Winkley v. Tuner Appellants' Brief

    /
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 75-3640

JANICE ELAINE WINKLEY, et al.,
Plaintiffs-Appellants 
Cross Appellees,

v.

HOZIE TURNER, Owner d/b/a MADRID 
APARTMENTS, etc.

De fendant-Appe1lee 
Cross Appellant.

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

Jackson Division

APPELLANTS' BRIEF

JACK GREENBERG 
MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle 
New York, N.Y.10019

DECEMBER 1975
Attorneys for Plaintiffs- 

Appellants



Page

Statement of the Case ...............................  1
Statement of the Facts.....................   8

1. Introduction .........................  8
2. Defendant's Apartment Complexes

and Practices Generally .......... . 9
3. Plaintiff Gore's Experience and 

Defendant's Related Policies and
Practices ...............................  11

4. Plaintiff Hobbs' Experience and 
Defendant's Related Policies and
Practices ...............................  17

5. The Experience of Lee King ............ 19
6. The "Testers" and Racial "Steering"..... 6
7. Statistical Data .....................  23

Summary of Argument .................................  25

ARGUMENT:
1............................................ 29
II...........................................  38
III...........................................  48
IV...........................................  48

TABLE OF CONTENTS

CONCLUSION 50



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-3640

JANICE ELAINE WINKLEY, et al..
Plaintiffs-AppeHants 
Cross Appellees,

v.
HOZIE TURNER, Owner d/b/a MADRID 
APARTMENTS, etc.

Defendant-Appellee 
Cross Appellant

CERTIFICATE OF COUNSEL
The undersigned counsel of record for appellants 

certifies 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 dis­
qualification or recusal pursuant to Local Rule 13(a)

1. Janice Winkley Gore, and Kathy Hobbs, plaintiffs.
2. Melvyn R. Leventhal (Anderson, Banks, Nichols and 

Leventhal, Jackson, Mississippi); attorney's fees



*

can only be recovered through court award;

3. Hozie Turner, defendant.

MELVYN R. LEVENTRAL 
Attorney of Record for Appellants.

* Any fee award for time expended on this appeal will be 
payable to the N.A.A.C.P. Legal Defense Fund.



TABLE OF CASES
Albemarle Paper Co. v. Moody, 45 L. Ed.

2d 280 (1975).....................................  38,39,42 ,
47.Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974).........................................  46
Alyeska Pipeline v. Wilderness Society,

44 L. Ed. 2d 141, 421 U.S. 240
(1974)............................................  27,48

Anderson v. Pass Christian Isles Golf
Club, 488 F .2d 855 (5th Cir. 1974)................ 32

Bartness v. Drewry1s U.S.A. Inc., 444
F.2d 1186 (7th Cir. 1971).......................... 47

Burns v. Thiokol Chemical Corp., 483
F .2d 300 (5th Cir. 1973)...........................  35

Chambers v. Hendersonville City Board
of Education, 364 F.2d 189 (4th Cir.
1966).................................. ........... 32

Cox v. United States Gypsum Co., 409
F .2d 289 (7th Cir. 1969)................. ......... 47

Dailey v. City of Lawton, 296 F.Supp.
266 (W.D. Okla. 1969), aff1d ,
425 F.2d 1038, (10th Cir. 1970)..................... 31,32

Franks v. Bowman Transportation Co.,
495 F .2d 398 (5th Cir. 1974)....................... 44

Griggs v. Duke Power Co., 401 U.S.
424 (1970)........................................  32

Haythe v. Decker, 468 F.2d 336 (7th Cir.1972).............................................  30,31
Johnson v. Georgia Highway Express,488

F .2d 714 (1974)...................................  49
Johnson v. Jerry Pals Real Estate, 485528 (7th Cir. 1973)...............................  47
Johnson v. REA, 44 L. Ed. 2d 295 (1974)................  46
Jones v. Mayer Co., 392 U.S. 409 (1968)................ passim
Keys v. School District No. 1, 413 U.S.

189 (1973).......................... .............. 33,34

- i -



Lane v. Wilson.......................................  31
Lee v. Macon County Board of Educa­

tion, 453 F -2d 1104 (5th Cir. 1971).............  32
Lee v. Southern Home Sites, 429 F.2d

290 (5th Cir. 1970)............ ................. 37,42
Louisiana v. United States, 380 U.S. 145.............  44
McDonnell Douglas Corp. v. Green,411 U.S. 792 (1972)..............................  32,35
McLaurin v. Columbia M.S.S.D., 478

F .2d 348 (5th Cir. 1973)........................  32
Miller v. Amusement Enterprises, 426

F .2d 534 (5th Cir. 1970)........................  48
Newbern v. Lake Lovelie, Inc., 308 F.

Supp. 407 (S.D. Ohio, 1968)......................  31,32
Newman v. Piggy Park Enterprises, 390

U.S . 400 (1968)..................................  42,47
Northcross v. Board of Education, 412

U.S. 427 (1973).................................  47
Seaton v. Sky Realty Co., 491 F.2d

634 (7th Cir. 1974)............................. 41
Smith v. Sol D. Adler Realty Co., 436

F.2d 344 (7th Cir. 1971)........................ 30,37,41
State of Alabama v. United States, 304 F .2d 538 (5th Cir. 1962), aff'd,

371 U.S. 37 (1962)..............................  32
Sullivan v. Little Hunting Park, 396

U.S. 229 (1969)........................ ......... 37, 42
Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1 (1971).................  44
Trafficante v. Metropolitan Life Ins.

Co., 409 U.S. 205 (1972)........................  30,40,43,47
United States v. Bob Lawrence Realty, Inc.,

474 F .2d 115 (5th Cir. 1973)....................  45
United States v. Grooms, 348 F. Supp.1130 (M.D. Fla. 1972)...........................  43
United States v. Hunter, 459 F.2d

205 (4th Cir. 1972).............................  44

li



29,32,45
United States v. Real Estate Development 

Corp. 347 F. Supp. 776 (N.D. Miss.
1972).............................

United States v. Reddoch, 467 F.2d 897
(5th Cir. 1972)................................... 32

United States v. Richberg, 398 F.2d 523,
(5th Cir. 1968)................................... 32

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

United States v. Youritan Construction Co.,
370 F. Supp. 643 (N.D. Cal. 1973).................. 32

Watson v. Limbach Co., 333 F. Supp. 754,
(S .D. Ohio, 1971)................................. 47

Williams v. Mathews Co., 449 F.2d 819,
(8th Cir. 1974)................................... 30,33,40,41

Wills v. Trans World Airlines, 200 F.
Supp. 360 (S.D. Cal. 1961)......................... 41

- iii -



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-3640

JANICE ELAINE WINKLEY, et al.f
Plaintiffs-Appellants, 
Cross Appellees,

v.
HOZIE TURNER, Owner d/b/a MADRID 
APARTMENTS, etc.,

Defendant-Appellee 
Cross Appellant.

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

Jackson Division

APPELLANTS' BRIEF

Statement of the Case

On this appeal, two women, one black the 
other white, charge defendant-appellee-cross 
appellant Turner with racial discrimination in 
the operation of the three apartment complexes 
owned by him, Madrid Apartments, Fairmont Town- 
houses and Monterey Apartments, all located in



Jackson, Mississippi. Jurisdiction in the Court below 
derived from 42 U.S.C. §3612 and 28 U.S.C. §1343(3) and 
(4); plaintiffs' alleged violations of rights assured 
by the fair housing laws of the United States, 42 U.S.C. 
§3601, et seg. and 42 U.S.C.§§1981-82. (A. 12)

Complaint was filed on June 16, 1972. Plaintiff 
Janice Winkley Gore, a black woman, alleged that she 
applied for an apartment at Madrid, through the resident 
manager, in November, 1971; that she was shown two apart­
ments, completed an application form and tendered a $50. 
deposit; that she was told by the resident manager to

1/ The suit, as filed, charged a realtor (Bethune &
Ducey) and the owners of five apartment complexes with 
unlawful housing discrimination; it also named as 
defendant the Mississippi Real Estate Commission and 
sought the revocating of defendant realtor's license.(A.22, paragraph 50 of the Complaint) The claims of 
all plaintiffs, except for those of the two appellants, 
were resolved through consent orders conforming in all 
substantive respects to the decree appended to United 
States v. West Peachtree Tenth Corp., 437 F.2d 221, 229- 
30 (5th Cir. 1971) (See, for example, the consent decree at A.143).

The district court also dismissed the suit against 
the Mississippi Real Estate Commission holding that agency 
immune. (A. 108) The entry of the consent order against 
Bethune & Ducey, the only realtor against which plaintiffs 
sought revocation of a real estate license, mooted the issue. Moreover, plaintiffs' claim that all defendants 
conspired to violate the fair housing laws failed for 
want of proof. (A. 161, n. 2)

Accordingly, the only issues remaining in this litigation 
relate to the claims of plaintiffs Janice Winkley Gore and 
Kathy Hobbs against defendant Hozie Turner d/b/a Madrid Apart­
ments, Fairmont Townhouse and Monterey Apartments.

2



return the next day for a personal interview with the 
complex owner, defendant Hozie Turner; that she return­
ed the next day, was so interviewed and told that a 
credit investigation would be undertaken; that there 
ensued numerous telephone conversations between her­
self and defendant Turner over a ten day period without 
the investigation being completed. Essentially, 
she alleged that the credit investigation was a ruse to 
disguise racial discrimination. Plaintiff Hobbs, a 
white woman, alleged that she occupied an apartment at 
Fairmont Townhouses from April, 1971 through June, 1972; 
that on June 5, 1972 she authorized her black babysitter 
to use the complex swimming pool - to attend her children 
and was within one hour evicted through a notice, hand 
delivered by defendant Turner, for "conduct which is, in 
the opinion of the Management not in keeping with the 
wishes of the neighboring community." (A.27) Essentially 
plaintiff Hobbs alleged that she was evicted for authoriz­
ing a black person to use the Fairmont swimming pool.
(A. 17-20)

Plaintiffs brought the action pursuant to P>.ule 23(b) 2 
in behalf of blacks and whites who may in the future be 
victimized by unlawful leasing practices at Madrid and 
Fairmont. The complaint sought prospective injunctive 
relief only for that class while it sought compensatory

3



and punitive damages and attorneys' fees for named
1/plaintiffs.

%
July 10, 1972, defendant Turner [and the resident 

managers of the complexes who were also named as defen­
dants] answered: he alleged that the class action was
improper; that plaintiff Janice Winkley Gore withdrew 
her $50. deposit during the course of the credit check 
which led to closing her file; that plaintiff Hobbs 
was evicted for a series of incidents spanning her 
tenancy, which surprisingly included events occurring 
subsequent to the eviction [swimming fully clothed]. 
Essentially he denied that he engaged in unlawful dis­
crimination; rather plaintiff Gore was simply neither 
tenacious nor persistent and plaintiff Hobbs merely an 
undesirable tenant. (A. 28-38)

September 21, 1972, defendant moved to sever the 
Hobbs and Gore cases for trial. (A. 58) October 2,1972 
the court granted that motion. (A. 90-91 ) Defendants 
also sought the dismissal of the action for failure to 
properly identify class members (A. 59 ), but the court, 
in the context of a motion by other parties defendant, 
declined to entertain that issue "until more evidence is 
before it on the identity of the class or classes." (A.112)

2/ The Complaint specified Rule 23(b)2 only. (R.2) 
Although the class action paragraph refers only to those 
"who have been" victimized by the challenged practices, 
it is abundantly clear from the prayer for relief that 
plaintiffs sought to protect all persons from future 
unlawful conduct and not merely those who were once victimized. (A. 23-25)

4



Defendant's motion to dismiss plaintiff Gore's action 
under 42 U.S.C. 3601, et seq., on the ground that it 
was barred by the statute of limitations was also 
carried with the case. (a . 29, 131, 136)

December 12, 1973, plaintiffs filed a Motion for 
Leave to file Supplemental Complaint and on February 4, 
1974 that motion was granted. (A. 136) The Supple­
mental Complaint alleged that subsequent to the filing 
of this Action, defendant Turner converted Madrid 
Apartments from "a complex occupied solely by whites to 
a complex occupied primarily by blacks: within six 
months to one year following the filing of this lawsuit, 
80% of the units of Madrid ... became occupied and 
continue to be occupied by black tenants despite the 
fact that prior to this litigation no apartment at 
Madrid had ever been occupied by a black." (A. 138)
The Supplemental Complaint alleged further that defen­
dant, was engaging in racial "steering," with black 
applicants "assigned" to Madrid and white applicants 
"assigned" to Fairmont Townhouses or Monterey Apart­
ments [a third complex owned by Turner and brought 
into the litigation through the Supplemental

5



Complaint]. Comprehensive injunctive relief to include 
Monterey Apartments and additional punitive damages were 
sought. (A. 138-39)

The cases were tried back-to-back on October 1 and
2, 1974. Early in the trial of the first case (Hobbs),
plaintiffs urged the district court to consolidate the
cases to the extent that proof of discrimination in one be
held relevant to whether defendant Turner discriminated

1/in the other. (A.342-44) The district court declined
to so consolidate: "I do think that the issues [in each case,
Hobbs and Gore] are separate and that they should be 
separate actions." (A. 344)

June 4, 1975, the district court entered its opinion
holding, in the Gore case, that: (1) class action certifi­
cation was appropriate for the purpose of considering 
prospective injunctive relief; (A. 160) (2) that the
controlling date for the §3601 statute of limitations 
was November 19, 1971 - the date plaintiff Gore withdrew
her $50 deposit - which date was approximately 207 days

3/

3/ The allegations of the supplemental complaint derived 
from a program of "testing" undertaken by plaintiffs: 
whites and blacks stating identical housing needs presented 
themselves to defendant Turner's resident manager; their 
experiences were recorded in depositions, attended by 
Mr. Turner and his counsel, with controlling parts thereof 
introduced into evidence. (A. 125-26)
4/ The issues had been raised through the pre-trial order 
and resolved by the Court at trial. (A. 311, 337)

6



before the filing of the Complaint, and hence her suit 
under §3601 was barred; (A. 160-61, 166) (3) neverthe­
less, plaintiff Gore had an independent cause of action 
under 42 U.S.C. §1981-82; (A. 161) (4) plaintiff
Gore was "given a 'run-a-round1 by defendant Turner, and 
has carried her burden of proving that she was racially 
discriminated against within the meaning of 42 U.S.C.
§1981 and 1982 in that she was denied the same right as 
is enjoyed by white citizens to lease rental property .... 
Turner was racially biased in his treatment of the Gore 
application;" (A. 167) (5) plaintiff Gore had fully 
satisfied class action requisites and prospective in­
junctive relief in behalf of the class would be granted 
to protect against unlawful practices at all three 
Turner complexes; (A. 167, 169) (6) plaintive Gore
was entitled to actual damages of $490. but not punitive 
damages; (7) attorneys fees would be denied because "no 
evidence was offered at trial or subsequent thereto as 
to a reasonable fee nor was any evidence offerred that
Gore was financially unable to pay her attorney."
(A. 168)

The court, in the Hobbs case held that: (1) plaintiff,
although white, had a cause of action under §3601;
(2) even if plaintiff was evicted because she authorized 
a black person to use the complex swimming pool, "this

7



isolated incident," does not establish a pattern and 
practice of racial discrimination and hence the Hobbs 
action must fail. (A. 178-79)

June 27, 1975, plaintiffs filed a proposed order 
which, in addition to providing for general injunctive 
relief, sought to require defendant to take "affirmative 
action" as set forth in United States v. West Peachtree 
Tenth Corp. supra, 427 F.2d at 229-30. (A. 182-189)
This request was denied: July 28, 1975, the district
court entered orders dismissing the Hobbs case and, in 
the context of the Gore case, enjoining defendant from 
engaging in specified discriminatory practices. (A. 191-92)

August 19, 1975 plaintiffs filed Notice of Appeal, 
and on August 22, 1975 defendant filed a cross-appeal 
(A. 194-95), from the June 4, 1975 opinion and the July 
28, 1975 orders of the district court.

Statement of the Facts 
1. Introduction

Plaintiffs’ adduced facts on four levels. First, we 
demonstrated through the circumstances surrounding the 
individual cases that both Gore and Hobbs were victimized 
by unlawful racial discrimination. Second, we produced 
a black man, not a party to the action, who recounted his 
individual experience of blatant racial discrimination

8



when he applied to Madrid Apartments at a time coincidental 
to the application of plaintiff Gore. Third, through the 
testimony of "testers," we demonstrated a clear pattern of 
racial "steering" between Monterey and Madrid Apartments. 
Fourth, we presented statistical data reflecting this 
pattern: before suit was filed, blacks were totally ex­
cluded from all three of Turner's Jackson complexes; after 
the Complaint was filed, defendant converted one of the 
three, Madrid, to an almost exclusively black complex, 
while he carefully maintained the remaining two (Monterey 
and Fairmont) exclusively for whites; finally, after 
depositions were taken of the testers who sought apartments 
at Madrid and Monterey, defendant converted both Madrid and 
Monterey to black complexes while he maintained the third, 
Fairmont, exclusively for whites. Our critical point: 
that all such evidence, when examined together, demonstrate 
overwhelmingly that Hozie Turner unlawfully discriminated 
against both Hobbs and Gore and blacks generally.

2 .
Defendant's Apartment 
Complexes and Practices 

Generally
Defendant Turner owns three apartment complexes in 

Jackson, Mississippi and a fourth, not a subject of this 
action, in Hattiesburg, Mississippi. (A. 347-349,
365, 434) Fairmont Townhouses was opened in September, 
1968 and contains 44 units; Monterey Apartments was opened

9



in late 1969 or early 1970 and contains 16 units; Madrid 
Apartments opened in January, 1971 and contains 40 units.

5/
(A. 356, 579, 582, 68-69, 77) Monterey and Madrid Apartments
are located only 3-4 blocks apart near Jackson State College, a 
virtually all black institution. Fairmont Townhouses is somewhat 
removed from the other two. (A. 581, 639)

Resident managers are employed by defendant to attend 
to the day-to-day management of the complexes; in addition, 
after a brief training period, they are delegated authority to 
accept applications and security deposits, show apartments to 
prospective tenants, order credit checks, approve credit and 
enter into leases in Mr. Turner's name. (A. 583, 613-618)

Prior to the filing of this action, defendant Turner 
employed a resident manager at Fairmont and a resident manager 
at Madrid while he personally attended to the smaller Monterey 
Apartments. (A. 580-582) After this suit was filed defendant
removed himself from the direct management of Monterey by employing 
a resident manager at Madrid and assigning to him responsibility 
for both Madrid and Monterey thereby setting the stage for the 
racial steering hereinafter described. (A. 580-582) See below,p.21.

5/ Madrid has 16 one-bedroom and 24 two-bedroom apartments; 
Fairmont has 16 one-bedroom and 28 two-bedroom apartments; Monterey's 
16 units are all two-bedroom.(Record citations in text, above)

10



Advertisements are placed in local newspapers when­
ever vacancies arise at either Fairmont or Madrid; but 
Monterey has never advertised its vacancies. Rather 
the only way one could learn of a vacancy at Monterey 
is by being specifically told of such by the resident 
manager supervising both Madrid and Monterey. (A. 592-594)

3.
Plaintiff Gore's Experience and Defendant's 

Related Policies and Practices
At relevant times, plaintiff Gore, a black woman and 

divorcee who holds a Bachelor's degree, was the Assistant 
Project Director of the National Business League's 
Jackson, Mississippi office earning in excess of $10,000 
a year. (A. 492-93) She was transferred to
that position from New Jersey in November, 1971 and upon 
arriving in Jackson she began the arduous task of securing 
housing for herself and two small children. (A. 495-96)

November 9, 1971, plaintiff Gore, on the basis of a 
sign posted at Madrid announcing vacancies, presented her­
self to the resident manager and asked to see available 
apartments. Plaintiff was immediately shown two units, 
one ready for occupancy but perhaps committed to another 
couple, the second in need of cleaning but otherwise 
available. Plaintiff told the resident manager, later

11



5a/
identified as Linda Turner, that she was desperate for 
housing and would take the unkempt apartment and clean 
it at her own expense. Plaintiff then completed an 
application form through which she provided her name, 
social security number, sex and age, marital status, 
telephone number, her former address in New Jersey, the 
name and telephone number of her employer, her title, 
and annual salary and both professional and personal 
references in Jackson. (See top section of Apartment 
Application, (A. 311a, and A. 498-99)
p.26-27) She also tendered a fifty dollar deposit. The 
resident manager then told her that a credit check would 
take 24 hours and that plaintiff should return the follow­
ing day. (a . 497-500)

When plaintiff returned the next day - November 10,
1971 - she was greeted not by the resident manager but by 
defendant Turner. During this meeting defendant told 
plaintiff that he needed additional information; plaintiff 
then provided her Master Charge account number, her 
American Express account number, the address of the National 
Office of the National Business League and the name of a 
Special Assistant to President Nixon who would vouch for 
her professional stature and business acumen. (A. 500-501, 558;
plaintiff’s Apartment Application, front and back (311a, 40-41)). 
In addition, she specifically advised defendant Turner that

5a/ Linda Turner is not related to the defendant. She excluded 
Lee King (see below, pp. 19-20) shortly before she excluded 
plaintiff Gore. Ms. Turner, as well as the resident manager of 
Fairmont at the time of the Hobbs eviction, were conspicuously absent from the trial.

12



her employer would vouch for her and act as a guarantor of 
the rent. (A. 500)

Between November 10 and November 19 several telephone calls 
were exchanged between Gore and Turner; all related to Turner's 
alleged difficulty in obtaining credit approval. Plaintiff 
described the period as follows: "[w]ell, I waited and waited
and waited and I called the lady and she said that they [were] 
checking, and finally I think I had called Mr. Turner ... and 
so he was telling me that he still couldn't get any credit 
reference and blah-blah-blah ..." (A. 502)

On November 19, 1971, plaintiff went to Madrid a third
time and spoke to Mr. Turner. She expressed despair occasioned
in part by her inability to enroll her children in school without
a permanent address. (A. 502-503) Mr. Turner stated
that he didn't know how long it would take to obtain credit
approval. At this meeting, plaintiff withdrew her $50. deposit
check and told Mr. Turner that when he had completed the credit
check she would resubmit the $50. Plaintiff insisted that in
her view the application was still active and that Mr. Turner5b/
never notified her that, in his view, her file was closed.
(A. 504, 506)

5b/ The testimony of plaintiff Gore conflicted with that of 
defendant Turner in two respects: first, plaintiff insisted that
she was under the impression that her application was not aborted 
when she withdrew her $50. deposit; defendant Turner stated that 
he told plaintiff precisely the opposite; Compare, A. 33-
34, and A. 235); secondly, defendant disputed plaintiff's testimony that he obtained the additional credit information on 
November 10; he testified that he obtained the information on 
November 19th, the date plaintiff withdrew her $50. deposit. These 
conflicts were resolved by the district court in plaintiff's favor: 
Judge Russell was "convinced that [plaintiff] was given a 'run-a­
round' by defendant Turner, and has carried her burden of proving 
that she was racially discriminated against...." j(A. 167)

13



Although there was some controversy over the dates it 
is clear that the ones provided above are accurate. Defendant's 
first inquiry to the Jackson Credit Bureau is dated November 9, 
1971, it is agreed that plaintiff met with Turner the follow­
ing day and the application form itself carried the notation 
entered by Mr. Turner that on November 19, 1971, plaintiff 
withdrew her deposit. (A. 669, Plaintiff's Application, 311a,
bottom left and right)

Plaintiff moved her family into a house ["just a place 
to stay"] long vacant, filthy and in need of extensive repairs - 
windows were broken and the roof leaked - during the second or 
third week of December, 1971. (A. 508) Plaintiff
therefore moved into this "house" sometime between December 6 
and December 20, 1971; December 18, 1971 is exactly 180 days 
before this Complaint was filed.

The record also clearly reflects that plaintiff was not 
committed to alternative housing, i_.ê  , she did not make the 
extensive repairs or buy the house, until February, 1972, well 
within the 180 day statute of limitations established under 
42 U.S.C. §3601, et. seq. ; and that plaintiff would not have 
purchased the house, if she had learned from Mr. Turner, as 
late as the date of closing, that she could obtain an apart­
ment at Madrid. (a . 56 9)

At trial it became manifestly clear that defendant Turner 
had made only one inquiry of the Jackson Credit Bureau and 
that inquiry failed to reveal any adverse credit information

14



on plaintiff. Equally important, the onlv
defendant of the Credit n re<iuest made by

Credit Bureau was to determine m
-  ^  the Mew Jersey fileS: Turner ^  ™ lne "hat
date" °n Plaintiff: he did not< for re9UeSt “  "UP-
to cheek into the Master chargl acc eX^ PlE’ ^  BUreau 
ment- (A. 671-73) CC°Unt °r plaint.if*'s employ.

Ihere can be no assailing the district court■ f
that plaintiff Gore was "CTi S lndlng- given a run-a-round " i, •by the crPdif d' hlghll9htedi lie credit ruse and tint
discrimination; (A. 167) by

and °rdiMrily COndUCtSd bY Mr- —
applicant has ^  “  dGS19ned to rev^al whether thehas poor pro/^t ,p L credit and no credit inf
—  - approval not disapproval.^ ^
Plaintiff would have keen approved and not d i ^  
the credit in,,  ̂ dl-aPProved when

investrgation failed to reveal any adverse in 
formation. (A. 584, 589, 482)

(2) Assuming, for argument's sake that a s

Valld --depth Iredit
inquiry was manifestlv in,,, S
Jackson credit Bureau for a Z  a' ^  ^~~ -«.. r—
card accounts. (A. 673) -Ployment or credit

~~6? ------
MO2T0OVGIT, ITlOSt o f  -f-V.

a w  L S ” ?  ^  ° ne aomea?oSkatwoad r id  haVe had. th e irwithout local feny as five days. This patte^S and' in isol-
' ^ T 5 5 .  1 1 6 -124® 1 • interrogatories to defe n d a n t ?  ^ “ ts

-15-



When State Mutual Savings and Loan made an inquiry of 
the Jackson Credit Bureau in connection with plaintiff's 
application for a mortgage, the following information was 
uncovered: plaintiff's special checking account in New
Jersey was satisfactory, she earned $10,000. a year as 
Assistant Director of the National Business League's 
Jackson office, had a satisfactory account with Master 
Charge with a credit limit of $1,000., that a small 
personal loan was outstanding with payments current.
(Credit Bureau Report, A. 319)

(3) At no point in the discussions between plaintiff
and defendant Turner did he ever tell her the ways in 
which she could obtain credit approval; he merely stated 
that the credit investigation was not complete. (A. 502)

(4) Defendant had made special arrangements to
accommodate white applicants. Examine the treatment of 
a white female without any gainful employment who made 
application for a $195. month apartment at Turner's Fair­
mont Townhouses: plaintiff Hobbs testified that she obtain­
ed an apartment while she was a student and that when she 
told defendant that she had no gainful employment or credit 
rating of any kind, she was advised by defendant to obtain 
her mother's signature on the lease. (A. 171, and
Lease Agreement, A. 338, providing that
"management will accept Kathy Hobbs as sole Leasee upon 
completion of school and securing full time employment,"

16



and signed by plaintiff Hobbs' mother). Contrast the treat­
ment of plaintiff Gore who, without prompting, offered her 
employer, a national organization, as guarantor of her $150. 
a month lease, which offer was simply ignored by defendant. (A. 28)

(5) Although defendant claimed that the Gore credit
investigation was hampered by the lack of "local credit
references" (A. 32) answers to interrogatories reveal that
whites without such references were found acceptable tenants 
and approved in one day.—^

4.
Plaintiff Hobbs' Experience and Defendant's 

Related Policies and Practices
Plaintiff Hobbs was evicted one hour after her black 

babysitter used the swimming pool at Fairmont Townhouses, 
through a notice, personally delivered to plaintiff by 
defendant Turner, which stated that she had engaged in "conduct 
which is, in the opinion of the Management, not in keeping with 
the wishes of the neighboring community." (Eviction Notice,
(A. 341) When defendant Turner presented plaintiff Hobbs

with the eviction notice he was asked what prompted the action.
He replied "I don't like it." (A. 215-216) No black person
had ever before used the Fairmont swimming pool. (A. 419,
443-44, 458, 470)

7/ For example, the following white tenants were accepted 
without local credit references and without an interview with 
defendant Turner: John C. Owen, providing as references,
Fulton National Bank, Atlanta, Georgia, Peachtree Federal 
Credit, Sears & Roebuck of Atlanta; Kenneth E. Burson, listing 
Purvis Service Station, Newton, Miss.: Jeannie Michelou,
listing banks in Minneapolis, Minn. (Answers to Interrogatories 
(A. 116-124)

17



Enter defense counsel and suddenly Hobbs is evicted for 
a potpourri of reasons set forth in the Answer, augmented by 
pre-trial order and embellished at trial. It was proved 
that Hobbs went swimming fully clothed in the complex pool; 
this occurred after the eviction notice, was a practice 
engaged in by many tenants and was not, according to 
defendant Turner, a violation of rules or a ground for 
eviction. (A. 358, 384) It was alleged that plaintiff 
violated regulations by authorizing a guest to use the pool 
unaccompanied; at the very moment plaintiff's babysitter 
was using the pool, an unaccompanied guest of another tenant 
was swimming; the tenant-host of that swimmer was not evicted.
(A. 359, 441) Many tenants had guests who used the pool un­
accompanied, often in the presence of the resident manager.
(A. 331-82) And, significantly-, the eviction notice did not 
cite violations of pool or apartment rules and regulations 
as a basis for eviction; only that stuff about "wishes of the 
neighboring community," was mentioned. (A. 341) It was alleged 
that plaintiff's children often roamed the complex unattended;
(A. 426) according to defendant's resident manager, many other 
children similarly roamed unattended. (A. 481, 488-89)
Hobb1s children had fallen into the pool and had to be pulled 
out by tenants; (A. 405) but other children had similar 
experiences. (A. 406-07) In the Fall of 1971, nine months 
before the eviction, the police came to the Hobb's apartment 
looking for Mrs. Hobb's boyfriend (she's divorced) in connec­
tion with a stolen automobile; plaintiff hadn't heard of 
that one until trial. (A. 461) At a party in February 1972, four

18



months before the eviction, plaintiff Hobbs made a poor 
impression on Mr. Turner's wife; (A. 361);
that too arose for the first time at trial. Other 
incidents — most of them denied by plaintiff (A. 377 — 
387), were brought to the attention of the trial court;
all of them occurred at least three months before the 
actual eviction. As the trial court observed, Mr.Turner's 
answer to the question of why he didn't evict Mrs. Hobbs 
immediately after any one or combination of these other 
incidents was that "it slipped his mind. (A. 172)

The trial court found, or at least implied, that 
plaintiff's decision to permit a black person to use the 
swimming pool, was a factor in the decision to evict.
(A 178-79) it held, however, that assuming it was 
"racially motivated," it was an "isolated incident, 
which did not sufficiently buttress plaintiff s cause 
of action. (A. 178-79)

The Experience of Lee King 
The district court summarized the uncontradicted 

testimony of Lee B. King, a black disc jockey employed 
by a local television station, who testified for plaintiffs 
to demonstrate that others, not parties to the suit, had 
been victimized by racial discrimination. (A. 163—64)
Mr. King arrived in Jackson in early September, 1971 and 
lived in a hotel while he sought permanent housing. He

19



noticed an advertisement in the local paper for vacancies 
at Madrid; he telephoned and was told by the resident 
manager that there were vacancies; he went to the complex 
was shown two vacant apartments, completed an application 
and tendered a $50. security deposit; he was told to 
return the next day; when he did the resident manager 
told Mr. King that he couldn't get an apartment but rather 
would be placed on a "waiting list;" Mr. King was stunned, 
the resident manager, without a request from Mr.King, 
returned the $50. deposit to him. There ensued an 
obviously tense exchange as Mr. King sensed a rat. His
testimony continued:

I asked her to give me an idea on how 
many people did she have on the waiting list 
and she said she couldn't tell me that. And 
she said for me to check back with her the 
next day. I didn’t check back with her the 
next day. I think it was three days later I checked back with her and I was then told - 
I called in a different way this time - I 
asked the same question, were there any 
vacancies. She said yes, and she said,'You'll have to come in and put in an applica­
tion. ' I said, ' I already have.' There was 
a silence for a few minutes and she said,
'I'll be contacting you in a few days.'

Q. Did you ever hear from her again?
A. No.
(A. 615, 608-619)

20



The "Testers11 and Racial "Steering."
Plaintiffs determined to "test" Madrid Apartments 

after the suit was filed to determine whether blacks and 
whites with identical housing needs and financial 
resources would be treated differently by the resident 
manager of Madrid and Monterey. (See last paragraph,p.10
above.) The results were startling.Louisa Floyd [White—Female] : November 14,

1973, 3 pTm ., she went to the office of the resident manager, Mr. Pridgen, which was located in the Madrid 
Apartments. At 3:30 P.M., Mr. Pridgen arrived. Ms. 
Floyd asked for a one-bedroom apartment and was told 
that none was available. She then completed a standard application form and was told by Mr.Pridgen 
to call back in a week to determine whether any 
vacancies had arisen. (A. 254-257)

November 16, 1973, Ms. Floyd telephoned
Mr. Pridgen and told him that she now needed a two 
bedroom apartment which she intended to share with a 
friend. Mr. Pridgen told her that he did have a two 
bedroom vacancy, but that it was at Monterey Apart­
ments. Ms. Floyd then asked whether she and her 
friend could examine the apartment; Mr. Pridgen said that they could if they arrived at his office before 
5:00 P.M. (A. 258)

Ms. Floyd and her friend, Ms. Ruth Weining, 
went to Mr. Pridgen's office, arriving at 4:50 P.M. 
The group then drove to Monterey Apartments. On the 
way, Mr. Pridgen said, "these apartments [Monterey] 
are all white; the other ones at Madrid are 50—50, 
but when I have people like you two I bring them 
over here." (A- 258-259)

Ns. Ruth Weining [White—Female] : Corroborated 
Ms. Floyd”' s testimony; she too clearly recalls Mr. Pridgen's statement regarding the racial composi­
tion of Madrid and Monterey and the "steering" of 
prospective tenants based upon race. (A. 647—652)

6.

21



Ms. Mildred Davis [Black-Female] : November
14, 1973, Ms. Davis made the same inquiry of Mr.
Pridgen as was made on the same day by Ms. Floyd: 
she asked for a one-bedroom apartment. Mr.Pridgen 
told Ms. Davis that the only apartment he had 
available was a two-bedroom unit at Madrid. Ms. Davis 
examined the apartment and described it fully in her 
testimony. Mr. Pridgen told her how happy he was that 
she was making application for Madrid since so many 
Jackson State people resided there. Ms. Davis said 
that she would get in touch with Mr. Pridgen if she 
desired the apartment.

November 19, 1973, at 3 P.M., Ms. Davis telephoned 
Mr. Pridgen and was told that he still had the two bed­
room vacancy at Madrid. (a . 637-642)

The testimony of Floyd, Weining and Davis corroborated 
by statistical data recorded below reveals a classic pattern 
of racial discrimination marked by the "steering" and assign­
ment of blacks to one area and the "steering" and assignment 
of whites to another. Ms. Davis, a black woman and Ms.Floyd, 
a white woman, made identical inquiries on the same day:
Ms. Floyd was told that there were no vacancies while Ms.
Davis was told that there was only one vacancy-at Madrid- 
and that it was a two-bedroom unit. When Ms. Floyd called 
back two days later, on November 16, and inquired whether 
any two-bedroom units were available no mention was made 
of the two-bedroom vacancy at Madrid; rather, Mr.Pridgen 
told her that he had a two-bedroom vacancy only at Monterey. 
That a two-bedroom vacancy was available at Madrid on the 
date of Ms. Floyd's inquiry of November 16 is clearly con­
firmed by Ms. Davis' testimony that on November 19, Mr.Pridgen 
advised her that the vacancy at Madrid still existed.

22



Similarly, Ms. Davis was never advised of the vacancy at 
Monterey.

The practice under challenge is highlighted by state­
ments made by the resident manager to prospective tenants: 
blacks are encouraged to occupy Madrid [they are told of the 
many Jackson State College tenants at Madrid] while whites 
are encouraged to occupy the all-white Monterey ["when I 
have people like you I bring them to Monterey," and Madrid 
is "50-50"]. The racial steering was most effective: at the 
time of the "test" Madrid was rapidly becoming all black 
while Monterey was occupied exclusively by whites. (A. 312, 313)

7. Statistical Data
Plaintiffs' fourth level of proof established a pattern 

of racial exclusion and discrimination through statistical 
data.

(a) From the time- all three complexes were open in 
1968, 1969 and 1971 through the filing of the Complaint in 
this action, none of the defendant's 100 units had ever been 
occupied by blacks. (A. 582, 598-99, 353) This, in the 
face'of two complexes located close to the virtually all black 
Jackson State College and a turnover as high as 50% at Madrid 
during a six month period. (A. 591-92)

(b) This suit was filed in June, 1972, charging Turner 
with excluding blacks from Madrid. By March 2, 1973, 
defendant had eleven black tenants at Madrid; by the time

-23-



of trial, 38 of the forty units were occupied by blacks, 
one white family occupied the 39th and the resident manager, 
Mr. Pridgen, occupied the 40th. (A. 314; Answers to Inter­
rogatories, March 2, 1973, Exhibit "A" A. 116-119) Fairmont 
Townhouse, which defendant sees as under challenge for 
excluding blacks from the swimming pool, remains virtually 
all white, although one black family had lived there and 
moved away by the time of trial. (A. 420, 436-437, 479) 
Monterey, which was not mentioned in these proceedings 
until December, 1973, remained all white. (A. 598-99)

(c) December 3, 1973, plaintiffs took the depositions 
of the "testers," for the purpose of preserving testimony. 
Those depositions were attended by counsel opposite, Mr. 
Turner and the Monterey-Madrid manager, Mr. Pridgen. (A.
251, 693) Until that day, no black person had ever occupied 
an apartment at Monterey. (A. 598-99) By the time of trial, 
October 2, 1974, Monterey had 12 units occupied by blacks, 
and 4 units occupied by whites. {A. 312, 315)

By trial, Fairmont was occupied solely by whites,
Madrid was 97.4% black, and Monterey was 75% black. This 
in the face of a clear policy requiring resident managers 
to refer prospective tenants to each other so that all 
three complexes have the benefit of an application or 
inquiry to any one. (A. 592, 485)

24



Summary of Argument
I

The district court's holding that proof of discrimin­
ation advanced through the Gore cause of action is separate 
and distinct from proof of discrimination advanced through 
the Hobbs cause of action is inconsistent with evidentiary 
and substantive principles well recognized in cases charging 
racial or other invidious discrimination; the district court 
erred in not considering the proof advanced in these cases, 
interrelated, interdependent and cumulative. And a finding 
of unlawful discrimination against plaintiff Gore, when con­
sidered in tandem with plaintiffs' remaining proof- including 
the district court finding that the race of plaintiff Hobbs' 
babysitter was a factor in the Hobbs' eviction-compel a 
holding that plaintiff Hobbs was evicted for reasons violative 
of the Fair Housing Laws of the United States.

II
Plaintiffs proved past and current violations, and the 

potential for future violations of the Fair Housing Laws of 
the United States and the district court failed in its duty 
to enter relief responsive to such proof: (a) to compensate
for past violations, the court's award of actual damages should 
have included sums for humiliation, mental anguish and the 
inconvenience presumed to attend incidents of racial discrim­
ination and proved in this case; for such violations the

-25-



court should have awarded, in the circumstances of this case, 
punitive damages; (b) to assure the elimination of discrimin­
atory past practices and to protect against future violations, 
the district court should have entered a decree providing for 
corrective or "affirmative action," (tailored to the violations 
and circumstances herein present), the filing of periodic 
reports and the retention of jurisdiction for a reasonable 
period of time to assure that the relief afforded is fully 
implemented and proves adequate in practice; (c) attorneys' 
fees also should have been awarded for reasons set forth 
immediately below.

Ill
The 180 day statute of limitations controlling cases 

brought pursuant to 42 U.S.C. § 3601, e_t seq. , is not a bar 
to any of the relief sought by named plaintiffs and the class:

(a) §3601 and §1982 are separate and independent 
statutory bases for awards of injunctive relief and compen­
satory and punitive damages and limitations controlling under 
one statute do not control or limit the second; plaintiffs 
Gore and Hobbs were entitled to compensatory and punitive 
damages under either or both statutes in an amount not limited 
to that specified in §3612(c);

(b) plaintiffs' request for attorneys' fees should
have been granted: (i) plaintiff Hobbs' admittedly viable cause
of action under §3601 proceeded, and should have been certi-

-26-



fied as a class action, in behalf of blacks as well as whites, 
and attorneys' fees for time expended in behalf of Hobbs and 
the class generally, were recoverable under §3612(c), as a 
matter of right; (ii) as to plaintiffs request for attorneys' 
fees for time expended in behalf of plaintiff Gore: under
the doctrine of "continuing violations," the Gore complaint 
was filed within 180 days of the unlawful act and timely un­
der §3601; under Alyeska Pipeline v. Wilderness Society,44 
L. Ed 2d 141, 154 (1974), fees are recoverable under §1982 
since defendant has"acted in bad faith, vexatiously [and] 
wantonly," in his dealings with plaintiffs, plaintiff class 
and the court; time expended by counsel in behalf of plaintiff 
Gore was critical to the proof advanced in behalf of the class 
and plaintiff Hobbs and does not lend itself to separation 
from the balance of the case; attorneys' fees for such time 
are therefore recoverable as expended in behalf of the Hobbs 
and the class §3601 causes of action.

IV
Nor is the district court's holding that plaintiffs 

failed to offer proof of attorneys' fees a bar to recovery: 
fees are recoverable upon proof of an attorney-client re­
lationship and not upon proof of a duty to pay; they are re­
coverable as part of costs jmd only to the prevailing party 
and may be proved after the completion of the trial and the 
entry of an opinion on the merits; consequently, such fees 
cannot be denied merely because plaintiffs failed to offer

-27-



proof thereof in conjunction with their case on the merits 
unless, of course, the district court has notified counsel 
of such a requirement through a written rule or order. No 
such notice was provided in this case to guide counsel and 
he must be permitted to prove plaintiffs 1 claim 
on remand. Finally, the district court's ruling that defend­
ant's counsel's hourly rate and fees charged to his client, 
is not relevant to the issue of what constitutes a reason­
able fee for plaintiffs' counsel, is in error.

-28-



ARGUMENT

I .
The d i s t r i c t  court  was unimpressed by  d e fe n d a n t ' s  p ro o f  

o f  improper conduct by p l a i n t i f f  Hobbs. A f t e r  summarizing  

that  testimony, Judge R u s s e l l  observed :

[A ]ssuming that  . . . [ the  r e s id e n t
manager ' s ] r e q u e s t  f o r  the b la ck  b a b y s i t t e r  
to  leave  the poo l  was r a c i a l l y  motivated ,  
and imputed to  Turner,  t h i s  in c id en t  a lone  
does not support Hobbs '  a l l e g a t i o n  that  she 
was e v ic ted  pursuant to  a p o l i c y ,  p r a c t i c e  
and custom o f  r a c i a l  d i s c r im in a t io n  pursued  
by Turner.  . . . [ T ] h i s  i s o l a t e d  ins tance ,
even i f  r a c i a l l y  motivated ,  does not meet^ 
the p roo f  r e q u i r ed  by p l a i n t i f f ' s  a l l e g a t i o n  
that  Turner pursued a p o l i c y ,  p r a c t i c e  and 
custom o f  r a c i a l  d i s c r im in a t io n  a t  Fairmont  
Townhouses in denying to p l a i n t i f f  the r i g h t  
to a s s o c ia t e  w ith  b l a c k s .  ( a . 1367-68)

The d i s t r i c t  court  m isperce ived  both the nature  o f

Hobbs' cause o f  ac t ion  and c o n t r o l l i n g  p r i n c i p l e s  o f  law.

While  an ac t ion  brought  by the A t to rney  Genera l  pursuant

to 42 U.S.C. §3613 may depend upon proof of a "pattern or
8/practice," that requirement is not imposed upon actions 

brought by private persons: the prohibitions of 42 U.S.C.
§3604 are phrased in terms of individual rights and §3612 
authorizes the enforcement of §3604 by "private persons." 
There is simply no basis for reading into either §3604 or 
§1982, Jones v. Mayer, 392 U.S. 409 (1968), an exception

8/ United States v. Real Estate Development Corp., 347 F. 
Supp. 776, 783 (N.D. Miss. 1972); United States v. West
Peachtree Tenth Corp. 437 F.2d 221 (5th Cir. 1971).

-29-



for an "isolated instance" of racial discrimination.
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205,
209 (1972). Whatever the importance of plaintiffs' allegations 
of a "pattern and practice" to the issue of class relief, 
such allegations cannot control the question of whether named 
plaintiff was victimized by unlawful discrimination.

Nor can the d i s t r i c t  court  deny p l a i n t i f f  Hobbs r e l i e f

even i f  r a c i a l  d i s c r im in a t io n  was "on ly "  one f a c t o r  among

many f o r  her  e v i c t i o n :

[R ]ace  i s  an im perm iss ib le  f a c t o r  in an 
apartment r e n t a l  d e c i s io n  and . . .  i t  can­
not be brushed a s id e  because i t  was n e i th e r  
the s o le  reason f o r  d i s c r im in a t io n  nor the 
t o t a l  f a c t o r  o f  d i s c r im in a t io n .  We f in d  no 
accep tab le  p lace  in  the law fo r  p a r t i a l  
r a c i a l  d i s c r im in a t io n .

Smith v. Sol D. Adler Realty Co., 436 
F.2d 344, 349-50 (7th Cir. 1971) (emphasis 
in original); in accord: Haythe v. Decker,
468 F.2d 336, 338 (7th Cir. 1972); Williams 
v. Mathews Co.', 499 F.2d 819, 826 (8th Cir.
1974).

Thus the r i g h t  assured by 42 U.S.C. §1982 i s  "the same

r i g h t "  as i s  enjoyed by white  c i t i z e n s  not "a lmost the same

r i g h t , "  and i t  b a r s  " a l l "  r a c i a l  d i s c r im in a t io n .  Jones v.

Mayer, 392 U.S. 409, 413 (1968); Adler Realty Co., supra,
436 F.2d at 349-50. The provisions of 42 U.S.C. §3604(b)a
prec lude  race from be ing  a c on s id e ra t io n  i n / l e a s in g  d e c i s io n  

f o r  to permit a defendant to advance a s e r i e s  o f  reasons  

f o r  denying equal  housing o p p o r tu n i t i e s ,  w ith  race  b e ing  an 

accep tab le  f a c t o r  i f  on ly  one among many, "would be a newly  

found method o f  r ep ea l  o f  a Congress iona l  A c t . "  Newbern v. Lake

30



Lovelei, Inc., 308 F.Supp. 407, 414 (S.D. Ohio, 1968) (in 
response to the defense that plaintiffs were excluded not 
because of their race but because they "were irritable and 
belligerent.") For this reason alone - the district court's 
failure to apply the proper legal standard to proof of a 
racially motivated eviction - the judgment of the district 
court must be reversed.

"[M]ost persons will [no longer] admit publicly that they
entertain any bias or prejudice against members of the Negro

9/ Wrace," and most often they will "artfully cloak and conceal,
such unlawful conduct. Although the fair housing laws pro­
hibit "sophisticated as well as simple-minded modes of dis—

11/crimination," plaintiffs can rarely identify with precision 
the devices used to disguise intentional discrimination. It 
is therefore not surprising that in virtually all cases charging 
violations of the fair housing laws, even those brought by the 
United States with its considerable investigative resources,

9/ Dailey v. City of Lawton, 296 F.Supp. 266, 268 (W.D.
Okla. 1969), aff'd, 425 F.2d 1038 (10th Cir. 1970).
10/ Haythe v. Decker Realty, 468 F.2d 336, 338 (7th Cir.
1972).
11/ Lane v. Wilson, 307 U.S. 268 (1939)

-31-



findings of discrimination turn on proof circumstantially
12/

demonstrat ing the un law fu l  conduct. In t h i s  r e sp ec t  f a i r

housing cases are no different from cases charging invidious
13/ 14/ 15/discrimination in employment, voting, public accommodations 

16/
or education. Plaintiffs Hobbs and Gore, like others before
them, depended upon proof which circumstantially but cogently
demonstrated defendant Turner's policy of intentional dis- 

17/
crimination. First, they demonstrated in their own cases,

12/ Sol D. Adler Realty, Co., supraNewbern, supra; Dailey, 
supra; United States v. Real F,state Development Corp. , 347 F.Supp.
776, 784 (N.D. Miss. 1972); United States v. West Peachtree 
Tenth Corp., 437 F.2d 221 (5th Cir. 1971); United States v. Youritan Construction Co., 370 F.Supp. 643 (N.D. Cal. 1973);United States v. Reddoch, 467 F.2d 897 (5th Cir. 1972).
13/ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99,(1972) .
14/ State of Alabama v. United States, 304 F.2d 583, 586 
(5th Cir. 1962), aff'd, 371 U.S. 37(1962).
15/ Anderson v. Pass Christian Isles Golf Club, 488 F.2d 855 
(5th Cir. 1974); United States v. Richberg, 398 F.2d 523,529,(5th Cir. 1968).
16/ Chambers v. Hendersonville City Board of Education, 364 
F.2d 189, 192 (4th Cir. 1966); Lee v. Macon County Board of 
Education, 453 F.2d 1104, 1110 (5th Cir. 1971); McLanrin v. 
Columbia M.S.S.D., 478 F.2d 348,353 (5th Cir. 1973): "It is 
difficult to believe that [Turner's] level of tolerance of 
[Hobbs'] alleged deficiencies . . . was coincidentally reached
and exceeded at the moment," Hobbs authorized a black person 
to use the pool.
17/ Policies and practices neutral on their face may violate 
the fair housing laws if they have a discriminatory impact, in 
the same way that such policies and practices of an employer may 
violate equal employment opportunity laws.[compare: Griggs v.
Duke Power Co., 401 U.S. 424, 431 (1970) and United States v.
West Peachtree Tenth Corp.,437 F.2d 221 (5th Cir. 1971).] In 
this case, for example, plaintiffs proved that credit investi­
gations which favor those who have obtained credit in the past,

-32-



to the satisfaction of the district court, that the credit 
check was a ruse, and that the race of Hobbs' pool guest was 
a factor in the decision to evict. Second, they demonstrated 
through a non-party, a local black man who sought an apartment 
at Madrid, that defendant excluded others on the basis of 
race. Third, we demonstrated through "testers" a pattern 
of racial "steering" undertaken after this suit was filed. 
Finally, we advanced compelling statistical data confirming 
discrimination against blacks. (See, pp. 8-24, above) 
Plaintiff Hobbs could properly rely upon all of this proof to 
support her individual case:

Although . . .  [ p l a i n t i f f  schoo l  
c h i ld ren ]h ad  a l r e a d y  proved the ex is ten ce  
o f  in t e n t io n a l  school s e g re g a t io n  in  the 
Park H i l l  schoo ls ,  t h i s  c r u c i a l  f in d in g  
was t o t a l l y  ignored when a t t e n t io n  turned  
to the core c i t y  sch oo ls .  P l a i n l y ,  a 
f in d in g  o f  i n t e n t io n a l  s e g re g a t io n  as 
to a po r t ion  o f  a schoo l  system i s  not  
devoid o f  p ro b a t iv e  va lue  in a s s e s s in g  
the school a u t h o r i t i e s ' in ten t  w ith  
re spec t  to other  p a r t s  o f  the same school  
system. On the con tra ry ,  where, as he re ,  
the case in vo lve s  one schoo l  board ,  a f i n d ­
ing o f  i n t e n t io n a l  s e g re g a t io n  on i t s  p a r t  
in one p o r t ion  o f  a school  system i s  h i g h ly  
r e le v an t  to the i s sue  o f  the b o a r d ' s  in ten t  
with re sp ec t  to other  seg rega ted  schoo ls  in  
the system. This  i s  merely an a p p l i c a t i o n  
o f  the w e l l - s e t t l e d  e v id e n t i a r y  p r i n c i p l e  
that  the p r i o r  doing o f  other  s im i l a r  a c t s ,  
whether c l e a r l y  a p a r t  o f  a scheme or  not,

17/ (contd)
have an adverse impact upon blacks who depend more frequently upon 
cash transactions because they are victims of discrimination in the 
credit market. (A. 624-625, 630-631) The gravamen of
this action, however, is that Mr. Turner engages in practices which 
have a discriminatory purpose. But see, Williams v. Mathews Co., 
supra,499 F.2d at 826 and 828, finding discrimination in purpose and 
effect; United States v. Grooms, 348 F.Supp. 1130 (M.D. Fla.1972).

33-



is useful as reducing the possibility 
that the act in question was done without 
innocent intent.' 2J Wigmore, Evidence 
200 (3d ed 1940). 'Evidence that similar 
and related offenses were committed . . .
tend[s] to show a consistent pattern of 
conduct highly relevant to the issue of 
intent.' Nye & Nissen v. United States 
336 US 613, 618, 93 L Ed. 919, 69 S.Ct. 
766 (1949). Similarly, a finding of 
illicit intent as to a meaningful portion 
of the item under consideration has sub­
stantial probative value on the question 
of illicit intent as to the remainder

Applying these principles in 
the special context of school desegregation 
cases, we hold that a finding of intentionally segregative school board actions in a meaning­
ful portion of a school system, as in this 
case, creates a presumption that other 
segregated schooling within the system is not 
adventitious.... This is true even if it is 
determined that different areas of the school 
district should be viewed independently of 
each other because, even in that situation, 
there is high probability that where school 
authorities have effectuated an intentionally 
segregative policy in a meaningful portion 
of the school system, similar impermissible 
considerations have motivated their actions 
in other areas of the -system.
Keyes v. School District No.l, 413 U.S. 189 
207-208 (1973).

Just as black children in Keyes , upon proving intentional 
segregation in one facet of the school district were entitled 
to a presumption that "similar impermissible considerations 
... motivated," the school district's action in other schools, 
so plaintiff Hobbs, upon proving defendant Turner discriminated 
against plaintiff Gore and other blacks, was entitled to a 
presumption that defendant Turner intentionally discriminated

-34-



See also: McDonnell Douglas v. Green, 411 U.S.against her.
at 798-99, (proof of class discrimination is relevant to 
whether named plaintiff's discharge was pretextual or based 
upon non-discriminatory considerations); Burns v. Thiokol 
Chemical Corp., 483 F.2d 300, 305 (5th Cir. 1973) (and cases 
cited therein). Defendant Turner owns, controls and 
establishes policy for all three of his apartment complexes 
(A. 348-49) in the same way that the Denver School
Board exercises dominion over all schools in their district 
and it is legally irrelevant that proof of discrimination 
against Gore, Lee King, and the "testers" took place at Madrid 
or Monterey and not at Fairmont.

P l a i n t i f f  Hobbs was e n t i t l e d  to  judgment: the d i s t r i c t

court  found that  race was a f a c t o r  in he r  e v i c t i o n ,  which  

f in d in g  e s t a b l i s h e s  a v i o l a t i o n  o f  the f a i r  hous ing  laws;  

compell ing  c i r c u m s ta n t ia l  evidence e s t a b l i s h e d  i n d i v i d u a l  

and c l a s s  d i s c r im in a t io n ,  ( indeed, the d i s t r i c t  court  found 

f o r  p l a i n t i f f  Gore) and p l a i n t i f f  Hobbs '  a l l e g a t i o n s  should  

have been considered  in the context  o f ,  and b e n e f i t t e d  from, 

the p ro o f  in the agg rega te .

-35-



ARGUMENT II

Plaintiff Gore was awarded $490. which will fully compensate
her for expenses traceable to Turner's refusal to rent her an
apartment. (A. 168) Plaintiff Hobbs was unable to obtain an
apartment with rent comparable to that at Fairmont (A. 388-
390) and consequently suffered a substantial loss which
must be recovered on remand should this court find plaintiff

18/
Hobbs entitled to judgment. However, compensatory damages for 
humiliation, mental anguish and the inconveniences suffered, and 
punitive damages, all of which were requested through the 
Complaint and post trial memorandum (A. 22, 25), were denied by 
the district court, citing n. 14, Jones v. Mayer, supra. (A.
168) The Complaint also sought injunctive relief to compel 
corrective or "affirmative action," by defendant; (A. 23-24) 
this request, renewed through a proposed order after decision on 
the merits, (A. 184-190) was denied by the district court with­
out explanation. (A. 191-193). In all of these decisions the 
district court erred.

18/ Plaintiff Hobbs' monthly rent at Fairmont was $165.; she 
obtained an apartment in July, 1972, which rented at $210. At 
the time of briefing in the district court her loss totalled 
$1,350. (A- 389-90)

36 -



A. Compensatory and P u n i t iv e  Damages

The district court, in declining to award more than expenses 
traceable to the unlawful refusal to rent, and in refusing to 
award punitive damages, cited only n.14 of Jones v. Mayer Co.,
392 U.S. at 414-15. Therein the Supreme Court did not preclude 
such damages as a matter of law; rather, it held that "we need 
not decide here whether in some circumstances a party aggrieved 
by a violation of §1982 might properly assert an implied right 
to compensatory damages. . . In no event, on the facts alleged in
the present complaint, would the petitioners by entitled to pun­
itive damages." (emphasis added) As this Court noted in Lee v. 
Southern Home Sites, 429 F.2d 290 (5th Cir. 1970), the denial of 
punitive damages in Jones v. Mayer Co., derived from a relunc- 
tance to penalize a defendant who could not have anticipated 
that his practices were unlawful. There i.s no question, however, 
that both compensatory and punitive damages are recoverable under 
both §1982 and §3601, et seq. Sol D. Adler Realty Co., supra,
436 F.2d at 350-51; Sullivan v. Little Hunting Park, Inc., 396 U.S. 
229, 239 (1969) ("The existence of a statutory right [§1982] 
implies the existence of all necessary and appropriate remedies.") 
Lee v. Southern Home Sites, supra, 429 F.2d at pp. 294-95. The 
issue, then, is not whether as a matter of law such damages are 
recoverable but rather under what circumstances should they be 
awarded.

-37-



The Supreme Court's recent resolution of an analogous 
issue - when should back pay be awarded in cases brought 
pursuant to Title VII, 42 U.S.C §2000e- provides the proper 
framework for the Court's inquiry in the case sub judice:

The p e t i t i o n e r s  contend that  the s t a tu to ry  
scheme p rov ides  no gu idance ,  beyond i n d i c a t ­
ing that  back pay awards are  w i th in  the 
D i s t r i c t  C o u r t ' s  d i s c r e t i o n .  We d i s a g r e e .
I t  i s  t rue  that  backpay i s  not an automatic  
or mandatory remedy; l i k e  a l l  o ther  remedies  
under the Act ,  i t  i s  one which the courts  
.'may' invoke . . . .  But such d i s c r e t i o n a r y  
choices  a re  not l e f t  to a c o u r t ' s  ' i n c l i n a t i o n , 
but  to  i t s  judgment; and i t s  judgment i s  to be  
guided by sound l e g a l  p r i n c i p l e s ' . . . .  The paver
to  award back pay was bestowed by Congress, as 
p a r t  o f  a complex l e g i s l a t i v e  des ign  d i r e c te d  
at an h i s t o r i c  e v i l  o~f n a t io n a l  p r o p o r t i o n s .
A court  must e x e r c i s e  t h i s  power 1 in l i g h t  o f  
the l a r g e  o b j e c t i v e s  o f  the A c t ' . . . .

I t  i s  t rue  that ' [ e ] q u i t y  eschews mechanical  
ru le s  . . .  [and] depends on f l e x i b i l i t y . ' . . .
But when Congress invokes the C h a n c e l l o r ' s  
conscience to fu r th e r  transcendant  l e g i s l a t i v e  
purposes ,  what i s  r e q u i red  i s  the p r in c ip l e d  
a p p l i c a t i o n  o f  s tandards  co n s i s t en t  w ith  those  
purposes and not ' e q u i t y  [which] v a r i e s  l i k e  
the C h a n c e l l o r ' s  f o o t . . . .  Important n a t io n a l  
g o a l s  would be f r u s t r a t e d  by a regime o f  d i s ­
c r e t io n  that  'p roduce [d ]  d i f f e r e n t  r e s u l t s  fo r  
breaches  o f  duty in s i t u a t i o n s  that  cannot be 
d i f f e r e n t i a t e d  in p o l i c y . ' . . .

Albermarle Paper Co. v. Moody, 45 L. Ed. 280, 
295-96 (citations omitted)(emphasis added)

in Moody the Court held that the purpose of the back pay 
provisions of Title V I I  was to prod employers into compliance 
for "if employers faced only the prospect of an injunctive 
order, they would have little incentive to shun practices of 
doubious legality." 45 L.Ed. 2d at 296. In  addition, the back

38



pay provisions of Title VII assure that those victimized by un­
lawful discrimination will be made whole. 45 L.Ed. 2d at 297. 
"It follows that, given a finding of unlawful discrimination, 
bach pay should be denied only for reasons which, if applied 
generally, would not frustrate the central statutory purposes 
of eradicating discrimination throughout the economy and mak­
ing persons whole for injuries sxiffered through past discrimina­
tion." 45 L.Ed. 2d at 298-99.

Considerations virtually identical to those found in Moody 
for back pay awards under Title VII, control the issue of 
compensatory and punitive damages in cases charging violations 
of the Fair Housing Laws. Section 3601 announces that "[i]t is 
the policy of the United States to provide ... for fair housing 
throughout the United States," for "when racial discrimination 
herds men into ghettos and makes their ability to ... [rent] 
property turn on the color of their skin, then it too is a relic 
of slavery," which we are committed, as a People and Nation to 
uprooting. Jones v. Mayer Co., supra, 392 U.S. at 442-43. The
need for prodding and incentives to voluntary compliance in the 
housing arena is no less acute than in employment: injunctive
relief, especially like that provided by the district court in 
this case, without the "kicker" - compensatory and punitive 
damages and attorneys' fees - can only put other apartment 
owners in Jackson on notice that they may discriminate until 
caught for once caught they will merely be told not to do it 
again.

39



In  add i t ion  to p ro v id in g  defendants  w ith  in c e n t iv e s  to

comply v o lu n t a r i l y ,  compensatory and p u n i t i v e  damages are

necessary  to encourage l i t i g a t i o n  by "p r i v a t e  a t to rneys

general." [cf. Trafficante, supra, 409 U.S. 210-11, the
importance of §3601 enforcement by private persons leads to
re lax ed  standing requirements in f a i r  housing  c a s e s . ]  Except

fo r  those with  unusual f o r t i t u d e  and resou rces ,  v ic t im s  o f

un law fu l  d i s c r im in a t io n ,  e s p e c i a l l y  those e v ic ted  or  excluded
19/

from apartments, a re  understandab ly  r e lu c t a n t  to  be exposed
20/

to the o rdea l  o f  l i t i g a t i o n  and t r i a l .  I t  i s  not s u r p r i s i n g

that  p l a i n t i f f s  in T i t l e  V I I  cases d id  not abound and s i g n i f i c a n t
was

p rog re s s  a g a in s t  employment d i sc r im in a t ion /n o t  ach ieved  u n t i l  

the r i g h t  to back pay was w e l l  p u b l i c i z e d .  I t s  counte rpa r t  in  

the housing  arena -  compensatory and p u n i t iv e  damages -  a re  no 

l e s s  needed i f  we are  to make as much p rog re s s  in  hous ing  as 

we have made in employment.

19/ They are generally less financial independent than those 
seeking to purchase property. Contrast the plaintiffs in 
this case to those in Jones and Williams who were homeowners 
seeking to purchase property. The reported decisions demon­
strate that most fair housing cases brought by private plaintiffs 
entail allegations of discrimination in the sale of land or 
realty; most apartment house cases have been brought by the United States.
20/ Here, for example, plaintiff Hobbs suffered through 
a trial highlighted by efforts to demonstrate that she was 
immoral (proof that her boyfriend spent the night in her apart­
ment) and that she neither loved nor cared for her children (attempts to prove that she abused them verbally, permitted 
them to roam unattended, permitting them to fall into the 
swimming pool). Citations to the record will no doubt be 
provided by counsel opposite.

40



The second consideration found controlling in Moody -
to make victims of discrimination whole - is of: course 
present in cases charging housing discrimination. However, 
the primary loss in such cases will more likely derive from 
himiliation and mental anguish [cf. Brown v. Board of Education, 
347 U.S. 483, 494 (segregation "generates a feeling of 
inferiority," which may "affect the hearts and minds [of black 
children] in a way unlikely ever to be undone."] and the 
inconveniences resulting from no or inadequate housing. Here, 
for example, plaintiff Hobbs was forced to wrest her children 
from school and enroll them in another;and plaintiff Gore was 
compelled to withhold her children from school until she found a 
permanent address and finally to move her family into a long 
vacant filthy house in need of extensive repairs all at the 
same time she was adjusting to her recent move to Jackson.
These debilitating consequences of defendant Turner's unlawful 
conduct are as much in need of an award of compensatory damages 
as are plaintiff Gore's furniture storage expenses or plaintiff 
Hobbs' added rent expense. They are injuries which the courts 
have properly held cognizable and subject to compensation under 
our Fair Housing Laws. Williams v. Mathews, supra, 499 F.2d 
819, 829 (compensation for humiliation must be awarded); Seaton 
v. Sky Realty, 491 F.2d 634, 636-38 (7th Cir. 1974)(see dis­
cussion and cited cases therein); cf. Wills v. Trans World 
Airlines, 200 F.Supp. 360 (S.D. Cal. 1961); Sol D. Adler 
Realty Co., supra. Given the critical need to provide defendant

41



with incentives for compliance, given the need to encourage 
private attorneys1 general to challenge discriminatory 
practices, and given the manifest injury identifiable as 
himiliation, mental anguish and inconvenience all caused by 
unlawful discrimination, the district court abused its 
discretion in not awarding damages in excess of expenses.

The general rule relating to awards of punitive damages
is too entrenched to be argued here: "they may be imposed if
a defendant has acted wilfully and in gross disregard for the
rights of the complaining party;" in any case wherein an award
of punitive damages is under consideration the district court's
decision is subject to review if it fails to evaluate "the
nature of the conduct in question, the wisdom of some form of
pecuniary punishment and the advisability of a deterrent."
Lee v. Southern Home Sites, supra, 429 F.2d at 294. Sullivan,
supra. And in fair housing cases, the traditional standard
is informed by the need to make meaningful our commitment to
equal housing opportunity in the United States, so that denials
of such damages must be the exception rather than the

21/
rule. Moody, supra.

21/ It could be argued that the rule for punitive damages is 
more exacting in cases brought under §3612(c) because that 
statute expressly provides for awards of punitive damages 
of $1000. If Congress intended merely to have the common law rule control, there would not have been a need for an express 
reference to punitive damages; and such damages should there­
fore be awarded "unless special circumstances would render such 
an award unjust." Newman v. Piggy Park Enterprises, 390 U.S. 
400, 402, n.4 (1968). However, the Supreme Court declined to 
apply the Newman principle to back pay, Moody, supra, 45 L.Ed. 
at 294-95, while reaching approximately the same result: back
pay awards are to be the rule not the exception; in fair hous­
ing cases, awards of punitive and compensatory damages should 
also be the rule for precisely the reasons set forth in Moody.

42



But even if the Court holds that punitive damages are
not to be routinely awarded in fair housing cases, we submit 
that it is difficult to envision a case more appropriate than 
this one for such an award. Plaintiffs proved that defendant 
engaged in wi1fu1 violations of the fair housing laws three 
years after their enactment or resusitation. [§3601 and §1982]
Contrast the timing of defendant's conduct in Jones v. Mayer 
and Lee v. Southern Home Sites. Then, in November, 1973, 
five years after the Fair Housing Act of 1968, and 17 months 
after this suit was filed, plaintiffs' "testing" (see pp. 21-23, 
above), demonstrated that defendant moved his program of 
resistance into second gear, through the "steering" of whites 
to one complex and blacks to another. By trial he had shifted 
course again : he converted two of his complexes to over­
whelmingly black occupancy while retaining his third as all 
white. Such practices of racial segregation are no less 
violative of the fair housing laws than are policies of racial 
exclusion. Trafficante, supra, (holding unlawful, policies
which denied blacks and whites an opportunity for integrated 
housing). These facts, even when considered by themselves, 
but most assuredly when considered in light of the need for 
pecuniary punishment to deter violations of the fair housing 
laws, compel a holding in this Court that the district court
erred in not awarding each plaintiff at least the statutory

ifsum of $1,000. in punitive damages. Indeed,/punitive damages 
are not awarded here, the express authorization for such awards

43



§3612(c) - becomes a nullity and the "implied existence
of all necessary and appropriate remedies," for violations 
of §1982, ( Sullivan v. Little Hunting Park, supra, 396
U.S. at 239), is no more.

B. Corrective or "Affirmative Action. "
The importance of tailoring the remedy to the violations 

revealed has been recognized in all cases in equity and 
especially in cases charging racial discrimination. Swann 
v. Charlotte-Mecklenburq Board of Education, 402 U.S. 1,
15(1971); Sullivan v. Little Hunting Park, supra, 396 U.S. 
at 239. In formulating an injunctive order the court's 
objective is to fulfill its duty to remedy not merely past 
violations, but to "bar like discrimination in the future," 
by providing clear guidelines.to prevent unlawful discrimination 
in defendant's management decisions. Louisiana v. United States, 
380 U.S. 145, 154 (1965). United States v. Hunter, 459 F.2d 
205, 219 (4th Cir. 1972)(Sobeloff). In addition, the effective­
ness of the decree can only be tested in practice and the 
court must retain jurisdiction and require periodic reports for 
a reasonable period of time. Franks v. Bowman Transportation 
Co., 495 F.2d 398, 421 (5th Cir. 1974); United States v.
Hinds County School District, 433 F.2d 611, 618-19 (5th Cir.
1970); United S ta te s  v. West Peachtree  Tenth C o r p . , s u p r a .

We submit that  the decree th i s  Court appended to  West  

Peachtree Tenth C o r p . , su p ra , was entered  to se rve  as a model

-44-



f o r  l i t i g a n t s  and d i s t r i c t  courts  in f a i r  hous ing  cases .  

I t  has been so construed by d i s t r i c t  courts  lo ok in g  f o r

g u id e l in e s .  United  S ta te s  v. Real E s ta te  Development Corp .

347 F.Supp. 776, 785, (N.D. Miss. 1972). It has been referred
to as providing for relief "keep[.ing] interference with 
[defendant's] business at a minimum compatible with full 
compliance with the law." United States v. Bob Lawrence 
Realty, Inc., 474 F.2d 115, 127 (5th Cir. 1973). It should 
be entered in this case.

However, Peachtree Tenth does not fully address the 
discrimination here in evidence. First, the practice of 
withholding from prospective tenants information on all avail­
able apartments was the device fundamental to defendant's 
steering scheme. Accordingly, plaintiffs suggested to the 
district court that it include- this provision in its decree:

To assure compliance with this decree and to alert the persons protected by this Order of possible discrimination based upon race, 
color, religion and national origin, defendant 
shall daily conspicuously post in each rental 
office of the complexes covered herein, the 
apartment number, size, rental and deposit 
required of each apartment available or 
expected to become available for new occupancy.
(A. 186, see also Consent Order 8,
A. 982-983)

Secondly, d e fen d an t 's  s t e e r in g  p r a c t i c e s  were a l s o  made 

p o s s i b l e  by h i s  p o l i c y  l im i t in g  advert isements  to  Madrid and 

Fairmont,  (see p . l l ,  above) To p ro t e c t  a g a in s t  d e fe n d a n t ' s  

machinations p l a i n t i f f s  suggested  t h i s  a d d i t i o n a l  sentence not

45



found in  the Peachtree  Tenth decree : Defendant . . .  s h a l l

continue to place advertisements in newspapers or other 
media in such a manner, at such times, and in accordance 
with such procedures as [he] heretofore placed such 
advertisements . . . "  (A. 185)

Paragraph 1(c) of the proposed order (R. 1374) which 
derives verbatim from the Peachtree Tenth decree should also 
be modified somewhat to enjoin defendant's unlawful practice 
of encouraging blacks and whites to occupy separate apartment 
complexes through statements made to prospective tenants.
["I'm glad you have come here, we have lots of faculty 
members from Jackson State living here." Whites, on the 
other hand, are told "when I have people like you I bring them 
to Monterey and not Madrid which is 50-50"). See pp. 22-23, 
above.

ARGUMENT

III
The district court held that §1982 and §3601 provide 

separate and independent causes of action and that plaintiff 
Gore's failure to file suit within the time prescribed by 
§3612(a) is not a bar to her action under §1982. These 
holdings are clearly correct.Jones v. Mayer, 392 U.S. at 
416-17 n. 20; Johnson v. REA, 44 L.Ed. 2d 295, 301-302 
(1974); Alexander v. Gardner-Denver Co. 415 U.S. 36 (1974). 
The viability of plaintiff Gore's §1982 cause of action and 
plaintiff Hobbs §3601 cause of action eliminates, for all

46



practical purposes, any question regarding plaintiffs 
right to compensatory and punitive damages and injunctive 
relief. The fly in the soup: attorneys’ fees.

Under Trafficante, supra, plaintiff Hobbs has standing 
under §3601 to ch a l len ge  all of Turner’s practices excluding 
blacks from any of the complexes under his control in addition 
to obtaining relief in behalf of whites who are discriminated 
against because of their association with blacks. A cco rd in g ly ,  

plaintiffs' right to attorneys’ fees for time expended in 
behalf of Hobbs and the class derives from §3601 and an award 
of fees under §3612 must be made as a matter of right. Newman 
v. Piggy Park, supra; Moody, supra; N o r t h ^ ^ s ^ ^ ^ a r d ^ f  
Education, 412 U.S. 427 (1973); Johnson v. Je r r y  Pals Rea l

Estate, 485 F.2d 528 (7th Cir. 1973).

Although plaintiff Gore's contact with defendant Turner 
ended on November 17, 1971, it is clear that, in her view, 
her application remained pending through February, 1972 when 
she committed herself to alternative housing. Defendant Turner 
only represented that he had not been able to obtain credit 
approval and never communicated to Gore a rejection of the 
application. See n.5(b), above, p.13. Under these circumstances 
the unlawful discrimination took place on a "continuing basis," 
and plaintiff Gore filed her suit within time prescribed by 
§3612 (a). Cox v. United States Gypsum Co_._, 409 F.2d 289 (7th 
Cir. 1969); Bartness v. Drewry's U.S.A. inc^,444 F.2d 1186 (7th 
cir. 1971); Watson v. Limbach Co., 333 F.Supp 754 (S.D .Ohio,1971)

47



Moreover, Alyeska Pipeline v. Wilderness Society, 44 
L.Ed. 2d 141, 154 (1974), makes clear that attorneys' fees 
may be awarded in a §1982 cause of action when defendant has 
"acted in bad faith,vexatiously [and]wantonly." As we have 
demonstrated in the context of our request for punitive damages, 
attorneys' fees are recoverable in this case under this standard.

Finally given the interdependence of the Hobbs and Gore 
causes of action (see, pp. 31-35, above), it is reasonable 
to conclude that time expended in behalf of Gore was necessary 
to establish the Hobbs and the class claims. Plaintiffs proof 
of discrimination at Madrid and Monterey is an integral part 
of our proof of discrimination at Fairmont and attorneys' fees 
should be awarded for that additional reason.

ARGUMENT
IV.

The district court denied attorneys' fees holding that 
plaintiffshad failed to offer proof on that issue. This hold­
ing can be construed as a finding that plaintiffs failed to 
demonstrate a duty to pay counsel; it can also be construed 
as a failure to demonstrate an input of hours by counsel.
Under e i t h e r  ra t iona le  the d i s t r i c t  court  e r red .

This court has held that attorneys' fees in cases like 
this one, are to be awarded upon proof of a lawyer-client 
relationship and not upon a duty to pay. Miller v. Amusement 
Enterprises, 426 F.2d, 534, 538-39 (5th Cir. 1970). To hold

48



otherwise would undermine the purpose of the Act which 
is to encourage private litigants to vindicate national 
policy by relieving them of any duty to pay counsel.

It is true that counsel did not offer proof at trial of 
the many hours expended in behalf of plaintiffs in this case. 
As a practical matter, such documentation is better offered 
after trial and after the condition precedent to an award of 
fees - prevailing on the merits - is realized. Such fees 
are ordinarily recovered as part of costs which, of course, 
are taxed in supplementary proceedings. See 20 U.S.C. §1617, 
42 U.S.C. 2000e-5(k). But in any event, given the importance 
of fee awards to the objectives of the Fair Housing Laws it 
was an abuse of the district court's discretion to preclude 
an award on a technical holding relating to the proper timing 
of proof. This is especially so given the absence of any rule 
of the district court, or order or instruction entered in this 
particular case, providing notice of the court's preference.

During the trial of this case plaintiffs attempted to 
determine the hourly rate and fees of counsel opposite; that 
inquiry was foreclosed by the district court. (A. 367- 
3 5 8) We submit that counsel for defendant's hourly rate
and related information is relevant to the fee award to be 
granted plaintiffs' counsel; the district court should have 
permitted plaintiffs' inquiry. Johnson v. Georgia Highway 
Express, 488 F.2d 714, 718 (5th Cir. 1974)

49



CONCLUSION

For the foregoing reasons the opinion of the 
district court should be reversed, its judgments vacated 
and the cases remanded for the entry of an order provid­
ing comprehensive injunctive relief, compensatory and 
punitive damages and an award of attorneys' fees in amounts 
to be established on remand for both plaintiffs Gore and 
Hobbs in accordance with the principles set forth herein.

R e s p e c t fu l l y  submitted,

JACK GREENBERG
MELWN R. LEVENTRAL 

Suite 2030 
10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Plaintiffs- 
Appellants

50



Page

Statement of the Case ............................  1
Statement of the Facts............................  8

1. Introduction .........................  8
2. Defendant's Apartment Complexes

and Practices Generally ..............  9
3. Plaintiff Gore's Experience and

Defendant's Related Policies and
Practices ............................. 11

4. Plaintiff Hobbs' Experience and
Defendant's Related Policies and
Practices ............................. 17

5. The Experience of Lee King ...........  19
6. The "T e s t e r s "  and R a c i a l  " S t e e r i n g " .........  6

7. Statistical Data .....................  23

Summary of Argument ............................... 25

ARGUMENT:
1..........................................  29
II..........................................  36

III..........................................  46
IV................   48

TABLE OF CONTENTS

CONCLUSION 50



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-3640

JANICE ELAINE WINKLEY, et al.,
P laint if fs-Appe Hants 
Cross Appellees,

v.
HOZIE TURNER, Owner d/b/a MADRID 
APARTMENTS, etc.

Defendant-Appellee 
Cross Appellant

CERTIFICATE OF COUNSEL
The undersigned counsel of record for appellants 

certifies 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 dis­
qualification or recusal pursuant to Local Rule 13(a)

1. Janice Winkley Gore, and Kathy Hobbs, plaintiffs.
2. Melvyn R. Leventhal (Anderson, Banks, Nichols and 

Leventhal, Jackson, Mississippi); attorney's fees



*

can only be recovered through court award;

3. Hozie Turner, defendant.

f

sC
MELVYN R

N
A

. LEVENTHALAttorney of Record for 
Appellants.

* Any fee award for time expended on this appeal will be 
payable to the N.A.A.C.P. Legal Defense Fund.



TABLE OF CASES
Albemarle Paper Co. v. Moody, 45 L. Ed.

2d 280 (1975)...................................... 38,39,42,
47.Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974)..........................................  46
Alyeska Pipeline v. Wilderness Society,

44 L. Ed. 2d 141, 421 U.S. 240
(1974).............................................  27,48

Anderson v. Pass Christian Isles Golf
Club, 488 F .2d 855 (5th Cir. 1974)................  32

Bartness v. Drewry's U.S.A. Inc., 444
F .2d 1186 (7th Cir. 1971)..........................  47

Burns v. Thiokol Chemical Corp., 483
F .2d 300 (5th Cir. 1973)............................ 35

Chambers v. Hendersonville City Board
of Education, 364 F.2d 189 (4th Cir.
1966)..............................................  32

Cox v. United States Gypsum Co., 409
F .2d 289 (7th Cir. 1969)........................... 47

Dailey v. City of Lawton, 296 F.Supp.
266 (W.D. Okla. 1969), aff'd.
425 F .2d 1038, (10th Cir. 1970)....................  31,32

Franks v. Bowman Transportation Co.,
495 F .2d 398 (5th Cir. 1974).....................  44

Griggs v. Duke Power Co., 401 U.S.
424 (1970).........................................  32

Haythe v. Decker, 468 F.2d 336 (7th Cir.
!972)..............................................  30,31

Johnson v. Georgia Highway Express,488
F .2d 714 (1974).................................... 49

Johnson v. Jerry Pals Real Estate, 485528 (7th Cir. 1973)................................ 47
Johnson v. REA, 44 L. Ed. 2d 295 (1974)................  46
Jones v . Mayer Co., 392 U.S. 409 (1968)........... . passim
Keys v. School District No. 1, 413 U.S.

189 (1973).......................... .............. 33,34

- i -

I



Lane v. Wilson........................................  31
Lee v. Macon County Board of Educa­

tion, 453 F.2d 1104 (5th Cir. 1971).............  32
Lee v. Southern Home Sites, 429 F.2d

290 (5th Cir. 1970).............................. 37,42
Louisiana v. United States, 380 U.S. 145.............  44
McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1972)..............................  32,35
McLaurin v. Columbia M.S.S.D., 478

F .2d 348 (5th Cir. 1973)......................... 32
Miller v. Amusement Enterprises, 426

F . 2d 534 (5th Cir. 1970)........................  48
Newbern v. Lake Lovelie, Inc., 308 F.

Supp. 407 (S.D. Ohio, 1968).....................  31,32
Newman v. Piggy Park Enterprises, 390

U.S . 400 (1968).................................. 42,47
Northcross v. Board of Education, 412

U.S. 427 (1973).................................. 47
Seaton v. Sky Realty Co., 491 F.2d

634 (7th Cir. 1974)..............................41
Smith v. Sol D. Adler Realty Co., 436

F .2d 344 (7th Cir. 1971)........................ 30,37,41
State of Alabama v. United States, 304 

F .2d 538 (5th Cir. 1962), aff'd,
371 U.S . 37 (1962)............................... 32

Sullivan v. Little Hunting Park, 396
U.S. 229 (1969)........................ ......... 37, 42

Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 (1971).................  44o:

Trafficante v. Metropolitan Life Ins.
Co., 409 U.S. 205 (1972)........................  30,40,43,47

United States v. Bob Lawrence Realty, Inc.,
474 F .2d 115 (5th Cir. 1973)....................  45

United States v. Grooms, 348 F. Supp.
1130 (M.D. Fla. 1972)............................ 43

United States v. Hunter, 459 F.2d
205 (4th Cir. 1972).............................. 44

li



29,32,45
United States v. Real Estate Development

Corp. 347 F. Supp. 776 (N.D. Miss.1972)........................................
United States v. Reddoch, 467 F.2d 897

(5th Cir. 1972) .............................. ..... 32
United States v. Richberg, 398 F.2d 523,

(5th Cir. 1968)..............................
United States v. West Peachtree Tenth Corp.,

437 F .2d 221 (5th Cir. 1971)................
United States v. Youritan Construction Co.,

370 F. Supp. 643 (N.D. Cal. 1973)........... ..... 32
Watson v. Limbach Co., 333 F. Supp. 754,

(S.D. Ohio, 1971)............................
Williams v. Mathews Co., 449 F.2d 819,

(8th Cir. 1974)..............................
Wills v. Trans World Airlines, 200 F.

Supp. 360 (S.D. Cal. 1961).................. ..... 41

- iii -



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-3640

JANICE ELAINE WINKLEY, et al.,
Plaintiffs-Appellants, 
Cross Appellees,

v.
HOZIE TURNER, Owner d/b/a MADRID 
APARTMENTS, etc.,

Defendant-Appellee 
Cross Appellant.

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

Jackson Division

APPELLANTS' BRIEF

Statement of the Case

On this appeal, two women, one black the 
other white, charge defendant-appellee-cross 
appellant Turner with racial discrimination in 
the operation of the three apartment complexes 
owned by him, Madrid Apartments, Fairmont Town- 
houses and Monterey Apartments, all located in



Jackson, Mississippi. Jurisdiction in the Court below 
derived from 42 U.S.C. §3612 and 28 U.S.C. §1343(3) and 
(4); plaintiffs' alleged violations of rights assured 
by the fair housing laws of the United States, 42 U.S.C. 
§3601, et sep. and 42 U.S.C.§§1981-82. (A. 12)

Complaint was filed on June 16, 1972. Plaintiff 
Janice Winkley Gore, a black woman, alleged that she 
applied for an apartment at Madrid, through the resident 
manager, in November, 1971; that she was shown two apart­
ments, completed an application form and tendered a $50. 
deposit; that she was told by the resident manager to

1/

1/ The suit, as filed, charged a realtor (Bethune &
Ducey) and the owners of five apartment complexes with 
unlawful housing discrimination; it also named as 
defendant the Mississippi Real Estate Commission and 
sought the revocating of defendant realtor's license.
(A. 22,. paragraph 50 of the Complaint) The claims of 
all plaintiffs, except for those of the two appellants, 
were resolved through consent orders conforming in all 
substantive respects to the decree appended to United 
States v. West Peachtree Tenth Corp., 437 F.2d 221, 229- 
30 (5th Cir. 1971) (See, for example, the consent decree 
at A .143).

The district court also dismissed the suit against 
the Mississippi Real Estate Commission holding that agency 
immune. (A. 108) The entry of the consent order against 
Bethune & Ducey, the only realtor against which plaintiffs 
sought revocation of a real estate license, mooted the 
issue. Moreover, plaintiffs' claim that all defendants 
conspired to violate the fair housing laws failed for 
want of proof. (A. 161, n. 2)

Accordingly, the only issues remaining in this litigation 
relate to the claims of plaintiffs Janice Winkley Gore and 
Kathy Hobbs against defendant Hozie Turner d/b/a Madrid Apart­
ments, Fairmont Townhouse and Monterey Apartments.

2



return the next day for a personal interview with the 
complex owner, defendant Hozie Turner; that she return­
ed the next day, was so interviewed and told that a 
credit investigation would be undertaken; that there 
ensued numerous telephone conversations between her­
self and defendant Turner over a ten day period without 
the investigation being completed. Essentially, 
she alleged that the credit investigation was a ruse to 
disguise racial discrimination. Plaintiff Hobbs, a 
white woman, alleged that she occupied an apartment at 
Fairmont Townhouses from April, 1971 through June, 1972; 
that on June 5, 1972 she authorized her black babysitter 
to use the complex swimming pool - to attend her children - 
and was within one hour evicted through a notice, hand 
delivered by defendant Turner, for "conduct which is, in 
the opinion of the Management not in keeping with the 
wishes of the neighboring community." (A.27) Essentially 
plaintiff Hobbs alleged that she was evicted for authoriz­
ing a black person to use the Fairmont swimming pool.
(A. 17-20)

Plaintiffs brought the action pursuant to Rule 23(b)2 
in behalf of blacks and whites who may in the future be 
victimized by unlawful leasing practices at Madrid and 
Fairmont. The complaint sought prospective injunctive 
relief only for that class while it sought compensatory

3



and punitive damages and attorneys1 fees for named
2/

plaintiffs.

July 10, 1972, defendant Turner [and the resident 
managers of the complexes who were also named as defen­
dants] answered: he alleged that the class action was
improper; that plaintiff Janice Winkley Gore withdrew 
her $50. deposit during the course of the credit check 
which led to closing her file; that plaintiff Hobbs 
was evicted for a series of incidents spanning her 
tenancy, which surprisingly included events occurring 
subsequent to the eviction [swimming fully clothed]. 
Essentially he denied that he engaged in unlawful dis­
crimination; rather plaintiff Gore was simply neither 
tenacious nor persistent and plaintiff Hobbs merely an 
undesirable tenant. (A. 28-38)

September 21, 1972, defendant moved to sever the 
Hobbs and Gore cases for trial. (A. 58) October 2,1972 
the court granted that motion. (A. 90-91 ) Defendants 
also sought the dismissal of the action for failure to 
properly identify class members (A. 59 ), but the court, 
in the context of a motion by other parties defendant, 
declined to entertain that issue "until more evidence is 
before it on the identity of the class or classes." (A.112)

2/ The Complaint specified Rule 23(b)2 only. (R.2) 
Although the class action paragraph refers only to those 
"who have been" victimized by the challenged practices, 
it is abundantly clear from the prayer for relief that 
plaintiffs sought to protect all persons from future 
unlawful conduct and not merely those who were once victimized. (A. 23-25)

4



Defendant's motion to dismiss plaintiff Gore's action 
under 42 U.S.C. 3601, et: seq. , on the ground that it 
was barred by the statute of limitations was also 
carried with the case. (a . 29, 131, 136)

December 12, 1973, plaintiffs filed a Motion for 
Leave to file Supplemental Complaint and on February 4, 
1974 that motion was granted. (A. 136) The Supple­
mental Complaint alleged that subsequent to the filing 
of this Action, defendant Turner converted Madrid 
Apartments from "a complex occupied solely by whites to 
a complex occupied primarily by blacks: within six 
months to one year following the filing of this lawsuit, 
80% of the units of Madrid ... became occupied and 
continue to be occupied by black tenants despite the 
fact that prior to this litigation no apartment at 
Madrid had ever been occupied by a black." (a . 138)
The Supplemental Complaint alleged further that defen­
dant, was engaging in racial "steering," with black 
applicants "assigned" to Madrid and white applicants 
"assigned" to Fairmont Townhouses or Monterey Apart­
ments [a third complex owned by Turner and brought 
into the litigation through the Supplemental

5



Complaint]. Comprehensive injunctive relief to include 
Monterey Apartments and additional punitive damages were 
sought. (A. 138-39)

The cases were tried back-to-back on October 1 and
2, 1974. Early in the trial of the first case (Hobbs),
plaintiffs urged the district court to consolidate the
cases to the extent that proof of discrimination in one be
held relevant to whether defendant Turner discriminated

1/in the other. (A.342-44) The district court declined
to so consolidate: "I do think that the issues [in each case,
Hobbs and Gore] are separate and that they should be 
separate actions." (A. 344)

June 4, 1975, the district court entered its opinion 
holding, in the Gore case, that: (1) class action certifi­
cation was appropriate for the purpose of considering 
prospective injunctive relief; (A. 160) (2) that the
controlling date for the §3601 statute of limitations 
was November 19, 1971 - the date plaintiff Gore withdrew
her $50 deposit - which date was approximately 207 days

2/

3/ The allegations of the supplemental complaint derived 
from a program of "testing" undertaken by plaintiffs: 
whites and blacks stating identical housing needs presented 
themselves to defendant Turner's resident manager; their 
experiences were recorded in depositions, attended by 
Mr. Turner and his counsel, with controlling parts thereof 
introduced into evidence. (A. 125-26)
4/ The issues had been raised through the pre-trial order 
and resolved by the Court at trial. (A. 311, 337)

6



before the filing of the Complaint, and hence her suit 
under §3601 was barred; (A. 160-61, 166) (3) neverthe­
less, plaintiff Gore had an independent cause of action 
under 42 U.S.C. §1981-82; (A. 161) (4) plaintiff
Gore was "given a 'run-a-round' by defendant Turner, and 
has carried her burden of proving that she was racially 
discriminated against within the meaning of 42 U.S.C.
§1981 and 1982 in that she was denied the same right as 
is enjoyed by white citizens to lease rental property .... 
Turner was racially biased in his treatment of the Gore 
application;" (A. 167) (5) plaintiff Gore had fully
satisfied class action requisites and prospective in­
junctive relief in behalf of the class would be granted 
to protect against unlawful practices at all three 
Turner complexes; (A. 167, 169) (6) plaintive Gore
was entitled to actual damages of $490. but not punitive 
damages; (7) attorneys fees would be denied because "no 
evidence was offered at trial or subsequent thereto as 
to a reasonable fee nor was any evidence offerred that
Gore was financially unable to pay her attorney."
(A. 168)

The court, in the Hobbs case held that: (1) plaintiff,
although white, had a cause of action under §3601;
(2) even if plaintiff was evicted because she authorized 
a black person to use the complex swimming pool, "this

7



isolated incident," does not establish a pattern and 
practice of racial discrimination and hence the Hobbs 
action must fail. (A. 178-79)

June 27, 1975, plaintiffs filed a proposed order 
which, in addition to providing for general injunctive 
relief, sought to require defendant to take "affirmative 
action" as set forth in United States v. West Peachtree 
Tenth Corp. supra, 427 F.2d at 229-30. (a . 182-189)
This request was denied: July 28, 1975, the district
court entered orders dismissing the Hobbs case and, in 
the context of the Gore case, enjoining defendant from 
engaging in specified discriminatory practices. (a . 191-92)

August 19, 1975 plaintiffs filed Notice of Appeal, 
and on August 22, 1975 defendant filed a cross-appeal 
(A. 194-95), from the June 4, 1975 opinion and the July 
28, 1975 orders of the district court.

Statement of the Facts 
1. Introduction

Plaintiffs' adduced facts on 'four levels. First, we 
demonstrated through the circumstances surrounding the 
individual cases that both Gore and Hobbs were victimized 
by unlawful racial discrimination. Second, we produced 
a black man, not a party to the action, who recounted his 
individual experience of blatant racial discrimination

8



when he applied to Madrid Apartments at a time coincidental 
to the application of plaintiff Gore. Third, through the 
testimony of "testers," we demonstrated a clear pattern of 
racial "steering" between Monterey and Madrid Apartments. 
Fourth, we presented statistical data reflecting this 
pattern: before suit was filed, blacks were totally ex­
cluded from all three of Turner's Jackson complexes; after 
the Complaint was filed, defendant converted one of the 
three, Madrid, to an almost exclusively black complex, 
while he carefully maintained the remaining two (Monterey 
and Fairmont) exclusively for whites; finally, after 
depositions were taken of the testers who sought apartments 
at Madrid and Monterey, defendant converted both Madrid and 
Monterey to black complexes while he maintained the third, 
Fairmont, exclusively for whites. Our critical point: 
that all such evidence, when examined together, demonstrate 
overwhelmingly that Hozie Turner unlawfully discriminated 
against both Hobbs and Gore and blacks generally.

2 .
Defendant's Apartment 
Complexes and Practices 

Generally
Defendant Turner owns three apartment complexes in 

Jackson, Mississippi and a fourth, not a subject of this 
action, in Hattiesburg, Mississippi. (A. 347-349,
365, 434) Fairmont Townhouses was opened in September, 
1968 and contains 44 units; Monterey Apartments was opened

9



/ Min late 1969 or early 1970 and contains 16 units; Madrid
Apartments opened in January 4nd contains 40 units.
(A. 356, 579, 582, 68-69, 77) Monterey and Madrid Apartments
are located only 3-4 blocks apart near Jackson State College, a 
virtually all black institution. Fairmont Townhouses is somewhat 
removed from the other two. (A. 581, 639)

Resident managers are employed by defendant to attend
to the day-to-day management of the complexes; in addition, 
after a brief training period, they are delegated authority to 
accept applications and security deposits, show apartments to 
prospective tenants, order credit checks, approve credit and 
enter into leases in Mr. Turner's name. (A. 583, 613-618)

Prior to the filing of this action, defendant Turner 
employed a resident manager at Fairmont and a resident manager 
at Madrid while he personally attended to the smaller Monterey 
Apartments. (A. 580-582) After this suit was filed defendant
removed himself from the direct management of Monterey by employing 
a resident manager at Madrid and assigning to him responsibility 
for both Madrid and Monterey thereby setting the stage for the 
racial steering hereinafter described. (A. 580-582) See below,p.21.

5/ Madrid has 16 one-bedroom and 24 two-bedroom apartments; 
Fairmont has 16 one-bedroom and 28 two-bedroom apartments; Monterey's 
16 units are all two-bedroom.(Record citations in text, above)

10



Advertisements are placed in local newspapers when­
ever vacancies arise at either Fairmont or Madrid; but 
Monterey has never advertised its vacancies. Rather 
the only way one could learn of a vacancy at Monterey 
is by being specifically told of such by the resident 
manager supervising both Madrid and Monterey. (A. 592-594)

3.
Plaintiff Gore's Experience and Defendant's 

Related Policies and Practices
At relevant times, plaintiff Gore, a black woman and 

divorcee who holds a Bachelor's degree, was the Assistant 
Project Director of the National Business League's 
Jackson, Mississippi office earning in excess of $10,000 
a year. (A. 492-93) She was transferred to
that position from New Jersey in November, 1971 and upon 
arriving in Jackson she began the arduous task of securing 
housing for herself and two small children. (A. 495-96)

November 9, 1971, plaintiff Gore, on the basis of a 
sign posted at Madrid announcing vacancies, presented her­
self to the resident manager and asked to see available 
apartments. Plaintiff was immediately shown two units, 
one ready for occupancy but perhaps committed to another 
couple, the second in need of cleaning but otherwise 
available. Plaintiff told the resident manager, later

11



5a/
identified as Linda Turner, that she was desperate for 
housing and would take the unkempt apartment and clean 
it at her own expense. Plaintiff then completed an 
application form through which she provided her name, 
social security number, sex and age, marital status, 
telephone number, her former address in New Jersey, the 
name and telephone number of her employer, her title, 
and annual salary and both professional and personal 
references in Jackson. (See top section of Apartment 
Application, (A. 311a, and A. 498-99)
p.26-27) She also tendered a fifty dollar deposit. The 
resident manager then told her that a credit check would 
take 24 hours and that plaintiff should return the follow­
ing day. (a . 497-500)

When plaintiff returned the next day - November 10,
1971 - she was greeted not by the resident manager but by 
defendant Turner. During this meeting defendant told 
plaintiff that he needed additional information; plaintiff 
then provided her Master Charge account number, her 
American Express account number, the address of the National 
Office of the National Business League and the name of a 
Special Assistant to President Nixon who would vouch for 
her professional stature and business acumen. (A. 500-501, 558;
plaintiff's Apartment Application, front and back (311a, 40-41)). 
In addition, she specifically advised defendant Turner that

5a/ Linda Turner is not related to the defendant. She excluded 
Lee King (see below, pp. 19-20) shortly before she excluded 
plaintiff Gore. Ms. Turner, as well as the resident manager of 
Fairmont at the time of the Hobbs eviction, were conspicuously absent from the trial.

12



her employer would vouch for her and act as a guarantor of 
the rent. (A. 500)

Between November 10 and November 19 several telephone calls 
were exchanged between Gore and Turner; all related to Turner's 
alleged difficulty in obtaining credit approval. Plaintiff 
described the period as follows; "[w]ell, I waited and waited 
and waited and I called the lady and she said that they [were] 
checking, and finally I think I had called Mr. Turner ... and 
so he was telling me that he still couldn't get any credit 
reference and blah-blah-blah ..." (A. 502)

On November 19, 1971, plaintiff went to Madrid a third
time and spoke to Mr. Turner. She expressed despair occasioned
in part by her inability to enroll her children in school without
a permanent address. (A. 502-503) Mr. Turner stated
that he didn't know how long it would take to obtain credit
approval. At this meeting, plaintiff withdrew her $50. deposit
check and told Mr. Turner that when he had completed the credit
check she would resubmit the $50. Plaintiff insisted that in
her view the application was still active and that Mr. Turner5b./
never notified her that, in his view, her file was closed.
(A. 504, 506)

5b/ The testimony of plaintiff Gore conflicted with that of 
defendant Turner in two respects; first, plaintiff insisted that 
she was under the impression that her application was not aborted 
when she withdrew her $50. deposit; defendant Turner stated that 
he told plaintiff precisely the opposite; ' compare, A. 33-
34, and A. 235); secondly, defendant disputed plaintiff's - testimony that he obtained the additional credit information on 
November 10; he testified that he obtained the information on 
November 19th, the date plaintiff withdrew her $50. deposit. These 
conflicts were resolved by the district court in plaintiff's favor: 
Judge Russell was "convinced that [plaintiff] was given a 'run-a­
round' by defendant Turner, and has carried her burden of proving 
that she was racially discriminated against...." j(A. 167)

13



Although there was some controversy over the dates it 
is clear that the ones provided above are accurate. Defendant's 
first inquiry to the Jackson Credit Bureau is dated November 9, 
1971, it is agreed that plaintiff met with Turner the follow­
ing day and the application form itself carried the notation 
entered by Mr. Turner that on November 19, 1971, plaintiff 
withdrew her deposit. (A. 669, Plaintiff's Application, 311a,
bottom left and right)

Plaintiff moved her family into a house ["just a place 
to stay"] long vacant, filthy and in need of extensive repairs - 
windows were broken and the roof leaked - during the second or 
third week of December, 1971. (A. 508) Plaintiff
therefore moved into this "house" sometime between December 6 
and December 20, 1971; December 18, 1971 is exactly 180 days 
before this Complaint was filed.

The record also clearly reflects that plaintiff was not 
committed to alternative housing, i_.e_. , she did not make the 
extensive repairs or buy the house, until February, 1972, well 
within the 180 day statute of limitations established under 
42 U.S.C. §3601, et seq.; and that plaintiff would not have 
purchased the house, if she had learned from Mr. Turner, as 
late as the date of closing, that she could obtain an apart­
ment at Madrid. (a . 56 9)

At trial it became manifestly clear that defendant Turner 
had made only one inquiry of the Jackson Credit Bureau and 
that inquiry failed to reveal any adverse credit information

14



on plaintiff. Equally important, the only request made by 
defendant of the Credit Bureau was to determine merely what 
was in the New Jersey files; Turner did not request an "up­
date" on plaintiff: he did not, for example, ask the Bureau 
to check into the Master Charge account or plaintiff's employ­
ment. (A. 671-73)

There can be no assailing the district court's finding 
that plaintiff Gore was "given a run-a-round," highlighted 
by the credit ruse and that she was victimized by racial 
discrimination: (A. 167)

(1) The credit check ordinarily conducted by Mr. Turner
and his resident managers is designed to reveal whether the
applicant has poor credit and no credit information is a

6/basis for approval not disapproval.— Under this standard 
plaintiff would have been approved and not disapproved when 
the credit investigation failed to reveal any adverse in­
formation. (A. 584, 589, 482)

(2) Assuming, for argument's sake, that defendant had 
valid reasons for seeking an in-depth credit report, his 
inquiry was manifestly inadequate. Defendant only asked the 
Jackson Credit Bureau for a"reading" of the New Jersey file.
He failed to order a check on plaintiff's employment or credit 
card accounts. (A. 673)

6/"Moreover, most of the tenants at Madrid have had their 
credit approved in one day; some took two days and, in isol­
ated cases, as many as five days. This pattern includes tenants 
without local credit. (Interrogatories to defendant,No. l(i), 
(A.' 106, 116-124)

-15-



When State Mutual Savings and Loan made an inquiry of 
the Jackson Credit Bureau in connection with plaintiff's 
application for a mortgage, the following information was 
uncovered: plaintiff's special checking account in New
Jersey was satisfactory, she earned $10,000. a year as 
Assistant Director of the National Business League's 
Jackson office, had a satisfactory account with Master 
Charge with a credit limit of $1,000., that a small 
personal loan was outstanding with payments current.
(Credit Bureau Report, A. 319)

(3) At no point in the discussions between plaintiff 
and defendant Turner did he ever tell her the ways in 
which she could obtain credit approval; he merely stated 
that the credit investigation was not complete. (A. 502)

(4) Defendant had made special arrangements to
accommodate white applicants. Examine the treatment of 
a white female without any gainful employment who made 
application for a $195. month apartment at Turner's Fair­
mont Townhouses: plaintiff Hobbs testified that she obtain­
ed an apartment while she was a student and that when she 
told defendant that she had no gainful employment or credit 
rating of any kind, she was advised by defendant to obtain 
her mother's signature on the lease. (A. 171, and
Lease Agreement, A. 338, providing that
"management will accept Kathy Hobbs as sole Leasee upon 
completion of school and securing full time employment,"

16



and signed by plaintiff Hobbs' mother). Contrast the treat­
ment of plaintiff Gore who, without prompting, offered her 
employer, a national organization, as guarantor of her $150. 
a month lease, which offer was simply ignored by defendant. (A. 28)

(5) Although defendant claimed that the Gore credit
investigation was hampered by the lack of "local credit
references" (A. 32) answers to interrogatories reveal that
whites without such references were found acceptable tenants

7/and approved in one day.—
4.

Plaintiff Hobbs' Experience and Defendant's 
Related Policies and Practices

Plaintiff Hobbs was evicted one hour after her black
babysitter used the swimming pool at Fairmont Townhouses,
through a notice, personally delivered to plaintiff by
defendant Turner, which stated that she had engaged in "conduct
which is, in the opinion of the Management, not in keeping with
the wishes of the neighboring community." (Eviction Notice,
: (A. 341) When defendant Turner presented plaintiff Hobbs
with the eviction notice he was asked what prompted the action.
He replied "I don't like it." (A. 215-216) No black person
had ever before used the Fairmont swimming pool. (A. 419,
443-44, 458, 470)

7/ For example, the following white tenants were accepted 
without local credit references and without an interview with 
defendant Turner: John C. Owen, providing as references,Fulton National Bank, Atlanta, Georgia, Peachtree Federal 
Credit, Sears & Roebuck of Atlanta; Kenneth E. Burson, listing 
Purvis Service Station, Newton, Miss.: Jeannie Michelou,
listing banks in Minneapolis, Minn. (Answers to Interrogatories 
(A. 116-124)

17



Enter defense counsel and suddenly Hobbs is evicted for 
a potpourri of reasons set forth in the Answer, augmented by 
pre-trial order and embellished at trial. It was proved 
that Hobbs went swimming fully clothed in the complex pool; 
this occurred after the eviction notice, was a practice 
engaged in by many tenants and was not, according to 
defendant Turner, a violation of rules or a ground for 
eviction. (A. 358, 384) It was alleged that plaintiff 
violated regulations by authorizing a guest to use the pool 
unaccompanied; at the very moment plaintiff's babysitter 
was using the pool, an unaccompanied guest of another tenant 
was swimming; the tenant-host of that swimmer was not evicted.
(A. 359, 441) Many tenants had guests who used the pool un­
accompanied, often in the presence of the resident manager.
(A. 331-82) And, significantly, the eviction notice did not 
cite violations of pool or apartment rules and regulations 
as a basis for eviction; only that stuff about "wishes of the 
neighboring community," was mentioned. (A. 341) It was alleged 
that plaintiff's children often roamed the complex unattended;
(A. 426) according to defendant's resident manager, many other 
children similarly roamed unattended. (A. 481, 488-89)
Hobb's children had fallen into the pool and had to be pulled 
out by tenants; (A. 406) but other children had similar 
experiences. (A. 406-07) In the Fall of 1971, nine months 
before the eviction, the police came to the Hobb's apartment 
looking for Mrs. Hobb's boyfriend (she's divorced) in connec­
tion with a stolen automobile; plaintiff hadn't heard of 
that one until trial. (A. 461) At a party in February 1972, four

18



months before the eviction, plaintiff Hobbs made a poor
impression on Mr. Turner's wife; (A. 361); 
that too arose for the first time at trial. Other 
incidents - most of them denied by plaintiff (a . 377- 
387) , were brought to the attention of the trial court; 
all of them occurred at least three months before the 
actual eviction. As the trial court observed, Mr.Turner's 
answer to the question of why he didn't evict Mrs. Hobbs 
immediately after any one or combination of these other 
incidents was that "it slipped his mind." (A. 172)

The trial court found, or at least implied, that 
plaintiff's decision to permit a black person to use the 
swimming pool, was a factor in the decision to evict.
(A. 178-79) It held, however, that assuming it was 
"racially motivated," it was an "isolated incident," 
which did not sufficiently buttress plaintiff's cause 
of action. (A. 178-79)

5.
The Experience of Lee King

The district court summarized the uncontradicted 
testimony of Lee B. King, a black disc jockey employed 
by a local television station, who testified for plaintiffs 
to demonstrate that others, not parties to the suit, had 
been victimized by racial discrimination. (a . 163-64)
Mr. King arrived in Jackson in early September, 1971 and 
lived in a hotel while he sought permanent housing. He

19



noticed an advertisement in the local paper for vacancies 
at Madrid; he telephoned and was told by the resident 
manager that there were vacancies; he went to the complex 
was shown two vacant apartments, completed an application 
and tendered a $50. security deposit; he was told to 
return the next day; when he did the resident manager 
told Mr. King that he couldn't get an apartment but rather 
would be placed on a "waiting list;" Mr. King was "stunned;" 
the resident manager, without a request from Mr.King, 
returned the $50. deposit to him. There ensued an 
obviously tense exchange as Mr. King sensed a rat. His 
testimony continued:

I asked her to give me an idea on how 
many people did she have on the waiting list 
and she said she couldn't tell me that. And 
she said for me to check back with her the 
next day. I didn't check back with her the 
next day. I think it was three days later I 
checked back with her and I was then told - 
I called in a different way this time - I 
asked the same question, were there any 
vacancies. She said yes, and she said,
'You'll have to come in and put in an applica­
tion. ' I said, 1 I already have.' There was 
a silence for a few minutes and she said,
'I'll be contacting you in a few days.'

Q. Did you ever hear from her again?
A. No.
(A. 615, 608-619)

20



The "Testers" and Racial "Steering."
Plaintiffs determined to "test" Madrid Apartments 

after the suit was filed to determine whether blacks and 
whites with identical housing needs and financial 
resources would be treated differently by the resident 
manager of Madrid and Monterey. (See last paragraph,p.10
above.) The results were startling.Louisa Floyd [White-Female] : November 14,

1973, 3 P.M., she went to the office of the resident manager, Mr. Pridgen, which was located in the Madrid 
Apartments. At 3:30 P.M., Mr. Pridgen arrived. Ms. 
Floyd asked for a one-bedroom apartment and was told 
that none was available. She then completed a 
standard application form and was told by Mr.Pridgen 
to call back in a week to determine whether any 
vacancies had arisen. (A. 254-257)

November 16, 1973, Ms. Floyd telephoned 
Mr. Pridgen and told him that she now needed a two 
bedroom apartment which she intended to share with a 
friend. Mr. Pridgen told her that he did have a two 
bedroom vacancy, but that it was at Monterey Apart­
ments . Ms. Floyd then asked whether she and her 
friend could examine the apartment; Mr. Pridgen said 
that they could if they arrived at his office before 
5:00 P.M. (A. 258)

Ms. Floyd and her friend, Ms. Ruth Weining, 
went to Mr. Pridgen's office, arriving at 4:50 P.M. 
The group then drove to Monterey Apartments. On the 
way, Mr. Pridgen said, "these apartments [Monterey] 
are all white; the other ones at Madrid are 50-50; 
but when I have people like you two I bring them 
over here." (A- 258-259)

Ms. Ruth Weining [White-Female] : Corroborated 
Ms. Floyd's testimony; she too clearly recalls 
Mr. Pridgen's statement regarding the racial composi­
tion of Madrid and Monterey and the "steering" of 
prospective tenants based upon race. (A. 647-652)

6.

21



Ms. Mildred Davis [Black-Female] : November
14, 19,73, Ms. Davis made the same inquiry of Mr.
Pridgen as was made on the same day by Ms. Floyd: 
she asked for a one-bedroom apartment. Mr.Pridgen 
told Ms. Davis that the only apartment he had 
available was a two-bedroom unit at Madrid. Ms. Davis 
examined the apartment and described it fully in her 
testimony. Mr. Pridgen told her how happy he was that 
she was making application for Madrid since so many 
Jackson State people resided there. Ms. Davis said 
that she would get in touch with Mr. Pridgen if she 
desired the apartment.

November 19, 1973, at 3 P.M., Ms. Davis telephoned 
Mr. Pridgen and was told that he still had the two bed­
room vacancy at Madrid. (a . 637-642)

The testimony of Floyd, Weining and Davis corroborated 
by statistical data recorded below reveals a classic pattern 
of racial discrimination marked by the "steering" and assign­
ment of blacks to one area and the "steering" and assignment 
of whites to another. Ms. Davis, a black woman and Ms.Floyd, 
a white woman, made identical inquiries on the same day:
Ms. Floyd was told that there were no vacancies while Ms.
Davis was told that there was only one vacancy-at Madrid- 
and that it was a two-bedroom unit. When Ms. Floyd called 
back two days later, on November 16, and inquired whether 
any two-bedroom units were available no mention was made 
of the two-bedroom vacancy at Madrid; rather, Mr.Pridgen 
told her that he had a two-bedroom vacancy only at Monterey. 
That a two-bedroom vacancy was available at Madrid on the 
date of Ms. Floyd's inquiry of November 16 is clearly con­
firmed by Ms. Davis' testimony that on November 19, Mr.Pridgen 
advised her that the vacancy at Madrid still existed.

22



Similarly, Ms. Davis was never advised of the vacancy at 
Monterey.

The practice under challenge is highlighted by state­
ments made by the resident manager to prospective tenants : 
blacks are encouraged to occupy Madrid [they are told of the 
many Jackson State College tenants at Madrid] while whites 
are encouraged to occupy the all-white Monterey ["when I 
have people like you I bring them to Monterey," and Madrid 
is "50-50"] . The racial steering was most effective: at the 
time of the "test" Madrid was rapidly becoming all black 
while Monterey was occupied exclusively by whites. (A. 312, 313)

7. Statistical Data
Plaintiffs' fourth level of proof established a pattern 

of racial exclusion and discrimination through statistical 
data.

(a) From the time all three complexes were open in 
1968, 1969 and 1971 through the filing of the Complaint in 
this action, none of the defendant's 100 units had ever been 
occupied by blacks. (A, 582, 598-99, 353) This, in the 
face'of two complexes located close to the virtually all black 
Jackson State College and a turnover as high as 50% at Madrid 
during a six month period. (A. 591-92)

(b) This suit was filed in June, 1972, charging Turner 
with excluding blacks from Madrid. By March 2, 1973, 
defendant had eleven black tenants at Madrid; by the time

-23-



of trial, 38 of the forty units were occupied by blacks, 
one white family occupied the 39th and the resident manager, 
Mr. Pridgen, occupied the 40th. (A. 314; Answers to Inter­
rogatories, March 2, 1973, Exhibit "A" A. 116-119) Fairmont 
Townhouse, which defendant sees as under challenge for 
excluding blacks from the swimming pool, remains virtually 
all white, although one black family had lived there and 
moved away by the time of trial. (A. 420, 436-437, 479) 
Monterey, which was not mentioned in these proceedings 
until December, 1973, remained all white. (A. 598-99)

(c) December 3, 1973, plaintiffs took the depositions 
of the "testers," for the purpose of preserving testimony. 
Those depositions were attended by counsel opposite, Mr. 
Turner and the Monterey-Madrid manager, Mr. Pridgen. (A.
251, 698) Until that day, no black person had ever occupied 
an apartment at Monterey. (A. 598-99) By the time of trial, 
October 2, 1974, Monterey had 12 units occupied by blacks, 
and 4 units occupied by whites. {A. 312, 315)

By trial, Fairmont was occupied solely by whites,
Madrid was 97.4% black, and Monterey was 75% black. This 
in the face of a clear policy requiring resident managers 
to refer prospective tenants to each other so that all 
three complexes have the benefit of an application or 
inquiry to any one. (A. 592, 485)

24



Summary of Argument
I

The district court's holding that proof of discrimin­
ation advanced through the Gore cause of action is separate 
and distinct from proof of discrimination advanced through 
the Hobbs cause of action is inconsistent with evidentiary 
and substantive principles well recognized in cases charging 
racial or other invidious discrimination; the district court 
erred in not considering the proof advanced in these cases, 
interrelated, interdependent and cumulative. And a finding 
of unlawful discrimination against plaintiff Gore, when con­
sidered in tandem with plaintiffs' remaining proof- including 
the district court finding that the race of plaintiff Hobbs' 
babysitter was a factor in the Hobbs' eviction-compel a 
holding that plaintiff Hobbs was evicted for reasons violative 
of the Fair Housing Laws of the United States.

II
Plaintiffs proved past and current violations, and the 

potential for future violations of the Fair Housing Laws of 
the United States and the district court failed in its duty 
to enter relief responsive to such proof: (a) to compensate
for past violations, the court's award of actual damages should 
have included sums for humiliation, mental anguish and the 
inconvenience presumed to attend incidents of racial discrim­
ination and proved in this case; for such violations the

-25-



court should have awarded, in the circumstances of this case, 
punitive damages; (b) to assure the elimination of discrimin­
atory past practices and to protect against future violations, 
the district court should have entered a decree providing for 
corrective or "affirmative action," (tailored to the violations 
and circumstances herein present), the filing of periodic 
reports and the retention of jurisdiction for a reasonable 
period of time to assure that the relief afforded is fully 
implemented and proves adequate in practice; (c) attorneys' 
fees also should have been awarded for reasons set forth 
immediately below.

Ill
The 180 day statute of limitations controlling cases 

brought pursuant to 42 U.S.C. § 3601, et seq., is not a bar 
to any of the relief sought by named plaintiffs and the class:

(a) §3601 and §1982 are separate and independent 
statutory bases for awards of injunctive relief and compen­
satory and punitive damages and limitations controlling under 
one statute do not control or limit the second; plaintiffs 
Gore and Hobbs were entitled to compensatory and puni tive 
damages under either or both statutes in an amount not limited 
to that specified in §3612(c);

(b) plaintiffs' request for attorneys' fees should
have been granted: (i) plaintiff Hobbs' admittedly viable cause
of action under §3601 proceeded, and should have been certi-

-26-



fied as a class action, in behalf of blacks as well as whites, 
and attorneys' fees for time expended in behalf of Hobbs and 
the class generally, were recoverable under §3612(c), as a 
matter of right; (ii) as to plaintiffs request for attorneys' 
fees for time expended in behalf of plaintiff Gore: under
the doctrine of "continuing violations," the Gore complaint 
was filed within 180 days of the unlawful act and timely un­
der §3601; under Alveska Pipeline v. Wilderness Society,44 
L. Ed 2d 141, 154 (1974), fees are recoverable under §1982 
since defendant has"acted in bad faith, vexatiously [and] 
wantonly," in his dealings with plaintiffs, plaintiff class 
and the court; time expended by counsel in behalf of plaintiff 
Gore was critical to the proof advanced in behalf of the class 
and plaintiff Hobbs and does not lend itself to separation 
from the balance of the case; attorneys' fees for such time 
are therefore recoverable as expended in behalf of the Hobbs 
and the class §3601 causes of action.

IV
Nor is the district court's holding that plaintiffs 

failed to offer proof of attorneys' fees a bar to recovery: 
fees are recoverable upon proof of .an attorney-client re­
lationship and not upon proof of a duty to pay; they are re­
coverable as part of costs and only to the prevailing party 
and may be proved after the completion of the trial and the 
entry of an opinion on the merits; consequently, such fees 
cannot be denied merely because plaintiffs failed to offer

-27-



proof thereof in conjunction with their case on the merits 
unless, of course, the district court has notified counsel 
of such a requirement through a written rule or order. No 
such notice was provided in this case to guide counsel and 
he must be permitted to prove plaintiffs' claim 
on remand. Finally, the district court's ruling that defend­
ant's counsel's hourly rate and fees charged to his client, 
is not relevant to the issue of what constitutes a reason­
able fee for plaintiffs' counsel, is in error.

-28-



ARGUMENT
I .

The district court was unimpressed by defendant's proof 
of improper conduct by plaintiff Hobbs. After summarizing 
that testimony, Judge Russell observed:

[A]ssuming that . . . [the resident
manager's]request for the black babysitter 
to leave the pool was racially motivated, 
and imputed to Turner, this incident alone 
does not support Hobbs1 allegation that she 
was evicted pursuant to a policy, practice 
and custom of racial discrimination pursued 
by Turner. . . . [T]his isolated instance,
even if racially motivated, does not meet 
the proof required by plaintiff's allegation 
that Turner pursued a policy, practice and 
custom of racial discrimination at Fairmont 
Townhouses in denying to plaintiff the right 
to associate with blacks. 1367-68)

The district court misperceived both the nature of
Hobbs' cause of action and controlling principles of law.
While an action brought by the Attorney General pursuant
to 42 U.S.C. §3613 may depend upon proof of a "pattern or

8/practice," that requirement is not imposed upon actions 
brought by private persons: the prohibitions of 42 U.S.C.
§3604 are phrased in terms of individual rights and §3612 
authorizes the enforcement of §3604 by "private persons." 
There is simply no basis for reading into either §3604 or 
§1982, Jones v. Mayer, 392 U.S. 409 (1968), an exception

8/ United States v. Real Estate Development Corp., 347 F. 
Supp. 776, 783 (N.D. Miss. 1972); United States v. West 
Peachtree Tenth Corp. 437 F.2d 221 (5th Cir. 1971).

-29-



for an "isolated instance" of racial discrimination.
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205,
209 (1972). Whatever the importance of plaintiffs' allegations 
of a "pattern and practice" to the issue of class relief, 
such allegations cannot control the question of whether named 
plaintiff was victimized by unlawful discrimination.

Nor can the district court deny plaintiff Hobbs relief
even if racial discrimination was "only" one factor among
many for her eviction:

[Rjace is an impermissible factor in an 
apartment rental decision and ... it can­
not be brushed aside because it was neither 
the sole reason for discrimination nor the 
total factor of discrimination. We find no 
acceptable place in the law for partial 
racial discrimination.
Smith v. Sol D. Adler Realty Co., 436 
F.2d 344, 349-50 (7th Cir. 1971)(emphasis 
in original); in accord: Haythe v. Decker,
468 F.2d 336, 338 (7th Cir. 1972); Williams 
v. Mathews Co., 499 F.2d 819, 826 (8th Cir.
1974).

Thus the right assured by 42 U.S.C. §1982 is "the same
right" as is enjoyed by white citizens not "almost the same
right," and it bars "all" racial discrimination. Jones v.
Mayer, 392 U.S. 409, 413 (1968); Adler Realty Co., supra,
436 F.2d at 349-50. The provisions of 42 U.S.C. §3604(b)

a
preclude race from being a consideration in/leasing decision 
for to permit a defendant to advance a series of reasons 
for denying equal housing opportunities, with race being an 
acceptable factor if only one among many, "would be a newly 
found method of repeal of a Congressional Act." Newbern v. Lake

30



Lovelei, Inc., 308 F.Supp. 407, 414 (S.D. Ohio, 1968) (in
response to the defense that plaintiffs were excluded not 
because of their race but because they "were irritable and 
belligerent.") For this reason alone - the district court's 
failure to apply the proper legal standard to proof of a 
racially motivated eviction - the judgment of the district 
court must be reversed.

"[M]ost persons will [no longer] admit publicly that they
entertain any bias or prejudice against members of the Negro

9/ 10/
race," and most often they will "artfully cloak and conceal,"
such unlawful conduct. Although the fair housing laws pro­
hibit "sophisticated as well as simple-minded modes of dis- 

11/
crimination," plaintiffs can rarely identify with precision 
the devices used to disguise intentional discrimination. It 
is therefore not surprising that in virtually all cases charging 
violations of the fair housing laws, even those brought by the 
United States with its considerable investigative resources,

9/ Dailey v. City of Lawton, 296 F.Supp. 266, 268 (W.D. 
Okla. 1969), aff'd, 425 F.2d 1038 (10th Cir. 1970).
10/ Haythe v. Decker Realty, 468 F.2d 336, 338 (7th Cir. 
1972).
11/ Lane v. Wilson, 307 U.S. 268 (1939)

-31-



findings of discrimination turn on proof circumstantially
12/demonstrating the unlawful conduct. in this respect fair

housing cases are no different from cases charging invidious
,. . . .. . 11/ . 14/ 15/discrimination in employment, voting, public accommodations 16/
or education. Plaintiffs Hobbs and Gore, like others before
them, depended upon proof which circumstantially but cogently
demonstrated defendant Turner's policy of intentional dis-17/
crimination. First, they demonstrated in their own cases,

11/ Sol D. Adler Realty, Co., supra; Newbern, supra; Dailey, 
supra; United States v. Real Estate Development Corp., 347 F.Supp. 
776, 784 (N.D. Miss. 1972); United States v. West Peachtree 
Tenth Corp., 437 F.2d 221 (5th Cir. 1971); United States v.
Youritan Construction Co., 370 F.Supp. 643 (N.D. Cal. 1973) •United States v. Reddoch, 467 F.2d 897 (5th Cir. 1972).
11/ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99,

14/ State of Alabama v. United States, 304 F.2d 583, 586 
(5th Cir. 1962), aff'd, 371 U.S. 37(1962).
11/ Anderson v. Pass Christian Isles Golf Club, 488 F.2d 855 
(5th Cir. 1974); United States v. Richberq. 398 F.2d 523,529 (5th Cir. 1968).
11/ Chambers v. Hendersonville City Board of Education. 364 
F.2d 189, 192 (4th Cir. 1966); Lee v. Macon County Board of 
Education, 453 F.2d 1104, 1110 (5th Cir. 1971); McLaurin v
Columbia M.S.S.D., 478 F.2d 348,353 (5th Cir. 1973): "It is--
difficult to believe that [Turner's] level of tolerance of 
[Hobbs'] alleged deficiencies . . . was coincidentally reached 
and exceeded at the moment," Hobbs authorized a black person to use the pool.
11/ Policies and practices neutral on their face may violate 
the fair housing laws if they have a discriminatory impact, in 
the same way that such policies and practices of an employer may 
violate equal employment opportunity laws.[compare: Griqqs v 
Duke Power Co., 401 U.S. 424, 431 (1970) and United states v 
West Peachtree Tenth Corp.,437 F.2d 221 (5th Cir. 1971).] In 
this case, for example, plaintiffs proved that credit investi­
gations which favor those who have obtained credit in the past,

-32-



to the satisfaction of the district court, that the credit 
check was a ruse, and that the race of Hobbs' pool guest was 
a factor in the decision to evict. Second, they demonstrated 
through a non-party, a local black man who sought an apartment 
at Madrid, that defendant excluded others on the basis of 
race. Third, we demonstrated through "testers" a pattern 
of racial "steering" undertaken after this suit was filed. 
Finally, we advanced compelling statistical data confirming 
discrimination against blacks. (See, pp. 8-24, above) 
Plaintiff Hobbs could properly rely upon all of this proof to 
support her individual case:

Although ... [plaintiff school 
children]had already proved the existence 
of intentional school segregation in the 
Park Hill schools, this crucial finding 
was totally ignored when attention turned 
to the core city schools. Plainly, a 
finding of intentional segregation as 
to a portion of a school system is not 
devoid of probative value in assessing 
the school authorities 1 intent with 
respect to other parts of the same school 
system. On the contrary, where, as here, 
the case involves one school board, a find­
ing of intentional segregation on its part 
in one portion of a school system is highly 
relevant to the issue of the board's intent with respect to other segregated schools in 
the system. This is merely an application 
of the well-settled evidentiary principle 
that the prior doing of other similar acts, 
whether clearly a part of a scheme or not,

17/ (contd)
have an adverse impact upon blacks who depend more frequently upon 
cash transactions because they are victims of discrimination in the 
credit market. (A. 624-625, 630-631) The gravamen of
this action, however, is that Mr. Turner engages in practices which 
have a discriminatory purpose. But see, Williams v. Mathews Co., 
supra,499 F.2d at 826 and 828, finding discrimination in purpose and 
effect; United States v. Grooms, 348 F.Supp. 1130 (M.D. Fla.1972).

33-



is useful as reducing the possibility 
that the act in question was done without 
innocent intent.' 2J Wigmore, Evidence 
200 (3d ed 1940). 'Evidence that similar 
and related offenses were committed . . . 
tend[s] to show a consistent pattern of 
conduct highly relevant to the issue of 
intent.' Nye & Nissen v. United States 
336 US 613, 618, 93 L Ed. 919, 69 S.Ct. 
766 (1949). Similarly, a finding of 
illicit intent as to a meaningful portion 
of the item under consideration has sub­
stantial probative value on the question 
of illicit intent as to the remainder

Applying these principles in 
the special context of school desegregation 
cases, we hold that a finding of intentionally 
segregative school board actions in a meaning­
ful portion of a school system, as in this 
case, creates a presumption that other 
segregated schooling within the system is not 
adventitious.... This is true even if it is 
determined that different areas of the school 
district should be viewed independently of 
each other because, even in that situation, 
there is high probability that where school 
authorities have effectuated an intentionally 
segregative policy in a meaningful portion 
of the school system, similar impermissible 
considerations have motivated their actions in other areas of the system.
Keyes v. School District No.l, 413 U.S. 189 
207-208 (1973) .

Just as black children in Keyes, upon proving intentional 
segregation in one facet of the school district were entitled 
to a presumption that "similar impermissible considerations 
... motivated," the school district's action in other schools, 
so plaintiff Hobbs, upon proving defendant Turner discriminated 
against plaintiff Gore and other blacks, was entitled to a 
presumption that defendant Turner intentionally discriminated

-34-



against her. See also: McDonnell Douglas v. Green, 411 U.S. 
at 798-99, (proof of class discrimination is relevant to 
whether named plaintiff's discharge was pretextual or based 
upon non-discriminatory considerations)? Burns v. Thiokol 
Chemical Corp., 483 F.2d 300, 305 (5th Cir. 1973) (and cases 
cited therein). Defendant Turner owns, controls and 
establishes policy for all three of his apartment complexes 
(A. 348-49) in the same way that the Denver School
Board exercises dominion over all schools in their district 
and it is legally irrelevant that proof of discrimination 
against Gore, Lee King, and the ■ "testers" took place at Madrid 
or Monterey and not at Fairmont.

Plaintiff Hobbs was entitled to judgment: the district
court found that race was a factor in her eviction, which 
finding establishes a violation of the fair housing laws; 
compelling circumstantial evidence established individual 
and class discrimination, (indeed, the district court found 
for plaintiff Gore) and plaintiff Hobbs' allegations should 
have been considered in the context of, and benefitted from, 
the proof in the aggregate.

35-



ARGUMENT II

Plaintiff Gore was awarded $490. which will fully compensate
her for expenses traceable to Turner's refusal to rent her an
apartment. (A. 168) Plaintiff Hobbs was unable to obtain an
apartment with rent comparable to that at Fairmont (A. 388-
390) and consequently suffered a substantial loss which
must be recovered on remand should this court find plaintiff

18/
Hobbs entitled to judgment. However, compensatory damages for 
humiliation, mental anguish and the inconveniences suffered, and 
punitive damages, all of which were requested through the 
Complaint and post trial memorandum (A. 22, 25), were denied by 
the district court, citing n. 14, Jones v. Mayer, supra. (A.
168) The Complaint also sought injunctive relief to compel 
corrective or "affirmative action," by defendant; (A. 23.-24) 
this request, renewed through a proposed order after decision on 
the merits, (a . 184-190) was denied by the district court with­
out explanation. (A. 191-193). In all of these decisions the 
district court erred.

18/ Plaintiff Hobbs' monthly rent at Fairmont was $165.; she 
obtained an apartment in July, 1972, which rented at $210. At 
the time of briefing in the district court her loss totalled 
$1,350. (A. 389-90)

-36-



A . Compensatory and Punitive Damages
The district court, in declining to award more than expenses 

traceable to the unlawful refusal to rent, and in refusing to 
award punitive damages, cited only n.14 of Jones v. Mayer Co.,
392 U.S. at 414-15. Therein the Supreme Court did not preclude 
such damages as a matter of law; rather, it held that "we need 
not decide here whether in some circumstances a party aggrieved 
by a violation of §1982 might properly assert an implied right 
to compensatory damages. . . In no event, on the facts alleged in 
the present complaint, would the petitioners by entitled to pun­
itive damages." (emphasis added) As this Court noted in Lee v . 

Southern Home Sites, 429 F.2d 290 (5th Cir. 1970), the denial of 
punitive damages in Jones v. Mayer Co., derived from a relunc- 
tance to penalize a defendant who could not have anticipated 
that his practices were unlawful. There is no question, however, 
that both compensatory and punitive damages are recoverable under 
both §1982 and §3601, et seq. Sol D. Adler Realty Co., supra,
436 F.2d at 350-51; Sullivan v. Little Hunting Park, Inc., 396 U.S. 
229, 239 (1969) ("The existence of a statutory right [§1982] 
implies the existence of all necessary and appropriate remedies.") 
Lee v. Southern Home Sites, supra, 429 F.2d at pp. 294-95. The 
issue, then, is not whether as a matter of law such damages are 
recoverable but rather under what circumstances should they be 
awarded.

-37-



The Supreme Court's recent resolution of an analogous
issue - when should back pay be awarded in cases brought
pursuant to Title VII, 42 U.S.C §2000e- provides the proper
framework for the Court's inquiry in the case sub judice:

The petitioners contend that the statutory 
scheme provides no guidance, beyond indicat­
ing that back pay awards are within the 
District Court's discretion. We disagree.
It is true that backpay is not an automatic 
or mandatory remedy; like all other remedies 
under the Act, it is one which the courts 
'may' invoke .... But such discretionary 
choices are not left to a court's 'inclination, 
but to its judgment; and its judgment is to be guided by sound legal principles' .... The power
to award back pay was bestowed by Congress, as 
part of a complex legislative design directed 
at an historic evil of national proportions.
A court must exercise this power 'in light of 
the large objectives of the Act' ....
It is true that '[ejquity eschews mechanical 
rules ... [and] depends on flexibility.' ...
But when Congress invokes the Chancellor's 
conscience to further transcendant legislative 
purposes, what is required is the principled 
application of standards consistent with those 
purposes and not 'equity [which] varies like 
the Chancellor's foot.... Important national 
goals would be frustrated by a regime of dis- ( cretion that 'produce[d] different results for \ 
breaches of duty in situations that cannot be ( 
differentiated in policy.' ... \
Albermarle Paper Co. v. Moody, 45 L. Ed. 280, 
295-96 (citations omitted)(emphasis added)

In Moody the Court held that the purpose of the back pay 
provisions of Title VII was to prod employers into compliance 
for "if employers faced only the prospect of an injunctive 
order, they would have little incentive to shun practices of 
doubious legality." 45 L.Ed. 2d at 296. In addition, the back

38



pay provisions of Title VII assure that those victimized by un­
lawful discrimination will be made whole. 45 L.Ed. 2d at 297. 
"It follows that, given a finding of unlawful discrimination, 
back pay should be denied only for reasons which, if applied 
generally, would not frustrate the central statutory purposes 
of eradicating discrimination throughout the economy and mak­
ing persons whole for injuries suffered through past discrimina­
tion. " 45 L.Ed. 2d at 298-99.

Considerations virtually identical to those found in Moody 
for back pay awards under Title VII, control the issue of 
compensatory and punitive damages in cases charging violations 
of the Fair Housing Laws. Section 3601 announces that "[i]t is 
the policy of the United States to provide ... for fair housing 
throughout the United States," for "when racial discrimination 
herds men into ghettos and makes their ability to ... [rent] 
property turn on the color of their skin, then it too is a relic 
of slavery," which we are committed, as a People and Nation to 
uprooting. Jones v. Mayer Co., supra, 392 U.S. at 442-43. The 
need for prodding and incentives to voluntary compliance in the 
housing arena is no less acute than in employment: injunctive
relief, especially like that provided by the district court in 
this case, without the "kicker" - compensatory and punitive 
damages and attorneys' fees - can only put other apartment 
owners in Jackson on notice that they may discriminate until 
caught for once caught they will merely be told not to do it 
again.

39



In addition to providing defendants with incentives to
comply voluntarily, compensatory and punitive damages are
necessary to encourage litigation by "private attorneys
general." [cf. Trafficante, supra, 409 U.S. 210-11, the
importance of §3601 enforcement by private persons leads to
relaxed standing requirements in fair housing cases.] Except
for those with unusual fortitude and resources, victims of
unlawful discrimination, especially those evicted or excluded19/
from apartments, are understandably reluctant to be exposed

2 0 /
to the ordeal of litigation and trial. it is not surprising
that plaintiffs in Title VII cases did not abound and significant

wasprogress against employment discrimination/not achieved until 
the right to back pay was well publicized. Its counterpart in 
the housing arena - compensatory and punitive damages - are no 
less needed if we are to make as much progress in housing as 
we have made in employment.

19/ They are generally less financial independent than those 
seeking to purchase property. Contrast the plaintiffs in 
this case to those in Jones and Williams who were homeowners 
seeking to purchase property. The reported decisions demon­
strate that most fair housing cases brought by private plaintiffs 
entail allegations of discrimination in the sale of land or 
realty; most apartment house cases have been brought by the United States.
20/ Here, for example, plaintiff Hobbs suffered through 
a trial highlighted by efforts to demonstrate that she was 
immoral (proof that her boyfriend spent the night in her apart­
ment) and that she neither loved nor cared for her children 
(attempts to prove that she abused them verbally, permitted 
them to roam unattended, permitting them to fall into the 
swimming pool). Citations to the record will no doubt be 
provided by counsel opposite.

40



The second consideration found controlling in Moody -
to make victims of discrimination whole - is of course 
present in cases charging housing discrimination. However, 
the primary loss in such cases will more likely derive from 
himiliation and mental anguish [cf. Brown v. Board of Education, 
347 U.S . 483, 494 (segregation "generates a feeling of 
inferiority," which may "affect the hearts and minds [of black 
children] in a way unlikely ever to be undone."] and the 
inconveniences resulting from no or inadequate housing. Here, 
for example, plaintiff Hobbs was forced to wrest her children 
from school and enroll them in another;and plaintiff Gore was 
compelled to withhold her children from school until she found a 
permanent address and finally to move her family into a long 
vacant filthy house in need of extensive repairs all at the 
same time she was adjusting to her recent move to Jackson.
These debilitating consequences of defendant Turner's unlawful 
conduct are as much in need of an award of compensatory damages 
as are plaintiff Gore's furniture storage expenses or plaintiff 
Hobbs' added rent expense. They are injuries which the courts 
have properly held cognizable and subject to compensation under 
our Fair Housing Laws. Williams v. Mathews, supra, 499 F.2d 
819, 829 (compensation for humiliation must be awarded); Seaton 
v. Sky Realty, 491 F.2d 634, 636-38 (7th Cir. 1974)(see dis­
cussion and cited cases therein); cf. Wills v. Trans World 
Airlines, 200 F.Supp. 360 (S.D. Cal. 1961); Sol D. Adler 
Realty Co., supra. Given the critical need to provide defendant

41



with incentives for compliance, given the need to encourage 
private attorneys1 general to challenge discriminatory 
practices, and given the manifest injury identifiable as 
himiliation, mental anguish and inconvenience all caused by 
unlawful discrimination, the district court abused its 
discretion in not awarding damages in excess of expenses.

The general rule relating to awards of punitive damages
is too entrenched to be argued here: "they may be imposed if
a defendant has acted wilfully and in gross disregard for the
rights of the complaining party;" in any case wherein an award
of punitive damages is under consideration the district court's
decision is subject to review if it fails to evaluate "the
nature of the conduct in question, the wisdom of some form of
pecuniary punishment and the advisability of a deterrent."
Lee v. Southern Home Sites, supra, 429 F.2d at 294. Sullivan,
-§Hgra- And in fair housing cases, the traditional standard
is informed by the need to make meaningful our commitment to
equal housing opportunity in the United States, so that denials
of such damages must be the exception rather than the

21/rule. Moody, supra.

2lJz/ it could be argued that the rule for punitive damages is 
more exacting in cases brought under §3612(c) because that 
statute expressly provides for awards of punitive damages 
of $1000. If Congress intended merely to have the common law 
rule control, there would not have been a need for an express 
reference to punitive damages; and such damages should there­
fore be awarded "unless special circumstances would render such 
an award unjust." Newman v. Piggy Park Enterprises, 390 U.S. 
400, 402, n.4 (1968). However, the Supreme Court declined to 
apply the Newman principle to back pay, Moody, supra, 45 L.Ed. 
at 294-95, while reaching approximately the same result: back
pay awards are to be the rule not the exception; in fair hous­
ing cases, awards of punitive and compensatory damages should also be the rule for precisely the reasons set forth in Moody.

42



But even if the Court holds that punitive damages are 
not to be routinely awarded in fair housing cases, we submit 
that it is difficult to envision a case more appropriate than 
this one for such an award. Plaintiffs proved that defendant 
engaged in wilful violations of the fair housing laws three 
years after their enactment or resusitation. [§3601 and §1982]
Contrast the timing of defendant's conduct in Jones v. Mayer 
and Lee v. Southern Home Sites. Then, in November, 1973, 
five years after the Fair Housing Act of 1968, and 17 months 
after this suit was filed, plaintiffs' "testing" (see pp. 21-23, 
above), demonstrated that defendant moved his program of 
resistance into second gear, through the "steering" of whites 
to one complex and blacks to another. By trial he had shifted 
course again : he converted two of his complexes to over­
whelmingly black occupancy while retaining his third as all 
white. Such practices of racial segregation are no less 
violative of the fair housing laws than are policies of racial 
exclusion. Trafficante, supra, (holding unlawful, policies 
which denied blacks and whites an opportunity for integrated 
housing). These facts, even when considered by themselves, 
but most assuredly when considered in light of the need for 
pecuniary punishment to deter violations of the fair housing 
laws, compel a holding in this Court that the district court 
erred in not awarding each plaintiff at least the statutory 
sum of $1,000. in punitive damages. Indeed,/pifnitive damages 
are not awarded here, the express authorization for such awards -

43



§3612(c) - becomes a nullity and the "implied existence
necessary and appropriate remedies, 11 for violations 

of §1982, ( Sullivan v. Little Hunting Park, supra, 396
U.S. at 239), is no more.

B- Corrective or "Affirmative Action."
The importance of tailoring the remedy to the violations 

revealed has been recognized in all cases in equity and 
especially in cases charging racial discrimination. Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,
15(1971); Sullivan v. Little Hunting Park, supra, 396 U.S. 
at 239. in formulating an injunctive order the court's 
objective is to fulfill its duty to remedy not merely past 
violations, but to "bar like discrimination in the future," 
by providing clear guidelines to prevent unlawful discrimination 
in defendant's management decisions. Louisiana v. United States, 
380 U.S. 145, 154 (1965). United States v. Hunter, 459 F.2d 
205, 219 (4th Cir. 1972)(Sobeloff). in addition, the effective­
ness of the decree can only be tested in practice and the 
court must retain jurisdiction and require periodic reports for 
a reasonable period of'time. Franks v. Bowman Transportation 
£■?• • 495 F.2d 398, 421 (5th Cir. 1974) ; United States v.
Hinds County School District. 433 F.2d 611, 618-19 (5th Cir.
-*-970) ’ United States v. West Peachtree Tenth Corp. , supra.

We submit that the decree this Court appended to West 
Peachtree Tenth Corp., supra, was entered to serve as a model

-44-



for litigants and district courts in fair housing cases.
It has been so construed by district courts looking for 
guidelines. United States v. Real Estate Development Corp.
347 F.Supp. 776, 785, (N.D. Miss. 1972). It has been referred
to as providing for relief "keep[ing] interference with 
[defendant's] business at a minimum compatible with full 
compliance with the law." United States v. Bob Lawrence 
Realty, Inc., 474 F.2d 115, 127 (5th Cir. 1973). It should 
be entered in this case.

However, Peachtree Tenth does not fully address the 
discrimination here in evidence. First, the practice of 
withholding from prospective tenants information on all avail­
able apartments was the device fundamental to defendant's 
steering scheme. Accordingly, plaintiffs suggested to the 
district court that it include this provision in its decree:

To assure compliance with this decree and to 
alert the persons protected by this Order of possible discrimination based upon race, 
color, religion and national origin, defendant 
shall daily conspicuously post in each rental 
office of the complexes covered herein, the 
apartment number, size, rental and deposit 
required of each apartment available or 
expected to become available for new occupancy.
(A. 186, see also Consent Order f 8,
A. 982-983)

Secondly, defendant's steering practices were also made 
possible by his policy limiting advertisements to Madrid and 
Fairmont, (see p.ll, above) To protect against defendant's 
machinations plaintiffs suggested this additional sentence not

45



found in the Peachtree Tenth decree: "Defendant ... shall
continue to place advertisements in newspapers or other 
media in such a manner, at such times, and in accordance 
with such procedures as [he] heretofore placed such 
advertisements . . . "  (a . 185)

Paragraph 1(c) of the proposed order (R. 1374) which 
derives verbatim from the Peachtree Tenth decree should also 
be modified somewhat to enjoin defendant's unlawful practice 
of encouraging blacks and whites to occupy separate apartment 
complexes through statements made to prospective tenants.
["I'm glad you have come here, we have lots of faculty 
members from Jackson State living here." Whites, on the 
other hand, are told "when I have people like you I bring them 
to Monterey and not Madrid which is 50-50"). See pp. 22-23, 
above.

ARGUMENT
III

The district court held that §1982 and §3601 provide 
separate and independent causes of action and that plaintiff 
Gore's failure to file suit within the time prescribed by 
§3612(a) is not a bar to her action under §1982. These 
holdings are clearly correct.Jones v. Mayer, 392 U.S. at 
416-17 n. 20; Johnson v. REA, 44 L.Ed. 2d 295, 301-302 
(1974); Alexander v. Gardner-Denver Co. 415 U.S. 36 (1974). 
The viability of plaintiff Gore's §1982 cause of action and 
plaintiff Hobbs §3601 cause of action eliminates, for all

46



practical purposes, any question regarding plaintiffs' 
right to compensatory and punitive damages and injunctive 
relief. The fly in the soup: attorneys' fees.

Under Trafficante, supra, plaintiff Hobbs has standing 
under §3601 to challenge all of Turner's practices excluding 
blacks from any of the complexes under his control in addition 
to obtaining relief in behalf of whites who are discriminated 
against because of their association with blacks. Accordingly, 
plaintiffs' right to attorneys' fees for time expended in 
behalf of Hobbs and the class derives from §3601 and an award 
of fees under §3612 must be made as a matter of right. Newman. 
v. Piggy Park, supra; Moody, supra; Northcross v. Board of 
Education, 412 U.S. 427 (1973); Johnson v. Jerry Pals Real 
Estate, 485 F.2d 528 (7th Cir. 1973).

Although plaintiff Gore's contact with defendant Turner 
ended on November 17, 1971, it is clear that, in her view, 
her application remained pending through February, 1972 when 
she committed herself to alternative housing. Defendant Turner 
only represented that he had not been able to obtain credit 
approval and never communicated to Gore a rejection of the 
application. See n.5(b), above, p.13. Under these circumstances 
the unlawful discrimination took place on a continuing basis, 
and plaintiff Gore filed her suit within time prescribed by 
§3612(a). Cox v. United States Gypsum Co., 409 F.2d 289 (7th 
Cir. 1969); Bartness v. Drewry's U.S.A. Inc.,444 F.2d 1186 (7th 
Cir. 1971); Watson v. Limbach Co., 333 F.Supp 754 (S.D.Ohio,1971)

47



Moreover, Alyeska Pipeline v. Wilderness Society, 44
L.Ed. 2d 141, 154 (1974), makes clear that attorneys' fees 
may be awarded in a §1982 cause of action when defendant has 
"acted in bad faith,vexatiously [and]wantonly." As we have 
demonstrated in the context of our request for punitive damages, 
attorneys' fees are recoverable in this case under this standard.

Finally given the interdependence of the Hobbs and Gore 
causes of action (see, pp. 31-35, above), it is reasonable 
to conclude that time expended in behalf of Gore was necessary 
to establish the Hobbs and the class claims. Plaintiffs proof 
of discrimination at Madrid and Monterey is an integral part 
of our proof of discrimination at Fairmont and attorneys' fees 
should be awarded for that additional reason.

ARGUMENT
IV.

The district court denied attorneys' fees holding that 
plaintiffshad failed to offer proof on that issue. This hold­
ing can be construed as a finding that plaintiffs failed to 
demonstrate a duty to pay counsel; it can also be construed 
as a failure to demonstrate an input of hours by counsel.
Under either rationale the district court erred.

This court has held that attorneys' fees in cases like 
this one, are to be awarded upon proof of a lawyer-client 
relationship and not upon a duty to pay. Miller v. Amusement 
Enterprises, 426 F.2d, 534, 538-39 (5th Cir. 1970). To hold

48



otherwise would undermine the purpose of the Act which 
is to encourage private litigants to vindicate national 
policy by relieving them of any duty to pay counsel.

It is true that counsel did not offer proof at trial of 
the many hours expended in behalf of plaintiffs in this case. 
As a practical matter, such documentation is better offered 
after trial and after the condition precedent to an award of 
fees - prevailing on the merits - is realized. Such fees 
are ordinarily recovered as part of costs which, of course, 
are taxed in supplementary proceedings. See 20 U.S.C. §1617, 
42 U.S.C. 2000e-5(k). But in any event, given the importance 
of fee awards to the objectives of the Fair Housing Laws it 
was an abuse of the district court's discretion to preclude 
an award on a technical holding relating to the proper timing 
of proof. This is especially so given the absence of any rule 
of the district court, or order or instruction entered in this 
particular case, providing notice of the court's preference.

During the trial of this case plaintiffs attempted to 
determine the hourly rate and fees of counsel opposite; that 
inquiry was foreclosed by the district court. (A. 367- 
3 5 3) We submit that counsel for defendant's hourly rate
and related information is relevant to the fee award to be 
granted plaintiffs' counsel; the district court should have 
permitted plaintiffs' inquiry. Johnson v. Georgia Highway 
Express, 488 F.2d 714, 718 (5th Cir. 1974)

49



CONCLUSION

For the foregoing reasons the opinion of the 
district court should be reversed, its judgments vacated 
and the cases remanded for the entry of an order provid­
ing comprehensive injunctive relief, compensatory and 
punitive damages and an award of attorneys' fees in amounts 
to be established on remand for both plaintiffs Gore and 
Hobbs in accordance with the principles set forth herein.

Respectfully submitted,

JACK GREENBERG 
MELVYN R. LEVENTHAL 

Suite 2030 
10 Columbus Circle
New York, N.Y. 10019

Attorneys for Plaintiffs- 
Appellants

50



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