prior to trial without objection of the
plaintiff.
245
alleged that plaintiff had filed a timely charge
of discrimination with the Department of Housing
and Urban Development and had received a notice of
her right to sue from H. U. D. pursuant to 5810
of the Act (42 U.S.C §3610) on or about May 12,
1978, which was less than 30 days prior to the
filing of suit .2/ Plaintiff's "Opposition to
Motion to Dismiss" also relied on §3610, but the
district court made no mention of the issue of
timeliness under §3610 in its order of dismissal
which was entered August 19, 1978 (App. la). The
case proceeded to trial on plaintiff's §1981 and
$1982 claims, and a two day non-jury trial was
held February 26-27, 1979.
On March 16, 1979, the district court filed a
Memorandum Opinion (App. 6a), holding that "the
defendant did not refuse to sell to plaintiff on
account of her race“ (App. 15a). The court held
that "plaintiff failed to prove that the units
2/ The H. U. D. letter, which was attached to the
Complaint, is reproduced in the Appendix at p.
26a. It specifically advised petitioner of her
right to sue within 30 days. See 24 C. F. R.
$105.34, quoted in Appendix at p. 39a.
— 5-
were available for sale at the time her offer was
made. This is fatal to plaintiff's right to
relief" (App. 13a).
Plaintiff appealed to the U.S. Court of
Appeals for the Tenth Circuit which affirmed the
judgment of the district court on December 2, 1980
(App. 17a). The court held that the record
demonstrated plaintiff's failure to prove several
elements of a prima facie case, that the trial
findings were supported by substantial evidence
and that the correct legal standards were applied
(App. 22a). The Tenth Circuit set forth the
following as the elements of a prima facie case of
housing discrimination under 111981 and 1982
(App. 22a):
„... that the owner placed the property on
the open market for sale; that plaintiff
was willing and able to buy the property on
the terms specified by the owner; that
plaintiff so advised the owner at the time
the property was available for sale; that
the owner refused to so sell the property to
plaintiff; and that there is no apparent
reason for the refusal of the defendant to
sell the property to plaintiff other than
plaintiff's race.
- 6 -
erred in dismissing the cause under the Fair
Housing Act because of the affirmance of the
finding of no discrimination (App. 23a).
Statement of Facts
The petitioner, Dr. Alice Vivian Houston
moved to Oklahoma City in August 1977 to begin
work as Director of the Curriculum Services
Department of the City public school system (Tr.
62-63) >! Dr. Houston is a black woman with a
Ph.D degree who earned more than $37,000 annually
in 1977 (Tr. 62, 70). The respondent Benttree,
Ltd. is an Oklahoma corporation managed by Chris
Calhoun (Tr. 8). Benttree acquired about 20
partially completed condominium units in July 1977
(Tr. 318-319). The owners of Benttree, Ltd. and
all of their employees and sales agents were white
people, as were all of the eventual purchasers and
residents of the Benttree comdominium units (Tr.
33, 51, 340). Benttree began showing units to the
public during September 1977 (Tr. 351-352).
3/ Citations are to the original transcript
pages.
27
On Sunday, September 25, 1977, Dr. Houston
Saw a sign advertising the Benttree condominium
(Tr. 63). The sign, which had been painted in the
middle of Septemver, said "Benttree Condominiums",
"For Sale", had a phone number, and indicated
a beginning price of $38,640 (Tr. 25, 63, 73,
253-254, 293-294, 324-325, 349-350, 471). Dr.
Houston asked her real estate agent, Mrs. Lillie
Mae Tillman to make inquiries (Tr. 649). Mrs.
Tillman called Benttree and reached Mrs. Carol
Calhoun (Tr. 95, 448-449) .4/ Carol Calhoun, a
sister-in-law of Mr. Chris Calhoun, worked for him
as a bookkeeper receptionist (Tr. 432). She and
other employees’ in Calhoun's office had been
promised a two percent commission on any Benttree
units they were able to sell (Tr. 433, 436, 327).
4/ The district court mistakenly wrote that Mrs.
Tillman phoned Chris Calhoun (App. 7a). However
the evidence is undisputed that it was Carol
Calhoun who spoke with Mrs. Tillman on this
occasion.
- 8 -
Mrs. Carol Calhoun testified that when she re-
ceived the call from Mrs. Tillman she advised her
that as they had not previously used realtors she
would find out if she could meet her at Benttree,
and that she got the approval of Mr. Chris Calhoun
to show the property to Mrs. Tillman and her
client (Tr. 44). Mrs. Calhoun made an appointment
to meet Mrs. Tillman and Dr. Houston at Benttree
on Monday, September 26th (Tr. 64, 95, 449).
When Dr. Houston and Mrs. Tillman arrived at
Benttree there were a number of people showing
and looking at the furnished model units (Tr. 96).
Mrs. Tillman testified that the first thing Mrs.
Calhoun said to her was "We only pay a three
percent commission", and that she replied "that's
fine. The commission is not important.” (Tr.
98). Mrs. Calhoun showed them through the
model units and told them about the development
(Tr. 64). She advised them that there would
de an opening“ of Benttree the following weekend
(Tr. 78). When Dr. Houston asked to see a two-
bedroom unit they were taken to an uncompleted
unit (Tr. 65). When Dr. Houston expressed in-
terest in the unit Mrs. Calhoun told her that
- 9 -
someone had already bought that unit (Tr. 65, 96).
Mrs. Calhoun later testified that a unit was
informally reserved for a client named Mr. Horo-
witz in September, and that he subsequently bought
it (Tr. 439-442). Similarly, a unit had been
reserved for Mrs. Calhoun and her husband, a
brother of Chris Calhoun (Tr. 437). Dr. Houston
asked to see an available unit and was shown
another two-bedroom condominium (Tr. 65). dr.
Houston told Mrs. Calhoun that she would like to
buy that condominium and Mrs. Calhoun indicated
that she could have it (Tr. 65). Mrs. Tillman
asked Mrs. Calhoun to give her the legal descrip-
tion, street address and unit number in order to
write a contract (Tr. 96-97, 65). Mrs. Calhoun
said that she could not give her that information
since they did not allow anyone but their attor-
ney, Mr. F. Smith Barnes, to write contracts. She
promised them an appointment with Mr. Barnes the
next evening at six p.m. (Tr. 97, 65). Before
leaving Mrs. Tillman asked Mrs. Calhoun if there
would be any problem because Dr. Houston was black,
and Mrs. Calhoun replied, "No" (Tr. 453).
— 10-
On the next morning, Tuesday, September 27th,
Mrs. Calhoun told Mr. Chris Calhoun that the
people she had seen the night before “were very
interested in purchasing a unit“ (Tr. 450) and
that Dr. Houston was a black woman (Tr. 451, 405).
Mrs. Calhoun said that this was unusual as Dr.
Houston was the first black person to come to
Benttree (Tr. 451, 405). Mrs. Tillman waited
until 10 a.m. for Mrs. Calhoun to call and confirm
the appointment (Tr. 97). She then phoned Mrs.
Calhoun but could not reach her (Id.). Mrs.
Tillman phoned repeatedly leaving a message (Id.).
She also left a message for Chris Calhoun to
call her (Id.). she continued to call repeated-
ly until Carol Calhoun finally returned the call
(Id.). Mrs. Tillman testified that Mrs. Calhoun
began the conversation by saying "Mrs. Tillman, I
should not have shown you those apartments. We
are not going to let other realtors show them, and
I should not have let you show them, and —
besides, we do not pay a commission. We are not
going to deal through other realtors" (Tr. 98).
Mrs. Tillman replied that she did not require a
commission and asked her to make the appointment
211
(Tr. 99). (A defense witness, Realtor Bob Fricke,
who represented a white purchaser, was paid
a 2% commission by Benttree (Tr. 172, 354)). Mrs.
Calhoun called Mrs. Tillman again and stated that
they could not have a six o'clock appointment
but would not give a reason. Mrs. Tillman stated
that she became very suspicious and said "If this
is discrimination, which I think it is, you're
going to be in some trouble, Carol“ whereupon Mrs.
Calhoun replied "Well, if it is discrimination, I
won't be here tomorrow, because I'm not going to
be in trouble" (Tr. 99).
The next day, Wednesday, September 28, 1977,
Mrs. Tillman resumed calling Mrs. Calhoun seeking
an appointment with Mr. F. Smith Barnes, the
Benttree lawyer (Tr. 99). Mr. Calhoun testified
that Carol Calhoun told him that they were
interested in purchasing, and they were insisting
that, you know — she did indicate that maybe Dr.
Houston and Mrs. Tillman were being put off" so
Mr. Calhoun told her to have them call the lawyer,
F. Smith Barnes (Tr. 328). Finally Mrs. Calhoun
advised Mrs. Tillman that they had an appointment
with Mr. Barnes at 4 p.m. that day (Tr. 99).
- 12<-
Mr. Barnes the Benttree attorney testified
that he invited Mrs. Tillman and Dr. Houston to
his office because Mrs. Carol Calhoun was unable
to satisfy Mrs. Tillman about the delay in a
purchase by Dr. Houston (Tr. 206-207). Mr. Barnes
stated that it was not his purpose to negotiate a
contract but only to explain the delay, since it
was his understanding that they were disturbed by
the fact they thought they were getting “the
runaround" (Tr. 241). Mr. Barnes stated that he
was not the seller's representative for the
purpose of negotiating a sale (Tr. 242). The
meeting lasted about a half hour on the afternoon
of September 28, and was attended by Mr. Barnes,
an associate in his law firm named Mr. Horton,
Mrs. Tillman and Dr. Houston (Tr. 207). Mr.
Barnes’ account of the meet ing (Tr. 206-210, 233,
241-242, 258-264) is consistent with the accounts
by Mrs. Tillman (Tr. 100-102, 116-117), and Dr.
Houston (Tr. 66-67, 70, 76). Mr. Barnes stated
that Mrs. Tillman indicated that Dr. Houston
wished to purchase one of the Benttree units and
couldn't understand why they couldn't purchase it
(Tr. 207-208). Mrs. Barnes explained that there
- 13 -
was a delay, that they were not selling options,
and that he did not have a purchase contract
prepared (Tr. 208). Mrs. Tillman asserted that
other people had already signed contracts and were
living at Benttree, but Mr. Barnes informed them
that this was untrue (Tr. 208-209). Mr. Barnes
acknowledged that he became angry because Mrs.
Tillman was saying that he was either incompetent
or a liar and he objected to her remarks (Tr.
261). Mr. Barnes said that he attempted to assure
them that no one was living there, that his client
had not signed contracts with anyone and that
there wasn't any problem with Dr. Houston ul-
timately buying the unit she wanted (Tr. 209). He
said that Dr. Houston wanted to see another type
it, and that when Chris Calhoun phoned while she
was in his office Barnes arranged for Calhoun to
wait at the site to show them another unit (Tr.
209).
Mr. Barnes did not testify that he ever told
Mrs. Tillman or Dr. Houston when the contract
would be available or could be signed. He told
them that he was not going to use an option
contract but rather wanted a contract which would
- 14 <
be binding on both parties (Tr. 233). Mr. Barnes
testified that this plan was subsequently abandon-
ed on Friday, September 30 when Mr. Chris Calhoun
told him to prepare a contract for use at the
opening scheduled for October 2 (Tr. 203). Within
an hour Barnes then drafted an option contract
using the Board of Realtors standard format and
delivered it to Calhoun on Friday afternooon (Tr.
203, 235, 257).
Both Mrs. Tillman and Dr. Houston testified
that Mr. Barnes never told them when a contract
would be available (Tr. 76, 100, 115-116). Dr.
Houston and Mrs. Tillman were aware of the sched-
uled opening on the following Sunday, October 2,
but both denied that Mr. Barnes told them that
contracts would be available at that time or any
particular time (Tr. 78, 100, 472).
Dr. Houston and Mrs. Tillman proceeded from
Barnes office to Benttree where they were
met by Mr. Chris Calhoun. The witnesses’ accounts
of the meeting are in conflict and the district
court's finding about this occasion are brief
and general. The findings about this meeting are
quoted in full below (App. 9a):
= 15 «
"Plaintiff and Mrs. Tillman went to
Benttree, and spoke to Chris Calhoun,
who showed them the project and several
units. Plaintiff found a small three bedroom
she desired to purchase and so stated to
Calhoun. He told her she would have to wait
for the contracts which were being prepared.
Plaintiff and Mrs. Tillman testified that
Calhoun was openly antagonistic at this
meeting and that he asked them to leave."
Dr. Houston's account of the meeting with
Chris Calhoun was as follows:
"He received us and showed us, again,
through the models. I asked him if I could
see a small three-bedroom condominium. He
carried me through two various condominiums,
which were in various stages of preparedness,
but he did not show me, in the beginning, a
small three-bedroom — three-bedroom as I
had asked him to do.
"I asked him again to show me one. He
again showed me some other kind, and then he
eventually did show me a small three-bedroom
condominium.
"I looked at it and told him I would
like to buy this condominium, and I wanted
him to sell it to me, and he said, ‘Why
should I? Why should I sell you this? And
I said, ‘Because this is where I desire to
live. This is what I want.'
- 16 =
"He told me, of course, No. He asked
if we had other places. hy this place?
Had we looked around on Hefner. Had we
looked across the street and other places
like that. I said, Les, we have, but this
is what I want to buy.
"He again said, No. Mr. Calhoun
became terrifically upset, and I was somewhat
amazed at this. I asked him if he would like
for us to leave. He said, Les, he would,
and then he changed and said, No, he would
not.
"We talked about the condominiums and
the fact that I really wanted one, I was
very much interested in buying one, but I did
not get one.
"I then left with Mrs. Tillman and went
back to my apartment." (Tr. 67-68).
Mrs. Tillman's corroborated Dr. Houston's
account (Tr. 102-105). She stated that Mr.
Calhoun was very rude asked us why we didn't go
someplace else“ said "Why these condominiums",
became upset, used some profane language, and said
"Why -- why did this this have to happen to we?“
several times (Tr. 103-105).
Mr. Calhoun's account of the meeting was
quite different. He stated that when Dr. Houston
asked whether she could buy the three bedroom
— 17 -
unit, he said es“, and told her that she could
come back that weekend to enter into a formal
contract (Tr. 331). He stated that he told
Dr. Houston the price of the unit and that she
stated that she wanted to buy (Tr. 374). He
testified that he fully expected her to return on
Sunday to buy the unit and that when she did not
he concluded that she was no longer interested
(Tr. 377). Dr. Houston testified that Mr. Cal-
houn's version of the encounter was untrue (Tr.
468-470).
Mr. Calhoun testified that on Thursday
September 30, he spoke with Mr. Barnes and asked
that he prepare Bentteee contract forms in time
for the coming weekend (Tr. 322). Mr. Calhoun's
testimony on direct examination by his attorney
was as follows:
A. Well, of course, I knew that -- that we
were going to — we decided to open on
that weekend, and that the contract
wasn't prepared. Smitty had his own
pace. He was working on other things.
He wanted to do it a different way than
we ultimately did do it, and I talked to
him several times, ‘Smitty, the date's
coming up. You know.
And then on Thursday, after I
talked with Dr. Houston and, you know,
- 18 -
knew that we were going to open that
weekend, I just called and said, Get
her done, Smitty. '
Q. And he did do that after you directed him
in those terms?
A. Yeah. (Tr. 322).
Mr. F. Smith Barnes stated that the call from
Calhoun was on Friday, September 30, and that he
then dictated the form contract within an hour and
delivered it to Calhoun by mid-afternoon (Tr.
227).
Barnes never advised Mrs. Tillman of the
change of plans and that a simple standard form
option contract would be used (Tr. 233-234). The
district court found that Barnes talked with Mrs.
Tillman on both Thursday, September 29, and
Friday, September 30 (App. 9a). On Thursday,
September 29, and again on Friday, September 30,
Mrs. Tillman phoned and spoke with Mr. Barnes
asking him when the contracts would be available
(Tr. 106). Mrs. Tillman described the conversa-
tions:
A. Yes. After this — after this day,
then of course I kept trying to get in touch
with Mr. Barnes to get him to write the
- 19 -
contract. In other words, Dr. Houston still
wanted to buy one of those condominiums. And
Mr. Barnes told me he did not have them
ready, and I said, ‘When are you going to
have them ready? And he said, Ms. Tillman,
I have a lot of things to do besides write
contracts. And I said, ‘I realize that, but
can't you give us a time?'
Now, this was on Friday. This was on
I mean on Thursday. And on Friday I called
him back and he said right then, he said, I
do not have time to write contracts. I have
other things to do. And I said, ‘Aren't
you going to have contracts for tomorrow or
Sunday? And he did not answer me. And
that's the last conversation I had with any
of them, because I certainly wasn't going
to push myself where I wasn't wanted" (Tr.
106).
Mr. Barnes acknowledged speaking with Mrs.
Tillman on Thursday, September 29 and said that he
told her “basically the same thing which I had in
my conference with her“ (Tr. 234). He at first
did not recall, and then denied speaking with her
on September 30 (Tr. 275). However, the district
court found that Mrs. Tillman telephoned Barnes on
both days to see if the contracts were ready and
was told that they were not (App. 9a). The
- 20 -
district court also found that "Mr. Barnes com-
pleted the contracts on the afternoon of September
30" (App. 10a). When asked to explain why he never
told Mrs. Tillman or Dr. Houston that the con-
tracts were ready Mr. Barnes said that he expected
them to come back on Sunday (Tr. 234, 276).
Neither Mr. Barnes, Mr. Calhoun nor Mrs. Carol
Calhoun made any effort to contact Mrs. Tillman or
Dr. Houston and advise them that the contracts
were available (Tr. 276, 376, 456). The district
court's conclusion about this sequence of events
was that “There is no requirement that defendant
aggressively seek or pursue minority buyers“ (Tr.
l4a). Dr. Houston waited until October 6 for
further contact from Benttree and then filed a
complaint of racial discrimination with the
Department of Housing and Urban Development (Tr.
84-86).
On Sunday, October 2, Mr. Sidney Musser, a
white man, signed a contract to buy a Benttree
condominium, and left an earnest money deposit
with Mrs. Calhoun (Tr. 423-424). Mrs. Calhoun
visited his home on two subsequent occasions and
— 21 -
obtained additional deposits (Tr. 424-425) 7
Other purchasers obtained Benttree contracts on
Sunday, October 2, but the first contracts which
were actually consummated were signed October 8
(Tr. 322). The defendant put on evidence that
Miss Karen Duncum, a white female, and her realtor
Bob Fricke, had made numerous contacts with
Mr. Calhoun and Mr. Barnes during September
seeking to enter into a contract and had been told
that contracts were unavailable. The district
court found that "Ms. Duncum and her realtor were
very persistent in their efforts to purchase a
unit, but were unable to do so prior to October
2, for the same reason plaintiff was unable to
purchase, i.e., the completion and availability
of the prescribed contracts by Barnes" (App.
lla).
5/ Mr. Calhoun later took the position that Mr.
Musser never had a contract (Tr. 314). Mr. Musser
sought to purchase a unit in a later phase of the
Benttree development. Some 14 months later
Benttree returned his deposit and advised that
Mr. Calhoun had never signed the contract.
- 22 <-
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD ARTICULATE THE PROPER
STANDARDS OF PROOF UNDER THE FAIR HOUSING
LAWS IN ORDER TO VINDICATE AN IMPORTANT
NATIONAL POLICY.
We are living in a divided canton Today,
more than twelve years after the enactment of the
Fair Housing not’ and this Court's decision in
Jones v. Alfred Mayer Co., 392 U.S. 409 (1968),
this Court has yet to decide a Title VIII case on
6/ Cf. Report of the National Advisory Commis-
sion on Civil Disorders 1 (1968) ("Our nation is
moving toward two societies, one black, one white
— separate and unequal.")
7/ 42 U.S.C. §§ 3601 et seq. (1968) ("Title
VIII") (establishing the national policy of
replacing "the ghettos with truly integrated
and balanced living patterns'." Trafficante v.
Metropolitan Life, 409 U.S. 205, 211 (1972)
(quoting with approval remarks of Sen. Mondale,
144 Cong. Rec. 3422 (1968)).
= 23 -
its rie Racial discrimination in housing
remains extensive and residential racial segrega-
tion is pervasive and perhaps even more prev-
alent 2! Many minority households "do not yet
have acceptable alternatives to overcrowded,
excessively costly, and deteriorating housing in
8/ The only Title VIII cases decided by this
Court have dealt with procedural issues. See
Gladstone, Realtors v. Village of Bellwood, 441
vs. (OT CLOTS); Curtis r 415 U.S. 189
(1974); and Trafficante v Metropolitan Life,
supra note ue This Court turther has not con-
sidered a case of housing discrimination brought
pursuant to the Civil Rights Act of 1866, 42
U.S.C. §1982 since Sullivan v. Little Hunting
Park, 396 U.S. 229 (1969).
9/ Orfield, Federal Agencies and Urban Segrega-
tion: Steps Toward Coordinated Action, in Ford
Foundation, Racial Segregation: Two Policy Views
(1979); Wilson, Residential Consumption, Ecomonic
eo and Race (1979); or Hes. Must We
Bus ; Schnare, The Persistence of Racial
Segregation in Housing (1978); Danielson, The
Botitics Of Exclusion 976); Falk & H. Frank-
0
lin, Equal House in oxt unity: the unfinished
federal agenda ; oleman, It les,
U
Suburbs, and States (1975); U.S. Commission on
Civil Rights, The State of Civil Rights: 1979
2 24
racially or ethnically segregated neighbor
hoods. 4% A recent study found that only 12% of
whites and 14% of blacks in this country live in
reasonably integrated Steben The U.S.
Department of Housing and Urban Development has
9/ cont inued
(January 1980); U.S. Commission on Civil Rights,
The Federal Fair Housing Enforcement Effort
T1979); U.S. Commission on Civil Rights, Twenty
Years After Brown: Equal Opportunity in Housing
(1975); Rubinowitz & Trosman, “Affirmative Action
and the American Dream: Implementing Fair Housing
Practices in Federal Homeownership Programs," 74
Nw. U. L. REV. 491 (1979); Schwemm," Discriminatory
Effect and the Fair Housing Act, 54 N. b. L. 199
(1978); Note, “Applying the Title VII Prima
Facie Case to Title VIII Litigation," 11 HARV.
C. R. C. L. L. Rev. 128 (1976); and Taeuber, “Demo-
graphic Perspectives on Housing and School Segre-
gat ion, 21 WAYNE L. V. 833 (1975).
10 / U.S. Commission on Civil Rights (1980),
supra note 9, at 13.
1l/ A. Schnare, supra note 9, at 9 (1978) (assum-
ing a “reasonably integrated neighborhood" to be
6% to 30% black, and basing findings on 1970
census data).
- 25 -
provided definitive evidence that blacks are
discriminated against in the housing market in an
extensive 1979 study which concluded that [IIf a
black were to visit four apartment complexes or
four real estate firms [seeking to buy or rent],
the probability of encountering discrimination
would be 72 percent and 48 percent, respectively,
for the rental and sale narkets.— Private
sellers, builders, realtors, and financial insti-
tutions systematically discriminate against blacks
by providing less information on housing opportu-
nities, steering blacks toward black or minority
neighborhoods, delaying, deceiving or intimidating
prospective black purchasers, and by imposing
unnecessary credit limits. Blacks also regularly
pay more for comparable housing and live in lower
12/ U.S. Department of Housing and Urban Develop-
ment, Measuring Racial Discrimination in American
Markets: The Housing Market Practices Survey,
; see also, . Department of Hous-
ing and Urban Development, Discrimination
Chicanos in the Dallas Rental Housing Market: An
Experimental Extension of the Housing Practices
Survey (1979) (finding a 96 percent chance that a
dark-skinned Mexican-American would experience
discrimination when seeking a rental) (cited in
U.S. Commission on Civil Rights (1980), supra,
note 9, at 1-2).
- 26 -
quality dwellings at every income tevei 22/ This
rampant discrimination and segregation “has dis-
torted patterns of urban growth, cut off minori-
ties from access to growing suburban employment
markets, subverted efforts to desegregate public
schools and equalize the quality of public school
education, and caused inequitable distribution
of the burden of providing essential services
to lower-income urban populations. 2! The
social costs are apparent in continuing racial
divisions. This is the discrimination and segre-
gation the Fair Housing Act was designed to
destroy twelve years ago! but very little has
16
chine The Chief Executive has noted that
13/ A. Schnare, supra, note 9, at 16.
14/ U.S. Commission on Civil Rights (1975),
supra, note 9, at 167.
15/ See 8.1358, 90th Cong., 2nd Sess., 114 Cong.
Rec. 2270 (1968); see also 114 Cong. Rec. 2273
(1968).
16/ A high degree of racial residential segrega-
tion was universal in 1968 as well. Taeuber,
Negroes in Cities: Residential Segregation and
borhood Change (1965) (Creating a segregation
index of dissimilarity," with zero representing a
- 27 —
the Fair Housing Act is little more than an empty
N
16/ continued
distribution of races in proportion to their
numbers in the population as a whole and one
hundred representing total segregation, Taeuber
found a mean index of 86.2 for the 207 largest
cities in the country, with only eight cities
having indexes below 70. This index figure
represents the percent of non-whites that would
have to shift from one block to another to effect
an even, unsegregated distribution, or zero
index.) The latest Taeuber update is contained in
Sorenson, Taeuber, and Hollingsworth, "Indexes of
Racial Residential Segregation for 109 Cities in
the United States, 1940 to 1970," 8 SOCIOLOGICAL
FOCUS 125 (1975) (utilizing 1970 census data,
Taeuber found that the 109 largest cities still
had a mean index of 81.6, with only 13 cities
below 70). At this rate Professor Thomas Petti-
grew estimates desegregation will be achieved
in about four or five centuries. Pettigrew,
"A Sociological View of the Post-Bradley Era," 21
WAYNE L. REV. 813, 830 (1975).
17/ 125 Cong. Rec. $636 (daily ed. Jan. 23, 1979)
(President Carter's 1979 State of the Union
Message).
- 28 -
As stated above, this Court has never decided
18
a Title VIII case on its merits. in
19 n
and Gladstone, n the signifi-
cant but collateral issue of standing under
the Fair Housing Act, but no appeals on the merits
of a Title VIII case have been accepted by this
Cours. a As a result, a standard of proof
necessary to show unlawful housing discrimination
has never been authoritatively established. As
demonstrated in Part II of this Petition, the
standard adopted by the Court below is directly
contrary to the standard adopted by other Cir-
cuits, and constitutes an open invitation to
18/ Supra, note. 7.
19/ Supra, note 8.
20/ Curtis v. Loether, supra, note 8, held that
parties were entitled to jury trials in damage
suits brought pursuant to $812 of Title VIII, 42
U.S.C. 13612. Village of is ington Heights v.
Metropolitan Housing Development, 8.
(1977), involved a Fair Housing claim but that
issue was remanded after the Court found no
constitutional violation. See Metropolitan
Housing Development v. Village of Arlington
eights, ° » cert. denied
U.S. 1025 (1978).
- 29 -
sellers to discriminate, during the pre-contract
or negotiation stages of any prospective sale,
against blacks and other minorities seeking
housing. The confusion and uncertainty on the
issue will not be resolved until a definitive
decision is reached by this Court.
The state of housing discrimination law today
then is very similar to the state of employment
discrimination law in 1971 before this Court
breathed life into Title VII by holding in Griggs
v. Duke Power Co. that Title VII “proscribes not
only overt discrimination but also practices that
are fair in form, but discriminatory in nature. "2/
Griggs, hailed as “the most important court
decision in employment discrimination 1.
opened up that field by providing the standard by
which the legality of employment criteria would be
measured. With that necessary foundation it
became possible to build the parameters of the
21/ 401 U.S. 424, 431 (1971).
22 Schlei and Grossman, Employment Discrimina-
tion Law 5 (1979).
- 30 -
23/
present doctrine in subsequent cases.— 4
decision by this Court defining the standard of
proof necessary to show unlawful discrimination in
housing would similarly serve as a foundation upon
which the parameters of Title VIII could be built.
Despite its wretched record of progress, Title
VIII could be the useful weapon against discrimin-
ation and segregation that Congress intended it to
; 4
be in 1968, 24/ Congress intended the Act to
23/ See e.g., International Brotherhood of
. Fete v. ee 431. U.S. 324° (1977)
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975);
and McDonnell Douglas Corp v. Green, 411 U.S 792
(1973) (setting forth the basic order and alloca-
tion of proof in the individual disparate treat-
ment case).
24/ See U.S. Commission on Civil Rights (1979),
supra, note 9, at 233; U.S. Department of Housing
and Urban Development, Measuring Racial Discrimi-
mation ..., supra, note 12, at ; Schwemm,
"Discriminatory Effect ...," supra, note 9, at
238. Even though Congressional focus on improving
the Fair Housing Act over the course of the
past year has centered almost entirely on enhance-
ment of HUD's enforcement powers, even enchanced
enforcement will be of limited value if hostile,
fluctuating, or uncertain standards of proof exist
in the appellate courts.
= 3] «
create a freedom from racial discrimination in
housing and to reduce if not eliminate residential
racial segregation.2— It is clear from the
progress made since the 1960's in eliminating
racial discrimination from such fields as educa-
tion, voting rights, public accommodations, and
employment that implementation of civil rights
statutes can make a real difference in the lives
of people long denied opportunity to achieve their
full rights. And yet it is equally clear that the
failure of the Fair Housing Act may be reaching a
crisis point today as the high rate of inflation,
the decline in housing production, and the energy
crisis exacerbate the effect of discrimination in
forcing minorities to continue to defer the
American dream of a decent home and a decent
neighborhood. This Court should resolve the
conflict between the lower courts by delineating a
standard of proof sufficient to insure that the
existing statute can work to eliminate racial
discrimination and segregation in this country.
25/ See supra note 15.
- 32 -
II. THE DECISION BELOW CREATES A CONFLICT
AMONG THE CIRCUITS ON THE STANDARD OF
PROOF OF RACIAL DISCRIMINATION UNDER THE
FAIR HOUSING LAWS.
The courts below based their finding of no
racial discrimination on an overly restrictive and
erroneous legal standard which is at odds with
Congressional intent, and with the interpretations
of the fair housing laws by the majority of
circuits which have considered similar questions.
The standard adopted below led the courts to
ignore acts of plain racial discrimination in the
treatment of Dr. Houston which have been held
unlawful in the other circuits.
First, it was undisputed, and the district
court found that the defendants told Dr. Houston's
real estate agent that Benttree would not pay her
a commission (App. 8a). Mrs. Tillman was told
that she would receive a three percent commission
before the owner of Benttree learned that Dr.
Houston was black (Tr. 98). After he learned
this fact she was told that no fee would be paid
@ 33 -
(Tr. 98, 451, 405). A realtor representing a
white purchaser was in fact paid a commission by
Benttree (Tr. 172, 354). mis was plainly dis-
parate treatment based upon race which would tend
to discourage petitioner's realtor and thereby
discourage petitioner from pursuing a purchase at
Benttree. Such disparate treatment in and of
itself violated the explicit prohibition in Title
VIII against “discrimination ... in the terms,
conditions, or privileges of sale or rental of a
dwelling ...", 42 U.S.C. § 3604(b) and the
proscription in Sections 1981 and 1982 against
"all" discrimination in connection with the sale
of property. Jones v. Alfred H. Mayer Co., 392
U.S. 409 (1968). Such discouragement of a black
homeseeker's agent and not a white applicant's
cannot be brushed aside on the ground that it
did not constitute an outright refusal to sell a
unit to Dr. Houston for it can be just as ef fec-
tive in limiting a black purchaser's access to
: 26
housing 22’ Other courts of appeals have not
26/ The fact that Mrs. Tillman was not imme-
diately discouraged is irrelevant. See McDonald
v. Verble, 622 F.2d 1227, 1233 (6th Cir. 1980);
Smith v. Anchor Building Corp., 536 F.2d 231, 234
n.4 (8th Cir. 1976).
= 34 -
required as an element of proof that a defendant
actually refuse to sell homes to plaintiffs
before a violation of the fair housing laws is
established. E.g., United States v. Pelzer Realty
Co., 484 F.2d 438 (5th Cir. 1973), cert. denied,
416 U.S. 939 (1974) (Court of Appeals found
defendants had never actually refused to sell
houses to plaintiffs, but imposition of more
onerous conditions on black persons violated fair
housing laws); United States v. Youritan Construc-
tion Co., 370 F.Supp. 643, 648 (N.D. Cal. 1973),
aff'd 509 F.2d 623 (9th Cir. 1975).
Second, the undisputed facts and the district
court's findings demonstrate that plaintiff and
her agent repeatedly attempted to buy a condomin-
ium unit for five consecutive days, and were met
by tactics of discouragement and delay and a
refusal to negotiate which were tantamount to a
refusal to sell. The district court erred in
holding this was a mere failure by the defendant
"to aggressively seek or to pursue minority
buyers" (App. 14a). In the context of the
entire five days of contact between Dr. Houston
and the three agents of Benttree, the petitioner's
- 35 -
conduct was entirely reasonable and the defen-
dant's conduct so departed from the norms of
business custom 2. courtesies as to be ex-
plainable only as a refusal to sell on the basis
of race. On September 29 and 30 Benttree's
attorney told Mrs. Tillman that he did not know
when the contract forms for Benttree purchases
would be available and that he was too busy to
write contracts (Tr. 106). He prepared the
contract forms on the same September 30, and
yet neither he, nor any other agent of Benttree
made. any effort to advise plaintiff or her agent
of this development which plaintiff had sought to
learn about for five consecutive days. All of the
Benttree representatives explained their failure
to contact Dr. Houston on the basis that they
assumed she had lost interest, despite her re-
peated requests to buy a condominium. In the
overall context of the case, including the all-
white nature of the project, the court of appeals
holding that plaintiff failed to prove even a
7/ United States v. Pelzer Realty, supra.
= 36 <
prima facie case is an erroneous interpretation of
the federal fair housing statutes.
All three of the persons with whom Mrs.
Tillman and Dr. Houston dealt knew that che black
homeseeker and her real estate agent believed
they were being "put off," delayed (App. 9a, Tr.
328, 241, 208-209, 261). The owner of the con-
dominiums, Chris Calhoun, and his lawyer, Smith
Barnes, were well aware of and had discussed Mrs.
Tillman's and Dr. Houston's daily efforts to
purchase a unit (Tr. 209, 322). Yet, although the
district court found that Barnes drafted the
contract for sale on the same day that Mrs.
Tillman last telephoned him (App. 9a, 10a),
defendants made absolutely no effort to inform Dr.
Houston or Mrs. Tillman that the contract was
ready (App. 9a; Tr. 276, 376, 456). The district
court dismissed these facts and stated "There is
no requirement that defendant aggressively seek to
pursue minority buyers (App. 14a). The district
court instead put the burden on Dr. Houston and
Mrs. Tillman to ignore five consecutive days of
persistent but fruitless efforts, to brush aside
the humiliation and antagonism of prior meetings
- 37 -
and to beat down defendant's doors still further.
The district court, and the Tenth Circuit in
affirming, thus departed from those circuits
which have explicitly held actions which dis-
courage black homeseekers violate the fair housing
laws. E.g., 5th Circuit, United States X. West
Peachtree Tenth Corp., 437 F.2d 221 (1971) (action
by an agent to discourage and impede applications
to rent or buy violates Fair Housing Laws); 6th
Circuit, Zuch v. Hussey, 394 F.Supp. at 1028, 1047
(E. D. Mich. 1975), aff'd, 547 F.2d 1168 (1977)
("[A]ny action by a real estate agent which
in any way impedes, delays, or discourages on a
racial basis a prospective home buyer from pur-
chasing housing is unlawful."); 7th Circuit,
Seaton v. Sky Realty Co., Inc., 491 F.2d 634,
636-38 (1974) (salesman showed home in a dis-
couraging manner); 8th Circuit, Williams v.
Matthews, 499 F.2d at 819, 826 cert. denied, 419
U.S. 1021, 1027 (1974) (". . . application proce-
dures, and tactics of delay, hindrance and special
treatment must receive short shrift from the
courts."); 9th Circuit, United States v. Youritan
Construction Co., 370 F.Supp. 643 (N.D. Cal.
- 38 -
1973), aff'd, 509 F.2d 623 (1975) (various forms
of discouragement violate Fair Housing Laws); D.C.
Circuit, Mayers v. Ridley, 465 F.2d 630, 652, 653
(1972) (activity is forbidden if "it has a dis-
couraging psychological effect on purchasers . .
.). As stated by the Court of Appeals for the
Fifth Circuit in United States v. Pelzer Realty,
supra, 484 F.2d at 442, statements by defendants
"[can] let the two [black] men know that they
were not particularly welcome as customers
- « » This attitude . certainly had an
effect on the two men, and upon their
willingness and ability to bargain.
Ignoring Dr. Houston's and Mrs. Tillman's
frustration at receiving no answers and deeming
defendant's failure to contact plaintiff when the
contract was ready the same day she called,
a mere failure to "aggressively seek or to pursue
minority buyers“ rewards actions which are suc~
cessful in deterring black homeseekers.
This misapplication of the law is contrary
to the ruling of Mr Justice Stevens in Wang v.
Lake Maxinhall Estates, Inc., that discrimination
is actionable under §§ 1981 and 1982
- 39 -
If racial animus on the part of defendants
played a part in frustrating plaintiffs'
obvious desire to purchase. 531 F.2d 832,
835 (7th Cir. 1976).
Defendant's failure to make the one phone call
which they knew would result in a sale was incon-
sistent with ordinary business practices," United
States v. Pelzer Realty, supra, 494 F.2d at 446,
and should not have been dismissed by the district
court's observation that "the Benttree project was
inexpert ly managed" (App. 14a). Defenses based
on disorganized or arbitrary behavior have been
rejected in other circuits. E.g., 8th Circuit,
Smith v. Anchor Building Corp., supra, 536 F.2d
at 235-36; see also, 9th Circuit, United States
v. Youritan Construction Co., supra, 370 F.Supp.
at 649-650 (arbitrary and uncontrolled rental
procedures).
The district court refused to grant Dr.
Houston relief in the face of these facts because
it held
Plaintiff failed to prove that the units were
available for sale at the time her offer was
made. This is fatal to plaintiff's right to
relief. (App. 13a).
- 40 -
The district court set forth the legal standard
pursuant to which it made this holding, as fol-
lows:
The elements of plaintiff's proof to
make out a prima facie case under 42 U.S.C.
$§1981 and 1982 are (1) that the owner
placed the property on the open market
for sale, (2) that plaintiff was willing to
purchase the property on the terms specified
by the owner, (3) that plaintiff communicated
this willingness to the owner at the time
when the property was available for sale, (4)
that the owner refused to sell the property
to plaintiff on the terms which the owner
indicated would otherwise be satisfactory,
and (5) that there is no apparent reason for
the refusal of the defendant to sell the
property to plaintiff other than plaintiff's
race. 28/
28/ The court of appeals below cited only two
cases, Duckett v. Silberman, 568 F.2d 1020 (2d
Cir. 1978) and Bush ». Kain, 297 F.Supp. 151
(N.D. Ohio 1969). To the extent that Duckett
v. Silberman followed the five elements of a
prima facie case of housing discrimination set
forth in Bush v. Kaim, it has not been followed
in recent decisions by court of appeals in the
same circuit. Williamsburg Fair Housing Comm. v.
NYCHA, 492 F.Supp. [72725 8 N80 y- atid,
F.2d Civ. Act. No. 80-6161 (2d Cir. Jan-
uary 15, 1981); Robinson v. 12 Lofts Realty, 610
F.2d 1032, 1042 (ad Cir. 1979).
= 4] -
To premise protection of the fair housing
laws on an owner's manipulation of the exact time
at which a unit is put on or taken off the market
directly and successfully frustrates the intent of
these laws and creates a conflict with the liberal
construction which should be accorded §§1981, 1982
and Title VIII. To hold that a prima facie case
of discrimination under §§1981 and 1982 requires
that the housing be “on the open market for sale"
glorifies the technicalities of real estate
transactions at the expense of the fundamental
guarantees of equal housing opportunity and
squarely conflicts with holdings by other courts of
appeals. In Wang v. Lake Maxinhall Estates,
Inc., supra, 531 F.2d at 834, Justice Stevens held
that the fact that plaintiffs’ offer to purchase
had technically expired was irrelevant because:
there is nothing in the record to suggest
that they were no longer interested in
purchasing the lot, that they gave any such
indication to the broker, or that the broker
asked them to extend their offer again.
The court of appeals in Moore v. Townsend, 525
F.2d 482, 485 (7th Cir. 1975) held the existence
- 42 -
of a contract irrelevant because “otherwise the
very purpose of the Act [§ 1982] would be com-
pletely frustrated." Again, the Court of Appeals
for the Seventh Circuit reversed a district court
finding that:
. the plaintiffs were not deprived of the
right of buying a home because they owned
a home .. . [that] had not been placed for
sale and, hence, they were not in the
market for a house.
because
To adopt such a requirement [under § 1982 or
§ 3604] would encourage real estate agents to
avoid selling to blacks, despite the clear
Congressional mandate to the contrary. Jones
v. Mayer, 392 U.S 409, 447-449 (concurring
opinion of Justice Douglas).
Johnson v. Jerry Pals Real Estate, 485 F.2d 530,
531 (7th Cir. 1973). But see Madison v. Jeffers,
494 F.2d 114 (4th Cir. 1974).
The district court found, and the court of
appeals noted, that although contracts were not
available to be signed until September 30, or
October 2, 1977, at least two units were reserved
for particular buyers prior to that date, one for
Mrs. Carol Calhoun and another for a Mr. Horowitz
- 63 <-
(App. lla and 12a). me court of appeals also
noted that on the first day Dr. Houston visited
the condominiums, she was told that a two-bedroom
unit she expressed interest in purchasing had
already been sold. (App. 19a). Both the court of
appeals. and the district court found these facts
to have no legal significance because, in view of
the fact that written sales contracts were not
ready at that time, these reservations or sales
could have been "informal" only (App. lla-12a,
21a). In so ruling, the courts below ignored the
crucial question under the fair housing Laws,
1. e., were black persons accorded the same rights,
terms and conditions in the sale of real estate as
were accorded white persons, and instead erro-
neously dismissed this discriminatory treatment
because under state real estate law it might not
have had binding significance.
Ironically, the district court and the
court of appeals found these reservations irrele-
vant because the condominiums could not have been
sold prior to September 30 or October 2 (App.
- 44 -
13a, 21a), yet totally failed to see the inconsis-
tency between this holding and the finding that
when plaintiff expressed an interest in purchasing
a two bedroom unit on September 26, "defendant's
sales agent told her that the one in which she
was interested had already been sold" (App. 19a).
Only two possibilities exist. If the unit
could not have been sold before September 30 or
October 2, as found by both courts below, then Dr.
Houston was told that a unit was not available
when, in fact, it was, in violation of the ex-
plicit prohibition in § 3604(d) of Title VIII that
makes it unlawful “to represent to any person
because of race [or] color . . that any dwel-
ling is not available for inspection, sale,
or rental when such dwelling is in fact so avail-
able." The only other possibility is that defen-
dants considered the reservation of such condo-
miniums tantamount to sale, in which case the
units were, in fact, on the open market for sale,
totally undermining the premise upon which the
decisions below were based.
- 45 -
In any event, it was error to base a ruling
on the view that plaintiff did not prove that she
was willing to purchase the property on the terms
specified by the owner (App. 15a), for the terms
given to her were different than those given to at
least two white purchasers. Unlike the Court of
Appeals for the Tenth Circuit, courts of appeals
in other circuits have refused to accept at
face value terms or conditions, even if, unlike
here, they are objectively applied," where such
terms are unnecessary to the seller's purpose or
result in frustrating a black homeseeker's ability
to obtain housing. Phiffer v. Proud Parrot,
F.2d Prentice-Hall, Equal Opportunity in
Housing 115,356 (th Cir. November 24, 1980)
(failure to place a security deposit); Williams v.
Matthews, supra, (requirement that homes be sold
only to approved builders).
Discrimination in housing today is more often
than not “artfully cloaked," Haythe v. Decker, 468
F.2d 336 (7th Cir. 1972), for "clever men may
easily conceal their motivations." United States
v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th
Cir. 1974), cert. denied, 422 U.S 1042 (1975).
@ 46 -
To assure for black persons "the same right" to
obtain housing as is enjoyed by white persons, a
majority of courts of appeal have recognized:
"(T]he statutes prohibit all forms of dis-
crimination, sophisticated as weli as simple-
minded, and thus disparity of treatment
between whites and blacks, application
procedures, and tactics of delay, hindrance
and special treatment must receive short
shrift from the courts.
Williams v. Matthews, supra, 499 F.2d at 826.
Thus, contrary to the holding of the district
court and the court of appeals, the holdings in
other circuits extend protection of the fair
housing laws to cover all negotiations and sales
efforts in connection with the sale or rental of
housing. E.g., McDonald v. Verble, 622 F.2d
1227 (6th Cir. 1980). (61982 and Title VIII
prohibit both blatant and subtle discrimination in
"sales efforts"); United States v. West Peachtree
Tenth Corp., 437 F.2d 221, 227-228 (Sth Cir. 1971)
(delay in processing application); United States
v. Youritan Construction Co., supra (imposition of
delaying tactics).
247
The Fair Housing Act of 1968, 42 U.S.C
53601, et seq. "was designed to provide, within
constitutional limit, for fair housing throughout
the United States." Zuch v. Hussey, 394 F.Supp.
1028, 1046 (E.D. Miss. 1975), aff'd 547 F.2d 1168
(6th Cir. 1977). Like its more recent counter-
part, this Court has held that the Civil Rights
Act of 1866, 42 U.S.C. 11982 applies to all
racial discrimination in connection with the sale
or rental of property. Jones v. Alfred H. Mayer,
supra. In Jones, this Court found unambiguous
the language of §1982 that all citizens shall have
"the same right" as white citizens to obtain real
property. Together with the Civil Rights Acts of
1870 and 1866, 42 U.S.C. 111981 and 1982, the Fair
Housing Act comprehensively spell out me right
of an individual to rent or purchase housing
without suffering discrimination and to obtain
federal enforcement of that fundamental guaranty."
Jones v. Mayer, supra, 392 U.S. at 413 (§1982).
See also, e.g., Runyon v. McCrary, 427 U.S 169
($1981).
Consistent with the broad mandate of the
fair housing laws, a majority of circuits have
held that these acts must be liberally construed
- 48 -
to assure fulfillment of their policy objectives.
E.g-, Second Circuit, Robinson v. 12 Lofts Realty,
supra (51982, Title VIII); Third Circuit, Resi-
dents Advisory Board v. Rizzo, 564 F.2d 126 (1977)
(Title VIII); Fifth Circuit, United States v.
Mitchell, 580 F.2d 789 (1978) (Title VIII); United
States v. Pelzer Realty, supra (Title VIII);
Sixth Circuit, Zuch v. Hussey, supra (Title VIII);
Seventh Circuit, Wang v. Lake Maxinhill Estates,
Inc., supra (§§1981, 1982, Title VIII); Moore v.
Townsend, supra (§§1981, 1982, Title VIII);
Eighth Circuit, Smith v. Anchor Building Corp.,
536 F.2d 231 (1976) ($§1981 1982, Title vIII) ;
Williams v. Matthews, supra (551981, 1982, Title
VIII); Ninth Circuit, Phiffer v. Proud Parrot,
supra (51982); United States v. Youritan con-
struction Co., supra; D.C. Circuit, Mayers v.
Ridley, supra.
- 49 -
III. REVIEW SHOULD BE GRANTED TO RESOLVE A
CONFLICT AMONG THE LOWER FEDERAL COURTS
ON THE TIME LIMITATIONS FOR FILING SUITS
UNDER 42 U.S.C. 53610, PARTICULARLY WHERE
H. U. D. REGULATIONS AND ADVICE TO COMPLAIN-
ANTS CONFLICTS WITH THE TIME LIMITATIONS
ADOPTED BY SOME COURTS.
We submit that a civil action under §810
of the Fair Housing Act of 1968 (42 U.S.C. §3610)
is timely if commenced within thirty days after
receipt of notice from the Secretary of Housing
and Urban Development that voluntary compliance
with the Act cannot be obtained. his suit
was filed less than 30 days after petitioner
received such a notice and accordingly it was
error to dismiss her claim as untimely.
A person who claims to have been injured by
a discriminatory housing practice may file an
administrative complaint with the Secretary of
Housing and Urban Development ("HUD") within one
hundred and eighty days after the alleged inci-
dent. 42 U.S.C. § 3610(a) and (b). Dr. Houston's
administrative complaint, filed on October 6, 1977
as to alleged discriminatory incidents on Septem-
— 50 -
ber 25 through 30, 1977, was timely. The issue
presented by this petition is whether the subse-
quent filing of the civil action on June 6, 1978
is timely, or whether it contravenes the time
limitations in § 3610(d).
Section 3610(d) provides in pertinent part:
If within thirty days after a complaint is
filed with the Secretary. . „, the Secretary
has been unable to obtain voluntary compli-
ance with this subchapter, the person ag-
grieved may, within thirty days thereafter,
commence a civil action in any appropriate
United States district court, against the
respondent named in the complaint, to
enforce the rights granted or protected by
this subchapter, insofar as such rights
relate to the subject of the complaint...
(Emphasis added).
Defendant maintains that the above underscored
period runs from the thirty-first to the sixtieth
‘day after the filing of the administrative com-
plaint. Plaintiff maintains that, although suit
may be brought on the thirty-first day after the
filing of the administrative complaint, the thirty
day period does not begin to run until HUD deter-
- 5] -
mines and then notifies the complainant that
voluntary compliance cannot be obtained. Plain-
tiff received such notice from HUD on May 9, 1978
and filed this suit within thirty days thereafter,
though well past sixty days after the filing of
the administrative complaint.
This Court noted but specifically declined to
resolve this issue in Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 103, n. 10
(1979). The lower federal courts are divided over
the issue of which interpretation is correct.
Several hold with plaintiff that the thirty
days begins with receipt of HUD's notice of
failure to conciliate. Taylor v. Fletcher Proper-
ties, Civil Action No. 74-M-850 (S.D. Tex., Sept.
18, 1975) (unreported opinion); Logan v. Richard
E. Carmack & Assoc., 368 F.Supp. 121 (E.D. Tenn.
1973); Brown v. Ballas, 331 F.Supp. 1033 (N.D.
Tex. 1971). Others have held the period begins on
the thirty-first day after the filing of the
administrative complaint. Green v. Ten Eyck, 572
F.2d 1233 (8th Cir. 1978); Kreiger v. Merifield
Acres, Inc., 465 F.Supp. 62 (E.D. Vir. 1979),
reversed on other grounds, Civ. Act. No. 79-1193
@ §2 «
(4th Cir. 1980) (unreported opinion); Morgan v.
Parcener's Ltd., 493 F.Supp. 180 (W.D. Ok. 1978);
Goodman v. Platt, 444 F.Supp. 140 (N.D. Okla.
1978); Tatum v. Myrick, 425 F.Supp. 809 (M.D. Fla.
1977); Sumlin v. Brown, 420 F.Supp. 78 (N.D. Fla.
1976); Brown v. Blake & Bane, Inc., 402 F.Supp.
620 (E.D. Va. 1975); Young v. AAA Realty Co., 350
F.Supp. 1382 (M.D.N.C. 1972).
The language of the statute itself is ambig-
uous. The term "thereafter" needs the referent of
a date certain mentioned earlier in the sentence.
But there is no date certain mentioned. Instead,
two separate time frames are discussed, the period
of thirty days after the filing of a complaint
and the Secretary's inability to obtain voluntary
compliance. The statute leaves unclear which of
these possible referents is the basis for fixing
the date "thereafter" which the thirty days
begins to run. In such a situation, where the
relevant statutory language is unclear and sus
ceptible of differing interpretations this Court
has held that "the sound principle of according
deference to administrative practices normally
applies." Shea v. Vialpando, 416 U.S 251, 262
n. 11 (1974).
2332
HUD regulations interpret the limitation to
commence from the date of receipt by a plaintiff
of notice from HUD that conciliation efforts
have failed. 24 C.F.R. §105.34 (1980) provides:
the person aggrieved shall be notified in
writing by registered or certified mail when
the Assistant Secretary has determined
that he is unable to obtain voluntary com-
pliance through informal methods of confer-
ence, conciliation, or persuasion. The 30
days provided in Section 810(a) of Title VIII
within which a civil action may be commenced
shall be deemed to begin upon the receipt of
such notice.
See also 24 C.F.R. §105.16(a). Statutory inter-
pretation by the administrative agency charged
with carrying out the mandate of the statute,
while not dispositive, is entitled to "great
weight." Brennan v. Occupational Safety and
Health Administration, 513 F.2d 533 (loth Cir.
1975); Sims v. United States, 252 F.2d 434
(4th Cir. 1958), aff'd, 359 U.S. 108 (1959).
This Court has consistently shown considerable
deference to the construction given to Title VIII
by HUD, "the federal agency primarily assigned to
implement and administer Title VIII." Gladstone,
- 54 -
supra, 441 U.S. at 107; Trafficante v. Metropoli-
tan Life Insurance Co., supra, 409 U.S. at 210.
Resolution of the issue is of great practical
importance because the vast majority of adminis-
trative complaints filed with HUD are not concili-
ated or otherwise resolved within sixty days,
the final limit for bringing a civil action under
defendants' interpretation of the statute.ae/
Therefore, complainants who rely on a reasonable
interpretation such as plaintiff's (which is, as
discussed below, also HUD's interpretation) are
being unexpectedly deprived of any remedy against
illegal discrimination in many jurisdictions.
In conformance with the federal agency
regulation, the regional office of HUD sent Dr.
Houston a letter dated May 9, 1978 which stated,
inter alia: 30/
29/ See U.S. General Accounting Office, Stronger
Enforcement needed to Uphold Fair Housing Laws: A
Report to Congress by the Comptroller General 23
(1978) (Noting that on the average HUD does not
even begin an investigation until anywhere from 58
to 92 days after a complaint is received).
30/ The entire text of the letter is set forth in
the Appendix to the Petition at page 40a.
- 55 <
- + « although we have attempted to seek a
resolution of your complaint, we have not
been able to achieve a satisfactory result
As of the date you receive this letter, you
are now free to seek court relief under
Section 810 of the Federal Fair Housing Law
provided you bring such action within thirty
(30) days of this date.
Dr. Houston relied upon this letter and filed
suit in federal court within thirty days of its
receipt. The dismissal of her Title VIII cause of
action is plainly inconsistent with the federal
agency's regulations and written advice to
ee 31
plaintiff. 7 The need to resolve this inconsis-
31/ This issue was presented to the court of
appeals which expressly declined to address it.
(App. p. la-5a). Although the district court did
not dismiss 13610 in its memorandum opinion
dismissing the Title VIII claim, the issue of
$3610 was raised in plaintiffs’ Opposition to
Motion to Dismiss, dated August 2, 1978, and the
complaint alleged that plaintiff had filed a
timely charge with HUD and had received notice of
her right to sue from HUD pursuant to 33610 on
or about May 12, 1978, which was less than 30 days
prior to the filing of suit.
- 56 -
tency is apparent. Until the issue is settled
authoritatively, a party who relies in good faith
upon the published regulations and mailed ins truc-
tions of the administrative agency may be barred
from vindicating his or her rights in federal
court.
The intent of the Fair Housing Act is to
provide for fair housing. 42 U.S. 13601. To
effectuate this intent, Congress relied heavily on
HUD's ability to eliminate or correct discrimina-
tory housing practices by informal methods of
conference, conciliation, and persuasion. See 42
U.S.C. §§3608, 3609, 3610. only after the agency
makes a decision to attempt resolution of the
complaint does the conciliation process begin. If
a complainant is then obligated to file suit
immediately, HUD is foreclosed from having any
meaningful opportunity to conciliate. The flexi-
bility and informality of the conciliation process
is necessarily disrupted by the institution of
judicial action and conciliation must cease
altogether if the suit comes to trial. 13610(f).
In contrast, if the complainant is permitted to
explore conciliation fully at the administrative
237
level vithout forfeit ing the right to proceed to
federal court should those efforts fail, needless
lawsuits would not be filed and the likelihood of
successful conciliation would be bolstered by
respondents’ desire to avoid defending formal
court proceedings. The intent of Congress was to
allow conciliation to run its full course. See
114 Cong. Rec. 9560 (1968) (remarks of Rep.
Cellar, Chairman of the House Judiciary Committee:
"If conciliation failed, or if the Secretary
declined to resolve the charge or otherwise did
not act within the 30 day-per iod, the aggrieved
person would have 30 days in which to file a civil
action," thus making clear that if the Secretary
took any action to conciliate, that process
should be allowed to run to completion before
legal action was begun) (Emphasis added); 114
Cong. Rec. 9611 (1968) (remarks of Rep. Ford: If
the Secretary of HUD is unsuccessful," recourse is
to the courts). Although HUD could conceivably
continue its efforts in the pretrial stages of a
civil action, 42 U.S.C. §§3610(£) and 3612(a),
thus theoretically "squeezing the respondent at
- 58 -
both ends," as a practical matter conciliation
would become an ineffectual sidelight.
In Gladstone, this Court noted some distinc-
tion in the statutory language between Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
$2000e-5 and 42 U.S.C. §3610(d). Specifically,
$3610(d) does not explicitly require a con-
plainant to give notification to HUD prior to
filing a lawsuit while 570606f) (1) of Title VII
requires receipt from the EEOC of a "right-to-sue"
letter before proceeding to federal court. Let
the statute does require notice of whether or not
the Secretary intends to resolve the complaint and
HUD has, by regulation, obligated itself to send a
right-to-sue letter upon the unsuccessful comple-
tion of the negotiation process. There is thus
sufficiently similar language, history and proce-
dure between Title VII and Title VIII to make it
appropriate in both situations to allow the
conciliation process to run its course. Logan v.
Richard E. Carmack & Assoc., supra, 368 F.Supp. at
122; Schwemm, “Discriminatory Effect and The Fair
Housing Act, 54 N. D. L. 199, 238 (1978) (In lone
- 59 -
of the differences between employment and housing
justify a fundamental difference in the interpre-
tation of the statutes. As in the context of
Title VII claims it is doubtful "that Congress
intended to provide a judicial remedy [accorded
such primary importance] which is so easily
forfeited by those whose rights it vindicates."
Coles v. Penny, 531 F.2d 609, 615 (D.C. Cir.
1976). In the face of an ambiguously worded
statute and a HUD regulation in direct con-
flict with the result reached below, to continue
to allow the conflict created by lower courts
as to the proper interpretation of $3610(d) is to
create a procedural "booby-t rap"! "particu-
larly inappropriate in a statutory scheme in
which laymen, unassisted by trained lawyers,
initiate the process." Love v. Pullman, 404 U.S.
522, 527 (1972).
32/ Cf. Bell v. Brown, 557 F.2d 849, 859 (1977)
(Title VII).
= 60 -
CONCLUS ION
For the foregoing reasons it is respectfully
submitted that the petition for certiorari should
be granted.
Respect ful ly submitted,
JACK GREENBERG
JAMES M. NABRIT, III
(Counsel of Record)
BETH J. LIEF
10 Columbus Circle
New York, New York 10019
JOHN W. WALKER
Suite 1191
First National Bank Building
Little Rock, Arkansas 72201
Counsel for Petitioner
February 1981
Robin J. Stout, a third year student at Colum-
bia University Law School assisted in the prepar a-
tion of the petition.
APPENDIX
*
N
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
No. CIV-78-0571-T
FILED AUG. 29, 1978
=a nase sseeeees
ALICE V. HOUSTON,
Plaintiff,
v.
BENTTREE, LTD., an Oklahoma
corporation; and JOHN KILPATRICK,
as agent for said BENTTREE, LTD.,
De f end ant s.
ORDER
Plaintiffs in this action is a black resident
of Oklahoma City who claims that defendants have
discriminated against her in the sale of housing,
in contravention of 42 U.S.C. 111981, 1982, and
3604. Jurisdiction over plaintiff's complaint is
invoked under 28 U.S.C. §1343 and 42 U.S.C.
$3612.
Defendants have moved to dismiss, alleging in
their first brief on the motion that plaintiff's
- 2a -
action is barred by the 180-day limitation period
imposed by 42 U.S.C. §3612. Defendant Kilpatrick
asserts that plaintiff's complaint fails to state
a claim upon which relief can be granted as
against him. Addressing this contention first,
the Court notes that plaintiff has had no oppor-
tunity to respond to this argument, as it was not
specifically raised in the Motion to Dismiss
and brief in support thereof, but was instead
raised in defendants' reply to plaintiff's
response brief. While the court could ignore this
argument as having been improperly raised, it is
preferable to dispense with the issue now, rather
than delay the case for further briefing. The
Court is satisfied that sufficient facts have been
alleged against defendant Kilpatrick to state a
claim upon which relief can be granted. Plaintiff
has alleged that specific acts amounting to
discrimination were undertaken by agents of
defendants. Plaintiff has additionally alleged
that defendant Kilpatrick was responsible for
various dodges or evasionary schemes which pre-
vented her agent from forming a contract with the
defendant Benttree. 42 U.S.C. §3604(d) makes
unlawful the representation to any person because
- 34 -
of race that any dwelling is not available for
sale, when it is in fact for sale. Plaintiff's
complaint, taking all facts pleaded therein and
inferences to be drawn therefrom as true in favor
of plaintiff, as is required on a Motion to
Dismiss, alleges a violation of section 3604
against defendant Kilpatrick and will withstand a
Motion to Dismiss for failure to state a claim.
Defendants’ remaining ground for dismissal
asserts that plaintiff's complaint is barred by
plaintiff's failure to sue within 180 days of the
Act of discrimination as required by section 3612,
under which plaintiff's complaint is brought. The
act of discrimination alleged by plaintiff oc-
curred on September 28, 1977. The complaint was
filed June 6, 1978, more than 180 days later.
Plaintiffs cause of action founded upon section
3612 is thus barred. Hickman v. Fincher, 483
F.2d 855 (4th Cir. 1973). Plaintiff's attempt to
secure administrative relief does not toll the
180-day limitation of section 3612. Jefferson v.
Mentzell, 409 F.Supp. 1 (N.D. Tex. 1976).
be fendants next argue that 28 U.S.C. 11343
is not an independent jurisdictional statute and,
without a remedy under section 3612, plaintiff's
entire complaint mst fail. Defendants’ argument
ignores plaintiff's allegations of a violation of
42 U.S.C. 111981 and 1982. When a discriminatory
practice is within both the Fair Housing Act and
the Civil Rights Act of 1866, the 180-day linita-
tion of section 3612 does not apply to the cause
of action under the Civil Rights Act. Meyers v.
Penny Pack Woods Home Ownership Assn., 559 F. 2d
894 (3rd Cir. 1977); Warren v. Norman Realty Co.,
513 F.2d 730 (8th Cir. 1975), cert. denied 423
U.S. 855; Hickman v. Fincher, supra; see also 42
U.S.C. 13615; Sullivan v. Little Hunting Park,
396 U.S. 229, 237 (1969). As there is no statute
of limitations provided in the Civil Rights Act
of 1866, the court mst look to the comparable
state statute of Limitations. Johnson v. Rail-
way Express Agency Inc., 421 U.S. 454 (1975).
This action was filed less than one year after
the alleged act of discrimination, and is well
within Oklahoma statutory Limitations period.
For the reasons discussed above, the defen-
dants motion should be sustained as to plain-
- 5a -
.
tiff's section 3612 cause of action, but the
section 1981 and 1982 causes of action will not
be dismissed.
It is so ordered this 26th day of August,
1978.
/s/ RALPH G. THOMPSON
UNITED STATES DISTRICT JUDGE
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
No. CIV-78-0571-T
FILED MAR. 16, 1979
ALICE V. HOUSTON,
Plaintiff,
V.
BENTTREE, LTD., an Oklahoma
corporation, and JOHN KILPATRICK,
as agent for said BENTTREE, LTD.,
Defendants.
MEMORANDUM OPINION
This case came on to be tried to the Court,
without a jury, on February 27, 1979, plaintiff
appearing personally and with counsel, John Walker
of Little Rock, Arkansas; defendant Benttree, Ltd.
(Benttree) appearing through its vice president,
1
Chris Calhoun, and counsel, Kent Frates.~ The
17 John Kilpatrick was dismissed as a defendant
prior to trial.
Court, having considered the testimony of vit-
nesses, exhibits, and briefs and arguments of the
parties, enters the following opinion, which shall
constitute its findings of fact and conclusions of
law.
Plaintiff, Alice Houston, a black female,
moved to Oklahoma City in August of 1977, to
assume the position of Director of Curriculum
Services for the Oklahoma City Public Schools.
Plaintiff holds a Ph.D. and her income during the
relevant period was in excess of $36,000 yearly.
Plaintiff desired to obtain housing commensurate
with her education, income, and position. On
September 25, 1977, while driving down May
Avenue in Oklahoma City, plaintiff noticed a sign
bearing the name of Benttree Condominiums, as “for
sale" starting at a specified price. Plaintiff
called her realtor who telephoned Chris Calhoun,
vice president of Benttree and manager of the
condominium project, to arrange an appointment to
see the units. On September 26, 1977, plaintiff
and her realtor, Ms. Tillman, were shown around
the project by Carol Calhoun, sister-in-law of
Chris Calhoun and one of several employees of
another of Calhoun's businesses who were showing
the condominiums. Several of the units were
completed and furnished and were used as models.
The remainder were in various stages of const ruc-
tion. Plaintiff and Ms. Tillman and Ms. Calhoun
discussed the project and looked at several units.
Plaintiff found a two bedroom unit which she
wanted to purchase, so stating to Ms. Calhoun.
Plaintiff and her realtor were told by Ms. Calhoun
that contracts for the purchase of the condo-
miniums were being prepared by Benttree's lawyer
and that the specially prepared contract was the
only one which could be used. Contracts were not
available at that time, but Ms. Calhoun stated
that she would arrange a meeting with plaintiff
and her realtor and the lawyer who was preparing
the contracts, F: Smith Barnes, for the following
day. The September 26 meeting between plaintiff,
let realtor, and Ms. Calhoun was cordial, and when
plaintiff and her realtor left the project, both
they and Ms. Calhoun fully expected that plaintiff
would eventually purchase a unit.
The following day, September 27, Ms. Calhoun
advised Ms. Tillman that no real estate commission
would be paid. The appointment with Mr. Barnes
was postponed to the following day.
- 9g ~
Plaintiff and Ms. Tillman met with Mr. Barnes
on September 28, 1977. Mr. Barnes explained that
the contract was not ready but would be soon.
During the discussion, plaintiff expressed
a desire to see a small three bedroom unit,
instead of the two bedroom she had previously
selected, and Mr. Barnes called Chris Calhoun and
arranged for plaintiff to meet Calhoun at the
project. Plaintiff and Ms. Tillman went to
Benttree, and spoke to Chris Calhoun, who showed
them the project and several units. Plaintiff
found a small three bedroom she desired to pur-
chase and so stated to Calhoun. He told her she
would have to wait for the contracts which were
being prepared. Plaintiff and Ms. Tillman testi-
fied that Calhoun was openly antagonistic at this
meeting and that he asked them to leave.
The next two days, September 29 and 30, Ms.
Tillman telephoned Mr. Barnes to see if the
contracts were ready. She was told that they were
not. No contact was made by either plaintiff or
her realtor after September 30, and instead of
visiting the open house on October 2 and using the
form of contract being required, plaintiff filed a
discrimination complaint against Benttree with
HUD.
- 10a -
The Bettree condominiums were not, in fact,
available for purchase until October 2, 1977, the
day of a scheduled opening“, of which plaintiff
was aware. Mr. Barnes completed the contracts on
the afternoon of September 30. Barnes vas in-
volved in a lawsuit concerning an unrelated
condominium project and wanted to make certain
that Benttree did not encounter the same problems
with its contracts. Until September 30, Mr.
Barnes intended to draft a contract which would be
binding on all parties, rather than the option
contract which was ultimately used. Barnes
finally prepared the simpler, option contract, to
which he was orginally opposed, at the insistence
of Chris Calhoun, who wanted some form of contract
available for the October 2 opening.
Plaintiff knew of the opening scheduled
for October 2, and knew that the units would be
available for sale on that date. Ms. Calhoun told
Ms. Tillman, and plaintiff was aware, that the
units would not be available for sale until the
weekend of October 2. Both Carol Calhoun and Mr.
Barnes told plaintiff she could buy a unit as soon
as the contracts were ready.
~ lla -
No units were purchased at Benttree until
after October 2. Another prospective purchaser,
Karen Duncum, a white female, who attempted
to purchase a unit prior to October 2, was also
told that only the approved form of contract would
be accepted. Ms. Duncum and her realtor were very
persistent in their efforts to purchase a unit,
but were unable to do so prior to October 2, for
the same reason plaintiff was unable to purchase,
i.e, the completion and availability of the
prescribed contracts by Barnes. No units were
occupied until well after October 2, 1977. There-
have been no black purchasers or residents at
Benttree. Ms. Calhoun testified that two units
were "held" prior to October 2, one for herself
and one for a Mr. Horowitz. There is no evidence
as to how these holding commitments were entered
into or the effect of the failure of a prospective
buyer to submit the approved contract after
October 2. Absent any evidence on these points,
the Court assumes, from the entirety of the
remaining evidence, that these "holding commit-
ments“ were informal only, and would have been
meaningless had the prospective purchasers
*
- 124
failed to submit an approved form of contract on
or after October 2.
This suit was brought under 42 U.S.C. §§1981,
1982, and 3612. The Court previously sustained
defendants’ Motion to Dismiss plaintiff's cause of
action based on 42 U.S.C. §3612 for failure to
comply with the time requirements of that section.
The Court has jurisdiction over plaintiff's cause
of action against the corporate defendant pursuant
to 42 U.S.C. §1981, 1982; 28 U.S.C. §1343.
The elements of plaintiff's proof to make out
a prima facie case under 42 U.S.C. 11981 and 1982
are (1) that the owner placed the property on the
open market for sale, (2) that plaintiff was
willing to purchase the property on the terms
specified by the owner, (3) that plaintiff com-
municated this willingness to the owner at the
time when the property was available for sale, (4)
that the owner refused to sell the property to
plaintiff on the terms which the owner indicated
would otherwise be satisfactory, and (5) that
there is no apparent reason for the refusal of the
defendant to sell the property to plaintiff other
than plaintiff's race. Duckett v. Silverman, 568
- 133 -
F.2d 1020 (2nd Cir. 1978); Bush v. Kaim, 297
F. Supp. 151 (N.D. Ohio 1969).
Plaintiff failed to prove that the units were
available for sale at the time her offer was made.
This is fatal to plaintiff's right to relief.
Until October 2, or perhaps, at the earliest, the
afternoon of September 30, when the contracts were
finally made available to Chris Calhoun by his
lawyer, the Benttree condominiums were not avail-
able for sale to plaintiff or anyone else. The
evidence shows that the unavailability of the
contracts prevented anyone from purchasing a unit,
not just the plaintiff. Although the sign which
went up on or about September 25, 1977, advertised
the condominiums to be "for sale", anyone inquir-
ing, including plaintiff, vas told that no sale
could be nade until the contracts vere ready.
There is considerable evidence in the record
which appears to be an attempt by plaintiff to
show that the special contract requirement was a
subterfuge on the part of defendant. Plaintiff —
showed that the contracts which were ultimately
used were simple, took the lawyer only one hour to
draft, and were not substantially different from
those regularly used in the Oklahoma City area.
va.
— 14a -
However, Mr. Barnes testified at length concerning
the reasons for the delay in preparation and why
he believed the option contract to be unsatisfac~-
tory, and it was not unreasonable for Calhoun to
rely on the advice of his lawyer. Moreover,
everyone who sought to purchase or make an offer
without the required form of contract was treated
uniformly, regardless of race.
There is additional evidence in the record
tending to establish that the Benttree project
was inexpertly managed and did not follow estab-
lished business procedures. However convincing
such evidence may be, it does not support plain-
tiff's right to relief. There is no requirement
that defendant aggressively seek or pursue ni nor-
ity buyers. Nor is there any requirement that
defendant conduct its business prudently or use
licensed realtors. Absent evidence that defendant
refused to sell to plaintiff on account of her
race, and finding the evidence offered by plain-
tiff tending to show poor business judgment leads
to no inference that defendant refused to sell to
plaintiff on account of her race, the Court
concludes that such evidence is irrelevant.
- l5a -
Under the standards announced in Bush v.
Kaim, supra, defendants are entitled to judgment.
Plaintiff did not prove that the property in
question was on the open market for sale. Nor did
plaintiff prove that she was willing to purchase
the property on the terms specified by the owner.
No terms were in existence until after plaintff's
last contact with defendant. Had plaintiff been
willing to comply with defendant's terms, she
would have inquired on or after October 2, when
she knew the units would be available and the
contracts containing the terms would be ready.
The requirement of the contracts were reasonable
and all applicants were treated uniformly regard-
ing the contract requirement. The Court therefore
concludes that defendant did not refuse to sell to
plaintiff on account of her race and judgment
shall therefore enter for defendant.
Both parties have requested costs and at-
torney s fees, including John Kilpatrick, the
defendant who was previously dismissed from the
action, under 42 U.S.C. 11988, as amended. This
section provides that the Court, in its discre-
tion, may allow the prevailing party "... a rea-
- loa -
sonable attorney's fee as part of the costs."
Although defendant prevails in this case, the
Court finds good faith on the part of plaintiff,
and reasonable grounds for her belief that
prompted this cause of action. Therefore the
parties shall each bear their own costs, including
attorney's fees.
It is so ordered this 16th day of March,
1979.
/s/ RALPH G. THOMPSON
- 174 -
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 79-1366
FILED DEC. 02, 1080
ALICE V. HOUSTON,
Plaintiff-Appellant,
v.
BENTTREE, LTD., an
Oklahoma corporation,
De fendant~Appellee.
On Appeal From The United States District
Court For The Western District Of Oklahoma
(D.C. No. Civil 78-0571-T)
John W. Walker of John W. Walker, P.A., Little
Rock, Arkansas (David E. Parker, Jr. of John W.
Walker, P.A., and Matthew T. Horan, Fayettesville,
Arkansas, with him on the brief), for Appellant.
Kent F. Frates, of Ellis & Frates, Oklahoma City,
Oklahoma, for Appellee.
- 18a -
Before SETH, Chief Judge, LOGAN, Circuit Judge,
and BOHANON, District Judge“.
SETH, Chief Judge
The plaintiff brought this action under the
Fair Housing Act and the Civil Rights Act, 42
U.S.C. 11 1981 and 1982. The trial court dis-
missed the Fair Housing Act claim as untimely
filed. The court heard the evidence on the
remaining claim, held that plaintiff had not made
a prima facie case of discrimination, and entered
judgment for the remaining defendant. The pla in-
tiff has taken this appeal and urges that the
trial court's findings are not supported by
substantial evidence, and that incorrect legal
standards were applied. The individual defendant
was dismissed at trial. The corporation will be
referred to as the defendant.
of the United States District Court for the
Eastern, Northern and Western Districts of
Oklahoma, sitting by designation.
- 19a -
The plaintiff is a black person who had come
to Oklahoma City to assume an important position
with the School System. She was looking for a
suitable place to live and saw a for sale“ sign
at the defendant's condominiums. She contacted a
real estate agent to assist her in looking at the
property.
The agent told plaintiff, about September 26,
that the condominums would not go on sale until
October 1 or 2 at which time the defendant was to
have an open house on the property. However,
the defendant was showing the finished units to
prospective buyers. Plaintiff was shown the
property on September 26, and she expressed
interest 10 purchasing a two-bedroom unit.
Defendant's sales agent told her that the one in
which she was interested had already been sold.
Plaintiff looked at another unit and stated she
would buy it. The sales agent explained that the
contracts were not yet ready and that the company
would only use contracts prepared by its own
attorney. An appointment was made to see the
lawyer. At this point plaintiff fully expected
that she would be sold a unit.
- 20a -
On September 28, plaintiff and her agent met
with the attorney for defendant who also stated
the contracts were not ready and that an option to
buy would not be extended to plaintiff as the
company insisted that the contract it prepared be
used. Plaintiff then asked if she could see a
three-bedroom apartment. The lawyer arranged an
appointment for her with Mr. Calhoun, Vice Presi-
dent of Benttree. Plaintiff understood that the
contract forms would be ready in a few days. She
was shown a unit by Mr. Calhoun. Plaintiff and
her agent both testified that Mr. Calhoun was
antagonistic and rude. Mr. Calhoun testified that
he told plaintiff at this showing that she could
sign a contract at the open house on October 2.
Plaintiff's agent phoned the attorney several
times after their meeting seeking to obtain the
contract forms but was not successful. On the
afternoon of September 30, the attorney completed
the contracts. |
Plaintiff felt that she was badly and rudely
treated by defendant's agents. She understood
that Benttree refused to allow her to make a
binding offer because of her race. Plaintiff thus
alleged that defendant's excuse regarding the
- 2la -
contracts was merely a sham. Also, she had been
told that one unit had been sold and nevertheless
she could not then buy one.
The open house did take place on October 2,
but plaintiff did not make an offer nor tender a
deposit on or after that date. Plaintiff filed a
complaint with the Department of Housing and Urban
Development on October 6, 1977.
Upon these facts, the district court held
that plaintiff had not established a prima facie
case of discrimination. The unit which Benttree's
agent thought had been sold before October 2 had
not been sold although it may have been informally
reserved for a prospective purchaser. The court
concluded as to this that such non-binding
reservation was of no significance and there was
no showing that there would not have to be the
usual binding option after October 2 on this also.
The lawyer testified as to his preparation of the
sale contracts and the business reasons necessitat~
ing the delay. The record shows that all prospec
tive buyers were treated the same way. Thus
if they wanted to make an offer before October 2,
they were told that the contracts were not yet
available. The court found as a fact that the
- 22a -
units were not placed on the market until October
2. The court also found that plaintiff was aware
of this fact.
The elements of a prima facie case under 42
U.S.C. §§ 1981 and 1982 are: that the owner
placed the property on the open market for sale;
that plaintiff was willing and able to buy
the property on the terms specified by the owner;
that plaintiff so advised the owner at the time
the property was available for sale; that the
owner refused to so sell the property to plain-
tiffs; and that there is no apparent reason for
the refusal of the defendant to sell the property
to plaintiff other than plaintiff's race. Duckett
v. Silberman, 568 F.2d 1020 (2d Cir.); Bush v.
Kaim, 297 F. Supp. 151 (N.D. Ohio).
The record demonstrates that plaintiff did
not prove several essential elements necessary
to make a prima facie case. The findings of
the trial court are supported by substantial
evidence, and the correct legal standards were
applied.
Appellant urges also that the district court
erred in dismissing her cause of action under
the Fair Housing Act. As we are convinced that
| |
- 23a -
the trial record supports the trial court's
finding that there was no discrimination, we need
not consider this argument. We have considered
appellant's other arguments and find them to be
without merit.
The judgment of the district court is AF-
FIRMED.
- 24a -
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 79-1366
(D.C. No. 78-0571-T)
NOVEMBER TERM - DECEMBER 2, 1980
ALICE V. HOUSTON,
| Plaintiff-Appellant,
v.
BENTTREE, LTD., an
Oklahoma corporation,
Defendant~Appellee.
JUDGMENT
Before the Honorable Oliver Seth, Chief Circuit
Judge, The Honorable James K. Logan, Circuit
Judge, and The Honorable Luther L. Bohanon, United
States District Court Judge
- 234°
|
This cause came on to be heard on the record
on appeal from the United States District Court
for the Western District of Oklahoma, and was
argued by counsel.
Upon consideration whereof, it is ordered
that the judgment of that court is affirmed.
/s/ HOWARD K. PHILLIPS, Clerk
HOWARD K. PHILLIPS, Clerk
1
— 26a -
EXHIBIT ATTACHED TO
COMPLAINT
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
REGIONAL OFFICE
1100 Commerce Street
DALLAS, TEXAS 75202
May 9, 1978
REGION VI IN REPLY REFER TO:
6EC
PHONE: 214-749-7461
06-78-10-016-200
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
Ms. Alice V. Houston
1601 N.W. 30th, #110
Oklahoma City, Oklahoma 73118
Dear Ms. Houston:
This letter is to tell you that although we have
attempted to seek a resolution of your complaint,
we have not been able to achieve a satisfactory
result. We are now terminating our efforts at
informal resolution of your complaint.
As of the date you receive this letter, you are
free to seek court relief under Section 810 of
the Federal fair housing law provided you bring
such action within thirty (30) days of this date.
As we indicated to you previously, you may also
- 27a -
have a right to bring court action under Section
812 of the law within 180 days after the alleged
discriminatory act occurred or under the Civil
Rights Act of 1866 as interpreted by the United
States Supreme Court in the case of Jones v.
Mayer. Such action may be brought in an appro-
priate Federal, state, or local court.
The relief available under Section 812 is similar
to that allowed under Section 810, but you should
consult your attorney, if you have one, to deter-
mine what course of action you should take. If
you do not have an attorney or cannot pay for one,
you will be interested to know that the court may
appoint an attorney for you in an action under
Section 812.
Sincerely,
s/s Leonard Chaires
LEONARD CHAIRES
ASSISTANT REGIONAL ADMINISTRATOR FOR
FAIR HOUSING and EQUAL OPPORTUNITY
cc: John W. Walker, Attorney
AREA OFFICES
DALLAS, TEXAS- LITTLE ROCK, ARKANSAS- NEW ORLEANS,
LOUISIANA~ OKLAHOMA CITY, OKLAHOMA - SAN ANTONIO,
TEXAS
Insuring Offices
Albuquerque, New Mexico~- Fort Worth, Texas-
Houston, Texas Lubbock, Texas- Shreveport,
Louis iana- Tulsa, Oklahoma
- 28a -
Federal Statutes and Regulations
Title 42 U.S.C. § 1981 provides:
§ 1981. Equal rights under the law
All persons within the jurisdiction of the
United States shall have the same right in every
State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to know other.
R.S. § 19777. Derivation. Act May 31, 1870,
c. 114, § 16, 16 Stat. 144.
Title 42 U.S.C. § 1982 provides:
|
§ 1982. Property rights of citizens
All citizens of the United States shall have
the same right, in every State and Territory, as
— 29a -
is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and
personal property.
R.S. § 1978. Derivation. Act Apr. 9. 1866, .
31, 11. 14 Stat. 27.
Title VIII of the Civil Rights Act of 1968,
42 U.S.C. $$ 3601-3619 (Pub. L. 90-284, Title
VIII, April 11, 1968, 82 Stat. 81), provides in
pertinent part:
§ 3601. Declaration of policy
It is the policy of the United States to
provide, within constitutional limitations, for
fair housing throughout the United States. Pub.
L. 90-284, Title VIII, § 801, Apr. 11, 1968, 82
Stat. 81.
- 30a -
§ 3604. Discrimination in sale or rental of
housing.
As made applicable by section 3603 of this
title and except as exempted by sections 3603(b)
and 3607 of this title, it shall be unlawful --
(a) To refuse to sell or rent after the
making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise
make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, or national
origin.
(b) To discriminate against any person
in the terms, conditions, or privileges of sale or
rental of a dwelling, or in the provision of
services or facilities in connection therewith,
because of race, color, religion, sex, or national
origin.
(c) To make, print, or publish, or
cause to be made, printed, or published any
notice, statement, or advertisement, with respect
to the sale or rental of a dwelling that indicates
any preference, limitation, or discrimination
based on race, color, religion, sex, or national
origin, or an intention to make any such pref-
erence, limitation, or discrimination.
- 3la -
(d) To represent to any person because
of race, color, religion, sex, or national
origin that any dwelling is not available for
inspection, sale, or rental when such dwelling
is in fact so available.
(e) For profit, to induce or attempt to
induce any person to sell or rent any dwelling by
representations regarding the entry or prospective
entry into the neighborhood of a person or persons
of a particular race, color, religion, sex,
or national origin.
Pub.L. 90-284, Title VIII, § 804, Apr. 11, 1968,
82 Stat. 83; Pub.L. 93-383, Title VIII, § 808(b)
(1), Aug. 22, 1974, 88 Stat. 729.
§ 3610. Enforcement
Person aggrieved; complaint; copy; investiga-
tion; informal proceedings; violations cf
secrecy; penalties
(a) Any person who claims to have been
injured by a discriminatory housing practice or
who believes that he will be irrevocably injured
- 32a -
by a discriminatory housing practice that is about
to occur (hereafter "person aggrieved") may file a
complaint with the Secretary. Complaints shell be
in writing and shall contain such information and
be in such form as the Secretary requires. Upon
receipt of such a complaint the Secretary shall
furnish a copy of the same to the person or
persons who allegedly committed or are about to
commit the alleged discriminatory housing prac~
tice. Within thirty days after receiving a
complaint, or within thirty days after the expira-
tion of any period of reference under subsection
(e) of this section, the Secretary shall investi-
gate the complaint and give notice in writing to
the person aggrieved whether he intends to resolve
it. If the Secretary decides to resolve the
complaint, he shall proceed to try to eliminate or
correct the alleged discriminatory housing prac-
tice by informal methods of conference, concilia~
tion, and persuasion. Nothing said or done in the
course of such informal endeavors may be made
public or used as evidence in a subsequent pro-
ceeding under this subchapter without the written
consent of the persons concerned. Any employee of
>
- 33a -
the Secretary who shall make pub lic any informa-
tion in violation of this provision shall be
deemed guilty of & misdemeanor and upon conviction
thereof shall be fined not more than $1,000 or
imprisoned not more than one year.
Complaint; limitations; answers; amendments;
verification
(b) A complaint under subsection (a) of
this section shall be filed within one hundred and
eighty days after the alleged discriminatory
housing practice occurred. Complaints shall be in
writing and shall state the facts upon which the
allegations of a discriminatory housing practice
are based. Complaints may be reasonably and
fairly amended at any time. A respondent may file
an answer to the complaint against him and with
the leave of the Secretary, which shall be granted
whenever it would be reasonable and fair to do so,
may amend his answer at any time. Both complaints
and answers shall be verified.
3
2840
Commencement of civil actions; State or local
remedies available; jurisdiction and venue;
findings; injunctions; appropriate affir-
mative orders
(d) If within thirty days after a
complaint is filed with the Secretary or within
thirty days after expiration of any period of
reference under subsection (c) of this section,
the Secretary has been unable to obtain voluntary
compliance with this subchapter, the person
aggrieved may, within thirty days thereafter,
commence a civil action in any appropriate United
States district court, against the respondent
named in the complaint, to enforce the rights
granted or protected by this subchapter, insofar
as such rights relate to the subject of the
complaint: Provided, That no such civil action
may be brought in any United States district court
if the person aggrieved has a judicial remedy
under a State or local fair housing law which
provides rights and remedies for alleged die-
criminatory housing practices which are substan-
tially equivalent to the rights and remedies
provided in this subchapter. Such actions may be
brought without regard to the amount in contro-
- 35a -
versy in any United States district court for the
district in which the discriminatory housing
practice is alleged to have occurred or be about
to occur or in which the respondent resides or
transacts business. If the court finds that a
discriminatory housing practice has occurred or is
about to occur, the court may, subject to the
provisions of section 3612 of this title, enjoin
the respondent from engaging in such practice or
order such affirmative action as may be appro-
priate.
Burden of proof
(e) In any proceeding brought pursuant
to this section, the burden of proof shall be on
the complainant.
Trial of action; termination of voluntary
compliance efforts
(t) Whenever an action filed by an
individual, in either Federal or State court,
pursuant to this section or section 3612 of this
- 36a -
title, shall come to trial the Secretary shall
immediately terminate all efforts to obtain
voluntary comp! iance.
pub. L. 90-284, Title VIII, § 810, Apr. 11, 1968,
82 Stat. 85.
§ 3612. Enforcement by private persons
Civil action; Federal and State jurisdiction;
complaint; Limitations; continuance pending
conciliation efforts; prior bona fide
transactions unaffected by court orders
(a) The rights granted by sections
3603, 3604, 3605, and 3606 of this title may be
enforced by civil actions in appropriate Haited
States district courts without regard to the
amount in controversy and in appropriate State
or local courts of general jurisdiction. A civil
action shall be commenced within one hundred and
eighty days after the alleged discriminatory
housing practice occurred: Provided, however,
That the court shall continue such civil case
brought pursuant to this section or section
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3610(d) of this title from time to time before
bringing it to trial if the court believes that
the conciliation efforts of the Secretary or a
State or local agency are likely to result in
satisfactory settlement of the discriminatory
housing practice complained of in the complaint
made to the Secretary or to the local or State
agency and which practice forms the basis for
the action in court: And provided, however, That
any sale, encumbrance, or rental consummated prior
to the issuance of any court order issued under
the authority of this Act, and involving a bona
fide purchaser, encumbrancer, or tenant without
actual notice of the existence of the filing of 2
complaint or civil action under the provisions of
this Act shall not be affected.
Appointment of counsel and commencement of
civil actions in Federal or State courts
without payment of fees, costs, or security
(b) Upon application by the plaintiff
and in such circumstances as the court may deem
just, a court of the United States in which a
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civil action under this section has been brought
may appoint an attorney for the plaintiff and may
authorize the commencement of a civil action upon
proper showing without the payment of fees, costs,
or security. A court of a State or subdivision
thereof may do likewise to the extent not incon-
sistent with the law or procedures of the State or
subdivision.
Injunctive relief and damages; Limitation;
court costs; attorney fees
(c) the court may grant as relief, as
it deems appropriate, any permanent or temporary
‘injunction, temporary restraining order, or
other order, and may award to the plaintiff actual
damages and not more than $1,000 punitive damages,
together with court costs and reasonable attorney
fees in the case of a prevailing plaintiff:
Provided, That the said plaintiff in the opinion
of the court is not financially able to assume
said attorney's fees.
pub. L. 90-284, Title VIII 5 812, Apr. 11, 1968,
82 Stat. 88.
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Code of Federal regulations:
24 C. F. R. § 105.34 (1980) provides:
The person aggrieved shall be notified
in writing by registered or certified mail
when the Assistant Secretary has determined
that he is unable to obtain voluntary com-
pliance through informal methods of con-
ference, conciliation, or persuasion.
The 30 days provided in section 810(d) of
title VIII within which a civil action may
be commenced shall be deemed to begin upon
the receipt of such notice.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.