Houston v. Benttree, LTD. Petition for a Writ of Certiorari to the US Court of Appeals for the Tenth Circuit

    No. _______________

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1980

ALICE V. HOUSTON,

Petitioner,

v.

BENTTREE, LTD., an Oklahoma 
corporation.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

JACK GREENBERG 
JAMES M. NABRIT, III

(Counsel of Record)
BETH J. LIEF

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

JOHN W. WALKER 
Suite 1191
First National Bank Building 
Little Rock, Arkansas 72201 
(501) 374-3758

Counsel for Petitioner

February 1981



1

QUESTIONS PRESENTED FOR REVIEW

I. Whether a violation of the federal fair 
housing statutes is proved by a showing that a 
sales commission was denied to the black prospec­
tive buyer's real estate agent but was paid to the 
agent of a white purchaser, or by a showing of 
conduct by the defendant which delayed, hindered 
and discouraged petitioner during a period prior 
to the time the defendant was willing to sign a 
sales contract but while the property was adver­
tised by a "For Sale" sign, was open to viewing by 
the public, and when units were being "informally 
reserved" for prospective buyers.

II. Whether a suit was timely under 42 U.S.C. 
§3610(d) where it was filed in U.S. District Court 
within 30 days after petitioner was notified 
that the Department of Housing and Urban Develop­
ment (H.U.D.) was unable to obtain voluntary 
compliance, but more than 60 days after the filing 
of the administrative complaint with H.U.D.



*

- 1 1 -

PARTIES BELOW

Alice V. Houston, Plaintiff-Petitioner, and 
Benttree, Ltd., an Oklahoma corporation, Defen­
dant-Respondent, as cited in the caption of the 
case in this Court.



*

TABLE OF CONTENTS

- iii -

Page

Questions Presented for Review ..........  i

Parties Below ...........................  ii

Table of Contents .......................  iii

Table of Authorities ....................  v

OPINIONS BELOW ..........................  1

JURISDICTIONAL STATEMENT ................  2

FEDERAL STATUTE AND REGULATIONS
INVOLVED ...........................  2

STATEMENT OF THE CASE . ...................  3

Proceedings Below ...................  3

Statement of Facts ..................  6

REASONS FOR GRANTING THE WRIT ...........  22

I. THIS COURT SHOULD ARTICULATE THE 
PROPER STANDARDS OF PROOF UNDER THE 
FAIR HOUSING LAWS IN ORDER TO VINDI­
CATE AN IMPORTANT NATIONAL POLICY....  22



.'f
A

k

- IV -

Page

II. THE DECISION BELOW CREATES A CONFLICT
AMONG THE CIRCUITS ON THE STANDARD OF 
PROOF OF RACIAL DISCRIMINATION UNDER THE 
FAIR HOUSING LAWS ..................  32

III. REVIEW SHOULD BE GRANTED TO RESOLVE
A CONFLICT AMONG THE LOWER FEDERAL COURTS 
ON THE TIME LIMITATIONS FOR FILING SUITS 
UNDER 42 U.S.C. §3610, PARTICULARLY WHERE 
H.U.D. REGULATIONS AND ADVICE TO COMPLAIN­
ANTS CONFLICTS WITH THE TIME LIMITATIONS 
ADOPTED BY SOME COURTS .............  49

CONCLUSION 60



*

- v -

Table of Authorities

Page

Cases:

Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975) ....................  30

Bell v. Brown, 557 F.2d 849 (1977) ......  59

Brennan v. Occupational Safety and
Health Administration, 513 F .2d
533 (10th Cir. 1975) ...............  53

Brown v. Balias, 331 F.Supp. 1033
(N.D. Tex. 1971) ...................  51

Brown v. Blake & Bane, Inc., 402
F.Supp. 620 (E.D. Va. 1975) ........  52

Bush v. Kaim, 297 F.Supp. 151 (N.D.
Ohio 1969) .........................  40

Coles v. Penny, 531 F .2d 609 (D.C. Cir.
1976) ..............................  59

Curtis v. Loether, 415 U.S. 189 (1974) ... 23,28

Duckett v. Silberman, 568 F.2d 1020
(2d Cir. 1978) .....................  40

Gladstone, Realtors v. Village of
Bellwood, 441 U.S 91 (1979) .... 23,28,51,53



VI

Page

Goodman v. Platt, 444 F.Supp. 140
(N.D. Okla. 1978) ..................  52

Green v. Ten Eyck, 572 F .2d 1233
(8th Cir. 1978) ....................  51

Griggs v. Duke Power Co., 401 U.S. 424
(1971) .............................. 29

Haythe v. Decker Realty Co., 468 F.2d
336 (7th Cir. 1972) ................  45

International Brotherhood of Teamsters 
v. United States, 431 U.S. 324 
(1977) .............................. 30

Johnson v. Jerry Pals Real Estate, 485
F.2d 528 (7th Cir. 1973) ...........  42

Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968) .....................  22,33,42,47

Kreiger v. Merifield Acres, Inc., 465
F.Supp. 62 (E.D. Vir. 1979) reversed 
on other grounds, Civ. Action No.
79-1193 (4th Cir. 1980) (un­
reported opinion) ..................  51

Logan v. Richard E. Carmack & Assoc.,
368 F.Supp. 122 (E.D. Tenn. 1973) ... 51,58

Love v. Pullman, 404 U.S. 522
(1972) .............................  59



McDonald v. Verble, 622 F .2d 1227
(6th Cir. 1980) ....................  33,46

McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) ....................  30

Madison v. Jeffers, 494 F .2d 114
(4th Cir. 1974) ....................  42

Mayers v. Ridley, 465 F.2d 630 (D.C.
1972) ..............................  38,48

Metropolitan Housing Development v.
Village of Arlington Heights, 558
F.d 1283 (1977), cert. denied
434 U.S. 1025 (1978) ...............  28

Moore v. Townsend, 525 F .2d 482 (7th
Cir. 1975) .........................  41,48

Morgan v. Parcener's Ltd., 493 F.Supp.
180 (W.D. Okla. 1978) ..............  52

Phiffer v. Proud Parrot, ___F.2d ____
Prentice-Hall Equal Opportunity in 
Housing 115,356 (9th Cir. November 
24, 1980) ..........................  45,48

Resident Advisory Board of Rizzo,
564 F. 2d 126 (3rd Cir. 1977) .......  48

Robinson v. 12 Lofts Realty, Inc., 610
F .2d 1032 (2d Cir.- 1979) ...........  40,48

- vii -

Page



Runyon v. McCrary, 427 U.S. 160
(1976)   47

Seaton v. Sky Realty Company, Inc., 491
F. 2d 634 (7th Cir. 1974) ...........  37

Shea v. Vialpando, 416 U.S. 251 (1974) ... 52

Sims v. United States, 252 F.2d 434 (4th 
Cir. 1958), aff'd. 359 U.S.
108 (1959) .........................  53

Smith v. Anchor Building Corp., 536
F. 2d 231 (8th Cir. 1976) .........  33,39,48

Sullivan v. Little Hunting Park, 396
U.S. 299 (1969) ....................  23

Sumlin v. Brown, 420 F.Supp. 78
(N.D. Fla. 1976) ...................  52

Tatum v. Myrick, 425 F.Supp. 809
(M.D. Fla. 1977) ...................  52

Taylor v. Fletcher Properties, Civil 
Action No. 74-M-850 (S.D. Tex.,
Sept. 18, 1975) (unreported
opinion) ...........................  51

Trafficante v. Metropolitan Life, 409
U.S. 205 (1972) ................  22,23,28,54

United States v. City of Black Jack, Missouri,
508 F .2d 1179 (8th Cir. 1974), 
cert, denied, 422 U.S 1042 (1975) ...

- viii -

Page

45



IX

United States 
789 (5th

v. Mitchell, 580 F.2d 
Cir. 1978) .........

Page

48

United States v. Pelzer Realty
Company, Inc., 484 F.2d 438 (5th Cir.
1973), cert, denied 416 U.S.
939 (197777“..................  34,35,38,39,48

United States v. West Peachtree Tenth 
Corp., 437 F.2d 221 (5th Cir.
1971) .............................  37,46

United States v. Youritan Construction
Co., 370 F.Supp. 643 (N.D. Cal. 1973), 
aff'd 509 F .2d 623 (9th Cir.
77757 .......................  34,37,39,

46,48

Village of Arlington Heithers v. Metro­
politan Housing Development, 429
U.S. 252 (1977) ...................  28

Wang v. Lake Maxinhall Estates, Inc.,
531 F .2d 832 (7th Cir. 1976) ......  38,41,48

Williams v. Matthews, 499 F.2d 819 (8th 
Cir. 1974), cert. denied, 419 
U.S 1021 (1974) ...............  37,45,46,48

Williamsburg Fair Housing Comm. v.
NYCHA, 493 F.Supp. 1225 (S.D. N.T.
1980) , aff’d. __ F .2d ___  Civ.Act.
No. 80-6161 (2d Cir. January 15,
1981) .............................  40



IX

Young v. AAA Realty Co., 350 F.Supp.
1382 (M.D.N.C. 1972) ...............  52

Zuch v. Hussey, 394 F.Supp. 1028 (E.D.
Mich. 1975) aff 'd, 547 F.2d 1168
(6th Cir. 1977) ...................  37,47,48

Statutes

28 U.S.C. § 1254(a) .................  2

28 U.S.C. §1343 ....................  3

42 U.S.C. §706(f)(1) ............... 58

Civil Rights Act of 1870,

42 U.S.C §1981 ...................  2,3,4,5-
38,41,47

Civil Rights Act of 1866,

42 U.S.C. §1982 ............... 2,3,4,5,38,
41,47

Title VII of the Civil Rights Act 
of 1964,

42 U.S.C. §2000e-5 ................  58

Page



X

Title VIII of 
of 1968,

42 U.S.C

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C 

42 U.S.C

Page

the Civil Rights Act

§3601 et seq...... .. 2,3,22,47,56

§3604 ............ .......  2,3

§3604(b) .......... .......  33

§3604(d).......... ......  44,50

§3608 ............ ......  56

§3609 ............. ......  56

§3610 (§810) ...... ... 2,4,49,55,56

§3610(a) (§810) ... .......  49,54

§3610(b) ......... .......  49

§3610(d) ......... ......  50,58,59

§3610(f) ......... .......  56

§ 3612 (§812) .... ......  21,3,28

42 U.S.C. §3612(a) 57



- xi -

Regulations

24 C.F.R. §105.16(a) ...............  53

24 C.F.R. §105.34 (1980) ..........  2,4-53

Legislative History

S. 1358, 90th Congress, 2nd
Session ..........................  26

114 Cong. Rec. 2270 (1968) .........  26,31

114 Cong. Rec. 2273 (1968) .........  26,31

114 Cong. Rec. 9560 (1968) ..........  57

114 Cong. Rec. 9611 (1968) ..........  57

125 Cong. Rec. §636 (daily ed. Jan.
23, 1979) ......................  27

Other Authorities

Coleman, Cities, Suburbs and States
(1975) .............................. 23

Danielson, The Politics of Exclusion
(1976) .............................  23

Page



X l l  -

Falk & Franklin, Equal Housing Oppor­
tunity: The unfinished federal 
agenda (1976) .....................  23

Orfield, Federal Agencies and Urban 
Segregation: Steps Toward Coor­
dinated Action in Ford Foundation,
Racial Segregation: Two Policy Views 
(1979) .............................. 23

Orfield, Must We Bus? (1978) ...........  23

Pettigrew, A Sociological View of the 
Post-Bradley Era, 32 WAYNE L.
REV. 813 (1975) ....................  27

Rubinowitz & Trosman, Affirmative Action 
and the American Dream: Implementing 
Fair Housing Practices in Federal 
Homeownership Programs," 74 Nw.U.L.
REV. 491 (1979) ....................  24

Schlei and Grossman, Employment Dis­
crimination Law 5 (1979) ...........  29

Schnare, The Persistence of Racial
Segregation in Housing (1978)......  23,24,26

Page



Schnare, Residential Segregation by
Race in U.S. Metropolitan Areas:
An Analysis Across Cities and Over
Time (1977) .......................  23,24,26

Schwemm, "Discriminatory Effect and The 
Fair Housing Act," 54 N.D.L. 199 
(1978) ...........................  24,30,58

Sorenson, Taeuber, and Hollingsworth,
Indexes of Racial Residential 
Segregation for 109 Cities in the 
United States, 1940 to 1979, 8 
SOCIOLOGICAL FOCUS 125 (1975) .......  27

Taeuber, Demographic Perspectives on Hous­
ing and School Segregation, 21 WAYNE L.
REV. 833 (1975) .....................  24

Taeuber, Negroes in Cities: Residential 
Segregation and Neighborhoods 
Change (1965) ......................  26

Wilson, Residential Consumption, Economic
Opportunity, and Race (1979) ........  23

Note, "Applying the Title VII Prima Facie 
Case to Title VIII Litigation, " 11 
HARV. L. REV. - C.L.L. Rev. 128 
(1976) .............................  24

- xiii -

Page



XIV

Pa^e

Report of the National Advisory Com­
mission on Civil Disorders 1 
(1968) ............................. 22

U.S. Commission on Civil Rights, The 
Federal Fair Housing Enforcement 
Effort (1979) ....................... 24,30

U.S. Commission on Civil Rights, The State 
of Civil Rights: 1979 (January 
1980) ............................... 23

U.S. Commision on Civil Rights, Twenty 
Years After Brown: Equal Oppor­
tunity in Housing (1975) ........... 24

U.S. Department of Housing and Urban
Development, Discrimination Against 
Chicanos in the Dallas Rental 
Housing Market: An Experimental 
Extention of the Housing Practices 
Survey (1979) ...................... 25

U.S. Department of Housing and Urban
Development, Measuring Racial Dis­
crimination in American Markets:
The Housing Market Practices Sur­
rey, p. 200 (May 1979) ........... 25,30

U.S. General Accounting Office, Stronger 
Enforcement Needed to Uphold Fair 
Housing Laws: A Report to 
Congress by the Comptroller General 
(1970) ............................. 54



No

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1980

ALICE V. HOUSTON,

Petitioner,

v.

BENTTREE, LTD., an Oklahoma 
corporation.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

OPINIONS BELOW

The opinion of the United States District 
Court is unreported and is reprinted in Appendix 
at p. 6a. The opinion of the United States Court 
of Appeals for the Tenth Circuit is not yet 
reported and is reprinted in the Appendix at p. 
17a.



2

JURISDICTION

The judgment of the Court of Appeals was 
entered on December 2, 1980 (App. 24a). This
petition for certiorari is filed within ninety 
(90) days of that date. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1254(1).

FEDERAL STATUTES AND REGULATIONS INVOLVED

1. The following sections of the United States 
Code are listed in the Appendix at pp. 28a et

42 U.S.C. §1981 
42 U.S.C. §1982 
42 U.S.C. §3601 
42 U.S.C. §3604 
42 U.S.C. §3610 
42 U.S.C. §3612
The Code of Federal Regulations, 24 C.F.R. 

§105.34 (1980) is in the Appendix at p. 39a.

seq.

2.



3

STATEMENT OF THE CASE 

Proceedings Below

This suit was filed in the United States 
District Court for the Western District of 
Oklahoma on June 6, 1978 by petitioner, Dr. Alice 
V. Houston, against Benttree, Ltd., a corporation, 
seeking damages, a declaratory judgment and 
injunctive relief for alleged racial discrimina­
tion in the sale of housing.—  ̂ The complaint 
invoked the jurisdiction of the district court 
under 28 U.S.C. §1343 and 42 U.S.C. §3612 to 
secure relief provided by 42 U.S.C. §§1981, 
1982 and 3604. The district court dismissed the 
claim under the 1968 Fair Housing Act (42 U.S.C. 
§3601, e_t_ seq.) as untimely under §3612 because 
it was not filed within 180 days of the alleged 
act of discrimination (App. la). The complaint

\J The suit against an individual defendant, 
John Kilpatrick, President of Benttree, Ltd. was 
dismissed prior to trial without objection of the 
plaintiff.



alleged that plaintiff had filed a timely charge
of discrimination with the Department of Housing
and Urban Development and had received a notice of
her right to sue from H.U.D. pursuant to §810
of the Act (42 U.S.C §3610) on or about May 12,
1978, which was less than 30 days prior to the 
. . . 2 /filing of suit.—  Plaintiff's "Opposition to 

Motion to Dismiss" also relied on §3610, but the 
district court made no mention of the issue of 
timeliness under §3610 in its order of dismissal 
which was entered August 19, 1978 (App. la). The 
case proceeded to trial on plaintiff's §1981 and 
§1982 claims, and a two day non-jury trial was 
held February 26-27, 1979.

On March 16, 1979, the district court filed a 
Memorandum Opinion (App. 6a), holding that "the 
defendant did not refuse to sell to plaintiff on 
account of her race" (App. 15a). The court held 
that "plaintiff failed to prove that the units

- 4 -

2/ The H.U.D. letter, which was attached to the 
Complaint, is reproduced in the Appendix at p. 
26a. It specifically advised petitioner of her
right to sue within 30 days. See 24 C.F.R. 
§105.34, quoted in Appendix at p. 39a.



5

were available for sale at the time her offer was 
made. This is fatal to plaintiff's right to 
relief" (App. 13a).

Plaintiff appealed to the U.S. Court of 
Appeals for the Tenth Circuit which affirmed the 
judgment of the district court on December 2, 1980 
(App. 17a). The court held that the record 
demonstrated plaintiff's failure to prove several 
elements of a pr ima facie case, that the trial 
findings were supported by substantial evidence 
and that the correct legal standards were applied 
(App. 22a). The Tenth Circuit set forth the 
following as the elements of a.prima facie case of 
housing discrimination under §§1981 and 1982 
(App. 22a):

"... that the owner placed the property on
the open market for sale; that plaintiff 
was willing and able to buy the property on
the terms specified by the owner; that 
plaintiff so advised the owner at the time 
the property was available for sale; that 
the owner refused to so sell the property to
plaintiff; and that there is no apparent 
reason for the refusal of the defendant to
sell the property to plaintiff other than 
plaintiff's race."



6

erred in dismissing the cause under the Fair 
Housing Act because of the affirmance of the 
finding of no discrimination (App. 23a).

Statement of Facts
The petitioner, Dr. Alice Vivian Houston

moved to Oklahoma City in August 1977 to begin
work as Director of the Curriculum Services
Department of the City public school system (Tr. 3 /
62-63).—  Dr. Ho uston is a black woman with a 
Ph.D degree who earned more than $37,000 annually 
in 1977 (Tr. 62, 70). The respondent Benttree,
Ltd. is an Oklahoma corporation managed by Chris 
Calhoun (Tr. 8). Benttree acquired about 20 
partially completed condominium units in July 1977 
(Tr. 318-319). The owners of Benttree, Ltd. and 
all of their employees and sales agents were white 
people, as were all of the eventual purchasers and 
residents of the Benttree comdominium units (Tr. 
33, 51, 340). Benttree began showing units to the 
public during September 1977 (Tr. 351-352).

3_/ Citations are to the original transcript 
pages.



7

On Sunday, September 25, 1977, Dr. Houston 
saw a sign advertising the Benttree condominium 
(Tr. 63). The sign, which had been painted in the 
middle of September, said "Benttree Condominiums", 
"For Sale", had a phone number, and indicated 
a beginning price of $38,640 (Tr. 25, 63, 73, 
253-254, 293-294, 324-325, 349-350, 471). Dr. 
Houston asked her real estate agent, Mrs. Lillie 
Mae Tillman to make inquiries (Tr. 649). Mrs. 
Tillman called Benttree and reached Mrs. Carol 
Calhoun (Tr. 95, 448—449). Carol Calhoun, a 
sister-in-law of Mr. Chris Calhoun, worked for him 
as a bookkeeper receptionist (Tr. 432). She and 
other employees in Calhoun's office had been 
promised a two percent commission on any Benttree 
units they were able to sell (Tr. 433, 436, 327).

4/ The dist rict court mistakenly wrote that Mrs. 
Tillman phoned Chris Calhoun (App. 7a). However 
the evidence is undisputed that it was Carol 
Calhoun who spoke with Mrs. Tillman on this 
occasion.



8

Mrs. Carol Calhoun testified that when she re­
ceived the call from Mrs. Tillman she advised her 
that as they had not previously used realtors she 
would find out if she could meet her at Benttree, 
and that she got the approval of Mr. Chris Calhoun 
to show the property to Mrs. Tillman and her 
client (Tr. 44). Mrs. Calhoun made an appointment 
to meet Mrs. Tillman and Dr. Houston at Benttree 
on Monday, September 26th (Tr. 64, 95, 449).

When Dr. Houston and Mrs. Tillman arrived at 
Benttree there were a number of people showing 
and looking at the furnished model units (Tr. 96). 
Mrs. Tillman testified that the first thing Mrs. 
Calhoun said to her was "We only pay a three 
percent commission", and that she replied "that's 
fine. The commission is not important." (Tr. 
98). Mrs. Calhoun showed them through the 
model units and told them about the development 
(Tr. 64). She advised them that there would 
be an "opening" of Benttree the following weekend 
(Tr. 78). When Dr. Houston asked to see a two- 
bedroom unit they were taken to an uncompleted 
unit (Tr. 65). When Dr. Houston expressed in­
terest in the unit Mrs. Calhoun told her that



9

someone had already bought that unit (Tr. 65, 96). 
Mrs. Calhoun later testified that a unit was 
informally reserved for a client named Mr. Horo­
witz in September, and that he subsequently bought 
it (Tr. 439-442). Similarly, a unit had been 
reserved for Mrs. Calhoun and her husband, a 
brother of Chris Calhoun (Tr. 437). Dr. Houston 
asked to see an available unit and was shown 
another two-bedroom condominium (Tr. 65). Dr. 
Houston told Mrs. Calhoun that she would like to 
buy that condominium and Mrs. Calhoun indicated 
that she could have it (Tr. 65). Mrs. Tillman
asked Mrs. Calhoun to give her the legal descrip­
tion, street address and unit number in order to 
write a contract (Tr. 96-97, 65). Mrs. Calhoun
said that she could not give her that information 
since they did not allow anyone but their attor­
ney, Mr. F. Smith Barnes, to write contracts. She 
promised them an appointment with Mr. Barnes the 
next evening at six p.m. (Tr. 97, 65). Before
leaving Mrs. Tillman asked Mrs. Calhoun if there 
would be any problem because Dr. Houston was black, 
and Mrs. Calhoun replied, "No" (Tr. 453).



10

On the next morning, Tuesday, September 27th, 
Mrs. Calhoun told Mr. Chris Calhoun that the 
people she had seen the night before "were very 
interested in purchasing a unit" (Tr. 450) and 
that Dr. Houston was a black woman (Tr. 451, 405). 
Mrs. Calhoun said that this was unusual as Dr. 
Houston was the first black person to come to 
Benttree (Tr. 451, 405). Mrs. Tillman waited 
until 10 a.m. for Mrs. Calhoun to call and confirm 
the appointment (Tr. 97). She then phoned Mrs. 
Calhoun but could not reach her (Id.). Mrs. 
Tillman phoned repeatedly leaving a message (Id. ). 
She also left a message for Chris Calhoun to 
call her (Id. ). She continued to call repeated­
ly until Carol Calhoun finally returned the call 
(Id.). Mrs. Tillman testified that Mrs. Calhoun 
began the conversation by saying "Mrs. Tillman, I 
should not have shown you those apartments. We 
are not going to let other realtors show them, and 
I should not have let you show them, and -- 
besides, we do not pay a commission. We are not 
going to deal through other realtors" (Tr. 98). 
Mrs. Tillman replied that she did not require a 
commission and asked her to make the appointment



11

(Tr. 99). (A defense witness, Realtor Bob Fricke, 
who represented a white purchaser, was paid 
a 2% commission by Benttree (Tr. 172, 354)). Mrs. 
Calhoun called Mrs. Tillman again and stated that 
they could not have a six o'clock appointment 
but would not give a reason. Mrs. Tillman stated 
that she became very suspicious and said "If this 
is discrimination, which I think it is, you're 
going to be in some trouble, Carol" whereupon Mrs. 
Calhoun replied "Well, if it is discrimination, I 
won't be here tomorrow, because I'm not going to 
be in trouble" (Tr. 99).

The next day, Wednesday, September 28, 1977, 
Mrs. Tillman resumed calling Mrs. Calhoun seeking 
an appointment with Mr. F. Smith Barnes, the 
Benttree lawyer (Tr. 99). Mr. Calhoun testified 
that Carol Calhoun told him that "they were 
interested in purchasing, and they were insisting 
that, you know —  she did indicate that maybe Dr. 
Houston and Mrs. Tillman were being put off" so 
Mr. Calhoun told her to have them call the lawyer, 
F. Smith Barnes (Tr. 328). Finally Mrs. Calhoun 
advised Mrs. Tillman that they had an appointment 
with Mr. Barnes at 4 p.m. that day (Tr. 99).



12

Mr. Barnes the Benttree attorney testified 
that he invited Mrs. Tillman and Dr. Houston to 
his office because Mrs. Carol Calhoun was unable 
to satisfy Mrs. Tillman about the delay in a 
purchase by Dr. Houston (Tr. 206-207). Mr. Barnes 
stated that it was not his purpose to negotiate a 
contract but only to explain the delay, since it 
was his understanding that they were disturbed by 
the fact they thought they were getting "the 
runaround" (Tr. 241). Mr. Barnes stated that he 
was not the seller's representative for the 
purpose of negotiating a sale (Tr. 242). The 
meeting lasted about a half hour on the afternoon 
of September 28, and was attended by Mr. Barnes, 
an associate in his law firm named Mr. Horton, 
Mrs. Tillman and Dr. Houston (Tr. 207). Mr. 
Barnes' account of the meeting (Tr. 206-210, 233, 
241-242, 258-264) is consistent with the accounts 
by Mrs. Tillman (Tr. 100-102, 116-117), and Dr. 
Houston (Tr. 66-67, 70, 76). Mr. Barnes stated 
that Mrs. Tillman indicated that Dr. Houston 
wished to purchase one of the Benttree units and 
couldn't understand why they couldn't purchase it 
(Tr. 207-208). Mrs. Barnes explained that there



13

was a delay, that they were not selling options, 
and that he did not have a purchase contract 
prepared (Tr. 208). Mrs. Tillman asserted that 
other people had already signed contracts and were 
living at Benttree, but Mr. Barnes informed them 
that this was untrue (Tr. 208-209). Mr. Barnes 
acknowledged that he became angry because Mrs. 
Tillman was saying that he was either incompetent 
or a liar and he objected to her remarks (Tr. 
261). Mr. Barnes said that he attempted to assure 
them that no one was living there, that his client 
had not signed contracts with anyone and that 
there wasn't any problem with Dr. Houston ul­
timately buying the unit she wanted (Tr. 209). He 
said that Dr. Houston wanted to see another type 
unit, and that when Chris Calhoun phoned while she 
was in his office Barnes arranged for Calhoun to 
wait at the site to show them another unit (Tr. 
209).

Mr. Barnes did not testify that he ever told 
Mrs. Tillman or Dr. Houston when the contract 
would be available or could be signed. He told 
them that he was not going to use an option 
contract but rather wanted a contract which would



14 -

be binding on both parties (Tr. 233). Mr. Barnes 
testified that this plan was subsequently abandon­
ed on Friday, September 30 when Mr. Chris Calhoun 
told him to prepare a contract for use at the 
opening scheduled for October 2 (Tr. 203). Within 
an hour Barnes then drafted an option contract 
using the Board of Realtors standard format and 
delivered it to Calhoun on Friday afternooon (Tr. 
203, 233, 257).

Both Mrs. Tillman and Dr. Houston testified 
that Mr. Barnes never told them when a contract 
would be available (Tr. 76, 100, 115-116). Dr. 
Houston and Mrs. Tillman were aware of the sched­
uled opening on the following Sunday, October 2, 
but both denied that Mr. Barnes told them that 
contracts would be available at that time or any 
particular time (Tr. 78, 100, 472).

Dr. Houston and Mrs. Tillman proceeded from 
Barnes' office to Benttree where they were 
met by Mr. Chris Calhoun. The witnesses' accounts 
of the meeting are in conflict and the district 
court's finding about this occasion are brief 
and general. The findings about this meeting are 
quoted in full below (App. 9a):



15

"Plaintiff and Mrs. Tillman went to 
Benttree, and spoke to Chris Calhoun, 
who showed them the project and several 
units. Plaintiff found a small three bedroom 
she desired to purchase and so stated to 
Calhoun. He told her she would have to wait 
for the contracts which were being prepared. 
Plaintiff and Mrs. Tillman testified that 
Calhoun was openly antagonistic at this 
meeting and that he asked them to leave."

Dr. Houston's account of the meeting with 
Chris Calhoun was as follows:

"He received us and showed us, again, 
through the models. I asked him if I could 
see a small three-bedroom condominium. He 
carried me through two various condominiums, 
which were in various stages of preparedness, 
but he did not show me, in the beginning, a 
small three-bedroom -- three-bedroom as I 
had asked him to do.

"I asked him again to show me one. He 
again showed me some other kind, and then he 
eventually did show me a small three-bedroom 
condominium.

"I looked at it and told him I would 
like to buy this condominium, and I wanted 
him to sell it to me, and he said, 'Why 
should I? Why should I sell you this?' And 
I said, 'Because this is where I desire to 
live. This is what I want.'



16

"He told me, of course, 'No.1 He asked 
if we had other places. 'Why this place?' 
Had we looked around on Hefner. Had we 
looked across the street and other places 
like that. I said, 'Yes, we have, but this 
is what I want to buy.'

"He again said, 'No. ' Mr. Calhoun 
became terrifically upset, and I was somewhat 
amazed at this. I asked him if he would like 
for us to leave. He said, 'Yes,' he would,
and then he changed and said, 'No,' he would 
not.

"We talked about the condominiums and 
the fact that I really wanted one, I was 
very much interested in buying one, but I did 
not get one.

"I then left with Mrs. Tillman and went 
back to my apartment." (Tr. 67-68).

Mrs. Tillman's corroborated Dr. Houston's 
account (Tr. 102-105). She stated that Mr. 
Calhoun was very rude "asked us why we didn't go 
someplace else" said "Why these condominiums", 
became upset, used some profane language, and said 
"Why —  why did this this have to happen to me?" 
several times (Tr. 103-105).

Mr. Calhoun's account of the meeting was 
quite different. He stated that when Dr. Houston 
asked whether she could buy the three bedroom



17

unit, he said "Yes", and told her that she could 
come back that weekend to enter into a formal 
contract (Tr. 331). He stated that he told 
Dr. Houston the price of the unit and that she 
stated that she wanted to buy (Tr. 374). He 
testified that he fully expected her to return on 
Sunday to buy the unit and that when she did not 
he concluded that she was no longer interested 
(Tr. 377). Dr. Houston testified that Mr. Cal­
houn's version of the encounter was untrue (Tr. 
468-470).

Mr. Calhoun testified that on Thursday 
September 30, he spoke with Mr. Barnes and asked 
that he prepare Bentteee contract forms in time 
for the coming weekend (Tr. 322). Mr. Calhoun's 
testimony on direct examination by his attorney 
was as follows:

A. Well, of course, I knew that —  that we 
were going to —  we decided to open on 
that weekend, and that the contract 
wasn't prepared. Smitty had his own 
pace. He was working on other things. 
He wanted to do it a different way than 
we ultimately did do it, and I talked to 
him several times, 'Smitty, the date's 
coming up.' You know.

And then on Thursday, after I 
talked with Dr. Houston and, you know,



18

knew that we were going to open that 
weekend, I just called and said, 'Get 
her done, Smitty.'

Q. And he did do that after you directed him 
in those terms?

A. Yeah. (Tr. 322).

Mr. F. Smith Barnes stated that the call from 
Calhoun was on Friday, September 30, and that he 
then dictated the form contract within an hour and 
delivered it to Calhoun by mid-afternoon (Tr. 
227).

Barnes never advised Mrs. Tillman of the 
change of plans and that a simple standard form 
option contract would be used (Tr. 233-234). The 
district court found that Barnes talked with Mrs. 
Tillman on both Thursday, September 29, and 
Friday, September 30 (App. 9a). On Thursday, 
September 29, and again on Friday, September 30, 
Mrs. Tillman phoned and spoke with Mr. Barnes 
asking him when the contracts would be available 
(Tr. 106). Mrs. Tillman described the conversa­
tions :

A. Yes. After this —  after this day,
then of course I kept trying to get in touch 
with Mr. Barnes to get him to write the



19

contract. In other words, Dr. Houston still 
wanted to buy one of those condominiums. And 
Mr. Barnes told me he did not have them 
ready, and I said, 'When are you going to 
have them ready?' And he said, 'Ms. Tillman, 
I have a lot of things to do besides write 
contracts.' And I said, 'I realize that, but 
can't you give us a time?'

Now, this was on Friday. This was on —  
I mean on Thursday. And on Friday I called 
him back and he said right then, he said, 'I 
do not have time to write contracts. I have 
other things to do. ' And I said, 'Aren't 
you going to have contracts for tomorrow or 
Sunday?' And he did not answer me. And 
that's the last conversation I had with any 
of them, because I certainly wasn't going 
to push myself where I wasn't wanted" (Tr. 
106).

Mr. Barnes acknowledged speaking with Mrs. 
Tillman on Thursday, September 29 and said that he 
told her "basically the same thing which I had in 
my conference with her" (Tr. 234). He at first 
did not recall, and then denied speaking with her 
on September 30 (Tr. 275). However, the district 
court found that Mrs. Tillman telephoned Barnes on 
both days to see if the contracts were ready and 
was told that they were not (App. 9a). The



20

district court also found that "Mr. Barnes com­
pleted the contracts on the afternoon of September 
30" (App. 10a). When asked to explain why he never 
told Mrs. Tillman or Dr. Houston that the con­
tracts were ready Mr. Barnes said that he expected 
them to come back on Sunday (Tr. 234, 276). 
Neither Mr. Barnes, Mr. Calhoun nor Mrs. Carol 
Calhoun made any effort to contact Mrs. Tillman or 
Dr. Houston and advise them that the contracts 
were available (Tr. 276, 376, 456). Th e district 
court's conclusion about this sequence of events 
was that "There is no requirement that defendant 
aggressively seek or pursue minority buyers" (Tr. 
14a). Dr. Houston waited until October 6 for 
further contact from Benttree and then filed a 
complaint of racial discrimination with the 
Department of Housing and Urban Development (Tr. 
84-86).

On Sunday, October 2, Mr. Sidney Musser, a 
white man, signed a contract to buy a Benttree 
condominium, and left an earnest money deposit 
with Mrs. Calhoun (Tr. 423-424). Mrs. Calhoun 
visited his home on two subsequent occasions and



21

obtained additional deposits (Tr. 424-425).~  
Other purchasers obtained Benttree contracts on 
Sunday, October 2, but the first contracts which 
were actually consummated were signed October 8 
(Tr. 322). The defendant put on evidence that
Miss Karen Duncum, a white female, and her realtor 
Bob Fricke, had made numerous contacts with 
Mr. Calhoun and Mr. Barnes during September 
seeking to enter into a contract and had been told 
that contracts were unavailable. The district 
court found that "Ms. Duncum and her realtor were 
very persistent in their efforts to purchase a 
unit, but were unable to do so prior to October 
2, for the same reason plaintiff was unable to 
purchase, i.e. , the completion and availability 
of the prescribed contracts by Barnes" (App. 
11a).

5J  Mr. Calhoun later took the position that Mr. 
Musser never had a contract (Tr. 314). Mr. Musser 
sought to purchase a unit in a later phase of the 
Benttree development. Some 14 months later 
Benttree returned his deposit and advised that 
Mr. Calhoun had never signed the contract.



22

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD ARTICULATE THE PROPER 
STANDARDS OF PROOF UNDER THE FAIR HOUSING 
LAWS IN ORDER TO VINDICATE AN IMPORTANT 
NATIONAL POLICY.

6/We are living in a divided nation.—  Today, 
more than twelve years after the enactment of the 
Fair Housing Act—  and this Court's decision in 
Jones v, Alfred Mayer Co., 392 U.S. 409 (1968),
this Court has yet to decide a Title VIII case on

6/ C_f. Report of the National Advisory Commis­
sion on Civil Disorders 1 (1968) ("Our nation is 
moving toward two societies, one black, one white 
—  separate and unequal.")

J J  42 U.S.C. §§ 3601 et_ se_£_. (1968) ("Title 
VIII") (establishing the national policy of 
replacing "the ghettos with 'truly integrated 
and balanced living patterns'." Trafficante v. 
Metropolitan Life, 409 U.S. 205, 211 (1972) 
(quoting with approval remarks of Sen. Mondale, 
144 Cong. Rec. 3422 (1968)).



23

its merits.—  Racial discrimination in housing 
remains extensive and residential racial segrega­
tion is pervasive and perhaps even more prev- 
i 9/aient.—  Many minority households "do not yet 

have acceptable alternatives to overcrowded, 
excessively costly, and deteriorating housing in

8/ The only Title VIII cases decided by this 
Court have dealt with procedural issues. See 
Gladstone, Realtors v. Village of Bellwood, 441 
U.S. TL (T575T1 Curtis v. Loether, 415 OTS. 189
(1974); and Trafficante v Metropolitan Life, 
supra note 7. this Court further has not con-
sidered a case of housing discrimination brought 
pursuant to the Civil -Rights Act of 1866, 42 
U.S.C. §1982 since Sullivan v. Little Hunting 
Park, 396 U.S. 229 (1969X1

9/ Or fieId, Federal Agencies and Urban Segrega­
tion: Steps Toward Coordinated Action, in Ford 
Foundation, Racial Segregation: Two Policy Views 
(1979); Wilson, Residential Consumption, Ecomonic 
Opportunity, and Race ( 1979); Or field, Must We~ 
Bus? (1978); Schnare, The Persi stence of Racial 
Segregation in Housing (1978); Danielson, The 
Politics of Exclusion- O 976); Falk & H. Frank­
lin, Equal Housing Opportunity: the unfinished 
federal agenda ( 1 9 7 6 ) ; Coleman, C i t i e s~ 
Suburbs, and States (1975); U.S. Commission on 
Civi1 Rights, The State of Civil Rights: 1979



24 -

racially or ethnically segregated neighbor­
hoods."—  ̂ A recent study found that only 12% of 
whites and 14% of blacks in this country live in 
reasonably integrated neighborhoods.— —  ̂ The U.S. 
Department of Housing and Urban Development has

9/ continued

(January 1980); U.S. Commission on Civil Rights, 
The Federal Fair Housing Enforcement Effort 
( 1979); U. S . Commission on Civi1 Rights, Twenty 
Years After Brown: Equal Opportunity in Housing 
(1975); Rubinowitz & Trosman, "Affirmative Action 
and the American Dream: Implementing Fair Housing
Practices in Federal Homeownership Programs," 74 
Nw. U.L. REV. 491 (1979); Schwemm," Discriminatory 
Effect and the Fair Housing Act," 54 N.D.L. 199 
(1978); Note, "Applying the Title VII Prima 
Facie Case to Title VIII Litigation," 11 HARV. 
C.R. C.L.L. Rev. 128 (1976); and Taeuber, "Demo­
graphic Perspectives on Housing and School Segre­
gation," 21 WAYNE L.REV. 833 (1975).

10/ U.S. Commission on Civil Rights (1980), 
supra note 9, at 13.

11/ A. Schnare, supra note 9, at 9 (1978) (assum­
ing a "reasonably integrated neighborhood" to be 
6% to 30% black, and basing findings on 1970 
census data).



25

provided definitive evidence that blacks are
discriminated against in the housing market in an
extensive 1979 study which concluded that "[I]f a
black were to visit four apartment complexes or
four real estate firms [seeking to buy or rent],
the probability of encountering discrimination
would be 72 percent and 48 percent, respectively,

12 /for the rental and sale markets."-- Private
sellers, builders, realtors, and financial insti­
tutions systematically discriminate against blacks 
by providing less information on housing opportu­
nities, steering blacks toward black or minority 
neighborhoods, delaying, deceiving or intimidating 
prospective black purchasers, and by imposing 
unnecessary credit limits. Blacks also regularly 
pay more for comparable housing and live in lower

12/ U.S. Department of Housing and Urban Develop­
ment , Measuring Racial Discrimination in American 
Markets: The Housing Market Practices Survey, 
200 (1979); see also, U.S. Department o"f Hous­
ing and Urban Development, Discrimination Against 
Chicanos in the Dallas Rental Housing Market: An 
Experimental Extension of the Housing Practices 
Survey (1979) (finding a 96 percent chance that a 
dark-skinned Mexican-American would experience 
discrimination when seeking a rental) (cited in 
U.S. Commission on Civil Rights (1980), supra, 
note 9, at 1-2).



26

• • 13/quality dwellings at every income level.—  This
rampant discrimination and segregation "has dis­
torted patterns of urban growth, cut off minori­
ties from access to growing suburban employment 
markets, subverted efforts to desegregate public 
schools and equalize the quality of public school 
education, and caused inequitable distribution 
of the burden of providing essential services
to lower-income urban populations."-- The
social costs are apparent in continuing racial 
divisions. This is the discrimination and segre­
gation the Fair Housing Act was designed to
destroy twelve years agc^-'but very little has 

16/changed. The Chief Executive has noted that

13/ A. Schnare, supra, note 9, at 16.

14/ U.S. Commission on Civil Rights (1975), 
supra, note 9, at 167.

15/ See S.1358, 90th Cong., 2nd Sess., 114 Cong. 
Rec. 2270 (1968); see also 114 Cong. Rec. 2273 
(1968).

16/ A high degree of racial residential segrega­
tion was universal in 1968 as well. Taeuber, 
Negroes in Cities: Residential Segregation and
Neighborhood Change (1965) (Creating a segregation 
"index of dissimilarity," with zero representing a



27

the Fair Housing Act is little more than "an empty
„ 17/promise. —

16/ continued

distribution of races in proportion to their 
numbers in the population as a whole and one 
hundred representing total segregation, Taeuber 
found a mean index of 86.2 for the 207 largest 
cities in the country, with only eight cities 
having indexes below 70. This index figure 
represents the percent of non-whites that would 
have to shift from one block to another to effect 
an even, unsegregated distribution, or zero 
index.)' The latest Taeuber update is contained in 
Sorenson, Taeuber, and Hollingsworth, "Indexes of 
Racial Residential Segregation for 109 Cities in 
the United States, 1940 to 1970," 8 SOCIOLOGICAL 
FOCUS 125 (1975) (utilizing 1970 census data, 
Taeuber found that the 109 largest cities still 
had a mean index of 81.6, with only 13 cities 
below 70). At this rate Professor Thomas Petti­
grew estimates desegregation will be achieved 
in about four or five centuries. Pettigrew, 
"A Sociological View of the Post-Bradley Era," 21 
WAYNE L. REV. 813, 830 (1975).

17/ 125 Cong. Rec. §636 (daily ed. Jan. 23, 1979) 
(President Carter's 1979 State of the Union 
Message).



28

As stated above, this Court has never decided
. . 1 8 /  a Title VIII case on its merits. Trafficante—
i9/. ; .and Gladstone, Realtors'—  involved the signifi­

cant but collateral issue of standing under 
the Fair Housing Act, but no appeals on the merits
of a Title VIII case have been accepted by this
„ 20/Court.-- As a result, a standard of proof
necessary to show unlawful housing discrimination 
has never been authoritatively established. As 
demonstrated in Part II of this Petition, the 
standard adopted by the Court below is directly 
contrary to the standard adopted by other Cir­
cuits, and constitutes an open invitation to

18/ Supra, note. 7.

19/ Supra, note 8.

20/ Curtis v. Loether, supra, note 8, held that 
parties were entitled to jury trials in damage 
suits brought pursuant to §812 of Title VIII, 42 
U.S.C. §3612. Village of Arlington Heights v. 
Metropolitan Housing Development, 429 U.S. 272
(1977), involved a Fair Housing claim but that 
issue was remanded after the Court found no 
constitutional violation. See Metropolitan 
Housing Development v. Village of Arlington 
Heights"/ 558 F . 2d 1283 (1977), cert, denied 434 
U.S. 1025 (1978).



29

sellers to discriminate, during the pre-contract
or negotiation stages of any prospective sale,
against blacks and other minorities seeking
housing. The confusion and uncertainty on the
issue will not be resolved until a definitive
decision is reached by this Court.

The state of housing discrimination law today
then is very similar to the state of employment
discrimination law in 1971 before this Court
breathed life into Title VII by holding in Griggs
v. Duke Power Co. that Title VII "proscribes not
only overt discrimination but also practices that

21/are fair m  form, but discriminatory in nature."—
Griggs, hailed as "the most important court

. . . . . . . 22 /decision in employment discrimination law,"—
opened up that field by providing the standard by
which the legality of employment criteria would be
measured. With that necessary foundation it
became possible to build the parameters of the

2J_/ 401 U.S. 424, 431 (1971).

22/ Schlei and Grossman, Employment Discrimina- 
tion Law 5 (1979).



30

* . 2 3 /present doctrine in subsequent cases.--' a

decision by this Court defining the standard of 
proof necessary to show unlawful discrimination in 
housing would similarly serve as a foundation upon 
which the parameters of Title VIII could be built. 
Despite its wretched record of progress, Title 
VIII could be the useful weapon against discrimin­
ation and segregation that Congress intended it to 
i • ]0|.0 24/oe m  Congress intended the Act to

23/ See e.g., International Brotherhood of 
Teamsters v. United States, 3TI uTsT 3T? (1977) 
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); 
and McDonnell Douglas Corp v. Green, 411 U.S 792 
(1973) (setting forth the basic order and alloca­
tion of proof in the individual disparate treat­
ment case).

24/ See U.S. Commission on Civil Rights (1979), 
supra, note 9, at 233; U.S. Department of Housing 
and Urban Development, Measuring Racial Diserimi- 
nat ion . . . , supra, note 12, at ES-29 ; Schwemm, 
"Discriminatory Effect ...," supra, note 9, at 
238. Even though Congressional focus on improving 
the Fair Housing Act over the course of the 
past year has centered almost entirely on enhance­
ment of HUD's enforcement powers, even enchanced 
enforcement will be of limited value if hostile,
fluctuating, or uncertain standards of proof exist 
in the appellate courts.



31

create a freedom from racial discrimination in
housing and to reduce if not eliminate residential

25/racial segregation.-- It is clear from the
progress made since the 1960's in eliminating 
racial discrimination from such fields as educa­
tion, voting rights, public accommodations, and 
employment that implementation of civil rights 
statutes can make a real difference in the lives 
of people long denied opportunity to achieve their 
full rights. And yet it is equally clear that the 
failure of the Fair Housing Act may be reaching a 
crisis point today as the high rate of inflation, 
the decline in housing production, and the energy 
crisis exacerbate the effect of discrimination in 
forcing minorities to continue to defer the 
American dream of a decent home and a decent 
neighborhood. This Court should resolve the 
conflict between the lower courts by delineating a 
standard of proof sufficient to insure that the 
existing statute can work to eliminate racial 
discrimination and segregation in this country.

25/ See supra note 15.



32

II. THE DECISION BELOW CREATES A CONFLICT 
AMONG THE CIRCUITS ON THE STANDARD OF 
PROOF OF RACIAL DISCRIMINATION UNDER THE 
FAIR HOUSING LAWS.

The courts below based their finding of no 
racial discrimination on an overly restrictive and 
erroneous legal standard which is at odds with 
Congressional intent, and with the interpretations 
of the fair housing laws by the majority of 
circuits which have considered similar questions. 
The standard adopted below led the courts to 
ignore acts of plain racial discrimination in the 
treatment of Dr. Houston which have been held 
unlawful in the other circuits.

First, it was undisputed, and the district 
court found that the defendants told Dr. Houston's 
real estate agent that Benttree would not pay her 
a commission (App. 8a). Mrs. Tillman was told 
that she would receive a three percent commission 
before the owner of Benttree learned that Dr. 
Houston was black (Tr. 98). After he learned 
this fact she was told that no fee would be paid



33

(Tr. 98, 451, 405). A realtor representing a 
white purchaser was in fact paid a commission by 
Benttree (Tr. 172, 354). This was plainly dis­
parate treatment based upon race which would tend 
to discourage petitioner's realtor and thereby 
discourage petitioner from pursuing a purchase at 
Benttree. Such disparate treatment in and of 
itself violated the explicit prohibition in Title 
VIII against "discrimination ... in the terms, 
conditions, or privileges of sale or rental of a 
dwelling . . .", 42 U.S.C. § 3604(b) and the 
proscription in Sections 1981 and 1982 against 
"all" discrimination in connection with the sale 
of property. Jones v. Alfred H. Mayer Co., 392 
U.S. 409 (1968). Such discouragement of a black 
homeseeker's agent and not a white applicant's 
cannot be brushed aside on the ground that it
did not constitute an outright refusal to sell a
unit to Dr. Houston for it can be just as effec-
tive in limiting a black purchaser's access to
hous ing ■ ̂  Ocher courts o f appeals have not

26/ The fact that Mrs. Tillman was not imme­
diately discouraged is irrelevant. See McDonald 
v. Verble, 622 F . 2d 1227, 1233 (6th Cir. 1980); 
Smith v. Anchor Building Corp., 536 F.2d 231, 234 
n.4 (8tn Cir. 1976).



34 -

required as an element of proof that a defendant 
actually refuse to sell homes to plaintiffs 
before a violation of the fair housing laws is 
established. E .g., United States v. Pelzer Realty 
Co. , 484 F.2d 438 (5th Cir. 1973), cert. denied, 
416 U.S. 939 (1974) (Court of Appeals found 
defendants had never actually refused to sell 
houses to plaintiffs, but imposition of more 
onerous conditions on black persons violated fair 
housing laws); United States v. Youritan Construc­
tion Co. , 370 F.Supp. 643, 648 (N.D. Cal. 1973), 
aff*d 509 F .2d 623 (9th Cir. 1975).

Second, the undisputed facts and the district 
court's findings demonstrate that plaintiff and 
her agent repeatedly attempted to buy a condomin­
ium unit for five consecutive days, and were met 
by tactics of discouragement and delay and a 
refusal to negotiate which were tantamount to a 
refusal to sell. The district court erred in 
holding this was a mere failure by the defendant 
"to aggressively seek or to pursue minority 
buyers" (App. 14a). In the context of the 
entire five days of contact between Dr. Houston 
and the three agents of Benttree, the petitioner's



- 35

conduct was entirely reasonable and the defen­
dant 's conduct so departed from the norms of 
k • 2 7/business custom and courtesies as to be ex­
plainable only as a refusal to sell on the basis 
of race. On September 29 and 30 Benttree's 
attorney told Mrs. Tillman that he did not know 
when the contract forms for Benttree purchases 
would be available and that he was too busy to 
write contracts (Tr. 106). He prepared the 
contract forms on the same September 30, and 
yet neither he, nor any other agent of Benttree 
made any effort to advise plaintiff or her agent 
of this development which plaintiff had sought to 
learn about for five consecutive days. All of the 
Benttree representatives explained their failure 
to contact Dr. Houston on the basis that they 
assumed she had lost interest, despite her re­
peated requests to buy a condominium. In the 
overall context of the case, including the all- 
white nature of the project, the court of appeals 
holding that plaintiff failed to prove even a

United States v. Pelzer Realty,27/ supra.



- 36 -

prima facie case is an erroneous interpretation of 
the federal fair housing statutes.

All three of the persons with whom Mrs. 
Tillman and Dr. Houston dealt knew that the black 
homeseeker and her real estate agent believed 
they were being "put off," delayed (App. 9a, Tr. 
328, 241, 208-209, 261). The owner of the con­
dominiums, Chris Calhoun, and his lawyer, Smith 
Barnes, were well aware of and had discussed Mrs. 
Tillman's and Dr. Houston's daily efforts to 
purchase a unit (Tr. 209, 322). Yet, although the 
district court found that Barnes drafted the 
contract for sale on the s ame day that Mrs. 
Tillman last telephoned him (App. 9a, 10a),
defendants made absolutely no effort to inform Dr. 
Houston or Mrs. Tillman that the contract was 
ready (App. 9a; Tr. 276, 376, 456). The district 
court dismissed these facts and stated "There is 
no requirement that defendant aggressively seek to 
pursue minority buyers" (App. 14a). The district 
court instead put the burden on Dr. Houston and 
Mrs. Tillman to ignore five consecutive days of 
persistent but fruitless efforts, to brush aside 
the humiliation and antagonism of prior meetings



37

and to beat down defendant's doors still further. 
The district court, and the Tenth Circuit in 
affirming, thus departed from those circuits 
which have explicitly held actions which dis­
courage black homeseekers violate the fair housing 
laws. E .g., 5th Circuit, United States v. West 
Peachtree Tenth Corp. , 437 F .2d 221 (1971 ) (action 
by an agent to discourage and impede applications 
to rent or buy violates Fair Housing Laws); 6th 
Circuit, Zuch v. Hussey, 394 F.Supp. at 1028, 1047 
(E.D. Mich. 1975), aff'd, 547 F.2d 1168 (1977) 
("[A]ny action, by a real estate agent which 
in any way impedes, delays, or discourages on a 
racial basis a prospective home buyer from pur­
chasing housing is unlawful."); 7th Circuit, 
Seaton v. Sky Realty Co., Inc., 491 F .2d 634, 
636-38 (1974) (salesman showed home in a dis­
couraging manner); 8th Circuit, Wi11 jams v . 
Matthews, 499 F.2d at 819, 826 cert. denied, 419 
U.S. 1021, 1027 (1974) (". . . application proce­
dures, and tactics of delay, hindrance and special 
treatment must receive short shrift from the 
courts."); 9th Circuit, United States v. Youritan
Construction Co., 370 F.Supp. 643 (N.D. Cal.



38

1973), af f'd, 509 F.2d 623 (1975) (various forms 
of discouragement violate Fair Housing Laws); D.C. 
Circuit, Mayers v. Ridley, 465 F.2d 630, 652, 653 
(1972) (activity is forbidden if "it has a dis­
couraging psychological effect on purchasers . . 
."). As stated by the Court of Appeals for the 
Fifth Circuit in United States v. Pelzer Realty, 
supra, 484 F.2d at 442, statements by defendants

"[can] let the two [black] men know that they 
were not particularly welcome as customers 
. . . This attitude . . . certainly had an 
effect on the two men, and upon their 
willingness and ability to bargain.

Ignoring Dr. Houston's and Mrs. Tillman's 
frustration at receiving no answers and deeming 
defendant's failure to contact plaintiff when the 
contract was ready the same day she called, 
a mere failure to "aggressively seek or to pursue 
minority buyers" rewards actions which are suc­
cessful in deterring black homeseekers.

This misapplication of the law is contrary 
to the ruling of Mr Justice Stevens in Wang v. 
Lake Maxinhall Estates, Inc., that discrimination
is actionable under §§ 1981 and 1982



39

If racial animus on the part of defendants 
played a part in frustrating plaintiffs' 
obvious desire to purchase. 531 F . 2d 832, 
835 (7th Cir. 1976).

Defendant's failure to make the one phone call 
which they knew would result in a sale was "incon­
sistent with ordinary business practices," United 
States v. Pelzer Realty, supra, 494 F.2d at 446, 
and should not have been dismissed by the district 
court's observation that "the Benttree project was 
inexpertly managed" (App. 14a). Defenses based 
on disorganized or arbitrary behavior have been 
rejected in other circuits. E.g., 8th Circuit, 
Smith v. Anchor Building Corp., supra, 536 F.2d 
at 235-36; see also, 9th Circuit, United States 
v. Youritan Construction Co., supra, 370 F.Supp. 
at 649-650 (arbitrary and uncontrolled rental 
procedures).

The district court refused to grant Dr. 
Houston relief in the face of these facts because 
it held

Plaintiff failed to prove that the units were
available for sale at the time her offer was 
made. This is fatal to plaintiff's right to 
relief. (App. 13a).



- 40

The district court set forth the legal standard 
pursuant to which it made this holding, as fol­
lows :

The elements of plaintiff's proof to
make out a prima facie case under 42 U.S.C. 
§§1981 and 1982 are (1) that the owner
placed the property on the open market 
for sale, (2) that plaintiff was willing to
purchase the property on the terms specified 
by the owner, (3) that plaintiff communicated 
this willingness to the owner at the time 
when the property was available for sale, (4) 
that the owner refused to sell the property 
to plaintiff on the terms which the owner 
indicated would otherwise be satisfactory, 
and (5) that there is no apparent reason for 
the refusal of the defendant to sell the 
property to plaintiff other than plaintiff's 
race. 28/

28/ The court of appeals below cited only two 
cases, Duckett v. Silberman, 568 F.2d 1020 (2d
Cir. 1978) and Bush v. Kaim, 297 F.Supp. 151 
(N.D. Ohio 1 969 ). To the extent that Ducke11 
v. Silberman followed the five elements of a 
prima facle case of housing discrimination set 
forth in Bush v. Kaim, it has not been followed 
in recent decisions by court of appeals in the 
same circuit. Williamsburg Fair Housing Comm. v. 
NYCHA, 492 F.Supp: 1225 (8.D.N.Y. 19801, a t T T ,
___ F.2d   Civ. Act. No. 80-6161 (2d Cir. Jan­
uary 15, 1981); Robinson v. 12 Lofts Realty, 610
F.2d 1032, 1042 (2d Cir. 1979).



41

To premise protection of the fair housing 
laws on an owner's manipulation of the exact time 
at which a unit is put on or taken off the market 
directly and successfully frustrates the intent of 
these laws and creates a conflict with the liberal 
construction which should be accorded §§1981, 1982 
and Title VIII. To hold that a prima facie case 
of discrimination under §§1981 and 1982 requires 
that the housing be "on the open market for sale" 
glorifies the technicalities of real estate 
transactions at the expense of the fundamental 
guarantees of equal housing opportunity and 
squarely conflicts with holdings by other courts of 
appeals. In Wang v. Lake Maxinhall Estates, 
Inc., supra, 531 F.2d at 834, Justice Stevens held 
that the fact that plaintiffs' offer to purchase 
had technically expired was irrelevant because:

there is nothing in the record to suggest 
that they were no longer interested in 
purchasing the lot, that they gave any such 
indication to the broker, or that the broker 
asked them to extend their offer again.

The court of appeals in Moore v. Townsend, 525 
F.2d 482, 485 (7th Cir. 1975) held the existence



- 42

of a contract irrelevant because "otherwise the 
very purpose of the Act [§ 1982] would be com­
pletely frustrated." Again, the Court of Appeals 
for the Seventh Circuit reversed a district court 
finding that:

. . . the plaintiffs were not deprived of the 
right of buying a home because they owned 
a home . . . [that] had not been placed for 
sale and, hence, they were not in the 
market for a house.

because

To adopt such a requirement [under § 1982 or 
§ 3604] would encourage real estate agents to 
avoid selling to blacks, despite the clear 
Congressional mandate to the contrary. Jones 
v . Mayer, 392 U.S 409, 447-449 (concurring 
opinion of Justice Douglas).

Johnson v. Jerry Pals Real Estate, 485 F.2d 530, 
531 (7th Cir. 1973). But see Madison v. Jeffers, 
494 F .2d 114 (4th Cir. 1974).

The district court found, and the court of 
appeals noted, that although contracts were not 
available to be signed until September 30, or 
October 2, 1977, at least two units were reserved 
for particular buyers prior to that date, one for 
Mrs. Carol Calhoun and another for a Mr. Horowitz



- 43

(App. 11a and 12a). The court of appeals also 
noted that on the first day Dr. Houston visited 
the condominiums, she was told that a two-bedroom 
unit she expressed interest in purchasing had 
already been sold. (App. 19a). Both the court of 
appeals and the district court found these facts 
to have no legal significance because, in view of 
the fact that written sales contracts were not 
ready at that time, these reservations or sales 
could have been "informal" only (App. lla-12a, 
21a). In so ruling, the courts below ignored the 
crucial question under the fair housing laws, 
i.e., were black persons accorded the same rights, 
terms and conditions in the sale of real estate as 
were accorded white persons, and instead erro­
neously dismissed this discriminatory treatment 
because under state real estate law it might not 
have had binding significance.

Ironically, the district court and the 
court of appeals found these reservations irrele­
vant because the condominiums could not have been 
sold prior to September 30 or October 2 (App.



- 44 -

13a, 21a), yet totally failed to see the inconsis­
tency between this holding and the finding that 
when plaintiff expressed an interest in purchasing 
a two bedroom unit on September 26, "defendant's 
sales agent told her that the one in which she 
was interested had already been sold" (App. 19a). 
Only two possibilities exist. If the unit 
could not have been sold before September 30 or 
October 2, as found by both courts below, then Dr. 
Houston was told that a unit was not available 
when, in fact, it was, in violation of the ex­
plicit prohibition in § 3604(d) of Title VIII that 
makes it unlawful "to represent to any person 
because of race [or] color . . . that any dwel­
ling is not available for inspection, sale, 
or rental when such dwelling is in fact so avail­
able." The only other possibility is that defen­
dants considered the reservation of such condo­
miniums tantamount to sale, in which case the 
units were, in fact, on the open market for sale, 
totally undermining the premise upon which the 
decisions below were based.



- 45 -

In any event, it was error to base a ruling 
on the view that plaintiff did not prove that she 
was willing to purchase the property on the terms 
specified by the owner (App. 15a), for the terms 
given to her were different than those given to at 
least two white purchasers. Unlike the Court of 
Appeals for the Tenth Circuit, courts of appeals 
in other circuits have refused to accept at 
face value terms or conditions, even if, unlike 
here, "they are objectively applied," where such 
terms are unnecessary to the seller's purpose or 
result in frustrating a black homeseeker's ability 
to obtain housing. Phiffer v. Proud Parrot,
___ F.2d ___  Prentice-Hall, Equal Opportunity in
Housing 115,356 (9th Cir. November 24, 1980) 
(failure to place a security deposit); Williams v. 
Matthews, supra, (requirement that homes be sold 
only to approved builders).

Discrimination in housing today is more often 
than not "artfully cloaked," Haythe v. Decker, 468 
F .2d 336 (7th Cir. 1972), for "clever men may 
easily conceal their motivations." United States 
v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th
Cir. 1974), cert, denied, 422 U.S 1042 (1975).



- 46

To assure for black persons "the same right" to 
obtain housing as is enjoyed by white persons, a 
majority of courts of appeal have recognized:

"[T]he statutes prohibit all forms of dis­
crimination, sophisticated as well as simple- 
minded, and thus disparity of treatment 
between whites and blacks, application 
procedures, and tactics of delay, hindrance 
and special treatment must receive short 
shrift from the courts.

Williams v. Matthews, supra, 499 F.2d at 826. 
Thus, contrary to the holding of the district 
court and the court of appeals, the holdings in 
other circuits extend protection of the fair 
housing laws to cover all negotiations and sales 
efforts in connection with the sale or rental of 
housing. E . g., McDonald v. Verble, 622 F . 2d 
1227 (6th Cir. 1980). (§ 1982 and Title VIII 
prohibit both blatant and subtle discrimination in 
"sales efforts"); United States v. West Peachtree 
Tenth Corp., 437 F.2d 221, 227-228 (5th Cir. 1971) 
(delay in processing application); United States 
v. Youritan Construction Co., supra (imposition of
delaying tactics).



- 47

The Fair Housing Act of 1968, 42 U.S.C 
§3601, et_ seq. "was designed to provide, within 
constitutional limit, for fair housing throughout 
the United States." Zuch v. Hussey, 394 F.Supp. 
1028, 1046 (E.D. Miss. 1975), aff'd 547 F.2d 1168 
(6th Cir. 1977). Like its more recent counter­
part, this Court has held that the Civil Rights 
Act of 1866, 42 U.S.C. §1982 applies to all 
racial discrimination in connection with the sale 
or rental of property. Jones v. Alfred H. Mayer, 
supra. In Jones, this Court found unambiguous 
the language of §1982 that all citizens shall have 
"the same right" as white citizens to obtain real 
property. Together with the Civil Rights Acts of 
1870 and 1866, 42 U.S.C. §§1981 and 1982, the Fair 
Housing Act comprehensively spell out "The right 
of an individual to rent or purchase housing 
without suffering discrimination and to obtain 
federal enforcement of that fundamental guaranty." 
Jones v. Mayer, supra, 392 U.S. at 413 (§1982). 
See also, e ■ g. , Runyon v. McCrary, 427 U.S 169 
(§1981).

Consistent with the broad mandate of the 
fair housing laws, a majority of circuits have 
held that these acts must be liberally construed



to assure fulfillment of their policy objectives. 
Ej_g., Second Circuit, Robinson v. 12 Lofts Realty, 
supra (§1982, Title VIII); Third Circuit, Resi- 
dents Advisory Board v. Rizzo, 564 F.2d 126 (1977) 
(Title VIII); Fifth Circuit, United States v . 
Mitchell, 580 F.2d 789 (1978) (Title VIII); United 
States v. Pelzer Realty, supra (Title VIII); 
Sixth Circuit, Zuch v. Hussey, supra (Title VIII); 
Seventh Circuit, Wang v. Lake Maxinhill Estates, 
Inc. , supra (§§1981 , 1982, Title VIII); Moore v.
Townsend, supra (§§1 981, 1982, Title VIII);
Eighth Circuit, Smith v. Anchor Building Corp. , 
536 F . 2d 231 (1976) (§§1981 1982, Title VIII) ; 
Williams v. Matthews, supra (§§1981, 1982, Title
VIII); Ninth Circuit, Phiffer v. Proud Parrot, 
supra (§1982); United States v. Youritan Con- 
s t rue t ion Co. , supr a ; D.C. Circuit, Maye r s v .

- 48 -

Rid ley, supra.



- 49

III. REVIEW SHOULD BE GRANTED TO RESOLVE A 
CONFLICT AMONG THE LOWER FEDERAL COURTS 
ON THE TIME LIMITATIONS FOR FILING SUITS 
UNDER 42 U.S.C. §3610, PARTICULARLY WHERE 
H.U.D. REGULATIONS AND ADVICE TO COMPLAIN­
ANTS CONFLICTS WITH THE TIME LIMITATIONS 
ADOPTED BY SOME COURTS.

We submit that a civil action under §810 
of the Fair Housing Act of 1968 (42 U.S.C. §3610) 
is timely if commenced within thirty days after 
receipt of notice from the Secretary of Housing 
and Urban Development that voluntary compliance 
with the Act cannot be obtained. This suit 
was filed less than 30 days after petitioner 
received such a notice and accordingly it was 
error to dismiss her claim as untimely.

A person who claims to have been injured by 
a discriminatory housing practice may file an 
administrative complaint with the Secretary of 
Housing and Urban Development ("HUD") within one 
hundred and eighty days after the alleged inci­
dent. 42 U.S.C. § 3610(a) and (b). Dr. Houston's 
administrative complaint, filed on October 6, 1977 
as to alleged discriminatory incidents on Septem-



50

ber 25 through 30, 1977, was timely. The issue 
presented by this petition is whether the subse­
quent filing of the civil action on June 6, 1978 
is timely, or whether it contravenes the time 
limitations in § 3610(d).

Section 3610(d) provides in pertinent part:

If within thirty days after a complaint is 
filed with the Secretary . . ., the Secretary 
has been unable to obtain voluntary compli­
ance with this subchapter, the person ag­
grieved may, within thirty days thereafter, 
commence a civil action in any appropriate 
United States district court, against the 
respondent named in the complaint, to 
enforce the rights granted or protected by 
this subchapter, insofar as such rights 
relate to the subject of the complaint . . . 
(Emphasis added).

Defendant maintains that the above underscored 
period runs from the thirty-first to the sixtieth 
day after the filing of the administrative com­
plaint. Plaintiff maintains that, although suit 
may be brought on the thirty-first day after the 
filing of the administrative complaint, the thirty 
day period does not begin to run until HUD deter-



- 51

mines and then notifies the complainant that 
voluntary compliance cannot be obtained. Plain­
tiff received such notice from HUD on May 9, 1978 
and filed this suit within thirty days thereafter, 
though well past sixty days after the filing of 
the administrative complaint.

This Court noted but specifically declined to 
resolve this issue in Gladstone, Realtors v . 
Village of Bellwood, 441 U.S. 91, 103, n.10 
(1979). The lower fed eral courts are divided over 
the issue of which interpretation is correct. 
Several hold with plaintiff that the thirty 
days begins with receipt of HUD's notice of 
failure to conciliate. Taylor v. Fletcher Proper­
ties , Civil Action No. 74-M-850 (S.D. Tex., Sept. 
18, 1975) (unreported opinion); Logan v. Richard
E. Carmack & Assoc., 368 F.Supp. 121 (E.D. Tenn. 
1973); Brown v. Balias, 331 F.Supp. 1033 (N.D. 
Tex. 1971). Others have held the period begins on 
the thirty-first day after the filing of the 
administrative complaint. Green v. Ten Eyck, 572
F. 2d 1233 (8th Cir. 1978); Kreiger v. Merifield 
Acres , Inc. , 465 F.Supp. 62 (E.D. Vir. 1 979),
reversed on other grounds, Civ. Act. No. 79-1193



52 -

(4th Cir. 1980) (unreported opinion); Morgan v . 
Parcener' s Ltd., 493 F.Supp. 180 (W.D. Ok. 1978); 
Goodman v. Platt, 444 F.Supp. 140 (N.D. Okla. 
1978); Tatum v. Myrick, 425 F.Supp. 809 (M.D. Fla. 
1977); Sumlin v. Brown, 420 F.Supp. 78 (N.D. Fla. 
1976); Brown v. Blake & Bane, Inc., 402 F.Supp. 
620 (E.D. Va. 1975); Young v. AAA Realty Co., 350 
F.Supp. 1382 (M.D.N.C. 1972).

The language of the statute itself is ambig­
uous. The term "thereafter" needs the referent of 
a date certain mentioned earlier in the sentence. 
But there is no date certain mentioned. Instead, 
two separate time frames are discussed, the period 
of thirty days after the filing of a complaint 
and the Secretary's inability to obtain voluntary 
compliance. The statute leaves unclear which of 
these possible referents is the basis for fixing 
the date "thereafter" which the thirty days 
begins to run. In such a situation, where the 
relevant statutory language is unclear and sus­
ceptible of differing interpretations this Court 
has held that "the sound principle of according 
deference to administrative practices normally 
applies." Shea v. Vialpando, 416 U.S 251, 262 
n.ll (1974).



- 53 -

HUD regulations interpret the limitation to
commence from the date of receipt by a plaintiff
of notice from HUD that conciliation efforts
have failed. 24 C.F.R. §105.34 (1980) provides:

the person aggrieved shall be notified in 
writing by registered or certified mail when 
the Assistant Secretary has determined 
that he is unable to obtain voluntary com­
pliance through informal methods of confer­
ence, conciliation, or persuasion. The 30 
days provided in Section 810(a) of Title VIII 
within which a civil action may be commenced 
shall be deemed to begin upon the receipt of 
such notice.

See also 24 C.F.R. §105.16(a). Statutory inter­
pretation by the administrative agency charged 
with carrying out the mandate of the statute, 
while not dispositive, is entitled to "great 
weight." Brennan v. Occupational Safety and 
Health Administration, 513 F .2d 533 (10th Cir.
1975); Sims v. United States, 252 F.2d 434 
(4th Cir. 1958), aff *d, 359 U.S. 108 ( 1959). 
This Court has consistently shown considerable 
deference to the construction given to Title VIII 
by HUD, "the federal agency primarily assigned to 
implement and administer Title VIII." Gladstone,



54

supra, 441 U.S. at 107; Trafficante v. Metropoli­
tan Life Insurance Co. , supra, 409 U.S. at 210.

Resolution of the issue is of great practical 
importance because the vast majority of adminis­
trative complaints filed with HUD are not concili­
ated or otherwise resolved within sixty days,
the final limit for bringing a civil action under

29 /defendants' interpretation of the statute.--
Therefore, complainants who rely on a reasonable 
interpretation such as plaintiff's (which is, as 
discussed below, also HUD's interpretation) are 
being unexpectedly deprived of any remedy against 
illegal discrimination in many jurisdictions.

In conformance with the federal agency 
regulation, the regional office of HUD sent Dr.
Houston a letter dated May 9, 1978 which stated,

, . 30/inter alia: —

29/ See U.S. General Accounting Office, Stronger 
Enforcement needed to Uphold Fair Housing Laws: A
Report to Congress by the Comptroller General 23
(1978) (Noting that on the average HUD does not 
even begin an investigation until anywhere from 58 
to 92 days after a complaint is received).

30/ The entire text of the letter is set forth in 
the Appendix to the Petition at page 40a.



55

. . . although we have attempted to seek a
resolution of your complaint, we have not
been able to achieve a satisfactory result

As of the date you receive this letter, you 
are now free to seek court relief under 
Section 810 of the Federal Fair Housing Law 
provided you bring such action within thirty 
(30) days of this date.

Dr. Houston relied upon this letter and filed
suit in federal court within thirty days of its
receipt. The dismissal of her Title VIII cause of
action is plainly inconsistent with the federal
agency's regulations and written advice to 

31/plaintiff.—  The need to resolve this inconsis-

31/ This issue was presented to the court of 
appeals which expressly declined to address it. 
(App. p. la-5a). Although the district court did 
not dismiss §3610 in its memorandum opinion 
dismissing the Title VIII claim, the issue of 
§3610 was raised in plaintiffs' Opposition to 
Motion to Dismiss, dated August 2, 1978, and the 
complaint alleged that plaintiff had filed a 
timely charge with HUD and had received notice of 
her right to sue from HUD pursuant to §3610 on 
or about May 12, 1978, which was less than 30 days 
prior to the filing of suit.



56

tency is apparent. Until the issue is sett Led 
authoritatively, a party who relies in good faith 
upon the published regulations and mailed instruc­
tions of the administrative agency may be barred 
from vindicating his or her rights in federal 
court.

The intent of the Fair Housing Act is to 
provide for fair housing. 42 U.S. §3601. To 
effectuate this intent, Congress relied heavily on 
HUD's ability to eliminate or correct discrimina­
tory housing practices by informal methods of 
conference, conciliation, and persuasion. See 42 
U.S.C. §§3608, 3609, 3610. Only after the agency 
makes a decision to attempt resolution of the 
complaint does the conciliation process begin. If 
a complainant is then obligated to file suit 
immediately, HUD is foreclosed from having any 
meaningful opportunity to conciliate. The flexi­
bility and informality of the conciliation process 
is necessarily disrupted by the institution of 
judicial action and conciliation must cease 
altogether if the suit comes to trial. §3610(f). 
In contrast, if the complainant is permitted to 
explore conciliation fully at the administrative



57

level without forfeiting the right to proceed to 
federal court should those efforts fail, needless 
lawsuits would not be filed and the likelihood of 
successful conciliation would be bolstered by 
respondents' desire to avoid defending formal 
court proceedings. The intent of Congress was to 
allow conciliation to run its full course. See 
114 Cong. Rec. 9560 (1968) (remarks of Rep. 
Cellar, Chairman of the House Judiciary Committee: 
"If conciliation failed, o_r if the Secretary 
declined to resolve the charge or otherwise did 
not act within the 30 day-period, the aggrieved 
person would have 30 days in which to file a civil 
action," thus making clear that if the Secretary 
took any action to conciliate, that process 
should be allowed to run to completion before 
legal action was begun) (Emphasis added); 114 
Cong. Rec. 9611 (1968) (remarks of Rep. Ford: "If 
the Secretary of HUD is unsuccessful," recourse is 
to the courts). Although HUD could conceivably 
continue its efforts in the pretrial stages of a 
civil action, 42 U.S.C. §§3610(f) and 3612(a), 
thus theoretically "squeezing the respondent at



- 58 -

both ends," as a practical matter conciliation 
would become an ineffectual sidelight.

In Gladstone, this Court noted some distinc­
tion in the statutory language between Title VII 
of the Civil Rights Act of 1964, 42 U.S.C.
§2000e-5 and 42 U.S.C. §3610(d). Specifically, 
§3610(d) does not explicitly require a com­
plainant to give notification to HUD prior to 
filing a lawsuit while 5706(f)(1) of Title VII 
requires receipt from the EEOC of a "right-to-sue" 
letter before proceeding to federal court. Yet 
the statute does require notice of whether or not 
the Secretary intends to resolve the complaint and 
HUD has, by regulation, obligated itself to send a 
right-to-sue letter upon the unsuccessful comple­
tion of the negotiation process. There is thus 
sufficiently similar language, history and proce­
dure between Title VII and Title VIII to make it 
appropriate in both situations to allow the 
conciliation process to run its course. Logan v. 
Richard E. Carmack & Assoc., supra, 368 F.Supp. at 
122; Schwemm, "Discriminatory Effect and The Fair 
Housing Act," 34 N.D.L. 199, 238 (1978) ("[n]one



59

of the differences between employment and housing 
justify a fundamental difference in the interpre­
tation of the statutes.") As in the context of 
Title VII claims it is doubtful "that Congress 
intended to provide a judicial remedy [accorded 
such primary importance] which is so easily 
forfeited by those whose rights it vindicates." 
Coles v. Penny, 531 F . 2d 609 , 615 (D.C. Cir.
1976). In the face of an ambiguously worded 
statute and a HUD regulation in direct con­
flict with the result reached below, to continue 
to allow the conflict created by lower courts
as to the proper interpretation of §3610(d) is to

32/create a procedural "booby-trap"-- "particu­
larly inappropriate in a statutory scheme in 
which laymen, unassisted by trained lawyers, 
initiate the process." Love v. Pullman, 404 U.S. 
522, 527 (1972).

32/ Cf. Bell v. Brown, 557 F.2d 849, 859 (1977) 
(Title VII).



60

CONCLUSION

For the foregoing reasons it is respectfully
submitted that the petition for certiorari should
be granted.

Respectfully submitted,

February 1981

JACK GREENBERG 
JAMES M. NABRIT, III

(Counsel of Record)
BETH J. LIEF

10 Columbus Circle 
New York, New York 10019

JOHN W. WALKER 
Suite 1191
First National Bank Building 
Little Rock, Arkansas 72201

Counsel for Petitioner

Robin J. Stout, a third year student at Colum­
bia University Law School assisted in the prepara­
tion of the petition.



la

IN THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA 

No. CIV-78-0571-T

FILED AUG. 29, 1978

ALICE V. HOUSTON,

Plaintiff,

v.

BENTTREE, LTD., an Oklahoma 
corporation; and JOHN KILPATRICK, 
as agent for said BENTTREE, LTD.,

De fendants.

O R D E R

Plaintiffs in this action is a black resident 
of Oklahoma City who claims that defendants have 
discriminated agaiftst her in the sale of housing, 
in contravention of 42 U.S.C. §§1981, 1982, and
3604. Jurisdiction over plaintiff's complaint is 
invoked under 28 U.S.C. §1343 and 42 U.S.C. 
§3612.

Defendants have moved to dismiss, alleging in 
their first brief on the motion that plaintiff's



2a

action is barred by the 180-day limitation period 
imposed by 42 U.S.C. §3612. Defendant Kilpatrick 
asserts that plaintiff's complaint fails to state 
a claim upon which relief can be granted as 
against him. Addressing this contention first, 
the Court notes that plaintiff has had no oppor­
tunity to respond to this argument, as it was not 
specifically raised in the Motion to Dismiss 
and brief in support thereof, but was instead 
raised in defendants' reply to plaintiff's 
response brief. While the court could ignore this 
argument as having been improperly raised, it is 
preferable to dispense with the issue now, rather 
than delay the case for further briefing. The 
Court is satisfied that sufficient facts have been 
alleged against defendant Kilpatrick to state a 
claim upon which relief can be granted. Plaintiff 
has alleged that specific acts amounting to 
discrimination were undertaken by agents of 
defendants. Plaintiff has additionally alleged 
that defendant Kilpatrick was responsible for 
various dodges or evasionary schemes which pre­
vented her agent from forming a contract with the 
defendant Benttree. 42 U.S.C. §3604(d) makes 
unlawful the representation to any person because



3a

of race that any dwelling is not available for 
sale, when it is in fact for sale. Plaintiff's 
complaint, taking all facts pleaded therein and 
inferences to be drawn therefrom as true in favor 
of plaintiff, as is required on a Motion to 
Dismiss, alleges a violation of section 3604 
against defendant Kilpatrick and will withstand a 
Motion to Dismiss for failure to state a claim.

Defendants' remaining ground for dismissal 
asserts that plaintiff's complaint is barred by 
plaintiff's failure to sue within 180 days of the 
Act of discrimination as required by section 3612, 
under which plaintiff's complaint is brought. The 
act of discrimination alleged by plaintiff oc­
curred on September 28, 1977. The complaint was 
filed June 6, 1978, more than 180 days later. 
Plaintiffs cause of action founded upon section 
3612 is thus barred. Hickman v. Fincher, 483 
F.2d 855 (4th Cir. 1973). Plaintiff's attempt to 
secure administrative relief does not toll the 
180-day limitation of section 3612. Jefferson v. 
Mentzell, 409 F.Supp. 1 (N.D. Tex. 1976).

Defendants' next argue that 28 U.S.C. §1343 
is not an independent jurisdictional statute and,



4a

without a remedy under section 3612, plaintiff's 
entire complaint must fail. Defendants' argument 
ignores plaintiff's allegations of a violation of 
42 U.S.C. §§1981 and 1982. When a discriminatory 
practice is within both the Fair Housing Act and 
the Civil Rights Act of 1866, the 180-day limita­
tion of section 3612 does not apply to the cause 
of action under the Civil Rights Act. Meyers v . 
Penny Pack Woods Home Ownership Assn., 559 F.2d
894 (3rd Cir. 1977); Warren v. Norman Realty Co. , 
513 F . 2d 730 (8th Cir. 1975), cert, denied 423 
U.S. 855; Hickman v. Fincher, supra; see also 42 
U.S.C. §3615; Sullivan v. Little Hunting Park, 
396 U.S. 229, 237 (1969). As there is no statute 
of limitations provided in the Civil Rights Act 
of 1866, the court must look to the comparable 
state statute of limitations. Johnson v. Rail­
way Express Agency Inc., 421 U.S. 454 (1975). 
This action was filed less than one year after 
the alleged act of discrimination, and is well 
within Oklahoma statutory limitations period.

For the reasons discussed above, the defen­
dants' motion should be sustained as to plain-



tiff's section 3612 cause of action, 
section 1981 and 1982 causes of action 
be dismissed.

It is so ordered this 26th day of
1978.

- 5a -

/s/ RALPH G. THOMPSON

but the 
will not

August,

UNITED STATES DISTRICT JUDGE



6a

IN THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF OKLAHOMA 

No. CIV-78-0571-T

FILED MAR. 16, 1979

ALICE V. HOUSTON,

Plaintiff,

BENTTREE, LTD., an Oklahoma 
corporation, and JO&N KILPATRICK, 
as agent for said BENTTREE, LTD.,

De fendant s.

MEMORANDUM OPINION

This case came on to be tried to the Court, 
without a jury, on February 27, 1979, plaintiff
appearing personally and with counsel, John Walker 
of Little Rock, Arkansas; defendant Benttree, Ltd. 
(Benttree) appearing through its vice president, 
Chris Calhoun, and counsel, Kent Frates.~^ The

_1_/ John Kilpatrick was dismissed as a defendant 
prior to trial.



7a

Court, having considered the testimony of wit­
nesses, exhibits, and briefs and arguments of the 
parties, enters the following opinion, which shall 
constitute its findings of fact and conclusions of 
law.

Plaintiff, Alice Houston, a black female, 
moved to Oklahoma City in August of 1977, to 
assume the position of Director of Curriculum 
Services for the Oklahoma City Public Schools. 
Plaintiff holds a Ph.D. and her income during the 
relevant period was in excess of $36,000 yearly. 
Plaintiff desired to obtain housing commensurate 
with her education, income, and position. On 
September 25, 1977, while driving down May 
Avenue in Oklahoma City, plaintiff noticed a sign 
bearing the name of Benttree Condominiums, as "for 
sale" starting at a specified price. Plaintiff 
called her realtor who telephoned Chris Calhoun, 
vice president of Benttree and manager of the 
condominium project, to arrange an appointment to 
see the units. On September 26, 1977, plaintiff 
and her realtor, Ms. Tillman, were shown around 
the project by Carol Calhoun, sister-in-law of 
Chris Calhoun and one of several employees of 
another of Calhoun's businesses who were showing



- 8a

the condominiums. Several of the units were 
completed and furnished and were used as models. 
The remainder were in various stages of construc­
tion. Plaintiff and Ms. Tillman and Ms. Calhoun 
discussed the project and looked at several units. 
Plaintiff found a two bedroom unit which she 
wanted to purchase, so stating to Ms. Calhoun. 
Plaintiff and her realtor were told by Ms. Calhoun 
that contracts for the purchase of the condo­
miniums were being prepared by Benttree's lawyer 
and that the specially prepared contract was the 
only one which could be used. Contracts were not 
available at that time, but Ms. Calhoun stated 
that she would arrange a meeting with plaintiff 
and her realtor and the lawyer who was preparing 
the contracts, F. Smith Barnes, for the following 
day. The September 26 meeting between plaintiff, 
her realtor, and Ms. Calhoun was cordial, and when 
plaintiff and her realtor left the project, both 
they and Ms. Calhoun fully expected that plaintiff 
would eventually purchase a unit.

The following day, September 27, Ms. Calhoun 
advised Ms. Tillman that no real estate commission 
would be paid. The appointment with Mr. Barnes 
was postponed to the following day.



9a -

Plaintiff and Ms. Tillman met with Mr. Barnes 
on September 28, 1977. Mr. Barnes explained that 
the contract was not ready but would be soon. 
During the discussion, plaintiff expressed 
a desire to see a small three bedroom unit, 
instead of the two bedroom she had previously 
selected, and Mr. Barnes called Chris Calhoun and 
arranged for plaintiff to meet Calhoun at the 
project. Plaintiff and Ms. Tillman went to 
Benttree, and spoke to Chris Calhoun, who showed 
them the project and several units. Plaintiff 
found a small three bedroom she desired to pur­
chase and so stated to Calhoun. He told her she 
would have to wait for the contracts which were 
being prepared. Plaintiff and Ms. Tillman testi­
fied that Calhoun was openly antagonistic at this
meeting and that he asked them to leave.

The next two days, September 29 and 30, Ms. 
Tillman telephoned Mr. Barnes to see if the 
contracts were ready. She was told that they were 
not. No contact was made by either plaintiff or 
her realtor after September 30, and instead of 
visiting the open house on October 2 and using the 
form of contract being required, plaintiff filed a 
discrimination complaint against Benttree with 
HUD.



10a

The Bettree condominiums were not, in fact, 
available for purchase until October 2, 1977, the 
day of a scheduled "opening", of which plaintiff 
was aware. Mr. Barnes completed the contracts on 
the afternoon of September 30. Barnes was in­
volved in a lawsuit concerning an unrelated 
condominium project and wanted to make certain 
that Benttree did not encounter the same problems 
with its contracts. Until September 30, Mr. 
Barnes intended to draft a contract which would be 
binding on all parties, rather than the option 
contract which was ultimately used. Barnes 
finally prepared the simpler, option contract, to 
which he was orginally opposed, at the insistence 
of Chris Calhoun, who wanted some form of contract 
available for the October 2 opening.

Plaintiff knew of the opening scheduled 
for October 2, and knew that the units would be 
available for sale on that date. Ms. Calhoun told 
Ms. Tillman, and plaintiff was aware, that the 
units would not be available for sale until the 
weekend of October 2. Both Carol Calhoun and Mr. 
Barnes told plaintiff she could buy a unit as soon 
as the contracts were ready.



11a

No units were purchased at Benttree until 
after October 2. Another prospective purchaser, 
Karen Duncura, a white female, who attempted 
to purchase a unit prior to October 2, was also 
told that only the approved form of contract would 
be accepted. Ms. Duncum and her realtor were very 
persistent in their efforts to purchase a unit, 
but were unable to do so prior to October 2, for 
the same reason plaintiff was unable to purchase, 
i.e, the completion and availability of the 
prescribed contracts by Barnes. No units were 
occupied until well after October 2, 1977. There 
have been no black purchasers or residents at 
Benttree. Ms. Calhoun testified that two units 
were "held" prior to October 2, one for herself 
and one for a Mr. Horowitz. There is no evidence 
as to how these holding commitments were entered 
into or the effect of the failure of a prospective 
buyer to submit the approved contract after 
October 2. Absent any evidence on these points, 
the Court assumes, from the entirety of the 
remaining evidence, that these "holding commit­
ments" were informal only, and would have been 
meaningless had the prospective purchasers



12a

failed to submit an approved form of contract on 
or after October 2.

This suit was brought under 42 U.S.C. §§1981, 
1982, and 3612. The Court previously sustained 
defendants' Motion to Dismiss plaintiff's cause of 
action based on 42 U.S.C. §3612 for failure to 
comply with the time requirements of that section. 
The Court has jurisdiction over plaintiff's cause 
of action against the corporate defendant pursuant 
to 42 U.S.C. §1981, 1982; 28 U.S.C. §1343.

The elements of plaintiff's proof to make out 
a prima facie case under 42 U.S.C. §§1981 and 1982 
are (1) that the owner placed the property on the 
open market for sale, (2) that plaintiff was 
willing to purchase the property on the terms 
specified by the owner, (3) that plaintiff com­
municated this willingness to the owner at the 
time when the property was available for sale, (4) 
that the owner refused to sell the property to 
plaintiff on the terms which the owner indicated 
would otherwise be satisfactory, and (5) that 
there is no apparent reason for the refusal of the 
defendant to sell the property to plaintiff other 
than plaintiff's race. Duckett v. Silverman, 568



13a

F.2d 1020 (2nd Cir. 1978); Bush v. Kaim, 297 
F. Supp. 151 (N.D. Ohio 1969).

Plaintiff failed to prove that the units were 
available for sale at the time her offer was made. 
This is fatal to plaintiff's right to relief. 
Until October 2, or perhaps, at the earliest, the 
afternoon of September 30, when the contracts were 
finally made available to Chris Calhoun by his 
lawyer, the Benttree condominiums were not avail­
able for sale to plaintiff or anyone else. The 
evidence shows that the unavailability of the 
contracts prevented anyone from purchasing a unit, 
not just the plaintiff. Although the sign which 
went up on or about September 25, 1977, advertised 
the condominiums to be "for sale", anyone inquir­
ing, including plaintiff, was told that no sale 
could be made until the contracts were ready.

There is considerable evidence in the record 
which appears to be an attempt by plaintiff to 
show that the special contract requirement was a 
subterfuge on the part of defendant. Plaintiff 
showed that the contracts which were ultimately 
used were simple, took the lawyer only one hour to 
draft, and were not substantially different from 
those regularly used in the Oklahoma City area.



14a -

However, Mr. Barnes testified at length concerning 
the reasons for the delay in preparation and why 
he believed the option contract to be unsatisfac­
tory, and it was not unreasonable for Calhoun to 
rely on the advice of his lawyer. Moreover, 
everyone who sought to purchase or make an offer 
without the required form of contract was treated 
uniformly, regardless of race.

There is additional evidence in the record 
tending to establish that the Benttree project 
was inexpertly managed and did not follow estab­
lished business procedures. However convincing 
such evidence may be, it does not support plain­
tiff's right to relief. There is no requirement 
that defendant aggressively seek or pursue minor­
ity buyers. Nor is there any requirement that 
defendant conduct its business prudently or use 
licensed realtors. Absent evidence that defendant 
refused to sell to plaintiff on account of her 
race, and finding the evidence offered by plain­
tiff tending to show poor business judgment leads 
to no inference that defendant refused to sell to 
plaintiff on account of her race, the Court 
concludes that such evidence is irrelevant.



15a -

Under the standards announced in Bush v . 
Kaim, supra, defendants are entitled to judgment. 
Plaintiff did not prove that the property in 
question was on the open market for sale. Nor did 
plaintiff prove that she was willing to purchase 
the property on the terms specified by the owner. 
No terms were in existence until after plaintff's 
last contact with defendant. Had plaintiff been 
willing to comply with defendant's terms, she 
would have inquired on or after October 2, when 
she knew the units would be available and the 
contracts containing the terms would be ready. 
The requirement of the contracts were reasonable 
and all applicants were treated uniformly regard­
ing the contract requirement. The Court therefore 
concludes that defendant did not refuse to sell to 
plaintiff on account of her race and judgment 
shall therefore enter for defendant.

Both parties have requested costs and at­
torney's fees, including John Kilpatrick, the 
defendant who was previously dismissed from the 
action, under 42 U.S.C. §1988, as amended. This 
section provides that the Court, in its discre­
tion, may allow the prevailing party "... a rea­



16a

sonable attorney's fee as part of the costs." 
Although defendant prevails in this case, the 
Court finds good faith on the part of plaintiff, 
and reasonable grounds for her belief that 
prompted this cause of action. Therefore the 
parties shall each bear their own costs, including 
attorney's fees.

It is so ordered this 16th day of March,
1979.

/s/ RALPH G. THOMPSON 
UNITED STATES DISTRICT JUDGE



17a

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

No. 79-1366

FILED DEC. 02, 1080

ALICE V. HOUSTON,

Plaintiff-Appellant, 

v.

BENTTREE, LTD., an 
Oklahoma corporation,

Defendant-Appellee.

On Appeal From The United States District 
Court For The Western District Of Oklahoma 

(D.C. No . Civil 78-0571-T)

John W. Walker of John W. Walker, P.A., Little 
Rock, Arkansas (David E. Parker, Jr. of John W. 
Walker, P.A., and Matthew T. Horan, Fayettesville, 
Arkansas, with him on the brief), for Appellant.

Kent F. Frates, of Ellis & Frates, Oklahoma City, 
Oklahoma, for Appellee.



18a -

Before SETH, Chief Judge, LOGAN, Circuit Judge, 
and BOHANON, District Judge*.

SETH, Chief Judge

The plaintiff brought this action under the 
Fair Housing Act and the Civil Rights Act, 42 
U.S.C. §§ 1981 and 1982. The trial court dis­
missed the Fair Housing Act claim as untimely 
filed. The court heard the evidence on the 
remaining claim, held that plaintiff had not made 
a prima facie case of discrimination, and entered 
judgment for the remaining defendant. The plain­
tiff has taken this appeal and urges that the 
trial court's findings are not supported by 
substantial evidence, and that incorrect legal 
standards were applied. The individual defendant 
was dismissed at trial. The corporation will be 
referred to as the defendant.

*0f the United States District Court for the 
Eastern, Northern and Western Districts of 
Oklahoma, sitting by designation.



19a

The plaintiff is a black person who had come 
to Oklahoma City to assume an important position 
with the School System. She was looking for a 
suitable place to live and saw a "for sale" sign 
at the defendant's condominiums. She contacted a 
real estate agent to assist her in looking at the 
property.

The agent told plaintiff, about September 26, 
that the condominums would not go on sale until 
October 1 or 2 at which time the defendant was to 
have an "open house" on the property. However, 
the defendant was showing the finished units to 
prospective buyers. Plaintiff was shown the 
property on September 26, and she expressed 
interest in purchasing a two-bedroom unit. 
Defendant's sales agent told her that the one in 
which she was interested had already been sold. 
Plaintiff looked at another unit and stated she 
would buy it. The sales agent explained that the 
contracts were not yet ready and that the company 
would only use contracts prepared by its own 
attorney. An appointment was made to see the 
lawyer. At this point plaintiff fully expected 
that she would be sold a unit.



20a

On September 28, plaintiff and her agent met 
with the attorney for defendant who also stated 
the contracts were not ready and that an option to 
buy would not be extended to plaintiff as the 
company insisted that the contract it prepared be 
used. Plaintiff then asked if she could see a 
three-bedroom apartment. The lawyer arranged an 
appointment for her with Mr. Calhoun, Vice Presi­
dent of Benttree. Plaintiff understood that the 
contract forms would be ready in a few days. She 
was shown a unit by Mr. Calhoun. Plaintiff and 
her agent both testified that Mr. Calhoun was 
antagonistic and rude. Mr. Calhoun testified that 
he told plaintiff at this showing that she could 
sign a contract at the open house on October 2. 
Plaintiff's agent phoned the attorney several 
times after their meeting seeking to obtain the 
contract forms but was not successful. On the 
afternoon of September 30, the attorney completed 
the contracts.

Plaintiff felt that she was badly and rudely 
treated by defendant's agents. She understood 
that Benttree refused to allow her to make a 
binding offer because of her race. Plaintiff thus 
alleged that defendant's excuse regarding the



2 1 a  -

contracts was merely a sham. Also, she had been 
told that one unit had been sold and nevertheless 
she could not then buy one.

The open house did take place on October 2,
but plaintiff did not make an offer nor tender a 
deposit on or after that date. Plaintiff filed a 
complaint with the Department of Housing and Urban 
Development on October 6, 1977.

Upon these facts, the district court held 
that plaintiff had not established a prima facie 
case of discrimination. The unit which Benttree's^ 
agent thought had been sold before October 2 had 
not been sold although it may have been informally 
reserved for a prospective purchaser. The court 
concluded as to this that such non-binding 
reservation was of no significance and there was 
no showing that there would not have to be the 
usual binding option after October 2 on this also. 
The lawyer testified as to his preparation of the 
sale contracts and the business reasons necessitat­
ing the delay. The record shows that all prospec­
tive buyers were treated the same way. Thus 
if they wanted to make an offer before October 2, 
they were told that the contracts were not yet 
available. The court found as a fact that the



22a

units were not placed on the market until October 
2. The court also found that plaintiff was aware 
of this fact.

The elements of a prima facie case under 42 
U.S.C. §§ 1981 and 1982 are: that the owner 
placed the property on the open market for sale; 
that plaintiff was willing and able to buy 
the property on the terms specified by the owner; 
that plaintiff so advised the owner at the time 
the property was available for sale; that the 
owner refused to so sell the property to plain­
tiffs; and that there is no apparent reason for 
the refusal of the defendant to sell the property 
to plaintiff other than plaintiff's race. Duckett 
v. Silberman, 568 F.2d 1020 (2d Cir.); Bush v. 
Kaim, 297 F. Supp. 151 (N.D. Ohio).

The record demonstrates that plaintiff did 
not prove several essential elements necessary 
to make a prima facie case. The findings of 
the trial court are supported by substantial 
evidence, and the correct legal standards were 
applied.

Appellant urges also that the district court 
erred in dismissing her cause of action under 
the Fair Housing Act. As we are convinced that



23a

the trial record supports the trial court's 
finding that there was no discrimination, we need 
not consider this argument. We have considered 
appellant's other arguments and find them to be 
without merit.

The judgment of the district court is AF­
FIRMED.



24a

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

No. 79-1366 

(D.C. No. 78-0571-T) 

NOVEMBER TERM - DECEMBER 2, 1980

ALICE V. HOUSTON,

Plaintiff-Appellant, 

v.

BENTTREE, LTD., an 
Oklahoma corporation,

Defendant-Appellee.

J U D G M E N T

Before the Honorable Oliver Seth, Chief Circuit 
Judge, The Honorable James K. Logan, Circuit 
Judge, and The Honorable Luther L. Bohanon, United 
States District Court Judge



25a

This cause came on to be heard on the record 
on appeal from the United States District Court 
for the Western District of Oklahoma, and was 
argued by counsel.

Upon consideration whereof, it is ordered 
that the judgment of that court is affirmed.

/s/ HOWARD K. PHILLIPS, Clerk 
HOWARD K. PHILLIPS, Clerk



26a

EXHIBIT ATTACHED TO 
COMPLAINT

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 
REGIONAL OFFICE

1100 Commerce Street 
DALLAS, TEXAS 75202

May 9, 1978

REGION VI IN REPLY REFER TO:

6EC
PHONE:214-749-7461 
06-78-10-016-200

CERTIFIED MAIL-RETURN RECEIPT REQUESTED

Ms. Alice V. Houston 
1601 N.W. 30th, #110 
Oklahoma City, Oklahoma 73118

Dear Ms. Houston:

This letter is to tell you that although we have 
attempted to seek a resolution of your complaint, 
we have not been able to achieve a satisfactory 
result. We are now terminating our efforts at 
informal resolution of your complaint.

As of the date you receive this letter, you are 
free to seek court relief under Section 810 of 
the Federal fair housing law provided you bring 
such action within thirty (30) days of this date. 
As we indicated to you previously, you may also



27a

have a right to bring court action under Section 
812 of the law within 180 days after the alleged
discriminatory act occurred or under the Civil 
Rights Act of 1866 as interpreted by the United 
States Supreme Court in the case of Jones v. 
Mayer. Such action may be brought in an appro­
priate Federal, state, or local court.

The relief available under Section 812 is similar 
to that allowed under Section 810, but you should 
consult your attorney, if you have one, to deter­
mine what course of action you should take. If 
you do not have an attorney or cannot pay for one, 
you will be interested to know that the court may 
appoint an attorney for you in an action under 
Section 812.

Sincerely,

s/s Leonard Chaires 
LEONARD CHAIRES
ASSISTANT REGIONAL ADMINISTRATOR FOR 

FAIR HOUSING and EQUAL OPPORTUNITY

cc: John W. Walker, Attorney

AREA OFFICES
DALLAS, TEXAS- LITTLE ROCK, ARKANSAS- NEW ORLEANS, 
LOUISIANA- OKLAHOMA CITY, OKLAHOMA - SAN ANTONIO, 
TEXAS

Insuring Offices
Albuquerque, New Mexico- Fort Worth, Texas- 
Houston, Texas- Lubbock, Texas- Shreveport, 
Louisiana- Tulsa, Oklahoma



28a

Federal Statutes and Regulations

Title 42 U.S.C. § 1981 provides:

§ 1981. Equal rights under the law

All persons within the jurisdiction of the 
United States shall have the same right in every 
State and Territory to make and enforce contracts, 
to sue, be parties, give evidence, and to the full 
and equal benefit of all laws and proceedings for 
the security of persons and property as is enjoyed 
by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and 
exactions of every kind, and to know other.

R.S. § 19777. Derivation. Act May 31, 1870, 
c. 114, § 16, 16 Stat. 144.

Title 42 U.S.C. § 1982 provides:

§ 1982. Property rights of citizens

All citizens of the United States shall have 
the same right, in every State and Territory, as



29a

is enjoyed by white citizens thereof to inherit, 
purchase, lease, sell, hold, and convey real and 
personal property.

R.S. § 1978. Derivation. Act Apr. 9, 1866, c. 
31, § 1. 14 Stat. 27.

Title VIII of the Civil Rights Act of 1968, 
42 U.S.C. §§ 3601-3619 (Pub.L. 90-284, Title 
VIII, April 11, 1968, 82 Stat. 81), provides in
pertinent part:

§ 3601. Declaration of policy

It is the policy of the United States to 
provide, within constitutional limitations, for 
fair housing throughout the United States. Pub. 
L. 90-284, Title VIII, § 801, Apr. 11, 1968, 82 
Stat. 81.

* * *



- 30a

§ 3604. Discrimination in sale or rental of 
housing.

As made applicable by section 3603 of this 
title and except as exempted by sections 3603(b) 
and 3607 of this title, it shall be unlawful —

(a) To refuse to sell or rent after the 
making of a bona fide offer, or to refuse to 
negotiate for the sale or rental of, or otherwise 
make unavailable or deny, a dwelling to any person 
because of race, color, religion, sex, or national 
origin.

(b) To discriminate against any person 
in the terms, conditions, or privileges of sale or 
rental of a dwelling, or in the provision of 
services or facilities in connection therewith, 
because of race, color, religion, sex, or national 
origin.

(c) To make , pr int, or pub 1ish , or
be made , printed, or published any

notice, statement, or advertisement, with respect 
to the sale or rental of a dwelling that indicates 
any preference, limitation, or discrimination 
based on race, color, religion, sex, or national 
origin, or an intention to make any such pref­
erence, limitation, or discrimination.



- 31a -

(d) To represent to any person because 
of race, color, religion, sex, or national 
origin that any dwelling is not available for 
inspection, sale, or rental when such dwelling 
is in fact so available.

(e) For profit, to induce or attempt to 
induce any person to sell or rent any dwelling by 
representations regarding the entry or prospective 
entry into the neighborhood of a person or persons 
of a particular race, color, religion, sex, 
or national origin.

Pub.L. 90-284, Title VIII, § 804, Apr. 11, 1968, 
82 Stat. 83; Pub.L. 93-383, Title VIII, § 808(b) 
(1), Aug. 22, 1974, 88 Stat. 729.

§ 3610. Enforcement

Person aggrieved; complaint; copy; investiga­
tion; informal proceedings; violations of 
secrecy; penalties____________________________

(a) Any person who claims to have been 
injured by a discriminatory housing practice or 
who believes that he will be irrevocably injured



32a

by a discriminatory housing practice that is about 
to occur (hereafter "person aggrieved") may file a 
complaint with the Secretary. Complaints shall be 
in writing and shall contain such information and 
be in such form as the Secretary requires. Upon 
receipt of such a complaint the Secretary shall 
furnish a copy of the same to the person or 
persons who allegedly committed or are about to 
commit the alleged discriminatory housing prac­
tice. Within thirty days after receiving a 
complaint, or within thirty days after the expira­
tion of any period of reference under subsection
(c) of this section, the Secretary shall investi­
gate the complaint and give notice in writing to 
the person aggrieved whether he intends to resolve 
it. If the Secretary decides to resolve the 
complaint, he shall proceed to try to eliminate or 
correct the alleged discriminatory housing prac­
tice by informal methods of conference, concilia­
tion, and persuasion. Nothing said or done in the 
course of such informal endeavors may be made 
public or used as evidence in a subsequent pro­
ceeding under this subchapter without the written 
consent of the persons concerned. Any employee of



33a -

the Secretary who shall make public any informa­
tion in violation of this provision shall be 
deemed guilty of a misdemeanor and upon conviction 
thereof shall be fined not more than $1,000 or 
imprisoned not more than one year.

Complaint; limitations; answers; amendments; 
verification_________________________________

(b) A complaint under subsection (a) of 
this section shall be filed within one hundred and 
eighty days after the alleged discriminatory 
housing practice occurred. Complaints shall be in 
writing and shall state the facts upon which the 
allegations of a discriminatory housing practice 
are based. Complaints may be reasonably and 
fairly amended at any time. A respondent may file 
an answer to the complaint against him and with 
the leave of the Secretary, which shall be granted 
whenever it would be reasonable and fair to do so, 
may amend his answer at any time. Both complaints 
and answers shall be verified.

*  *  *



34a

Commencement of civil actions; State or local 
remedies available; jurisdiction and venue;
findings; injunctions; appropriate affir- 
mative orders________________________________

(d) If within thirty days after a 
complaint is filed with the Secretary or within 
thirty days after expiration of any period of 
reference under subsection (c) of this section, 
the Secretary has been unable to obtain voluntary 
compliance with this subchapter, the person 
aggrieved may, within thirty days thereafter, 
commence a civil action in any appropriate United 
States district court, against the respondent 
named in the complaint, to enforce the rights 
granted or protected by this subchapter, insofar 
as such rights relate to the subject of the 
complaint: Provided, That no such civil action
may be brought in any United States district court 
if the person aggrieved has a judicial remedy 
under a State or local fair housing law which 
provides rights and remedies for alleged dis­
criminatory housing practices which are substan­
tially equivalent to the rights and remedies 
provided in this subchapter. Such actions may be 
brought without regard to the amount in contro-



- 35a

versy in any United States district court for the 
district in which the discriminatory housing 
practice is alleged to have occurred or be about 
to occur or in which the respondent resides or 
transacts business. If the court finds that a 
discriminatory housing practice has occurred or is 
about to occur, the court may, subject to the 
provisions of section 3612 of this title, enjoin 
the respondent from engaging in such practice or 
order such affirmative action as may be appro­
priate.

Burden of proof

(e) In any proceeding brought pursuant 
to this section, the burden of proof shall be on 
the complainant.

Trial of action; termination of voluntary 
compliance efforts_______________________ _

(f) Whenever an action filed by an 
individual, in either Federal or State court, 
pursuant to this section or section 3612 of this



- 36a

title, shall come to trial the Secretary shall 
immediately terminate all efforts to obtain 
voluntary compliance.

Pub.L. 90-284, Title VIII, § 810, Apr. 11, 1968, 
82 Stat. 85.

§ 3612. Enforcement by private persons

Civil action; Federal and State jurisdiction; 
complaint; limitations; continuance pending 
conciliation efforts; prior bona fide 
transactions unaffected by court orders______

(a) The rights granted by sections 
3603, 3604, 3605, and 3606 of this title may be 
enforced by civil actions in appropriate United 
States district courts without regard to the 
amount in controversy and in appropriate State 
or local courts of general jurisdiction. A civil 
action shall be commenced within one hundred and 
eighty days after the alleged discriminatory 
housing practice occurred: Provided, however,
That the court shall continue such civil case 
brought pursuant to this section or section



*

- 37a -

3610(d) of this title from time to time before 
bringing it to trial if the court believes that 
the conciliation efforts of the Secretary or a 
State or local agency are likely to result in 
satisfactory settlement of the discriminatory 
housing practice complained of in the complaint 
made to the Secretary or to the local or State 
agency and which practice forms the basis for 
the action in court: And provided, however, That 
any sale, encumbrance, or rental consummated prior 
to the issuance of any court order issued under 
the authority of this Act, and involving a bona 
fide purchaser, encumbrancer, or tenant without 
actual notice of the existence of the filing of a 
complaint or civil action under the provisions of 
this Act shall not be affected.

Appointment of counsel and commencement of 
civil actions in Federal or State courts 
without payment of fees, costs, or security

(b) Upon application by the plaintiff 
and in such circumstances as the court may deem 
just, a court of the United States in which a



«

%
*

- 38a -

civil action under this section has been brought 
may appoint an attorney for the plaintiff and may 
authorize the commencement of a civil action upon 
proper showing without the payment of fees, costs, 
or security. A court of a State or subdivision 
thereof may do likewise to the extent not incon­
sistent with the law or procedures of the State or 
subdivision.

Injunctive relief and damages; limitation; 
court costs; attorney fees_________________

(c) the court may grant as relief, as 
it deems appropriate, any permanent or temporary 
injunction, temporary restraining order, or 
other order, and may award to the plaintiff actual 
damages and not more than $1,000 punitive damages, 
together with court costs and reasonable attorney 
fees in the case of a prevailing plaintiff: 
Provided, That the said plaintiff in the opinion 
of the court is not financially able to assume 
said attorney's fees.

Pub.L. 90-284, Title VIII § 812, Apr. 11, 1968, 
82 Stat. 88.



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- 39a -

Code of Federal regulations:

24 C.F.R. § 105.34 (1980) provides:

The person aggrieved shall be notified 
in writing by registered or certified mail 
when the Assistant Secretary has determined 
that he is unable to obtain voluntary com­
pliance through informal methods of con­
ference, conciliation, or persuasion. 
The 30 days provided in section 810(d) of 
title VIII within which a civil action may 
be commenced shall be deemed to begin upon 
the receipt of such notice.