McCleskey v. Kemp Brief for Respondent

    UNITED STATES COURT OF APPEALS 
For the Second Circuit

No. 1135—August Term, 1991 
(Argued March 17, 1992 Decided June 25, 1992)

Docket No. 91-4192

Sherry Soules, Housing Opportunities Made 
eq ual , Inc . of Buffalo,

Petitioners,
-v.-

United States Department of Housing and Urban 
developm ent , Mary Jean dow ns and Profes­
sional Realty Services, Inc .,

Respondents.

B e f o r e :

Timbers, Meskill and Pratt,
Circuit Judges.

This is a petition for review of an order of an Adminis­
trative Law Judge which became a final order of the Sec­
retary of the United States Department of Housing and 
Urban Development on October 21, 1991. Petitioners 
Soules and Housing Opportunities Made Equal, Inc. of 
Buffalo, who claim that Soules was denied housing 
because of her familial status in violation of sections

5003



3604(a) and (c) of the Fair Housing Act of 1968, argue 
that the ALJ erred in dismissing these Fair Housing Act 
claims.

Petition denied.

■m

JOHN P. RELMAN, Washington Lawyers’ 
Committee for Civil Rights Under Law, 
Washington, D.C., for Petitioners.

Timothy A. McCarthy, Buffalo, NY (Burd 
& McCarthy, Buffalo, NY, of counsel), 
for Respondents Mary Jean Downs and 
Professional Realty Services.

William R. Yeom ans, Department of Jus­
tice, Washington, D.C. (John R. Dunne, 
Assistant Attorney General, David O. 
Simon, Acting Deputy Assistant Attorney 
General, David K. Flynn, Department of 
Justice, Washington, D.C., of counsel), 
for Respondent U.S.A.
Julius Levonne Chambers, Charles 
Stephen Ralston, NAACP Legal Defense 
and Educational Fund, Inc., New York 
City, Penda D. Hair, NAACP Legal 
Defense and Educational Fund, Inc., 
Washington, D.C., on the brief, for Amici 
Curiae NAACP Legal Defense & Educa­
tional Fund, Inc. and The National Fair 
Housing Alliance.

5004



MESKILL, Circuit Judge-.
This is a petition for review of an order of Adminis­

trative Law Judge William C. Cregar that became a final 
order of the Secretary of the United States Department of 
Housing and Urban Development (HUD) on October 21, 
1991. Petitioners Soules and Housing Opportunities Made 
Equal, Inc. of Buffalo (HOME) argue that the Adminis­
trative Law Judge (ALJ) erred in dismissing discrimina­
tion claims brought under sections 3604(a) and (c) of the 
Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA). They 
argue that substantial evidence did not support the ALJ’s 
decision and that the ALJ erred by inquiring into the 
respondents’ intent on the section 3604(c) claim.

We deny review.

BACKGROUND

The ALJ heard the following evidence. In April 1989, 
petitioner Sherry Soules was a single woman who lived 
with her mother and twelve year old daughter in a two 
bedroom apartment located on Richmond Avenue in Buf­
falo, New York.

Respondent Mary Jean Downs was a realtor and sole 
owner of Professional Realty Service (PRS), which she 
operated out of her residence in Buffalo. Downs listed, 
managed and rented properties.

Because of a New York State Health Department rule 
that required separate bedrooms for children of different 
sexes over five years old, the PRS lease application form 
asked the number and ages of children who would be 
occupying the premises. Although Downs employed a 
part-time worker, Eileen Anderson, to assist her in show-

5005



ing properties and taking lease applications, Downs her­
self conducted the actual selection of tenants.

When Downs conducted telephone interviews, she 
asked the same questions that appeared on the lease appli­
cations. During these conversations Downs generally 
declined to give out her last name; moreover, she did not 
reveal the addresses of listings to callers who appeared 
unlikely to qualify as lessees.

During March 1989, Downs signed an agreement with 
Robert Campise, the owner of a two family dwelling on 
Bird Avenue in Buffalo. Jeanette and Jerry D’Amaro, a 
couple who had helped Campise’s mother prior to her 
entry into a nursing home, lived on the first floor. Because 
Mr. D’Amaro suffered from poor eyesight and possibly 
diabetes, Campise asked Downs to find a lessee who 
could “live harmoniously” with the D’Amaros.

During April 1989, Downs was caring for an elderly 
aunt who lived in Lima, New York, which is approxi­
mately an hour and fifteen minutes from Buffalo by car. 
During these trips, which extended overnight, Downs 
would take her aunt to doctors or to the hospital.

Also in April 1989, Downs placed ads in two Buffalo 
newspapers for apartments in the Richmond area. Dis­
satisfied with her housing at that time, Soules began to 
look for an apartment in the vicinity of Richmond 
Avenue, which was near her daughter’s school and her 
mother’s place of employment. The newspaper ad for the 
Bird Avenue apartment caught Soules’ attention and she 
made several phone calls to Downs, leaving messages on 
an answering machine. Downs did not return the calls.

Soules finally reached Downs on or around April 20 
and explained that she was interested in renting a three

5006



bedroom apartment in the Richmond area. Downs then 
asked her the number of persons who would live in the 
apartment and inquired how many of them would be 
adults. When Soules replied that two adults and a child 
would reside there, Downs inquired: “How old is your 
child?”

Rather than answering Downs’ question, Soules 
demanded to know why Downs needed to know the 
child’s age. Downs, who reacted negatively to Soules’ 
questioning, replied that an elderly person lived in the 
first floor unit, and that she did not want an upstairs res­
ident who would make too much noise. Although Soules 
continued to question her, Downs ceased volunteering 
information about the apartment. Downs, who at that 
point refused even to tell Soules her last name, told 
Soules that she would telephone her on the following 
Monday, April 24, if the apartment were available.

In her deposition, which the ALJ accepted as descrip­
tive of her reaction to Soules, Downs portrayed her con­
versation with Soules as “unpleasant.” She characterized 
Soules, whom she stated had “challenged” her on the 
phone, as having had “a very bad attitude.”

After speaking to Downs, Soules contacted petitioner 
HOME. HOME is a non-profit membership organization 
that seeks to insure that all persons receive equal housing 
opportunities. Among its activities, it investigates alle­
gations of discrimination and seeks legal redress for per­
sons HOME believes have been aggrieved. To facilitate 
its investigations, HOME utilizes “testers,” individuals 
who impersonate applicants, record the results of their 
tests and supply the results to HOME. Testers receive 
from HOME a profile based on the allegations being

5007



investigated, but HOME does not inform testers of the 
allegations’ content.

When Soules called HOME, she was advised to wait 
until Monday, April 24, to see if Downs would return her 
call. In the meantime, HOME arranged for testers to con­
tact Downs.

The first tester to make contact was Marjorie Murray. 
After Murray left messages on April 22 and 24, Downs 
returned the calls, leaving a message with Murray’s sec­
retary. When Murray returned the call, she spoke to 
Downs and explained that she was interested in a three 
bedroom apartment in the Richmond area. When Downs 
asked Murray how many people would live there, Murray 
replied that she would live there alone. Downs then 
described the apartment and told Murray that the apart­
ment was on Bird Avenue in the Richmond area and that 
they could see it together the next day. Murray made an 
appointment and then, at HOME’S request, cancelled it.

A second tester, Robin Barnes, also contacted Downs. 
When asked who would be living in the unit, Barnes told 
Downs that she, her seven year old son and her roommate 
would live there. Downs then asked Barnes if her son was 
quiet. When Barnes replied that he was, Downs stated that 
an elderly couple lived downstairs and that they “would 
probably not be able to take a noisy child running 
around.” Although Downs did provide Barnes with the 
address of the apartment, she was apparently uncoopera­
tive. When Barnes asked to see the apartment, Downs told 
her that a Mrs. Anderson would call her to set up an 
appointment. Downs, however, never asked Anderson to 
show the apartment to Barnes, and no one contacted 
Barnes to arrange a showing. After Barnes made calls to 
Downs and left messages requesting to see the apartment,

5008



Downs called her and told her that the Bird Avenue apart­
ment had been rented.

In the meantime, Soules finally did meet with Downs. 
Downs showed up twenty minutes late to the appointment 
and showed Soules not the Bird Avenue apartment, but 
instead a less appealing apartment on Lafayette Avenue. 
Downs told Soules that she had no apartments in the 
Richmond area. In fact, however, two such apartments 
were available.

Also during this time, the Perrys, a family that lived in 
another apartment managed by Downs, were forced to 
find another place to live. Even though they had children, 
Downs told them that the Bird Avenue apartment was 
available for rental. The ALJ noted in his opinion that he 
found Ms. Perry’s testimony credible:

Having observed her demeanor, I find Ms. Perry to 
be a credible witness. Since Ms. Downs ceased man­
aging the Lafayette property in the summer of 1989, 
Ms. Perry no longer sees her. Ms. Perry lacks any 
apparent interest in the outcome of this proceeding.

Eventually the Bird Avenue apartment was rented to a 
single woman who had no children under the age of eigh­
teen.

DISCUSSION

This case requires us to address the 1988 Amendments 
(Amendments) to the FHA. The Amendments, in part, 
extend to families with children the same protections that 
the FHA previously had afforded principally to minorities 
and members of religious groups.

5009



Section 3604(a), as amended, makes it unlawful “[t]o 
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 oth­
erwise make unavailable or deny, a dwelling to any per­
son because of race, color, religion, sex, familial status, 
or national origin.” 42 U.S.C. § 3604(a) (Supp. 1991) 
(emphasis added). Section 3604(c) makes it unlawful

[t]o make, print, or publish, or cause to be made, 
printed, or published any notice, statement, or adver­
tisement, with respect to the sale or rental of a 
dwelling that indicates any preference, limitation, or 
discrimination based on race, color, religion, sex, 
handicap, familial status, or national origin, or an 
intention to make any such preference, limitation, or 
discrimination.

Id. § 3604(c) (emphasis added). Section 3602 defines 
“familial status” to include “one or more individuals (who 
have not attained the age of 18 years) being domiciled 
with” a parent or guardian. Id. § 3602(k). The FHA pro­
vides a private right of action to one who claims infringe­
ment of section 3604 rights, see id. §§ 3610, 3612(a), (b), 
and grants us appellate review, see id. § 3612(i).

A desire to solve a two-tiered problem provoked the 
Amendments. Congress’ primary concern was to elimi­
nate direct discrimination against families with children. 
H.R. Rep. No. 171, 100th Cong., 2nd sess. 19, reprinted 
in 1988 U.S. Code Cong. & Admin. News 2173, 2180 (“In 
many parts of the country families with children are 
refused housing despite their ability to pay for it.”). 
Congress also was concerned that discrimination against 
children often camouflages racism or has an undesirable 
impact on minorities. Id. at 2182 (“[B]ecause predomi­
nantly white neighborhoods are more likely to have

5010



restrictive policies, racial segregation is exacerbated by 
the exclusion of children.”).

However, the Amendments were not intended to place 
a straightjacket on landlords or unnecessarily to chill their 
speech. Accordingly, they were “carefully crafted to pro­
tect American families, without placing an undue burden 
on owners and landlords.” 134 Cong. Rec. H4687 (daily 
ed. June 23, 1988) (remarks by Representative Pelosi). 
Significantly, the Amendments were not intended to “pre­
vent a landlord from determining that a family is other­
wise qualified before agreeing to rent to them.” 134 Cong. 
Rec. H4681 (daily ed. June 23, 1988) (remarks by Rep­
resentative Synar).

Petitioners argue that substantial evidence did not sup­
port rejection of their discriminatory denial claim under 
section 3604(a). They also claim that the ALJ erred when, 
in addressing their claim under section 3604(c) that the 
respondents made statements that indicated impermissi­
ble discriminatory preferences, he inquired into Downs’ 
intent.

Congress grants us narrow review of agency decisions, 
and we will reverse one only if it is not in accordance 
with law or is unsupported by substantial evidence. See 5 
U.S.C. § 706(2)(A), (E). Because petitioners appeal only 
from the ALJ’s dismissal of the section 3604(a) and (c) 
claims, we address only the aspects of the ALJ’s opinion 
that dealt with those statutory provisions.

A. Section 3604(a)
The burden shifting procedure employed in examining 

a section 3604(a) claim is well settled in this Circuit. See 
Robinson v. 12 Lofts Realty, 610 F.2d 1032, 1036-43 (2d 
Cir. 1979) (applying McDonnell Douglas Corp. v. Green,

5011



411 U.S. 792 (1973), to section 3604(a) claim); Sassower 
v. Field, 752 F.Supp. 1182, 1187 (S.D.N.Y. 1990) (“The 
law in this circuit on housing discrimination claims was 
laid down in Robinson.”). To make out a prima facie dis­
criminatory housing refusal case, a plaintiff must show 
that he is a member of a statutorily protected class who 
applied for and was qualified to rent or purchase housing 
and was rejected although the housing remained available. 
See Robinson, 610 F.2d at 1038. A plaintiff in stating a 
claim under the FHA need allege “only discriminatory 
effect, and need not show that the decision complained of 
was made with discriminatory intent.” United States v. 
Yonkers Board of Education, 837 F.2d 1181, 1217 (2d Cir. 
1987), cert, denied, 486 U.S. 1055 (1988).

However, satisfying the requirements of a prima facie 
case does not guarantee recovery to a plaintiff. In part to 
ensure fairness, where a member of a protected group 
establishes that he was denied housing that remained 
available, we allow the defendant to explain whether his 
actions were motivated by impermissible considerations. 
Cf. McDonnell Douglas, 411 U.S. at 800-01 (“ ‘[Title VII] 
does not command that any person be hired . . . because 
he is a member of a minority group. . . . What is 
required by Congress is the removal of artificial, arbitrary, 
and unnecessary barriers . . . when the barriers operate 
invidiously to discriminate on the basis of racial or other 
impermissible classification.’ ”) (citation omitted). If, 
however, the defendant declines the opportunity to present 
evidence toward this end, the plaintiff is entitled to relief. 
See Robinson, 610 F.2d at 1039.

If the defendant does come forward with evidence in 
his defense, we allow a plaintiff an opportunity to show 
that a defendant’s stated reason for denying the plaintiff’s 
application for housing was pretextual. In examining the

5012



defendant’s reason, we view skeptically subjective ratio­
nales concerning why he denied housing to members of 
protected groups. Our reasoning, in part, is that “clever 
men may easily conceal their motivations,” United States 
v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974), 
cert, denied, 422 U.S. 1042 (1975). There is less reason to 
be wary of subjective explanations, though, where a 
defendant provides objective evidence indicating that 
truth lies behind his assertions of nondiscriminatory con­
duct.

With these principles in mind, we turn to the specifics 
of the ALJ’s rejection of the discriminatory denial claim.

The ALJ employed the McDonnell Douglas burden 
shifting procedure in this case. Analyzing Soules’ evi­
dence, the ALJ concluded that a prima facie case had 
been established:

[T]he record establishes that in April 1989, [1)] Ms. 
Soules had a twelve year-old daughter; 2) she 
attempted to rent a three-bedroom apartment in the 
Richmond Area of Buffalo, and one of the apartments 
available at that time was the Bird apartment; 3) 
Respondents denied the Bird apartment to Ms. 
Soules, knowing of the familial status; and 4) the 
Bird apartment was rented to Diana Lennox, a person 
without a child under eighteen years of age.

In a footnote, the ALJ stated that a similar prima facie 
case had been made with regard to Barnes as well. 
Accordingly, the ALJ turned his attention to the defen­
dants’ allegedly legitimate, nondiscriminatory reasons for 
not renting the Bird apartment to Soules.

Downs, who admitted that she had no intention of rent­
ing the Bird Avenue apartment to Soules, insisted that her

5013



motives were nondiscriminatory. Rather, she argued that 
she had not been willing to rent it to Soules because of 
Soules’ negative and combative attitude.

Analyzing the allegedly nondiscriminatory, legitimate 
reason, the ALJ noted that Soules took on her hostile tone 
after being asked her child’s age. He concluded therefore 
that the reason for Downs’ unwillingness to rent to Soules 
was legitimate only if the question leading to Soules’ 
aggressive behavior was permissible. Because the ques­
tion concerning the age of Soules’ child was motivated by 
what the ALJ considered a legitimate reason—securing 
quiet neighbors for the D’Amaros—he shifted the burden 
to the petitioners to demonstrate that Downs’ and PRS’ 
allegedly legitimate reason for not renting Soules the 
apartment was pretextual.

The ALJ struggled to resolve both sides’ arguments on 
the pretext issue. The main support in favor of the argu­
ment that Soules’ negative attitude was a pretextual rea­
son for Downs’ not renting the Bird Avenue apartment to 
her was the disparate treatment of Soules and Barnes, the 
first tester, as compared to Murray, the second tester, and 
Lennox, the single woman who eventually rented the 
apartment. Less persuasive to the ALJ was that Downs 
had shown up late to her meeting with Soules and had 
been unwilling to provide information about apartments 
in the Richmond area.

As a legitimate reason for not renting to Barnes, Downs 
asserted that she was out of town a great deal caring for 
her aunt during the period in which Barnes was contact­
ing her. Supporting this assertion was the testimony of 
Mr. Campise, the owner of the Bird Avenue apartment, 
who stated that he had difficulty reaching Downs at that 
time.

5014



Attempting to balance the arguments concerning 
whether Downs’ reasons for not renting to Soules and 
Barnes were pretextual, the ALJ focused on Ms. Perry’s 
testimony. In the eyes of the ALJ, “the testimony of Ms. 
Perry conclusively establishes that Ms. Downs was will­
ing and, in fact, attempted to rent the Bird apartment to a 
family with children under the age of eighteen. . . . 
[Downs] was . . .  as encouraging to Ms. Perry as she was 
to Ms. Murray and Ms. Lennox.” Concluding therefore 
that the plaintiffs had not proven that Downs had acted as 
she did because she did not want to rent the Bird Avenue 
apartment to a family with children under eighteen, the 
ALJ rejected the section 3604(a) claim against Downs.

While Downs’ questioning about children was proba­
tive on the issue of unlawful conduct, petitioners’ evi­
dence did not require the conclusion that impermissible 
denial of housing occurred. Where, as here, probative evi­
dence also exists that a defendant denied housing to mem­
bers of protected groups for legitimate, nondiscriminatory 
reasons, it remains for the trier of fact to determine 
whether a discriminatory denial of housing occurred.

Petitioners argue that the ALJ erred by accepting, as a 
deciding factor on the pretext issue, neutral testimony that 
Downs offered the Bird Avenue apartment to other mem­
bers of petitioner’s protected class. We disagree. Were we 
to require the ALJ to discredit Downs’ professed reasons 
for not renting the Bird Avenue apartment to the peti­
tioners or unnecessarily limit the weight that he could 
give that evidence, our decision effectively would render 
a nullity the burden shifting that we previously have 
endorsed. A case effectively would end once a plaintiff 
provided evidence sufficient to make out a prima facie 
claim, and some innocent defendants would be denied fair 
trials in discriminatory denial cases.

5015



After reviewing the record and evaluating petitioners’ 
contentions, the ALJ concluded that Soules’ combative 
attitude and Downs’ being out of town to aid a sick rela­
tive, rather than unlawful conduct, resulted in the housing 
denials at issue in this case. Substantial evidence sup­
ported this conclusion, and we need not decide whether 
we would reach this result were we to address the ques­
tion de novo.

B. Section 3604(c)
The petitioners contest the ALJ’s determination that 

respondents did not make statements indicating an imper­
missible preference, discrimination or limitation in vio­
lation of section 3604(c). Their principal argument in 
support of this position is that the ALJ erred by inquiring 
into the respondents’ intent. We disagree.

In determining whether an ad or statement “indicates” 
impermissible racial discrimination, we ask whether “an 
ad for housing suggests to an ordinary reader [or listener] 
that a particular race is preferred or dispreferred for the 
housing in question.” See Ragin v. New York Times Co., 
923 F.2d 995, 999 (2d Cir.) (adopting the standard set 
forth by the Fourth Circuit in United States v. Hunter, 459 
F.2d 205, 215 (4th Cir.), cert, denied, 409 U.S. 934 
(1972)), cert, denied, 112 S.Ct. 81 (1991). The ordinary 
reader “is neither the most suspicious nor the most insen­
sitive of our citizenry.” Ragin, 923 F.2d at 1002. Courts 
also have allowed parties to establish violations of section 
3604(c) by proving an actual intent to discriminate. See 
Housing Opportunities Made Equal v. Cincinnati 
Enquirer, 943 F.2d 644, 646 (6th Cir. 1991); Hunter, 459 
F.2d at 215.

5016



Petitioners invoke an ordinary listener standard. Hav­
ing concluded that this is an appropriate gauge for mea­
suring compliance with the Amendments, we question 
whether the ordinary listener, in light of all the circum­
stances, would have interpreted Soules’ statements and 
questions to suggest an impermissible preference based on 
familial status.

In cases where ads are clearly discriminatory, a court 
may look at an ad and determine whether it indicates an 
impermissible preference to an ordinary reader, and 
inquiry into the author’s professed intent is largely unnec­
essary. In Hunter, for example, the Fourth Circuit held 
that a rental ad specifying that an apartment was in a 
“white home” violated section 3604(c). Hunter, 459 F.2d 
at 215.

Openly discriminatory oral statements merit similarly 
straightforward treatment. In one case, for example, a 
landlord’s statement to a white tenant that she should send 
her friends over to see a vacant apartment but to “make 
sure her friends are whites” was held to violate the FHA. 
United States v. Gilman, 341 F.Supp. 891, 896-97 
(S.D.N.Y. 1972); see also Stewart v. Furton, 774 F.2d 
706, 708-09 (6th Cir. 1985) (statement that black tenants 
were not allowed in a trailer park because white tenants 
would move out); United States \ .L  & H Land Corp., 407 
F.Supp. 576, 578-80 (S.D.Fla. 1976) (statements that no 
blacks lived in development and were not allowed there 
even as guests).

This section 3604(c) case presents more difficult prob­
lems. As the government points out in its papers, whereas 
“[t]here is simply no legitimate reason for considering an 
applicant’s race . . . there are situations in which it is 
legitimate to inquire about the number of individuals

5017



interested in occupying an apartment and their ages.” 
Local zoning regulations, for example, might constitute a 
valid reason for asking whether and how many children a 
prospective tenant has. Conditions in the neighborhood 
known to be either ideally suited to or inherently dan­
gerous to occupancy by families with children might well 
permit an inquiry about the ages of the family members. 
We agree with the respondents that, standing alone, an 
inquiry into whether a prospective tenant has a child does 
not constitute an FHA violation.

We next examine whether the FHA is necessarily vio­
lated when one asks whether a child is noisy. Respondents 
contend that when coupled with a question concerning 
children a question or statement about noise indicates an 
impermissible preference to an ordinary listener. This 
does not necessarily follow. One just as easily might con­
clude that if Downs had stereotyped all children as imper­
missibly noisy, then she would not have asked the second 
question.

That statements are not facially discriminatory, how­
ever, does not mean that they do not indicate an imper­
missible preference in the context in which they were 
made. In the context of printed ads, we have recognized 
that expression of a tacit preference not to provide hous­
ing to members of protected groups may violate section 
3604(c). Sec Ragin, 923 F.2d at 1001. In Ragin, we held 
that a plaintiff had stated a section 3604(c) claim by alleg­
ing that the defendant had published housing ads over a 
twenty year period that featured thousands of human mod­
els of whom virtually none was black. The plaintiff 
claimed that “the repeated and continued depiction of 
white human models and the virtual absence of any black 
human models . . . indicates a preference on the basis of 
race.” Id. at 998. Such a claim, we held, should not be dis-

5018



missed under Fed. R. Civ. P. 12(b)(6). Id.\ cf. Saunders v. 
General Services Corp., 659 F.Supp. 1042, 1057-59 
(E.D.Va. 1987) (finding violation of 3604(c) where, in 
addition to a failure to use black models, substantial evi­
dence existed that personnel of the corporation managing 
the properties in question were instructed to treat black 
tenants and prospective tenants less favorably than others 
and the corporation agreed to but did not in fact use an 
equal opportunity slogan or logo in its brochures). Dis­
missal of the claim at the posture it came to us in Ragin 
would have been unreasonable in light of the significant 
evidence from which the trier of fact could determine 
whether the ads indicated an impermissible preference. 
Compare Housing Opportunities Made Equal, 943 F.2d at 
648 (“[C]omplaint alleging a violation of section 3604(c) 
based on the single publication of an advertisement which 
uses a small number of all-white models does not, with­
out more, .state a cognizable claim under section
3604(c).”).

Facially nondiscriminatory statements pose even 
greater difficulties than facially nondiscriminatory ads. 
The written content of questions and statements does not 
demonstrate the inflection of the speaker, and out of 
necessity courts must turn to other evidence in deter­
mining whether a violation of the FHA occurred. In this 
case, for example, Downs asked Barnes whether her child 
was noisy and later stated that an elderly tenant “would 
probably not be able to take a noisy child running 
around.” Depending on the context and intent of the 
speaker, the latter question either could intimate an imper­
missible preference or simply might explain—to a desired 
tenant—why the first question had been asked. It also 
might send a message that a tenant with a noisy child will 
probably be confronted with regular complaints from the

5019



elderly tenant making the apartment less attractive to the 
prospective tenant. It is for this reason that factfinders 
may examine intent, not because a lack of design consti­
tutes an affirmative defense to an FHA violation, but 
because it helps determine the manner in which a state­
ment was made and the way an ordinary listener would 
have interpreted it. See Ragin, 923 F.2d at 1000 (“[T]he 
intent of the creator of an ad may be relevant to a factual 
determination of the message conveyed.”) (citation omit­
ted). We believe that such evidence may prove especially 
helpful where, as here, a court is charged with ascertain­
ing the message sent by isolated words rather than a series 
of ads or an extended pattern of conduct.

In this case, after stating that the statements made by 
Downs facially did not indicate a limitation, preference or 
discrimination based on familial status, the ALJ inquired 
whether Downs’ intent was discriminatory by examining 
whether her reasons for making her statements were legit­
imate and nondiscriminatory rather than pretextual. This 
procedure was not improper. See Ragin, 923 F.2d at 1001 
(triers of fact may “draw inferences of racial intent” by 
employing the McDonnell Douglas test). With that said, 
we turn to the ALJ’s resolution of the matter.

The respondents argued before the ALJ that the reason 
for the written questions on the application and Ms. 
Downs’ oral questions regarding the numbers and ages of 
children were asked because a local health code precluded 
children older than five from sharing a bedroom with 
someone of a different sex. The ALJ determined that this 
reason was not pretextual.

As to the oral questions, the ALJ rejected the health 
code regulation as a satisfactory reason where, as here, 
only one child existed. However, the ALJ concluded that

5020



there was a non-pretextual reason for asking such ques­
tions:

If sufficiently noisy, tenants can be deemed a nui­
sance and can be evicted. A housing provider is not 
precluded from attempting to ascertain whether 
prospective tenants will be noisy before the tenants 
move in. Nor is a housing provider precluded from 
advising prospective tenants that a quiet environment 
is desired by existing tenants.

In this case, the ALJ resolved that the reason for Downs’ 
asking children’s ages was to guarantee that the 
D’Amaros continued to live in a quiet environment. Evi­
dencing this was that Downs did not ask a child’s age as 
an isolated question but always coupled that query with 
either a follow-up question that specifically inquired 
whether the prospective tenant’s child was noisy or a 
statement to the effect that the downstairs tenants were 
elderly and did not want those children who were noisy.

Having determined that the respondents’ legitimate, 
nonpretextual reason for making their statements was to 
determine whether prospective tenants were noisy, the 
ALJ shifted the burden to the petitioner to demonstrate 
that this reason was a mere pretext for a desire to avoid 
renting to families with children under eighteen. Because 
Downs had in fact offered to rent the apartment to persons 
with children under the age of eighteen and other evi­
dence failed to demonstrate that the respondents’ objec­
tive of finding quiet neighbors for the D’Amaros was 
pretextual, the ALJ rejected the section 3604(c) claim.

As we stated in the context of the section 3604(a) 
claim, our role as an appellate court is not to embark anew 
in adjudicating the FHA claim before us, but only to 
determine whether substantial evidence supported the

5021



ALJ’s determination. The facts of this case do not merit 
reversal in light of that standard.

CONCLUSION

The parties have raised other issues that do not affect 
our disposition of this appeal. We need not address them.

The petition for review is denied.

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720-6-29-92 • USCA—80004 FY90 

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