Duckworth v. Moore Appellant's Brief

    IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 

No. 77-1012

RAY C. DUCKWORTH,

Plaintiff-Appellant,

-v.-

WILLIAM B. MOORE, et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Southern District of Alabama

APPELLANT'S BRIEF

JACK GREENBERG 
BETH J. LIEF 
MELVYN R. LEVENTHAL 

10 Columbus Circle 
New York, New York 10019

ROSE MARY SANDERS 
Post Office Box 773 
Selma, Alabama 36701

Attorneys for Plaintiff-Appellant



INDEX

Statement of the Issues Presented ......................  1

Statement of the Case ...................................  2
Statement of Facts ......................................  8

A. The undisputed Facts ........................... 8
B. Other Evidence Adduced at Trial ...............  18

Argument

I. On The Basis Of The Uncontradicted 
Evidence, Plaintiff Duckworth Was 
Denied Housing And Victimized By
Racially Discriminatory Practices ......... 21

II. On The Uncontested Facts, Plaintiff 
Established Class Violations Of The 
Fair Housing Laws By Defendants And 
The District Court Erred In Its Denial 
Of Injunctive Relief For Plaintiff And 
The Plaintiff Class ........................ 30

III. Defendants Moore, Jr., And Welch, As 
Owners And Principals Of Les Chateaux 
And River Oaks, Are Legally Liable For 
The Discriminatory Conduct Of Their 
Agent .......................................  34
A. The District Court Erred In Granting 

A Directed Verdict And Dismissing The 
Complaint As To Defendants Moore, Jr.,
And W e l c h .............................. 34

B. The Erroneous Dismissal Of The 
Principals So Prejudiced The 
Plaintiff's Case As To Necessitate 
A Redetermination Of Liability For
All Defendants.........................  39

IV. The Jury Instruction On Burden Of Proof 
Misstated The Law And Requires Reversal 
Of The Case ................................  41

CONCLUSION ...............................................  4 3

Page



Table of Cases

Adickes v. Kress & Co., 398 U.S. 144 (1970) ........... 33

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).....  43

Alexander v. Louisiana, 405 U.S. 625 (1972)   27

Banks v. Perks, 341 F. Supp. 1175 (N.D. Ohio
1972) .................................................. 26

Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 
1377 (4th Cir. 1972), cert, den. 409 U.S. 982 
(1972) ................................................  30,32

Bullock v. Tamiami Trail Tours, Inc., 266 F.2d
326 (5th Cir. 1959) ..................................  22

Burris v. Wilkins, 544 F.2d 891 (5th Cir. 1977).......  42

Contract Buyers' League v. F&F Invest. Co., 300 
F. Supp. 210 (N.D. 111. 1969), aff1d 420 F.2d 
1191 (7th Cir. 1970) .................................  29

Franks v. Bowman, __ U.S. __, 47 L.Ed.2d at 456,
n. 7 (1976) ...........................................  30

Glazer v. Glazer, 374 F.2d 390 (5th Cir. 1967) ........ 21
Griggs v. Duke Power Co., 401 U.S. 424 (1970).......... 29
Haythe v. Decker Realty Co., 468 F.2d 336 (7th

Cir. 1972) ...........................................  29

Huff v. N.D. Cass Co. of Alabama, 485 F.2d 710
(5th Cir. 1973) ........................................ 30

Hughes v. Dyer, 378 F. Supp. 1305 (W.D. Mo. 1974).....  39
Jenkins v. United Gas Corp., 400 F.2d 28 (5th

Cir. 1968) ...........................................  30
Johnson v. Jerry Pals Real Estate, 485 F.2d 528

(7th Cir. 1973) ....................................... 25, 29
Jones v. Mayer, 303 U.S. 409 (1968) ...............  Passim

Lee v. Southern Home Sites Corp., 429 F.2d
290 (5th Cir. 1970) ....................................  38

Page

11



Table of Cases (Continued)

Lyles v. Hampton, Prentice-Hall Equal Opportunity
in Housing Reporter, 5 13,738 (S.D. Ohio 1975)....  35

Marr v. Rife, 503 F.2d 735 (6th Cir. 1974) .......... 34,36

McPherson v. Tamiami Trail Tours, Inc., 383
F . 2d 527 (5th Cir. 1967) ...........................  21

Moore v. Townsend, 525 F.2d 482 (7th Cir. 1975).....  34, 42
Nesbith v. Alford, 318 F.2d 110 (5th Cir. 1963).....  22,

Newbem v. Lake Lorelei, Inc., 308 F. Supp. 407
(S.D. Ohio 1963) ................................  23, 24,43

Parham v. Southwestern Bell Telephone Co., 433 
F.2d 28 (8th Cir. 1970); cf. Jenkins v. United 
Gas Corp., 400 F.2d 28 (5th Cir. 1968).............  3 0

Rowe v. General Motors, 457 F.2d 348 (5th Cir.
1972)   31

Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir.
1974)   26

Sims v. Georgia, 389 U.S. 404 (1967) ................  27
Singleton v. Jackson Mun. Sep. School Dist.,

419 F.2d 1211 (5th Cir. 1970), cert. den. 396
U.S. 1032 (1971) .................................... 31

Smith v. Concordia Parrish School Bd., 445 F.2d
285 (5th Cir. 1971)   31

Smith v. Sol Adler Realty Co., 436 F.2d 344 (7th
Cir. 1971) ..........................................  29,31

Spurlin v. General Motors Corp., 528 F.2d 612
(5th Cir. 1976) ..................................... 21, 22

State of Alabama v. United States, 371 U.S. 583
(5th Cir. 1962), aff*d 371 U.S. 37 (1962)............  22

Sullivan v. Little Hunting Park, Inc., 396 U.S.
229 (1969) ..........................................  37

Turner v. Fouche, 396 U.S. 346 (1970) ..................  27

Page

x n



Table of Cases (Continued)

Page
United States Broadcasting Co. v. Armes, 506 F.2d 766

(5th Cir. 1975) ...................................... 22

. United States v. Berg Enterprises, Prentice-Hall 
Equal Opportunity in Housing Reporter, f 13,773 
(S.D. Fla. 1976)...................................... 35

United States v. Bob Lawrence Realty, 474 F.2d
115 (5th Cir. 1973) .................................  37

United States v. Bucon Construction Co., 430 F.2d 
420 (5th Cir. 1970); accord, Massey v. Gulf 
Oil Corp., 508 F.2d 92 (5th Cir. 1975) .............  22

United States v. Hinds County Board of Education,
. 417 F. 2d 852 (5th Cir. 1969) ........................ 23

■ United States v. L & H Land Corp., Inc., 407
F. Supp. 576 (S.D. Fla. 1976) ....................... 35

United States v. Mintzes, 304 F. Supp. 1305
(D. Md. 1969) ........................................ 26

j

. United States v. Mitchell, 335 F. Supp. 1004
(N.D. Ga. 1971) .................................... 35,37

United States v. Northside Realty Associates,
Inc., 518 F . 2d 844 (5th Cir. 1975) ......... 22,34,3 5,37

-United States v. Pelzer Realty Co., 494 F.2d 438 
(5th Cir. 1973), cert, den., 416 U.S. 936

j ' (1974) ........................................ 27,42
—  United States v. Real Estate Development Corp.,

347 F. Supp0 776 (N.D. Miss. 1972)......  Passim':

— 1 United States v. Reddoch, 467 F.2d 897 (5th
Cir. 1972) .................................  Passim

United States v. West Peachtree- Tenth Corp.,
437 F . 2d 221 (5th Cir. 1971) ...................  2 7, 33

United States v. Youritan Construction Co., 370 
F. Supp. at 642 (N.D. Cal. 1973) , aff1d, 509 
F.2d 623 (9th Cir. 1975) ................  Passim

iv



Table of Cases (Continued)

Urti v. Transport Commercial Corp., 479 F.2d
766 (5th Cir. 1973) .............................  21

Williams v. Matthews, 499 F.2d 819 (8th Cir.
1974) ...........................  22,23,27, 32

Williamson v. Hampton Management Co., 339
F. Supp. 1146 (N.D. 111. 1972) .................  25, 26,35

Wright v. Kaine Realty, 352 F. Supp. 222
(N.D. 111. 1972) ................................  38

Zuch v. Hussey, 394 F. Supp. 1028 (E.D. Mich.
1975) , aff'd 547 F.2d 1168 (6th Cir. 1977)..... 25

Page

v



Statutes
Page

Thirteenth Amendment to the Constitution of the
United States .................................... 2

42 U.S.C. §3613 ..................................... 36

42 U.S.C. §3601, e_t seq.. Fair Housing Act
of 1968 ..........................................  2, 39

42 U.S.C. § 1982 ...................................  2, 38,

42 U.S.C. § 1983 .................................... 38
28 U.S.C. § 1343(3) and (4) ........................ 2

Federal Rules of Civil Procedure (Rule 23(b) (2) ... 3

6A Moore's Federal Practice 5 59.08 [5] at
pp. 59-152 ....................................... 21



IN HIE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
NO. 77-1012

RAY C. DUCKWORTH,
Plaintiff-Appellant,

-v. -

WILLIAM B. MOORE, et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Southern District of Alabama

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned counsel for Plaintiff-Appellant Ray C. 
Duckworth certifies, in conformance with Local Rule 13(a), that 

the following listed parties have an interest in the outcome of 

this case. These representations are made in order that Judges 

of this Court may evaluate possible disqualifications or recusal:
1. Ray C. Duckworth, plaintiff.

2. William B. Moore, Harry Welch, William B. Moore, Jr.,

Attorney for Plaintiff-Appellant

defendants.



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 77-1012

RAY C. DUCKWORTH,

Plaintiff-Appellant,
-v. -

WILLIAM B. MOORE, et al.,

Defendant-Appellees.

Appeal From The United States District Court 
For The Southern District of Alabama

CERTIFICATE REQUIRED BY LOCAL RULE 13(j) (2)

Plaintiff-Appellant believes that oral argument would be 
helpful to a resolution of the issues in this case, as they 
entail consideration of the entire evidence presented. Accord­

ingly, plaintiff-appellant urges this Court to permit him an 
opportunity to answer at oral argument questions which may be 

raised by the briefs on appeal.



Statement of the Issues Presented

1. Whether the defendants, as a matter of law, 
unlawfully discriminated in refusing to rent an apartment to 

plaintiff, or whether the "clear weight of the evidence" 
permitted only that conclusion and consequently, whether

the district court erred in denying the motions for a directed 
verdict, for judgment notwithstanding the verdict, or, in the 
alternative, for a new trial.

2. Whether in light of uncontroverted policies and 
practices of racial discrimination the district court erred

in denying injunctive relief to plaintiff and the plaintiff class.

3. Whether the district court erred in holding that as a 
matter of law, the owners and principals, defendants Moore, Jr., 
and Welch were not liable for the unlawful discrimination of 

their agent, Moore, Sr., and whether the dismissal of these 

defendants so prejudiced and tainted the jury's verdict as to 
mandate reversal of the case.

4. Whether the jury instructions on the elements of 

proof in a fair housing case charging racial discrimination 
misstated the law and failed to provide guidance and standards 
necessary to reach a lawful verdict.



IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 

NO. 77-1012

RAY C. DUCKWORTH,

Plaintiff-Appellant,
-v.-

WILLIAM B. MOORE, et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Southern District of Alabama

APPELLANT'S BRIEF

Statement of the Case

The appellant in this case, a black man employed by the 

United States Department of the Air Force, charges defendants 

with racial discrimination in the rental of units in two apart­
ment complexes in Selma, Dallas County, Alabama. Jurisdiction 

in the Court below was predicated on 28 U.S.C. § 1343(3) and (4);

plaintiff alleged violations 'of his right under 42 U.S.C. § 1982
1/and the Thirteenth Amendment to secure a dwelling without discrim­

ination on the basis of race or color (A. 4, 267 ). This appeal
challenges the district court's refusal to grant a directed
1/ The complaint also alleged violations of the 1968 Fair Housing 
Act, 42 U.S.C. § 3601 et seq.; the district court dismissed this 
cause of action for failure to file within 180 days.

- 2 -



verdict for plaintiffs in light of the undisputed proof of 

racial discrimination. Plaintiffs also appeal the district 

court's exculpation of the owners and principals of the apart­
ment complexes from any liability for the racially motivated 
conduct of their agent, the denial of any class and individual 

injunctive relief, and the giving of improper jury instructions.

The action began on January 12, 1976 when the complaint was 

filed in the United States District Court for the Southern District 
of Alabama. Plaintiff Ray C. Duckworth alleged that he visited 

Les Chateaux Apartments on two occasions in July, 1975; that the 

manager of the complexes, defendant william B. Moore, Sr., stated 

that there were no vacancies; but that a Caucasion couple had been 
offered and had declined to take an apartment during the period 

between plaintiff's two visits to Les Chateaux. In essence, plain­

tiff alleged that defendants discriminatorily refused to rent him 
an apartment because of his race. The complaint further alleged 

that an investigation by the Department of the Air Force conclud­
ed that defendants had unlawfully discriminated against plaintiff 

Duckworth and, because of that discrimination, imposed a one hund­
red and eighty (180) day sanction prohibiting Department of 

Defense personnel from leasing or renting from defendants at Les 
Chateaux and River Oaks Apartments (A. 6-8).

Plaintiff brought the action pursuant to Rule 23(b)2 of the 

Federal Rules of Civil Procedure on behalf of all blacks who are 

or may be in the future barred from renting apartments at Les
-3-



Chateaux and River Oaks by defendants' racially discriminatory 
practices. Injunctive and declaratory relief was sought for 

the class; plaintiff sought, in addition, compensatory and pun­

itive damages and attorneys' fees.
2/

On January 27, 1976 defendants William B. Moore, Harry 
Welch and William B. Moore, Jr., answered, and admitted that the 

Les Chateaux and River Oaks apartment complexes are owned by 

William B. Moore, Jr., and Harry W. Welch;and that William B.

Moore, Sr., is employed to manage both apartment complexes. By 

their answer, defendants denied that they engaged in unlawful 

discrimination and denied "each and every material allegation" 

concerning plaintiff Duckworth's attempts to rent apartments (A. 
12-13) .

On April 21, 1976, after having heard oral argument, the Court 
certified the action as a class action for purposes of injunctive 
relief (A. 15) .

The case was tried before a jury on November 1 and November 

3, 1976. At the close of the testimony, both the plaintiff and 
defendants moved for directed verdicts (A. 331, 335). The

2/ On January 22, 1976 the defendants' motion to dismiss was 
denied for failure to file a brief as required by local court 
rules (A. 11) .

-4-



district court found that the fact that the population of Dallas 

County is approximately fifty per cent (50%) black, that the 
apartments have not a single black tenant,and that plaintiff 

Duckworth applied for apartments but failed to obtain one made 

out a "prima facie case under the law that would require that the 

defendants come forward with sufficient proof to demonstrate 

that it was guilty of no discrimination" (A. 335-336). On the 

basis of these facts the district court denied the motion for a 

directed verdict as to the manager of the complexes, William B. 
Moore, Sr. While the district judge also stated, "By the pre­

trial documents [defendants] Mr. Moore, Jr., and Mr. Welch assume 

the responsibility of liability for the actions of their agent,

Mr. Moore, Sr.," the judge nevertheless granted a directed verdict 

and dismissed the action as to the owners and principals of the 
apartments for the following reasons:

(1) The principals and owners can only assume 

liability for actions taken by Moore, Sr., within 
the scope of his employment as agent of defendants 
(A. 336) .

(2) There was no "willful participation" by the 

principals in the discriminatory conduct (A. 336).

(3) Moore, Jr., and Welch learned of the discrim­

inatory behavior when they received word from Craig Air



Force Base and there was no evidence that "they ratified 

his actions" (A. 336-337).
(4) Moore, Jr., testified that he instructed his 

agent about the Fair Housing Laws (A. 337).
The case against the sole remaining defendant, the eighty 

year old agent of the apartments, went to the jury which found 
for the defendant (A. 361) .

On November 11, 1976 the district judge denied equitable 

relief for the plaintiff and the plaintiff class (A. 34).

Plaintiff Duckworth moved on November 9, 1976 for judgment 

in accordance with his motion for a directed verdict or, alterna­

tive, for a new trial (A. 35-36). By order dated November 19,

1976 the district court denied the motion (A. 37-41). In so 
ruling, the district court agreed with plaintiffs' statement 

of the law that:

"the discriminatory conduct of an apartment 
manager, rental agent, or other individual 
acting in a representative capacity is at­
tributable to the owner, manager, or other 
principal, both under the doctrine of re­
spondent superior and because the duty to 
obey the law is non-delegable" (A. 37-38) .

Despite its acknowledgement that the duty to obey Fair Housing Laws 
is non-delegable, the court nevertheless adhered to its original rul­
ing on the grounds that "the scope of the agency included compliance 

with requirements of the Fair Housing Act. Any act which was

-6-



allegedly racially motivated was outside the scope of the 

agency involved in this case" (A. 40-41).
On December 6 , 1976 plaintiff Duckworth timely filed 

his notices of appeal from the denial of his motions for a 
judgment in accordance with the motion for a directed verdict 

or for a new trial, and from the denial of equitable relief to 

plaintiff and the plaintiff class (A. 42-43).

-7-



Statement of Facts

A. The Undisputed Facts

Defendant William Moore, Jr., and Harry Welch, who are 

white, own two apartment complexes in Selma, Dallas County, 

Alabama (A. 104, 273). Les Chateaux was opened in 1969 and 

contains 48 units; River Oaks, which opened in 1966, contains 

30 units (A. 48). Since the complexes were opened, not a single 
one of defendants' 78 units has ever been rented to blacks, 

despite the fact that the population of Dallas County is 52% 
black (A. 45, 335-336).

Defendant William Moore, Sr., who is white, is the agent 
of defendants William Moore, Jr. and Harry welch, and was hired 

to manage both Les Chateaux and River Oaks. He has been manager 
of each complex since they opened and, as such, has been delegated 
authority over the day-to-day supervision of the apartments, 

including maintaining them in good order and renting them 
(A. 50-51, 54, 253, 274). Although defendants Moore, Jr. and 

Welch have not given him specific written or oral instructions 
on how to perform his duties (A. 52-53, 282, 284), Moore, Sr., 

meets with Welch to discuss policies concerning the apartments 

whenever it is necessary and talks to Moore, Jr., frequently 
(A. 116, 283, 324).

8



Defendants' methods and criteria for accepting tenants are
’ 2/

informal and, except for rules not relevant here, totally sub­

jective. Vacancies at either complex are never advertised; one 

can only learn about the availability of apartments by asking 

Moore, Sr. (A. 55). Prospective tenants need not fill out any 
applications. Although credit checks are not made regularly or 

according to any objective criteria, references are verified 

"sometimes," if an applicant "looks doubtful" (A. 61).

There are two procedures, however, that defendants regularly 

follow. First, defendants insist that prospective tenants have a 

face-to-face interview. The defendant Moore, Sr., will only ac­
cept those applicants who "look decent" (A. 57-58, 60). Second, 

defendants "very seldom" reserve an apartment for any person who 

will not rent immediately. As Moore, Sr., testified "[i]f we 

do it, it is just for two or three days," and normally seven 
days is "too long" (A. 62-63). Defendants have never waived the 

requirement of a face-to-face interview. During the almost ten 
years that they have owned and operated apartment complexes, the 
only time,defendants testified, that they deviated from their 

rule of holding apartments for not more than a week was during the

2/ Pets are forbidden at both complexes and children are not 
allowed at River Oaks (A. 60).

- 9 -



There were at least three vacancies at Les Chateaux 

during July, 1975, when plaintiff Duckworth twice sought and 

was refused an apartment: according to defendants' testimony
and business records, apartment 8 was vacant from June 15 to 

August 15; apartment 34 was vacant during July and August; and 

apartment 41 was vacant from June 15 through August 15 (A. 111-113).

Plaintiff Ray Duckworth is a single black man who holds 

a bachelor's degree. For two and a half years prior to moving 

to Selma, he was employed by the Department of Defense, Air 

Training Command, at Chanoot Air Force Base, Champagne, Illinois.
In July, 1975, he was transferred to Craig Air Force Base in 

Selma to assume the position of Personnel Management Specialist, 
the same position he held at Chanoot Air Force Base. Pursuant 

to his reassignment orders, Duckworth arrived in Selma on 
Sunday, July 6 , 1975 and rented a room at a motel (A. 156-158).

In order to ease plaintiff Duckworth's transfer to a new 

city, Craig Air Force Base assigned him a sponsor, Randy Houston, 
who was a Personnel Management Specialist. Houston's responsi­

bility was to help the plaintiff get settled and to assist him in 

finding housing (A. 136). On July 7, 1975, the first full day 
that Duckworth was in Selma, Houston drove Duckworth around 
various apartment complexes in Selma to see which he liked. Late

period that plaintiff Duckworth applied for and was refused
an apartment at Les Chateaux (A. 60, 87).

10



in the evening they arrived at Les Chateaux and Houston, who 
is white, got out of the automobile, approached Moore Sr., and 

inquired whether he had any apartments (A. 140-141). An 

appointment was made with Moore, Sr., to look at an apartment 

the next day, since it was late and Duckworth was exhausted 

(A. 141, 166). Houston advised the plaintiff he had made the 

appointment and that he should go view the apartments. He did 

not accompany Duckworth the following day as he considered his 
duty as sponsor fulfilled when he located the apartment (A. 142).

Immediately after work the next day, July 8 , 1975, Duckworth 
met Moore, Sr., who told him there were vacant apartments but 

none was available to rent. Duckworth did not question the truth 

of what Moore, Sr., told him and continued his search for housing 

(A. 173).
After Duckworth had unsuccessfully searched for housing on 

his own for approximately one week, he contacted the Housing 
Referral Office at Craig Air Force Base in order to seek help 

in obtaining an apartment, and spoke to Mrs. Shirley Crear, a 

Housing Referral Officer (A. 160, 207).

The Housing Referral Office of Craig Air Force Base has the 

responsibility to find housing for military and civilian personnel 

(A. 119, 199-200). To fulfill that responsibility, officers, 
including two women, Mrs. Crear and Mrs. Gamble, provide 
information to new personnel concerning the community and housing,

11



confirm vacancies at particular apartment complexes, and attempt 
to make appointments for unsettled personnel, like plaintiff 
Duckworth (A. 119, 199-200). In the course of her duties, Mrs. 

Gamble makes telephone calls to owners and managers of apartment 

buildings in order to compile a current listing of vacant 

apartments in Selma (A. 119). Records are regularly maintained 
of such vacancies and kept up-to-date by all persons working 

in the office (A. 125, 205-206). The vacancies or listings are 
recorded in a flipex card file and are removed when they are no 
longer available (A. 205).

When Duckworth asked on July 14, 1975 for further aid in 

finding an apartment, Mrs. Crear reviewed the office's records 

(A. 207). Those records indicated that as of July 11, 1975
3/

there were two vacancies at Les Chateaux (A. 206). Plaintiff 

Duckworth told her that he had been to Les Chateaux several days 

before and Moore, Sr. had told him there were no vacancies (A. 207)
Mrs. Crear assumed that the apartments at Les Chateaux 

had become vacant after Duckworth's first attempt to secure 

housing in that complex and she proceeded to call the defendant, 

Moore, Sr., to verify the vacancies and to make an appointment

3/ It is undisputed that the records which were maintained by 
the Housing Referral Office reflected the fact that as of July 11, 
1975 there were two vacancies at Les Chateaux. Mrs. Gamble 
testified that in the course of her responsibilities she telephoned 
Moore, Sr., on July 11 to ask about available apartments; that Moore 
Sr., had told her that he had tvo vacancies in the complex and that 
she consequently wrote that information in the files (A. 123-125) 
Moore, Sr. denied having this conversation (A. 82).

12



her inability to recall the conversation accurately, Mrs. Crear

read directly from her business records which she made at the

time she had the conversation with the defendant:
"8:45 on the 14th of July I called Mr. Moore 
to see if he still had the two vacancies that 
the Housing Referral Office had listed. He 
was rather vague at first, stating that he had 
several people looking at them. I stated that 
I had an individual very much interested in 
looking at one if he had one available. Mr.
Moore mentioned he would have it ready in a day 
or two. He then asked if the individual had 
pets. I stated, 'no.' He wanted to know if 
the individual had children or a wife. I stated,
'no.' Mr. Moore then said if the individual wanted 
to come down he would be glad to show the apartment 
to him. An appointment was made for the following 
afternoon at fifteen hundred. Mr. Moore said to 
meet him at Apartment 8 , Les Chateaux. And this 
was the apartment he was working on. I then told 
Mr. Moore that Mr. Duckworth was the name of the 
individual he would be expecting. Mr. Moore made 
the comment, 'Mr. Duckworth? Hey, well tell Mr. 
Duckworth I will take care of him. There are a 
lot of pretty girls for him out here.' I confirmed 
the time and place of the meeting again and told 
Mr. Moore that Mr. Duckworth would be there" (A. 209- 
210) .

Mrs. Crear testified that she told the defendant the plaintiff's 

name but did not reveal his race as she was prohibited from doing 
so by Federal regulations (A. 210).

Plaintiff Duckworth kept the appointment which Mrs. Crear 
had made for him, but when he arrived at Apartment 8 at Les

4/
Chateaux, Moore, Sr., told him it was not for rent (A. 89, 175).

for Duckworth to visit the apartments (A. 208). Because of

4/ It is undisputed that defendant Moore, Sr. spoke to Mrs. 
Crear, that he made the appointment, that he showed Apartment 8 
to Duckworth, and that he told him it was not for rent (A. 89-90).

13



Plaintiff Duckworth returned to the Housing Referral Office 
on July 16, 1975 and told Mrs. Crear he had again been denied 

an apartment by defendant Moore, Sr. who insisted it was rented 
(A. 215) .

While there were no vacancies at Les Chateaux for plaintiff 
Duckworth, defendants had vacant and available apartments to rent 
to white persons who inquired during the same period. in 
addition to the fact that the Air Force Records of July 11 and 

July 14 memorialized the statements by Moore, Sr., that there were 

vacancies at Les Chateaux, the Air Force Base's records further 
reflected that on July 12, four days after plaintiff's first 

visit when he was told nothing was available and two days before 
his second visit, Moore, Sr., showed and offered an apartment at 

the complex to a white man from Craig Air Force Base, Lieutenant 
Wells, who decided not to rent it (A. 213-215).

Defendants' purported explanation as to why they refused to 
rent plaintiff Duckworth any of the three apartments, numbers 8,
34 and 41, vacant during the month of July when plaintiff Duckworth 

sought housing, was that they were being "held" for other people 
(A. 64, 79). Moore, Sr., testified, however, that he did not 

collect deposits to hold the apartments in any of the three 

instances (A. 72, 79). Moore, Sr. stated that he did not secure 

or ever receive telephone numbers or addresses of any of these 

other people (A. 75, 79). He even admitted that he had never met 
and did not know the name of one of the people to whom he had "promised1

14



an apartment (A. 79). Not surprisingly, none of these people 

contacted the defendants to obtain the apartments they had been 

"promised," and none of them ultimately rented one (A. 80, 83, 296).

Moore, Sr., testified that he had held one of the apartments, 
number 34, for Susan Ward Black (A. 72). Ms. Black requested 

the defendant in the latter part of June, 1975 to hold an apart-
5/

ment (A. 293). As noted above, however, she left no deposit 

and no address, and never contacted the defendant to tell him she 

did not want the apartment (A. 296). Moore, Sr., testified that he 
had volunteered to hold Apartment 41 for his niece, Becky Cooper 

(A. 77). Ms. Cooper had earlier occupied Apartment 41, but had 
vacated it and left Selma by the end of June, 1975 (A. 308).

Although Moore, Sr„ knew she was "quite uncertain" about returning, 
he testified that he held it for her until August 1, 1975 when 

he finally contacted her (A. 77). Ms. Cooper resumed residence in 
Selma, but did not return to an apartment at Les Chateaux (A. 308- 
309) .

Apartment number 8 at Les Chateaux was also vacant when 

plaintiff Duckworth was refused housing. Moore, Sr., claimed that 
defendant Welch asked him to hold the apartment for a "friend," 

and that he held it vacant for a month and a half even though he had 

no idea as to the identity of the "friend" (A. 79). Although Welch 
testified at trial, he did not corroborate Moore's testimony, 
identify the mysterious person, or in any way support the contention 
that he was responsible for keeping the apartment vacant.

5/ Moore, Sr., stated that he volunteered to hold it (A. 73).

15



Two of the three apartments, numbers 8 and 41, had been 
vacant three weeks at the time plaintiff Duckworth first inquired 

about housing at Les Chateaux and were vacant a full month at 

the time of his second visit on July 14 (A. Ill, 112). The third 

unit, apartment 34 had been vacant since the beginning of July 

(A. 109). when Duckworth asked for an apartment on July 8 and 14, 

1975, however, Moore testified he did not offer to call any of the 
people for whom he was allegedly reserving the vacant apartments 
to see if they still wanted them because Duckworth wanted the 

apartment immediately and "there wasn't time enough to aggravate 

those girls then" (A. 84, 85). Nevertheless, when a white 

sergeant from Craig Air Force Base inquired at Les Chateaux about 

an apartment and said he needed an apartment "at once," Moore, Sr., 
did offer to check with his niece to see if she was going to rent 
a vacant apartment (A. 213-214).

Defendant Moore, Sr., could not recall, during the entire ten 

years that he managed the complexes at issue, that he had ever held 

apartments before for as long as he did during July, 1975 (A. 87). 

When asked to explain why this sharp deviation from practice 
occurred during the very same period that plaintiff Duckworth, a 

black man, was seeking housing, the defendant's sole justification 
was that "it is purely coincidental" (A. 87). it was also "purely 
coincidental" that none of the three people rented the apartments 
that were refused to Duckworth (A. 87).

16



Neither the Department of Defense nor plaintiff agreed that 

the refusal of the defendants to rent Duckworth an apartment was 

pure coincidence. On July 16, 1975, Duckworth returned to the 

Housing Referral Office to inform Mrs. Crear that he had again 

been denied an apartment, and filed a complaint. Pursuant to 
Regulation, the Air Force Base conducted an investigation, 

during which time Mrs. Crear, as an officer of the Housing Referral 
Office, attempted to resolve the issue by speaking directly with 
Moore, Sr. (A. 215). As part of the investigation, a white 
sergeant volunteered to test the availability of apartments at 

Les Chateaux in order to see if defendants were in fact reserving 

apartments that they could not release or whether they were only 

holding the apartments so that a black man could not have one.

As stated above, when this white sergeant inquired about an 

apartment on July 17, 1975, Moore, Sr., readily volunteered to 

attempt to make an apartment available (A. 242). The Department 
of Defense found that defendants had refused to rent to Ray 

Duckworth for racially discriminatory reasons and the Base Commander 

of Craig Air Force Base imposed a restrictive sanction against 

defendants for one hundred and eighty (180) days during which time 
the Housing Referral Office and Air Force personnel were prohibited 
from dealing with defendants (A. 230). At the request of the 

United States Department of Housing and Urban Development, the 
Base Commander extended the sanction for an additional ninety (90) 
days (A. 236-237).

Plaintiff Duckworth eventually rented an apartment at another 
complex, Candlewood, on approximately July 18 or 19, 1975

17



(A. 178) . As a result of defendants' refusal to rent him

any one of the at least three vacant apartments on July 8 and 14, 1975, 
plaintiff Duckworth was forced to live in a motel for an addi­

tional ten days. In addition, as a young stranger to Selma,

Duckworth suffered embarrassment and humilation by being the 

subject of discrimination and by knowing that his co-workers at 
the Air Force Base knew he had been victimized (A. 192).

B . Other Evidence Adduced At Trial

According to the undisputed facts and defendants' own testi­
mony, plaintiff Duckworth was refused an apartment when three were 

vacant and unleased for substantial periods of time on the basis 

of a policy that for an entire decade was instituted only once, 

during the time that Duckworth applied for housing in an all-white 

apartment complex. This unique institution of a policy which 

prevented a black from obtaining housing in itself unlawfully dis­
criminated against plaintiff Duckworth. The overwhelming weight 

of evidence at trial demonstrated further that those apartments, 

while always vacant, immediately became unavailable only when 
plaintiff Duckworth appeared at Les Chateaux.

As noted earlier, Randy Houston, Duckworth's sponsor at Craig 

Air Force Base, initiated the first contact with Moore, Sr. on 

the plaintiff's behalf. Houston testified that when he asked the

18



defendant' on July 7, 1975 if there were any available apartments, 
Moore, Sr., said, "Yes, he had a couple of apartments for rent"

(A. 141). Duckworth was told there were no apartments the

next day. Moore said that he told Houston that "he had two 

vacant furnished apartments, 34 and 31 [sic] [but] neither one 
was available" (A. 64) .

An officer at the Air Force Housing Referral Office, Mrs.
Gamble, testified that Moore also told her on July 11, 1975 he

had two vacancies at Les Chateaux (A. 124) . On cross-examination,
counsel for defendants made the incredible semantic argument that

§/Moore meant he had two vacancies but none were available (A. 125).
Mrs. Crear, another Housing Referral Officer, was also told 

there were available apartments. When Mrs. Crear telephoned 

Moore, Sr., on July 14, she testified that the defendant said "he 

was in the process of cleaning one up and would have it ready in 
a day or two,"and that it was available for rent (A. 209-210).

When plaintiff Duckworth visited the complex the same day, defend­
ant told him there was nothing available (A. 175). Moore,

Sr., admitted saying he had vacant apartments, but again denied 

saying they were available (A. 81). Three white disinterested

6/ Moore denied talking to Mrs. Gamble at all, but, of course, 
could not explain why the Air Force records of July 11 reflected 
the fact that the conversation had occurred (A. 82).

19



witnesses stated that Moore offered apartments as available for 

rent shortly before and after Duckworth's first visit to Les 

Chateaux, and, indeed, on the same day the plaintiff made his 

second inquiry at the apartment complex. The only witness at 

trial who testified of being told by defendant Moore, Sr., that 

there were no available apartments was plaintiff Duckworth.

20



ARGUMENT

I.
DEFENDANTS' DEFENSE TO PLAINTIFF'S 
PRIMA FACIE CASE OF RACIAL DISCRIMINATION 
WAS INADEQUATE, AS A MATTER OF LAW, AND 
THE DISTRICT COURT ERRED IN NOT GRANTING 
PLAINTIFF'S MOTIONS FOR A DIRECTED VER­
DICT AND JUDGMENT NOTWITHSTANDING THE 
VERDICT. IN THE ALTERNATIVE, THE VERDICT 
WAS CLEARLY AGAINST THE WEIGHT OF THE 
EVIDENCE AND, AT THE VERY LEAST,' THE DISTRICT 
COURT ERRED IN NOT GRANTING PLAINTIFF’S 
MOTION FOR A NEW TRIAL.

The standard applied to both a motion for a directed
verdict and a motion for judgment notwithstanding the
verdict is the same. In each instance, a court is required

'to decide, whether, as a matter of law, the 
evidence, when considered in the light most 
favorable to the non-moving party, is legally 
sufficient to submit the case to the jury, or 
whether it is legally sufficient to support 
the jury's verdict.' Urti v. Transport Com­
mercial Corporation, 479 F.2d 766 (5th cir.
1973).

Spurlin v. General Motors Corp., 528 F.2d 612, 616 (5th Cir 
1976); Glazer v, Glazer. 374 F.2d 390, 400; 6A Moore's 
Federal Practice 559.08 [5] at pp. 59-152 (1972). These 
motions are analogous to a motion for summary judgment; if 
persons might differ as to the reasonable legitimate con­
clusions of fact to be drawn from the evidence the motions 
must be denied. Urti v. Transport Commercial corp., 
supra; McPherson v. Tamiami Trail Tours, Inc., 383 F.2d 527

21



528 (5th Cir. 1967); see Nesbith v. Alford, 318 F.2d 110,
123 (5th Cir. 1963); Bullock v. Tamiami Trial Tours, Inc..
266 F.2d 326, 330 (5th Cir. 1959). In ruling on a motion 
for a new trial, however, the issue is whether "the verdict 
is against the clear weight of the evidence . . .  or will 
result in a miscarriage of justice." united States v. Bucon 
Construction Co.. 430 F.2d 420, 423 (5th Cir. 1970); accord, 
Massey v. Gulf Oil Corp.. 508 F.2d 92, 94 (5th Cir. 1975); 
United Broadcasting Co. v. Armes, 506 F.2d 766 (5th Cir. 1975). 
A district court's grant or denial of such a motion is within 
its discretion, and is reviewable only for an abuse of that 
discretion. Spurling v. General Motors corp., supra. A 
review of the evidence reveals an unrebutted case of racial 
discrimination requiring a judgment for plaintiff as a 
matter of law. At the very least, the judgment was against 
the "clear weight of the evidence" and, if not vacated by 
this Court, will result in a great "miscarriage of justice."

In cases involving racial discrimination in housing, 
courts have heeded the well-recognized principle that "sta­
tistics often tell much and courts listen." State of Alabama 
v. United States. 304 F.2d 583 (5th Cir. 1962), aff'd, 371 
U.S. 37 (1962). See United States v. Youritan Construction 
Company. 370 F. Supp. 643 (N.D. Cal. 1973), aff'd. 509 F.2d 
623 (9th Cir. 1975); United States v. Northside Realty 
Associates, Inc., 518 F.2d 884, 888 (5th Cir. 1975); Williams 
v. Matthews, 499 F.2d 819, 827 (8th Cir. 1974); United States

22



v. Reddoch, 467 F.2d 897 (5th Cir. 1972); United States
v. Real Estate Development corp.. 347 F. Supp. 776, 782 
(N.D. Miss. 1972); Newbern v. Lake Lorelei, Inc., 308 F.
Supp. 407, 411 (S.D. Ohio 1963).

Defendants here operated two apartment complexes which 
together contained 78 units. The apartments were located in 
a county with a population 52% black, yet not a single 
unit in either complex had ever housed a black tenant (A. 45, 
91). Racial underrepresentation in housing is always telling, 
but "[njothing is as emphatic as zero." United States v.
Hinds County Board of Education, 417 F.2d 852, 858 (5th Cir.
1969). In United States v. Reddoch, supra, this court 
emphasized that there had "never been any black tenants in 
the complex during the three years of its operations." in 
this case, River Oaks and Les chateaux had been operating 
seven and ten years, respectively (A. 48).

As the district court recognized, such statistics, 
coupled with the rejection of a black applicant for a vacant 
dwelling, have been held to constitute a prima facie case of 
discrimination, casting the burden upon defendants to come 
forward with evidence to the contrary. United States v . 
Youritan Construction Co., supra, 370 F. Supp. at 649;
Williams v. Matthews, supra, 499 F.2d at 827; United States 
v. Reddoch, supra; United States v. Real Estate Development

23



Corp., supra? Newbern v. Lake Lorelei, Inc., supra.
Not only did defendants fail to come forward with 

sufficient evidence to explain their refusal to rent 
plaintiff Duckworth any one of three vacant apartments at 
Les Chateaux? they presented not a single legitimate 
justification for their actions.

It was undisputed that Les chateaux had three vacant 
apartments at the time Duckworth first sought housing there on 
July 8, 1975, and when he returned on July 14, 1975
(A. 48). Moore, Sr.'s sole explanation for the refusal to 
rent these apartments was that they had been promised to 
three separate groups of persons (A. 64, 79). Assuming , 
for the purposes of the subject motions, that those promises 
were in fact made, the consistent practice employed by Moore,
Sr., during the ten years he had managed Les Chateaux and 
River Oaks, was to seldom make such promises, and if made 
at all, to honor them for 3-4 days or a week at the most 
(A. 62-63). When Duckworth first applied, two of the vacant 
apartments, numbers 8 and 41, had been vacant three weeks? 
number 34 had been vacant 8 days. By plaintiff's second 
attempt to secure housing, numbers 8 and 41 had been unoccupied 
for an entire month (A. 70, 111, 112).

Defendants’ unprecedented departure from a ten-year policy to 
prevent Duckworth from obtaining housing cannot as a matter 
of law be justified by Moore, Sr.'s protestations of mere

24



"coincidence" (A. 87). Moore, Sr.'s alleged desire to 

keep his word to hold an apartment yielded to the business necessity 
of renting vacant apartments after a week in all instances 

except when faced with a black applicant. The promise 
dissipated when two white persons made applications vir­

tually simultaneously with Duckworth. On July 8, 1975,
Moore, Sr., told Duckworth there were no vacancies (A. 173).
However, when a white Lieutenant applied on July 12, 1975,

Moore, Sr., offered him and his wife an apartment (A. 213- 

215). The Lieutenant declined to take the apartment on 
July 14, but when Duckworth returned that same day to Les 

Chateaux, Moore, Sr., again insisted there were no apart­
ments available for him (A. 89, 175). Moore, Sr., alleged 

desire to keep his promises also evaporated when a white 

sergeant, who volunteered to test the complex, inquired 

about an apartment at Les Chateaux on July 16, just two days
Uafter Duckworth's second visit. Moore, Sr., volunteered

2/ It is established law in housing discrimination cases 
that the experience of testers is competent evidence to 
prove that a defendant has engaged in unlawful conduct. 
jE.c[., Zuch v. Hussey, 394 F. Supp. 1028, 1051 (E.D. Mich. 
1975), aff*d 547 F.2d 1168 (6th Cir. 1977); United States 
v. Youritan Construction Co., supra; Johnson v. Jerry Pals 
Real Estate, 485 F.2d 528 (7th Cir. 1973); Williamson v. 
Hampton Management Co., 339 F. Supp. 1146 (N.D. 111. 1972).

25



to try to make one of the "promised" apartments available 
as soon as possible although, of course, no such offer 

had been extended to Duckworth (A. 242) . As one court 

observed, "defendants' conduct was inconsistent with any 

intent to enforce the policy in a nondiscriminatory way 

or, indeed, to enforce the policy at all except against 

plaintiff." Williamson v. Hampton Management Co., supra,

339 F. Supp. at 1148.
Not only did defendants offer to whites the same 

apartments they refused to Duckworth, a black man, their 

excuse —  that they had "promised" the apartments —  was 

the type of sharp, indeed unique, departure from the usual 
course of business that courts have held to be violative 

of the fair housing laws, for the imposition of conditions 
on blacks which are not made on whites deprive persons 
like Duckworth of "the equal right" to housing guaranteed 

by law. Seaton v. Sky Realty Co.. 491 F.2d 634, 636 (7th 

Cir. 1976); United States v. Mintzes, 304 F. Supp. 1305 

(D. Md. 1969); Banks v. Perks, 341 F. Supp. 1175 (N.D.

Ohio 197 2) .
Moreover, the total lack of procedures to reserve 

vacant apartments was hardly, as this Court observed in an 

analogous context, "consistent with common sense or ordinary

26



business practices." United States v. Pelzer, supra, 494
F.2d at 446. Defendant's refusal to rent apartments they
were allegedly holding for persons who left no forwarding
address, telephone number or deposit is so informal as to

8/be inherently "fraught with racial overtones."-  Williams 
v. Matthews, supra, 499 F.2d at 828; see Griggs v. Duke 
Power Co., 401 U.S. 424 (1970). Indeed, Moore, Sr.
never even knew the name of the person who had "reserved" 
Apartment 8. At one point, the defendant explained his 
failure to request and obtain deposits for the three 
apartments by stating deposits were not required to hold 
apartments at the time Duckworth applied (A. 320-321), but 
he quickly changed his testimony to admit that deposits were 
necessary, and the documentary evidence confirmed this was 
the case. Defendant read from a deposit slip for Apartment 
48 that established it was leased July 15, 1975, but a 
deposit made by the same tenant was dated July 7, 1975 
(A. 327). Because the fair housing laws prohibit "sophis­
ticated as well as simple-minded" forms of discrimination,

8_/ Nor can defendant's affirmation of good faith or mere 
denial of discrimination serve to rebut the evidence of 
racial discrimination. Alexander v. Louisiana, 405 U.S.
625, 632 (1972); Turner v. Fouche, 396 U.S. 346, 361 (1970); 
Sims v. Georgia, 389 U.S. 404, 407 (1967); Williams v.
Matthews, supra, 499 F.2d at 827. As this Court has held, 
the assertion that a procedure "was not conceived out of 
racial discrimination is of no avail, since [it] was 
administered in a discriminatory manner." United States v.
West Peachtree Tenth Corp., 437 F.2d 221, 228 (5th Cir. 1971).

27



disparity of treatment, tactics of hindrance, isolated 
departures from policy, and special treatment "must receive 
short shrift from the courts." Williams v. Matthews, supra, 
499 F.2d at 826, see United States v. Youritan Construction 
Co., supra. Defendants' unique treatment concerning the 
vacant apartments Duckworth sought deserves no more than 
the "short shrift" accorded other forms of discrimination.

In sum, a careful view of the entire record establishes 
uncontradicted proof of discrimination on not one, but several 
grounds. The absolute absence of any black tenants at Les 
Chateaux, the unique and drastic departure from the usual 
policy of reserving apartments during the moment of 
plaintiff's two applications, the informal, subjective rental 
process and the disparate treatment accorded plaintiff 
Duckworth and white applicants during the same week decis­
ively and inescapably establish proof of racial discrimina-

9/tion.~ Mere verbal denials by defendants cannot alter the 
conclusion that they in fact unlawfully discriminated on 
the basis of race. Even in light of the applicable

_9/ Indeed, the Department of Defense after a thorough 
investigation concluded that defendants had racially 
discriminated against Duckworth and imposed a 180 day 
sanction oa the defendants (A. 230). The United States 
Department of Housing and Urban Development agreed with the 
conclusion that Duckworth had been discriminated against 
and requested that the 180 day sanction be extended an 
additional 90 days. The Department of Defense complied with 
that request (A. 236-237).

28



standards of review,
"When the facts —  clear and uncontradicted 
as they are here —  show without doubt 
whatsoever that there was not a single basis 
for [the outcome], neither those facts nor 
the inferences to be drawn from them are 
changed in any degree by [the] jury verdict 
. . . which ought never to have been dis­
missed . . .  as the law so positively required." 
Nesbith v. Alford, supra, 318 F.2d at 123.

To permit the jurv verdict to stand "would be to encourage
real estate agents to avoid selling [or renting] white
properties to blacks, despite the clear Congressional mandate 
to the contrary." Johnson v. Jerry Pals Real Estate, 485 
F.2d 528, 531 (7th Cir. 1973); see Smith v. Adler, 436 F.2d 
344 (7th Cir. 1971); Haythe v. Decker Realty Co., 468 F.2d 
336 (7th Cir. 1972); United States v. Real Estate Development 
Corp., supra, 347 F. Supp. at 781-783. Contract Buyers1 
Leauqe v. F & F Invest. Co., 300 F.Supp. 210 (N.D. 111. 1969),
aff'd, 420 F .2d 1191 (7th Cir.1970).



Argument 
II.

DEFENDANTS 1 LEASING PRACTICES 
CLEARLY ARE INTENDED AND HAVE 
THE EFFECT OF DISCRIMINATING 
AGAINST BLACKS GENERALLY AND 
THE DISTRICT COURT ERRED IN 
NOT AFFORDING THE PLAINTIFF 
CLASS PROSPECTIVE COMPREHEN­
SIVE INJUNCTIVE RELIEF.

Prior to trial, the district court ordered the case to 
proceed as a class action for the purposes of injunctive 
relief. (A.15) In light of the clear pattern of discrimina­
tory leasing practices resulting in the total exclusion of
blacks from defendants' complexes, the district court erred

10/
in denying prospective injunctive relief.

As noted above, in the ten years that Les Chateaux and 
in the seven years that River Oaks operated, not one of 
defendants 1 78 units had ever been leased to a black person, 
despite an area population that was 52% black. (A.45,91) 
Several of defendants1 practices contribute to this result.

First,defendants considered an applicant on the basis 
of whether he would be compatible with then current tenants. 
When all of the tenants are white "to consider the prospective 
acceptance of an applicant by current tenants as a significant 
factor in passing on his application tends to operate against

10/ The right of the plaintiff class to relief is not 
dependent upon the outcome of Duckworth's claim. Huff 
y* N.P. Cass Co, of Alabama. 485 F.2d 710 (5th Cir. 1973) 

kgjjjg )» Brown v. Gaston County Dyeing Machine Co.. 457 F.2d 1377, 1380, cited with approval in Franks v. Bowman.
---.U.S.--- , 47 L.Ed. 2d at 456, n.7 (1976); Parham v.
Southwestern Bell Telephone Co., 433 F.2d 421, 478 (8th Cir.
1970); Cf. Jenkins v. Union Gas Corp.. 400 F.2d 28 (5th Cir.1968).

30



a black applicant and to promote the continued all white
character of the complex." United States v. Reddoch, 
supra, Prentice-Hall Equal Opportunity in Housing Reporter, 
•113,569. (See A.217)

Secondly, defendants had virtually no objective standards 
for selecting tenants. In the absence of objective standards, 
subjective determinations albeit neutral on their face are 
indicative of racial discrimination. Smith v. Sol Adler 
Realty Co., 436 F.2d 344 (7th Cir. 1971); Williamson v.
Hampton Management Co., supra, 339 F.Supp at 1148. See,

ii_/
Rowe v. General Motors, 457 F.2d 348, 354 (5th Cir. 1972).
An applicant's only requirement was that he meet Moore, Sr., 
in a face-to-face interview so that the defendant could see 
if the applicant "looks decent" (A. 57-58, 60). The 
defendant approved applicants who would "fit in" with other 
tenants (A.217). Such a compatibility standard should be 
carefully scrutinized in apartment rental cases. United 
States v. Youritan Construction Co., supra, 370 F.Supp. at 
650. The subjective selection process in this case produced 
two apartment complexes which were consistently all-white for 
ten years (A.45, 91). Just as vague employment standards 
which result in whites, but not blacks, being hired are un­
lawfully discriminatory "so too are arbitrary apartment rental

11_/ The use of subjective criteria in race matters has been 
uniformly rejected or limited in other areas of civil rights. 
E.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972) 
(employment); Singleton v. Jackson Mun. Sep. School District,
419 F .2d 1211 (5th Cir. 1970), cert, den., 396 U.S. 1032 (1971) 
(hiring) and firing of teachers in systems undergoing desegrega­
tion process); Smith v. Concordia Parish Sch. Bd., 445 F.2d 
285 (5th Cir. 1971)(reduction of staff in school desegregation 
process).

31



procedures which produce otherwise unexplained racially 
discriminatory results." United States v. Youritan Construction 
Co., supra, 370 F.Supp. at 640-650; Williams v. Matthews, supra; 
370 F.Supp. at 640-650; Williams v. Matthews, supra; see, £.£. 
Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377, 1383 
(4th Cir. 1972), cert, den., 409 U.S. 982 (1972) (employment).

The testimony of Mrs. Crear, an officer at the Housing 
Referral Base at Craig Air Force Base shed light on the actual 
reason and effect of defendants' subjective procedures.
Duckworth had been twice refused an apartment at Les Chateaux 
and, in disgust, had filed a complaint of racial discrimination. 
Mrs. Crear then telephoned Moore, Sr., to determine if he in 
fact had vacancies. Mrs. Crear testified that during the 
conversation:

"Mr. Moore went on to say that he prefers 
couples and tries to pick tenants that 
would fit in . . . Mr. Moore then mentioned 
a Wop family that inquired about an apart­
ment and he felt they would not be suitable 
tenants. After inquiring as to what it 
meant and being told it meant a Puerto Rican 
. . .  Mr. Moore stated that it was the way 
that they were dressed and that they were 
not clean and he felt they would not keep 
a clean apartment" (A.217).

Moore, Sr., could not recall having had this conversation 
(A.87).

The statistical evidence and subjective application 
procedures, as well as Duckworth's experience, overwhelmingly 
testify to class-wide discrimination that can be remedied only 
through injunctive relief. On remand, the district court must

32



fashion such relief guided by the decree appended to 
U .S. v. West Peachtree Tenth Corp., 437 F.2d at 229.
(See, in particular, requirement that "written objective 
non-racial criteria" be developed, 437 F.2d at 230.)

33



Ill
DEFENDANTS MOORE, JR., AND WELCH, AS 
OWNERS AND PRINCIPALS OF LES CHATEAUX 
AND RIVER OAKS, ARE LEGALLY LIABLE FOR 
THE DISCRIMINATORY CONDUCT OF THEIR 

AGENT.
A. The District Court Erred in Granting A

Directed Verdict and Dismissing the 
Complaint Against The Apartment Complex 
Owners.__________________________________

Defendant William B. Moore, Jr., and Harry Welch are 
the principals and owners of both Les Chageaux and River 
Oaks apartment complexes (A. 104, 273). In the Pre-Trial 
Order, as well as during trial, defendants stipulated that 
William B. Moore, Sr., is the rental agent for Les Chateaux 
apartment complex and, at all times material, acted within 
the line and scope of his authority as such rental agent 
(A. 16, 253). For performing services as managing and 
rental agent of Les Chateaux and River Oaks, Moore, Sr., 
receives a salary (A.13).

It is plainly established under the Fair Housing Laws 
that principals are liable for the discriminatory actions of 
their agents under the doctrine of respondeat superior and 
because the legal duty to obey the law is non-delegable.
United States v. Youritan Construction Co., supra, 509 F.2d 
at 647; Moore v. Townsend, 525 F.2d 482 (7th Cir. 1975) Marr v. 
Rife, 503 F.2d 735, 741-2 (6th Cir. 1974); United States v.

34



Northside Realty, supra, 474 F.2d at 1168; United States
v. Reddoch, supra; United States v. L & H Land Corp., Inc.,
407 F. Supp. 576, 580 (S.D. Fla. 1976); United States v.
Berg Enterprises, Prentice-Hall Equal Opportunity in 
Housing Reporter, 5 13,773 (S.D. Fla. 1976); Lyles v.
Hampton, Prentice-Hall Equal Opportunity in Housing 
Reporter, f 13, 738 (S.D. Ohio 1975); United States v.
Real Estate Development Corp., 347 F. Supp. 776, 785 (N.D.
Miss. 1972); Williamson v. Hampton Management Co., supra;
United States v. Mitchell, 335 F.Supp. 1004, 1006 (N.D. Ga.
1971) Indeed, the district judge agreed with the state­
ment of the law that:

the discriminatory conduct by an 
apartment manager, rental agent, 
or other individual acting in a 
representative capacity is attrib­
utable to the owner, manager, or 
other principal, both under the 
doctrine of respondeat superior 
and because the duty to obey the 
law is non-delegable. (A. 38).

However, at the close of the testimony and before the 
case was submitted to the jury, the district court relieved 
the principals Moore, Jr., and Welch from any liability on 
the grounds that there was no "willful participation" by 
the principals in the discriminatory conduct; there was no 
evidence that they "ratified his actions;" and because Moore, Jr. 
testified he had instructed his agent about the Fair Housing

35 -



Laws (A. 336-337). This decision was error.
Numerous courts have specifically held principals 

liable for their agents1 discriminatory conduct regard­
less of the principals' personal behavior. The Court 
of Appeals in Marr v. Rife, supra, 503 F.2d at 742 held:

"While the evidence does not indicate 
that Arntz acted with the approval or 
at the direction of appellee Rife, we 
do not believe that such a finding is 
necessary to hold Rife liable. As owner 
. . . Rife had at least the power to 
control the acts of salesmen. Rife would, 
therefore, be liable for compensatory 
damages. . . ."

12/

12/ In the order by which the district court denied the 
motions of plaintiff for judgment notwithstanding the verdict 
or for a new trial, the court adhered to its decision to 
grant a directed verdict for the principals, relying on 
United States v. Reddoch, supra, and United States v. Real 
Estate Development Corp., supra, to support his view that 
unless there was evidence that the owners had given racially 
discriminatory instructions to their agents or had them­
selves personally engaged in racial discrimination prior to 
1968 and had failed to advise their agents of a change in 
policy, no liability attached (A. 40). However, in United 
States v. Reddoch, the issue of the principal's liability 
for the actions of his agent, as distinct from his own 
actions, was not specifically addressed; and in United 
States v. Real Estate Development Corp., the court held:
"The resident managers and managers of the defendants, as 
agents of the defendants, are authorized to represent the 
defendants and can rent in no other capacity. Their acts 
and statements made within the scope of their agency, are 
attributable to the defendants whose duty to comply with the 
law is non-delegable." 347 F.Supp. at 785. The failure
of the defendant affirmatively to advise the agent of any change in rental practices after passage of the 1968 Fair 
Housing Act was not relied on by the court to justify a 
finding of liability, but merely to satisfy the pattern 
and practice requirement of 42 U.S.C. §3613. id. at 784.

36



This Court in United States v. Northside Realty, supra,
474 F.2d at 1168, also held the corporate defendant principal 
liable because the manager's action inured to the benefit 
of the principal, although the principal there did not 
directly supervise the agent. This is obviously the 
situation in the instant case. In addition, in 
United States v. Bob Lawrence Realty, 474 F.2d 115 (5th Cir.
1973) this Court held the principal liable for the conduct 
of its sales agents despite evidence to the effect that it 
took affirmative action to ensure compliance with the Fair 
Housing Act. Accord, United States v. Mitchell, supra;
United States v. Youritan Construction Co., supra.

The law could not be otherwise. The Nation's fair 
housing laws are to be liberally construed to achieve our commit­
ment to open housing. United States v. Bob-Lawrence Realty,
474 F.2d 115 (5th Cir. 1973). Sullivan v. Little Hunting 
Park, Inc., 396 U.S. 229, 239 (1969)(all "necessary and 
appropriate remedies" are to be afforded in §1982 action).
If principals and owners of apartment houses were allowed 
to insulate themselves from liability by ignoring the rental 
practices over which they have ultimate control, innumerable 
instances and practices of blatant discrimination against 
blacks would persist and remain unremedied. Indeed, in
this very case, Moore, Sr. was allowed to perpetuate two

13/
apartment complexes as exclusively white for ten years.

13/ As noted above in Pt.l, supra, defendants' rental 
procedures were totally informal and subjective. Owners are 
liable for failing to set forth objective and reviewable pro­
cedures for apartment application and rejection. United States 
v. Youritan Construction Co., supra.

_ 37 _



It follows that to suggest that Moore, Jr., and Welch 
should not be held accountable for the blatant discrima- 
tion suffered by plaintiff Duckworth and members of 
plaintiff class would be to ignore settled agency 
principles and the policy objectives of the fair housing 
laws.

The district court also erred in refusing to allow
the jury to consider the issue of liability for punitive
damages as to defendants Moore, Jr., and Welch.

Punitive damages are properly awardable in § 1982
actions. See, Lee v. Southern Home Sites Corp., 429 F.2d
290 (5th Cir. 1970); Wright v. Kaine Realty, 352 F.Supp.
222 (N.D. 111. 1972). In Adickes v. Kress & Co., 398 U.S.
144, 188, the Supreme Court articulated the standard for
determining whether punitive damages should be awarded in
a civil rights action, and held that plaintiff "need not
show that the defendant specifically intended to deprive

14/
him of a federally recognized right." The Supreme Court
expressed the view that one who discriminated on the basis of 
race after authoritative enactment of recent civil rights acts 
must be said to do so "with reckless disregard as a matter of 
law" and therefore may be found liable for punitive damages. 
That Moore, Jr. and Welch allowed the total exclusion of 
blacks from their apartment complexes for ten years and for

14/ This standard, expressed in an action brought under 42 
U.S.C. §1983, is equally applicable to cases arising under 
42 U.S.C. § 1982. See Lee v. Southern Homes Sites Corp., supra.

- 38



seven years after the passage of the Fair Housing Title 
of the Civil Rights Act of 1968, could lawfully result in a jury 
award of punitive damages regardless of whether defendant-principals 
'specifically instructed their rental agent to discriminate.

In Hughes v. Dyer, 378 F.Supp. 1305, 1311 (w.D.
Mo. 1974), the Court reminds us that the critical function 
of punitive damages is to "carry a message to all persons 
subject to the command of §1982" that racial discrimination 
in housing will not be tolerated. The Fair Housing Act 
of 1968 and §1982 (Sullivan v. Little Hunting Park, supra), 
recognize the need for a deterrent through awards of punitive 
damages. And the district court erred in not awarding them 
here or, at the very least, in precluding such an award by 
the trier of fact.

B. The Erroneous Dismissal of the 
Principals So Prejudiced the 
Plaintiff's Case As to Necessi­
tate A Redetermination of Lia- 
bility For All Defendants._____

The uncontradicted evidence establishes as a matter 
of law that Duckworth was refused an apartment as a result 
of defendant's unlawful discrimination. See Point 1, 
supra. Reversal of the determination below is mandated 
not only as to the manager Moore, Sr., but as to the other 
defendants, Moore, Jr., and Welch, who are liable for the

- 39



discriminatory conduct of their agent. Supra, pp. 3 4-3 8. 
In the alternative, denial of plaintiff's motion for a 
new trial must be reversed because the erroneous 
dismissal of the case as to Moore, Jr., and Welch preju­
diced and tainted the jury's verdict as to Moore, Sr.

Moore, Sr., the sole defendant against whom the case 
proceeded, is an 80 year old white man who has lived in Dallas 
County since 1928 (A. 47). He is hard of hearing, 
and a diabetic (A. 47, 68), and the agent's fragile 
constitution was specifically pointed out to the jury: in
response to one question put forth by counsel for plaintiff, 
Moore, Sr., responded, "I am a diabetic, and by George, when 
I run out of steam I got to go to get something to eat"
(A. 68).

The jury had no opportunity to determine the liability of 
the owners. In light of the evidence that Moore, Sr., frequently 
spoke with his son and with Welch on occasion (A.116, 283, 324), 
the jury might well have determined that the principals should 
have exercised greater control over the elderly manager and that the 
owners, or that all three defendants, not the agent alone, were

1S_/ Indeed, the law so mandates. See United States v. Youritan Construction Co., supra. ' --------

40 -



liable for the racial discrimination against plaintiff Duckworth. 

At the very least, a new trial as to all defendants is necessary 
to resolve that ambiguity.

IV.

THE JURY INSTRUCTION ON BURDEN OF 
PROOF MISSTATED THE LAW AND REQUIRES 

REVERSAL OF THE CASE

At the close of the trial, the district court proceeded to 
instruct the jury as to the legal standards by which they were 
to determine liability. Judge Hand stated:

"Now, there are three essential elements 
of this cause of action. The first of these 
is that the plaintiff offered or attempted 
to lease the apartment described in the 
evidence from the defendant, and was ready, 
willing and able to pay to the defendant his 
asking price.

Second, that the defendant refused to lease 
the apartment at that price to the plaintiff.

And, third, that the effective reason for 
the defendant's refusal was the race of the 
plaintiff.

The plaintiff has the burden, as I have 
indicated, of proving each of these essential 
elements by a preponderence of the evidence.
And, if you find that each of these elements 
is established, then you will find for the 
plaintiff. if, however, you find that any one 
of these elements has not been so established, 
then you will find for the defendant." (A. 351).

At the close of the instructions, counsel for plaintiff objected

to this portion of the charge (A. 359-360). The jury instruction
misstated the law and necessitates reversal of the case.

41



It is clear that in order to establish a violation of
the Fair Housing Laws, the plaintiff need prove only that race

was any, or a significant, factor in the defendant's refusal to
rent. Moore v. Townsend, supra, 525 F.2d at 485; United States
v. Pelzer Realty, supra. There is a distinct and crucial

difference between the meaning of "effective" and "significant*"
16/

"effective" means "producing a decision" while a "significant" 
factor means one among possibly many. Thus, the jury was 

instructed, contrary to the law of this Circuit, that the race 
of the plaintiff had to be the decisive factor. The giving of 

this erroneous instruction mandates reversal. Burris v. Wilkins,
544 F.2d 891 (5th Cir. 1977).

The district judge also refused to give an instruction as 
to the plaintiff's proof of a prima facie case and the consequent 
burden of the defendant to overcome the presumption of discrimi­
nation by a legitimate justification of their conduct. As the 
district court recognized, the statistical proof coupled with 

the refusal to rent a vacant apartment to a black person constituted 
a prima facie case of discrimination which shifted the burden 
to the defendant to prove to the contrary. United States v.

Youritan Construction Co., supra. 370 F. Supp. at 649; Williams 

v. Matthews, supra, 499 F.2d at 827; United States v. Reddoch, 

supra; United States v. Real Estate Development Corp., supra;

16/ Webster's New International Dictionary, 819 (2d ed.).

-  42



Newbern v. Lake Lorelei, Inc., supra (A. 335-336). The lack
of instructions on the established law left the jury without 
"sound legal principles" to guide their determination. Albermarle 
Paper Co. v. Moody, 422 U.S. 405, 416 (1975).

CONCLUSION

As this Court, other circuit courts and the Supreme Court 
have recognized, the fair housing laws are the critical vehicle 
for removing the scourge of slavery and for securing the equal 
right to rent housing for all persons, whatever the color of 
their skin. In light of overwhelming, uncontradicted, and un­
rebutted evidence of racial discrimination in this case, exculpation 
of defendants would flaunt the constitutional and public policy 
goals of these laws. Owners and principals of housing cannot 
be allowed to escape liability for systematic, blatant racial 
discrimination in the rental of their apartments. Moreover,
instructions to jurors must make clear that the law prohibits

.asthe consideration of race/of any significance in apartmental 
rental decisions.

For the foregoing reasons the district court's denial of the 
plaintiff's motions for a directed verdict, for judgment notwith­
standing the verdict, or, in the alternative, for a new trial 
must be reversed.

- 43 -



Respectfully submitted,

JACK GREENBERG 
BETH J. LIEF 
MELVYN R. LEVENTHAL 

10 Columbus Circle 
New York, New York 10019

ROSE MARY SANDERS 
Post Office Box 773 
Selma, Alabama 36701

Attorneys for Plaintiff-Appellant

CERTIFICATE OF SERVICE

The undersigned certifies that copies of the foregoing 
brief of Plaintiff-Appellant Ray C. Duckworth was served by 
United States mail, postage prepaid, this of May, 1977- 4 •
as follows:

James W. Garrett, Jr., Esq.
Post Office Box 270 
Montgomery, Alabama 36101

Counsel for Defendants-Appellees 
William B. Moore, Harry Welch, 
and William B. Moore, Jr.

BETH J. 'LIEF
Attorney for Plaintiff-Appellant

44