Harper v. Hutton Appellants' Brief
Public Court Documents
January 1, 1979

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Brief Collection, LDF Court Filings. Harper v. Hutton Appellants' Brief, 1979. 023cfb6a-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f15fbc15-fc4c-4ca1-9366-1182bc492048/harper-v-hutton-appellants-brief. Accessed April 29, 2025.
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)-k)OSl NC, IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NO. 77-1214 DERRY HARPER AND NIKKI HARPER, Plaintiffs-Appellants, -v.- EDWARD M. HUTTON, Defendant-Appellee. Appeal From The United States District Court For The Middle District of Tennessee APPELLANTS' BRIEF LVj °r\ r\ JONATHAN I. CHARNEY 48 Wayside Court Nashville, Tennessee AVON N. WILLIAMS, JR. MAURICE E. FRANKLIN 1414 Parkway Towers Nashville, Tennessee 37 2.19 JACK GREENBERG BETH J. LIEF 10 Columbus Circle, Suite 2030 New York, New York 10019 Counsel for Plaintiffs-Appellants INDEX Statement of the Issues Presented.......................... vi Statement of the Case..................................... 1 Statement of Facts........................................ 6 Argument I. On The Basis Of The Uncontradicted Evidence And The Facts As Found By The District Court, Plaintiffs Derry And Nikki Harper Were Denied Housing And Victimized By Unlawful Racially Discriminatory Practices 19 II. Defendant's Deliberate Failure To Tell The Harpers Of The Availability Of An Efficiency Apartment On September 10, 1976 Violates The Plaintiffs' Rights Under The Fair Housing Law............................................ 35 CONCLUSION................................................. 40 Page Table of Cases Banks v. Perks, 341 F. Supp. 1175 (N.D. Ohio 1972).......... 26 Baxter v. Savannah Sugar Refining Corp.,495 F.2d 437 (5th Cir. 1974)............................................. 31 Boyd v. Lefrak Org. 509 F.2d 1110 (2d Cir. 1975)cert, denied, 423 U.S. 895 (1975)......................................... 34, 31 Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377 (4th Cir. 1972).......................................;26,30,31 Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir. 1975........ 19,20 Dailey v. City of Lawton, 296 F. Supp. 266 (W.D. Okla. 1969), aff'd, 425 F . 2d 1038 (10th Cir. 197)........................ 29 Elazar v. Wright Prentice-Hall Equal Opportunity in Housing § 15, 197 (S.D. Ohio 1976)................................... 28,37 Harper v. Union Savings Assoc., Prentice-Hall Equal Opp. in Housing, 515,203 (W.D. Ohio 1977).............................. 32 Haythe v. Decker Realty, 468 F.2d 336 (7th Cir. 1972)....... 29,38 Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974) 20 Johnson v. Jerry Pals Real Estate, 485 F.2d 528 (7th Cir. 1973 38 Jones v. Mayer, 392 U.S. 409 (1968)....................... 25,34,38 Lane v. Wilson, 307 U.S. 268 (1939).......................... 25 Nader v. Allegheny Airline, Inc. 512 F.2d 527 (D.C. Cir. 1975) 19 Pettway v. American Cast Iron Pipe Co. 494 F.2d 211 (5th Cir. 1974)............................................. 31 Rogers v. Internal Paper Co., 510 F.2d 1340 (8th Cir. 1975)............................................ 31 Rowe v. General Motors Corp., 457 F .2d 348 (5th Cir. 1972)............................................ 20,31 Page -ii- Table of Cases (Continued) Page Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976)............................ 19,20,31 Sims v. Sheet Metal Workers Int., Ass'n, Local 65, 489 F . 2d 1023 (6th Cir. 1973)......................... Singleton v. Jackson Mun. Sep. School District, 419 F . 2d 1211 (5th Cir. 1970)........................ Smith v. Adler, 436 F.2d 344 (7th Cir. 1970)............ ... 26,29 Smith v. Concordia Parish Sch. Bd. 445 F.2d 285 (5th Cir. 1971.................................... Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1971).................................. State of Alabama v. United States, 304 F.2d 583 (5th Cir. aff'd, 371 U.S. 37 (1962)............................. 1962) Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976)....................................... Todd v. Lutz, Prentice-Hall Equal Opportunity in Housing 1(13,787 (W.D. Penn. 1976)............................. Trafficante v. Metropolitan Life Ins. Co. 409 U.S. 205 (1972)..................................... United States v. Aubinoe, Prentice-Hall Equal Opp. in Housing, 515,206 (D. Md. 1977)........................ United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971)...................................... United States v. Mintzes, 304 F. Supp 1305 (D. Md 1969).. 26 United States v. N.L. Industries, 479 F.2d 354 (8th Cir. 1973)..................................... United States v. Northside Realty Associates, Inc., 518 F .2d 884 (5th Cir. 1975)....................... -in- Table of Cases (Continued) United States v. Pelzer Realty, 484 F.2d 438 (5th Cir. 1973.......................... ......... 19, 20,26,34,37 United States v. Real Estate Development Corp., 347 F. Supp. 776 (N.D. Miss. 782)................... 25,26, 29,38 United States v. Reddoch, 467 F.2d 897 (5th Cir. 1972)... 21,26,29 United States v. Senger Mfg. Co., 374 U.S. 174 n. 9 (1963).................................................. 19 United States v. West Peachtree Tenth Corp. 437 F.2d 221, 226 (5th Cir. 1971).............................. 29,34,37 United States v. Youritan Construction Co., 370 F. Supp. 643 (N.D. Cal. 1973), aff'd, 509 F.2d 623 (9th Cir. 1975)...................................... 20,21, 27, 29, 30,34,36 Weathers v. Peters Realty Corp., 499 F.2d 1197 (6th Cir. 1974)....................................... 21,34 Williams v. Matthews Co., 499 F.2d 819 (8th Cir. 1974), cert, denied, 419 U.S. 1021 (1974) 21,25,29,30,34 Williamson v. Hampton Management, 339 F. Supp 1146 (N.D. 111. 1972)..................................... 26 Zuch v. Hussey, 394 F. Supp. 1028 (E.D. Mich 1975) aff'd F . 2d 1168 (6th Cir. 1977)........................ 34 Page -iv- Table of Statutes and Authorities Page Federal Rule Civil Procedure 5 2(a)...................... 19 42 U.S.C. §1982........................................ . . 24 42 U.S.C. §3604 (a)................................... 27,37 42 U.S.C. §3604 (d)...................................... 35 U.S. Bureau of the Census, General Population Statistics, Tennessee (1970) 44-70.................. 21 -v- Statement of the Issues presented 1. whether, on the basis of the uncontradicted evidence and the facts as found by the District Court, Plaintiffs Derry and Nikki Harper were denied housing and victimized by unlawful racially discriminatory practices. 2. Whether the Defendant's deliberate failure to tell the Harpers of the availability of an apartment violates the Plaintiffs' rights under the fair housing laws. -vi IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 77-1214 DERRY HARPER AND NIKKI HARPER, Plaintiffs-Appellants -v. - EDWARD M. HUTTON, Defendant-Appellee. Appeal from the United States District Court For The Middle District of Tennessee APPELLANTS' BRIEF Statement of the Case The appellants in this case, a black married couple, charge defendant with racial discrimination in the rental of units at Natchez Village Apartments in Nashville, Tennessee. Jurisdiction in the Court below was predicated on 28 U.S.C. § 1343(4) and 42 U.S.C. § 3612; plaintiffs alleged violations of their rights under the 1968 Fair Housing Act, 42 U.S.C. § 3601 et seg, and the Civil Rights Act of 1866, 42 U.S.C. § 1982 to secure a dwelling without discrimination on the basis of race or color (A. 6, 22). This appeal challenges the district courts' interpretation of the facts, application of the law, and dismissal of the complaint. The action began on September 23, 1976 when the complaint was filed in the United States District Court for the Middle District of Tennessee. Plaintiffs Derry and Nikki Harper alleged that they visited Natchez Village Apartment on September 4, 1976 and sought to rent an apartment there; that the owner and manager of the complex, defendant Edward M. Hutton, refused to rent the apartment to them when they applied and required them to give detailed financial information and to wait while a credit check was run, although such requirements are not imposed on white applicants; that the purpose of such requirements was to discourage blacks and avoid renting to them; and that thereafter he rented the apartment to a white person and refused to rent an apartment to plaintiffs (A. 6-8). The complaint sought a preliminary and permanent injunction, compensatory and punitive damages, and attorney's fees (A. 9-10). On the same day that the complaint was filed, plain tiffs filed a Motion for a Preliminary Injunction (A. 11-17) A hearing was held on the Motion for a Preliminary Injunction on September 30, 1976 (A. 23). The parties agreed to consolidate the hearing with a trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure (A. 23). -2- On December 22, 1976 the district court issued its findings of fact and conclusions of law (A. 22-34). The court found that: (1) Plaintiffs were a black married couple and that each was a full-time student; Derry, at Vanderbilt University Law School, and Nikki, at University of Tennessee (A. 24); (2) During the week of August 23, 1976, plaintiffs obtained permission to be released from their lease at an apartment owned by Vanderbilt University. They sought the release in order to secure less expensive housing (A. 24); (3) In response to an advertisement, Nikki Harper telephoned Natchez Village Apartments and after two conversations obtained an appointment to view the apartments on September 4, 1976. Mrs. Harper also provided defendant with some information in response to a question from defendant (A. 25); (4) After viewing a vacant apartment, number 215, plaintiffs told defendant Hutton they wanted to rent the apartment. Hutton said that before he would rent it to them, plaintiffs would have to fill out an application and a credit check would have to be run which would take one week. (A. 25, 27) ; (5) Defendant inquired about the plaintiffs' financial status and plaintiffs supplied them with information, including information about loans and scholarships they had been granted, the money they had in the bank, and the money they expected to earn (A. 25-26); (6) There was a conflict in testimony concerning the plaintiffs' lease with Vanderbilt University. Defendant testified that Mr. Harper told him he could not rent an apartment because of his existing lease; Mrs. Harper testified that her husband said they could be released, but that he would check to be sure (A. 27); (7) All during the time plaintiffs were with defendant, they were attempting to present a good impression and to convince him that they could afford the apartment (A. 27); -3- (8) On September 7, 1976 Mr. Harper reconfirmed that he could be released from his lease with Vanderbilt University (A. 27); (9) On September 9, 1976 Mr. Harper telephoned the defendant to find out if their application had been accepted. Defendant told plaintiff he had rented the apartment to someone else on September 6 and that he had hot checked any of the credit references the Harpers supplied (A. 27-28) ; (10) Defendant did not mention he had any other apartments available although one was (A. 28); (11) Evidence from white students who previously rented, or were presently renting apartments at Natchez Village established that none were asked questions by defendant about their financial status, that defendant did not indicate that he would run credit checks on them (A. 28-29); (12) At the time of the hearing there were no blacks living in Natchez Village; in the past defendant had rented to a black individual only once (A. 29). Despite these findings, the Court concluded that plaintiffs had failed to prove their case (A. 31). The Court stated that while "it has no doubt that plaintiffs would have been good tenants," "[d]efendant could make the business judgment that plaintiffs would not be financially able to rent an apartment from him." (A.32). The Court did not consider the fact that Hutton had never told the plaintiffs he was rejecting them for financial reasons and dismissed the fact that Hutton had not required financial information from white applicants, even those who were students and on scholarship, with the statement that: "None of the white students were in the same financial position as plaintiffs; two students, a family, on loans and scholarship." (A. 33) -4- The Court did not explain why a family of two students was so different as an application by one student as to justify such disparate treatment. The Court also distinguished the fact that a white tenant, Mr. Campbell, was allowed to rent although obligated under another lease while plaintiffs were not on the grounds that Mr. Campbell has rented from the defendant previously and stated he would be able to break his lease (A. 33) . The Court did not make any conclusions of law regard ing the fact that on September 10, 1976, when the Harpers reconfirmed they could be released from their other apartment, Hutton withheld information that an apartment was available. Simultaneously with the filing of the Memorandum, the Court issued an Order dismissing the case (A. 35). Plaintiffs timely filed their Notice of Appeal on January 21, 1977 from the District Court's conclusions of law and dismissal of the complaint. -5- Statement of Facts Defendant Edward M. Hutton has been the sole owner and manager since 1967 of Natchez Village Apartment, a fifty-unit complex in Nashville, Tennessee (A. 137,156). Thirty-four units are efficiency units which rent at $155.00 per month (A. 96, 138). During the entire ten years that defendant Hutton has operated Natchez Village, he has only rented one unit to a black person (A. 154-155), although blacks comprise approximately 20% of the population 1/in the Nashville area. Defendant Hutton offered no testimony concerning his usual application and rental procedure. According to the undisputed testimony of four white tenants at Natchez Village, however, Hutton's procedure for approving appli cants for tenancy, at least white applicants, and executing leases is quite simple. Hutton makes an appointment with a prospective tenant to see an available apartment within hours after the applicant's initial inquiry, and if the applicant offers to rent the apartment after viewing it', Hutton immediately produces and executes a lease with the parson (A. 64,73,81). Although applicants are asked to list some credit references and bank accounts (A.65,71-2,77,81) 1/ U.S. Bureau of the Census, General Population Statistics, Tennessee (1970), p. 44-70. -6- no information is sought as to amounts of income, assets or liabilities, nor is any credit check to verify ref erences required or made prior to signing leases since the leases are executed on the spot (A. 65,67,68,73,76,81). Testimony concerning five white applicants revealed that they all experienced similar application procedures. Neal S. Fleming, a white male, who was about to enter Vanderbilt University Law School in the fall, 1974, in quired about a studio efficiency at the defendant's Natchez Village Apartment in June, 1974 (A. 62). The day after viewing an available efficiency he offered to rent it and made an appointment for the following day to sign the lease (A. 64). Despite the fact that Mr. Fleming volunteered that he was a scholarship student (A. 63). defendant Hutton made no inquiry as to the amount of the scholarship, nor did he request or obtain any information about Mr. Fleming's income, assets or liabilities (A. 64). In response to a request for credit information, Mr. Fleming only listed Vanderbilt University (A. 65). However, the defendant did not require that the execution of the lease be delayed until a credit check was run, did not ask for further financial references, and the lease was imme diately signed (A. 65). A similar procedure was applied to Mr. Robert E. Campbell, -7- a white male who was about to enter Vanderbilt University School of Law, when he sought an efficiency at Natchez Village in July, 1974 (A. 79). He spoke to the defendant on the telephone one evening and obtained an appointment to view an available efficiency on the following day. Mr. Campbell offered to rent the efficiency and was immediately permitted to sign a lease (A. 81). Although credit reference informa tion was requested, no request was made for specific infor mation on income, assets or liabilities, nor was any such information volunteered (A. 80-81,159). Defendant Hutton did not run a credit check prior to approving Campbell as a tenant and to executing the lease (A. 81). After residing at the defendant's apartment complex for some time, Mr. Campbell moved out. At a later date, after Mr. Campbell was married, he again sought an apartment from the defendant at Natchez Village Apartments. Again, the applicant was permitted to execute a lease without tendering specific financial data and without having to wait until a credit check was made (A. 81). The second lease was executed despite the fact that Mr. Campbell was bound to another apartment house (A. 84, 162). There was no significant variation in the application -8- procedure when, in July of 1976, a white female entering law school, Ms. Sue D. Sheridon, sought an apartment from the defendant (A. 66). She saw an efficiency on one day and on the following day telephoned and offered to rent it (A. 66-67). An appointment was made for two or three hours later to sign the lease, and the lease was executed that same day, July 13, 1976 (A. 67,38-39,51-52). Routine credit references were provided on the lease such as charge accounts and bank accounts, all of which were located out side of the State of Tennessee (A. 67,51-52). No information on the balances in these bank accounts was provided nor was there any request for facts as to Ms. Sheridon's assets, income or liability, and no such information was volunteered (A. 72,73,159,162). Furthermore, no mention of a credit check was made nor was any possible because, as usual, the lease was executed immediately (A. 67). The same procedure was followed in the case of the application of John Billings, a white male who was entering Vanderbilt University to seek a degree in Chemical Engineering (A. 153). Mr. Billings first visited the Natchez Village Apartments on Monday, September 6, 1976, Labor Day, and immediately offered to rent the apartment number 215, which was -9- &n efficiency (A. 138). Mr. Billings was permitted to lease the efficiency in question that same day. Defendant Hutton did not delay execution of the lease until he checked credit references and did not seek any specific financial data (A. 153,162). Ms. Jennifer Smart, a white female who was a second year law student, telephoned defendant Hutton on September 15, 1976 to inquire about renting an efficiency apartment at Natchez Village (A. 74-75). As with the other white applicants, Ms. Smart was allowed to view the efficiency and sign a lease on September 15, 1976, the same day (A. 76). Although Ms. Smart told Hutton she had a job as a research assistant and had a bank account with a bank in Nashville, Hutton asked no questions as to her salary, assets, lia bilities or other credit references and executed a lease without verifying the existence of the bank account or job (A. 75-76) . The application and rental procedure which had con sistently been applied to white prospective tenants varied drastically, however, when plaintiffs, a black married couple, sought housing at Natchez Village. Derry Harper, a black male, was entering his first year at Vanderbilt University School of Law in August, -10- 1976. His wife, Nikki, who is also black, was in her last year as a student at the University of Tennessee (A. 93,122). The Harpers had been assigned an apart ment in Oxford House, a complex operated by Vanderbilt University, at a rental cost of $2034.00 for the academic year, August 22, 1976 to May 13, 1977 (Def. Ex. B, A. 54-55). The rent for the Oxford House apartment was thus approxi mately $235.00 per month. Because the Harper's budget was limited, they decided to seek a less expensive apartment and before September 1, 1976, they had secured the per mission of the Vanderbilt University Housing Director to terminate their lease if they could find suitable alternative housing (A. 92,105,119,123,132). In response to the defendant's published advertisement that a studio efficiency was available at Natchez Village Apartments, Mrs. Harper called the number listed in the advertisemtnt on August 31st (A. 95, Pi. Ex. 2). A woman answered who stated that she was not sure whether an ef ficiency was available and told Mrs. Harper to call back later in the week (A. 95 ). When Mrs. Harper did call back on September 2nd she spoke to the defendant who con firmed that an efficiency was available for $155 per month (A. 97). During that conversation she stated that she and -11- her husband were students. The defendant then inquired as to their sources of income and she responded that they were each receiving scholarship grants and loans (A. 97). At that time Hutton did not state either that Natchez Village had a requirement of a minimum income for tenants or that students living on scholarship funds could not meet application requirements (A. 96-98). Mrs. Harper requested an appointment to view the efficiency and the defendant suggested that she come by two days later on Saturday morn ing, but to call prior to arriving (A. 98). As agreed, Mr. Harper called the defendant at 9:00 A.M., that Saturday, September 4, 1976. Defendant Hutton refused to see them immediately, but rather told Mr. Harper to call back in fifteen minutes in order to give the defendant a chance to see if the efficiency could be viewed (A. 125). Finally, the plaintiffs were permitted to visit the efficiency at 10:30 A.M. (A. 125). The efficiency that they viewed was apartment number 215 (A. 134,138). After inspecting it, the plaintiffs decided that they wanted to rent the efficiency and so informed the defendant (A. 100-102,123,149). Rather than permit the plaintiffs to sign a lease at that time, as he had allowed white applicants, defendant Hutton ques tioned the plaintiffs for forty-five minutes about -12- their specific income, assets and liabilities. Hutton permitted the Harpers to fill out an application, but informed them that he would have to run a credit check which would take an entire week before proceeding any further. He also required them to return to Vanderbilt to verify the fact that they could be released from their lease at Oxford House (A. 102-120,123,128-133,150-153) In response to Hutton's qustioning, the Harpers sought to provide the defendant with all the data that he requested, including exact amounts and sources of income (A. 150), although no such information had been sought from other applicants. Unlike the other applicants, the defendant also insisted upon a local reference, which the Harpers immediately provided (A. 131). The interview concluded upon the understanding that the Harpers wanted the apartment. They were to call back on the following Friday, September 10th, to learn the results of the credit check and to reconfirm that they were under no obligation to Vanderbilt and could be re leased from their apartment at Oxford House (A. 118,123,132) On the first working day following the Harper's visit to Natchez Village, Tuesday, September 7, 1976, Mr. Harper complied with defendant Hutton's request and reconfirmed -13- with a Vanderbilt official that he could be released from his lease (A. 87,133). However, when according to Hutton's instructions, Derry Harper called on September 10 to learn the results of the credit check and whether he and his wife could sign a lease. Hutton informed him that the apartment had been rented (A. 134). Although it was clear that Mr. Harper still wanted an efficiency apartment at Natchez Village, defendant Hutton only told Mr. Harper that the apartment he and his wife had viewed was unavailable and specifically kept from the plaintiff the fact that another efficiency had just become available (A. 140-142,157, PI. Ex. 4, 46-49). At trial it was undisputed by defendant Hutton that plaintiffs Derry and Nikki Harper could afford to pay the rent and would have made good tenants (A. 105-114,129,159,43-44). It was also clear that, despite the objective and admitted fact that the Harpers are a stable couple whowould have made good tenants, defendant Hutton had no intention of ever renting to this black young married couple. At one point Hutton testified that he did not allow the Harpers to sign a lease on September 4, 1976, when they first wanted to do so, because the couple did not give "a clear indication as to how much money they would have, either -14- annually or monthly which would be available for living 2/ expenses, rent, food, etc.," (A. 158). However, Hutton admitted that he had never asked for such financial information, let alone in such minute detail, from any other applicant (A. 161-162). Unlike other appli cants, the defendant insisted upon a local reference which - was provided (A. 131). Moreover, Hutton required the Harpers to wait an entire week in order to run a credit check on them, although he admitted that he did not subject white applicants, even those who were also students, to a credit check nor did he postpone executing the leases of white applicants until detailed financial data had been submitted (A. 65,67,68,73,76,81 159-161). Hutton's supposed justification for requiring the credit check only for the black couple and for no white applicants was that the credit information supplied by the white 2y Although the Harpers testified that they told Hutton specific information on the amount of money covered by scholarships and loans (A. 128-129), Hutton stated that the information he received was not a "clear indication" of monthly allotments for "living expenses, rent, food, etc.,"(A. 158). The district court found that the Harpers had submitted financial data (A. 25-26). -15- apartment seekers was "far more substantial then the information which Mr. and Mrs. Harper submitted" (A. 160). yet, Neal Fleming, a white tenant, testified that he only told Hutton he was a scholarship student and that the only credit reference he provided was Vanderbilt University (A.62-63). in contrast, the Harpers listed a Chevron credit card as well as Vanderbilt University and supplied substantial financial data (A. 130). It became clear that the use of a credit check on a black applicant was only a ruse to avoid renting to a black person when Hutton admitted that he had not run the credit check on the Harpers and, indeed, never intended to run the check (A. 156,163). Although Hutton testified that he did not run a credit check because the apartment the Harpers wanted had already been rented (A. 156). that excuse simply does not hold up because another ef ficiency had become available on September 8, 1976. Hutton received word that a tenant, Miss Shoshid, was vacating a one-bedroom apartment (A. 140-141). Hutton knew that a tenant who was then occupying an efficiency apartment, Miss Sims, wanted the first available one- bedroom, and "immediately . . . got in touch" with her "and obligated the [one-bedroom] apartment" (A. 142). Miss Sim's efficiency apartment was thus available for rent -16- as of September 8, 1976. When faced with the bold fact that he had intentionally refused to inform the Harpers about the availability of this apartment or to check the references, Hutton's only reply was that "I wasn't under any obligation" to call the Harpers or to tell them on September 10, 1976 that the efficiency was available (A.144). The efficiency the Harpers viewed was leased to a white tenant, Mr. Billings, on September 6, 1976 (A. 139-140). The second efficiency was also leased to a white tenant, Miss Smart, on September 15, 1976 (A. 139). Defendant Hutton's other excuse for refusing to rent an apartment to the Harpers on September 4, 1976 was equally lame. He testified that he did not want to rent to the Harpers until they were certain they could be released from their Oxford House apartment lease (A. 152). On September 1, 1976, prior to viewing the apartment at Natchez Village, the Harpers had already secured the per mission of the Vanderbilt University Housing Director to terminate their lease if they could find suitable housing (A. 85-92,105,119,123,132). Nevertheless, Hutton in sisted that they return to Vanderbilt to verify the fact that they could be released from their lease (A. 100-120, 123,128-133,150-153). The insistence upon such verification -17- was not followed when white applicants were in similar sit uations. Robert Campbell, a white person, testified that he was allowed to sign a lease with Hutton despite the fact that he was bound by another lease at a different apartment house (A. 84,162). More telling is the fact that on September 19, 1976, when the Harpers did reconfirm to Hutton that they could be released from their Vanderbilt Apartment, Hutton deliberately declined to offer or even tell them about the availability of a second efficiency in the apartment complex (A. 144). As a consequence of the more onerous requirements imposed on the Harpers, the week-long delay, and the delib erate refusal to tell them of the availability of an apart ment, plaintiffs were denied the opportunity, despite their undisputed qualification, to sign a lease for one apartment 215 on September 4, 1976 and for Miss Sim's apartment on September 10, 1976. Both apartments were rented to white persons and the entire complex remains all-white (A. 154). -18- r ARGUMENT I ON THE BASIS OF THE UNCONTRADICTED EVIDENCE AND THE FACTS AS FOUND BY THE DISTRICT COURT, PLAINTIFFS DERRY AND NIKKI HARPER WERE DENIED HOUSING AND VICTIMIZED BY UNLAWFUL RACIALLY DISCRIMINATORY PRACTICES. The factual findings of a district court cannot be disturbed unless they are clearly erroneous, Federal Rules of Civil Procedure 52(a). The "clearly erroneous" standard of review does not apply where, as in the in stant case, appellate review is sought not as to find ings of fact, but as to the application of law to those 3/ facts and the ultimate conclusion reached on the merits. Thus, a review of the ultimate finding of discrimination under a civil rights statute is not subject to the "clearly 3/ United States v. Senger Mfq. Co., 374 U.S. 174, n. 9 (1963); Stewart v. General Motors Corp.. 542 F.2d 445, 449 (7th Cir. 1976); Senter v. General Motors Corp., 532 F.2d 511, 526 (6th Cir. 1976); Causey v. Ford Motor Co., 516 F.2d 416, 420-421 (5th Cir. 1975); Nader v. Allegheny Airline, Inc., 512 F.2d 527, 538-539 (D.C. Cir. 1975); United States v. Pelzer Realty, 484 F.2d 438, 442 (5th Cir. 1973) (housing discrimination case). -19- erroneous" standard; neither is the weight accorded facts, issues of burden of proof, or application of the legal principles embodied in the civil rights laws. Senter v. General Motors Corp., supra; see Sims v. Sheet Metal Workers Int. Ass'n, Local 65, 489 F.2d 1023, 1026 (6th Cir. 1973); United States v. Pelzer Realty, supra; Rowe v. General Motors Corp., 457 F.2d 348, 356 n.15 (5th Cir. 1972). A review of the undisputed evidence and the facts as found by the district court establish as a matter of law that defendant Hutton failed to rebut the prima facie case of racial discrimination and that plaintiffs Derry and Nikki Harper were victims of unlawfully discriminatory practices. In cases involving racial discrimination, this Court and other courts have heeded the well-recognized principle that "statistics often tell much and courts listen." State of Alabama v. United States, 304 F.2d 583 (5th Cir. 1962), 4/ aff'd, 371 U.S. 37 (1962). See United States v. Youritan Construction Co.. 370 F. Supp 643 (N.D. Cal. 1973).aff1d. j/ Stewart v. General Motors, supra; Causey v. Ford Motor Co., supra; see Hester v. Southern Railway Co., 497 F.2d 1374, 1381 (5th Cir. 1974); United States v. Jacksonville Terminal Co., 451 F.2d 418, 423-424 (5th Cir. 1971). XJU\ U '•O - 20- JLjjjy ^-^4- IdaJ Lih-J-* " L<jLAU V UHJi.’L+A Q, (g V<Jr* 30 n "9: \A' . t ^ T \dZ> 3̂ * ? v \ V 509 F.2d 623 (9th Cir. 1975); United States v. Northside Realty Associates, Inc.. 518 F.2d 884, 888 (5th Cir. 1975); va Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201-1202 y (6th Cir, 1974); Williams v. Matthews, 499 F.2d 819, 827 (8th Cir. 1974); United States v. Reddoch, 467 F.2d 897 (5th Cir, 1972). Defendant Hutton was the sole owner and manager of Natchez Village Apartments in Nashville, Tennessee ' ^^ Xs (A * ^37, 156). During the ten years that he operated the /xv ̂ ih Vs " v J S>•J ^ 1 t,to a black person only once; at the time that the plaintiffs, * 5y £ A0 complex which contains fifty units, he rented an apartment 4' ^ £ X » a black married couple, sought housing at Natchez Village, % the complex housed not a single black tenant (A. 154-155), >■o r r <jf « * '° although blacks comprise approximately 20% of the population Vin the Nashville area. 1 \ . A % <N i' v. V v J ■y Such statistics, coupled with virtually stipulated evi dence that a black applicant for a vacant dwelling was sub jected to standards and procedures more exacting than those applied to white applicants, constitute a prima facie case of housing discrimination casting the burden upon a defendant to come forward with evidence that race was not a factor in his decision to deny housing. United States v. Youritan Construction Co., supra, 370 F. Supp. at 649; Williams v. ^ ' <ruMj MXLl X-4 Tir-Matthews, supra, 499 F.2d at 827. ~Zb(_̂uu ( 5/ U.S. Bureau of the Census, General Population Statistics Tennessee (1970), p. 44-70. ■K X 7 i 34 v 3 Vi7 f DJ/. LAfl7 /L <M> -21- AU-V cu-̂ u a '*techuJM . " mUrlL/ d t\0r r V/ 0 & p * y ^ o 1 z1 « ^ * £ , ^ ° e’ ^ - AgA \h »0 Aqq p v ? / * , ?<& (F+'thj'j i&<tJ . ■ -fc*U- jQ jfaJLuX JU dj -U. iArxA~ cuLLs y p ^ v ^ A o~^— i/i/ < in pi1) 0U-A^M_ovvuyK # J U ^ o , ajt> JL *-* #-*- /̂ ''n A ^ r l L C ^ L t ^ , CLiA flJ > tl<y Jy -V^xJ-'U. K-JS Aj j j L ul-cl*^ {i t a. aJc^j •* vaA-lA -L^ fpuA< AJL^-AurwA-' djyyU~p a jLa ^_ fojb^LUuuA^' dJuî cL hi t h M Y 7 ^ <i-» (k 'J P* a t-yy^^p nAJJLAJ fcA L fijj* ^ ̂ ^ ^ * W * Vtlpt* , A* J*lU aJLlA In this case, defendant Hutton twice prevented the Harpers from renting an apartment by imposing not one, but a series of burdensome requirements and delaying tactics which were never imposed on white applicants, and Hutton made it impossib-le fof plaintiffs to obtain housing by falsely representing there were no apartments available when he knew there were. Plaintiffs Derry and Nikki Harper first attempted to rent an efficiency apartment, number 215, at Natchez Village on September 4 (A. 100-102, 134, 138, 149). Defendant Hutton required them to provide detailed information as to their financial ability to pay for the apartment, including exact amount and sources of income, and monthly allotments for rent, food, and clothing (A. 150, 158). Through defendants' admission and independent proof it was established that no detailed showing of financial ability was ever required of white tenants at Natchez Village (A. 54, 67, 58, 73, 76, 81). Indeed, the white tenants who testified stated that Hutton asked for no information at all concerning salary, amount of scholarship or source of income (A. 64, 67, 68, 73, 76, 81). The Harpers were also required to furnish a local reference although white applicants were not asked for one. (A. 64, 67, 73, 131). Hutton refused to allow the Harpers to sign a lease for the efficiency on September 4, 1976 when they wished to do so, and told the Harpers they would have to wait an entire week before he would tell them if they were acceptable as tenants (A. 118, 123, 132). This time delay was never imposed on white applicants, who were allowed to execute a lease immediately. (A. 64, 73, 81). Hutton's excuse for the week delay was that he needed to check the credit references which the Harpers provided (A. 118, 123, 132). No such procedure was indicated or required for white applicants; no such credit check was ever run on white applicants. (A 159-161). Indeed, defendant did more than apply a different standard for black applicants; he misled them by advising them that a week was necessary for an investigation in the face of his clear policy to "under no circumstances . . . hold apartments." (A. 146)- Clearly defendant's requirement of a credit check was a "ruse" to avoid renting to a black couple, for Hutton admitted that he made absolutely no effort to run the credit check as he had promised. (A. 156, 163). The only other reason Hutton offered for not renting to the Harpers was that the plaintiffs were obligated under a least to Vanderbilt University (A. 152). Hutton did not testify that he followed any "rule" against renting to white persons who were obligated under another lease, and, in fact, the evidence showed otherwise. Hutton im mediately rented an apartment to Robert Campbell despite the fact that he too was subject to a pre-existing lease at the time he applied for and obtained an apartment (A. 84, 162). Indeed, the district court specifically found that Hutton had not asked for financial information from whites but required detailed data from the Harpers (A. 25, 28, 29), that Hutton did not let the Harpers sign a lease immediately as he had permitted whites to do (A. 27, 28-29); that Hutton stated to the Harpers that a credit check was required prior to approval (A. 27); and that Hutton did rent an apartment to a Campbell, who was white, despite the fact that he was under a pre-existing lease (A. 28). Such discriminatory treatment violates the guarantee assured to the Harpers by 42 U.S.C. § 1982 to enjoy "the 24 same right" to obtain housing as is enjoyed by white persons. Jones v. Mayer, 392 U.S. 409, 413 (1968); Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349- 50 (7th Cir. 1971). As the Court of Appeals in Williams v. Matthews Co., 499 F.2d 819, 826 (8th Cir. 1974) stated: "Recent cases make clear that the statutes prohibit all forms of discrimination, sophisticated as well as simple-minded, and thus disparty of treatment be tween whites and blacks, appli cation procedures, and tactics of delay, hindrance and special treatment must receive short shrift from the courts." The "disparity of treatment between blacks and whites, application procedures, tactics of delay, hindrance and special treatment" imposed by Hutton on plaintiffs here deserves no more than the "short shrift" accorded discrimination by other courts. Defendant's imposition of stringent financial re quirements, credit checks and delaying tactics, imposed 6/ See also Lane v. Wilson, 307 U.S. 268, 275 (1939); United States v. Real Estate Development Corp.. 347 F.Supp. 776, 782 (N.D. Miss.1972). 25 on blacks but not on whites, was "inconsistent with any intent to enforce the policy in a non-discrirainatory way or indeed to enforce the policy at all except as to plain tiffs." Williamson v. Hampton Management, 399 F. Supp. 1146, 1148 (N.D. 111. 1972). To force blacks, and not whites to submit to credit checks is but a veiled attempt to discourage them from seeking housing and to delay accepting them in the hope a white applicant would appear, and is disfavored by the courts. See United States v. Reddoch, 467 F.2d 897 (5th Cir. 1972). The imposition of all such burdensome and delaying tactics on blacks and not whites violates the fair housing laws. Seaton v. Sky Realty Go., 491 F.2d 634, 636 (7th Cir. 1976); United States v. Pelzer Realty, supra, 484 F.2d at 442, 444; United States v. Mintzes, 304 F. Supp. 1305 (D. Md. 1969); Banks v. Perks, 341 F. Supp. 1175 (N.D. Ohio 1972). The conclusion that racial motivation lies behind such actions is inescapable: the legal effect of statistical evidence which establishes a virtual absence of blacks, when reinforced by the total absence of criteria "applied to all alike" is that race is the only identifiable explanation. United States v. Real Estate Development Corp, supra, 347 F. Supp. at 782, citing Brown v. Gaston County Dyeing Mach. Co., 457 F .2d 1377, 1388 (4th Cir. 1972). As the court in 26 United States v. Youritan Construction Co., supra, 370 F. Supp. 648 explicitly held: "[A]11 practices which have the effect of denying dwellings on prohibited grounds are . . . unlawful . . . . The imposition of more burdensome application procedures, of delaying tactics, and of various forms of discouragement by resident managers and rental agents constitutes a violation of Section 3604(a) [of the Fair Housing Act of 1968]." While Hutton's disparate treatment of the Harpers when they first applied for an efficiency apartment on September 4, 1976, was explainable on no other ground but racial discrimination, his behavior on September 10, 1976, when he next spoke to the Harpers, left no doubt whatso ever that he had no intention of renting to the black couple. When Derry Harper called the defendant on September 10, 1976 to learn the results of the credit check and to re confirm that he and his wife could be released from their lease with Vanderbilt University, Hutton told him that he had not run the credit check (A. 134). Although Hutton testified that he did not check Harper's references because the efficiency apartment the Harpers wished to rent had been leased two days before (A. 156) 2 7 Hutton deliberately withheld the fact that another efficiency 1/ apartment had become available on September 8, 1976 (A. 142). Any conceivable justification for imposing the requirement only on blacks dissipates in the face of Hutton's failure to run the check at all and to inform the Harpers of the availability of Miss Sims' e f f i c i e n c y Elazar v. Wright, Prentice-Hall Equal Opportunity in Housing §15, 197 (S.D. Ohio 1976) . When plaintiffs in a housing discrimination case establish a prima facie case of discrimination, a defendant cannot rebut that showing by any excuse whatsoever; he must come forward with a legitimate justification for his conduct. Proof by a defendant of a "legitimate, nondiscriminatory reason" can only be based on a showing that conditions imposed and procedures utilized were accurately and uniformly applied, and were objectively determin able. Defendant Hutton-did not make such a showing. 7/ On September 8, 1976 Hutton had learned that a tenant, Ms. Shoshid, was vacating a one-bedroon apartment (A. 140-141). He. knew that a tenant who was then occupying an efficiency, Miss Sims, wanted a one-bedroon apartment, and "immediately... got in touch" with her "and obligated the [one bedroom] apartment." (A. 142). Miss Sims efficiency was thus available for rent as of September 8, 1976 (A. 142) . The district court so found (A. 28). 28 Mere denial by a defendant that his refusal to rent is not racially motivated (A. 158) .cannot serve, by itself, to rebut a prima facie case since "most persons will [no longer] admit publicly that they entertain any bias or prejudice against 8/ members of the Negro race" and most often they will "cloak and 9/ conceal" such unlawful discriminatory conduct. For this reason, many findings of racial discrimination in housing turn on proof 10/ circumstantially demonstrating the unlawful conduct. The proof established that plaintiffs had been treated unlike white applicants, and it was incumbent upon the defendant to come forward with proof that he had imposed such 8/ Dailey v. City of Lawton. 296 F. Supp. 266, 268 (W.D. Okla. 1969), aff'd, 425 F.2d 1038 (10th Cir. 1970); United States v . Real Estate Development Corp., id. 9/ Haythe v. Decker Realty, supra, 468 F.2d at 338. 10/ United States v. Youritan Construction Co., supra; Williams v. Matthews, supra; Smith v. Sol Adler Realty, supra, United States v. Reddoch, supra, United States v. West Peachtree Tenth Corp., supra; Dailey v. City of Lawton, supra; United States v . Real Estate Development Corp., supra, 347 F. Supp. at 784. 29 requirements on other white applicants. Stated another way, defendant could only rebut plaintiffs1 prima facie case with clear proof that white tenants or applicants were subjected to the requiremtnts and delays imposed on the Harpers. The district court stated that it had "no doubt that plaintiffs would have made good tenants" but nevertheless con cluded that "Defendant could make the business judgment that plaintiffs would not be financially able to rent an apartment from him" (A. 32) . We respectfully submit that the district court's conclusion misses the issue: although it is of course true that a landlord may apply sound judgment in his business decisions and consider an applicant's income and resources, the fair housing laws mandate that judgment as to financial ability be based on objective facts and be applied to all alike. As the Court in United States v. Youritan Construction Co., supra, 370 F. Supp. at 649-650, held: "Just as vague and undefined employment standards which result in whites, but not blacks being hired are unlawfully discriminatory, so too are arbitrary and uncontrolled apartment rental procedures which produce otherwise unexplained racially discriminatory results. See Brown v. Gaston Dyeing Co., 457 F.2d 1377, 1383 (7th Cir. 1972), cert, denied.. 409 U.S. 982 (employment.)" 11/ Accord., Williams v. Matthews, supra. 1 1 / The use of subjective criteria to substantive business judg ments in race matters have been uniformly rejected in other areas of civil rights. - 30 - (CONTINUED) The need for objective criteria ss opposed to subjective judgment is clear: " [P] procedures which depend almost entirely upon the subjective evaluation . . . are a ready mechanism for discrimination against Blacks." Rowe v. General Motors Corp., supra. The facts in this case are clear proof of the ease with which non-objective standards may be to disguise racial discrimination. Hutton had no objective standard to justify the imposition of a credit check and detailed financial data in the case of black applicants but not whites. He only testified that the credit in formation given by whites "was far more substantial from an economic standpoint (A. 160). The facts prove otherwise: Neil Fleming, a white tenant, told Hutton he was a scholarship student and only offered Vanderbilt University as a credit reference (A. 62-63). Four other applicants were students as well (A. 62, 74,75,79, 153), yet, Hutton required no actual showing of financ ial ability from them. 11/ (CONTINUED) Selection procedures too heavily dependent on subjective evaluations violate the right to equal employment opportunity under Title VII of the Civil Rights Act of 1964. Sen ter v. General Motors Corp., 532 F.2d 511, 529 (6th Cir. 1976) Ropers v. International Paper Co., 510 F.2d 1340, 1345 (8th Cir. 1975); Baxter Vo Savannah Sugar Refining Corp., 495 F.2d 437, 444 n. 3 (5th Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 214 (5th Cir. 1974); United States v. N. L. Industries. 479 F.2d 354, 368 (8th Cir. 1973); Brown v. Gaston County Dyeing Mach. Co., supra, 457 F.2d at 1382-1383 (4th Cir. 1972); Rowe v. General Motors Corp., 487 F.2d 348, 359 (5th Cir. 1972). See also Singleton v. Jackson Mun. Sep. School District., 419 F.2d 1211 (5th Cir. 1970), cert, denied, 396 U.S. 1032 (1971) (hiring and firing of teachers in systems undergoing desegregation process)/ (CONTINUED) - 31 - The failure to have an objective business standard of, for example, two credit references or a minimum amount of available income, enabled Hutton subjectively to vary requirements, impose 12/ delays and to maintain an all-white apartment complex. Where objective standards are uniformly applied to substantiate a business judgment, that standard can be applied without discrim ination. See Boyd v. Lefrak Ore., 509 F.2d 1110, 1114 (2nd Cir. 1975), cert, denied, 423 U.S. 895 (1975); United States v . Aubinoe, Prentice-Hall Equal Opp. in Housing, 515,206 (D. Md. 1977); Harper v. Union Savings Association, Prentice-Hall Equal Opportunity in Housing 515, 203 (W.D. Ohio 1977) . Without such a standard, blacks who objectively can afford an apartment can be all too readily put off and frustrated in their right to equal housing opportunity. In this very case, Hutton himself 11/ (CONTINUED) Smith v. Concordia Parish Sch. Bd., 445 F.2d 285 (5th Cir. 1971) (reduction of staff in school desegregation process). 12/ The district court incorrectly declined to draw the inference that the failure to apply requirements equally was indicative of racial discrimination on the belief that none of the white students were in the exact financial position of plaintiffs (A. 33). Of course, no two applicants are ever identical. It is precisely for this reason, however, that the requirement of objective standards must be imposed: a landlord, like Hutton, may otherwise all too easily cite slight differentiations between individuals as an excuse for refusing to rent to blacks. Moreover, Hutton could not have compared the prospective tenants at all, since he had no financial data from many white applicants. - 32 admitted that the Harpers objectively met the financial standards for renting his apartment (A. 159). The defendant also alleged that he would not lease to indivi duals under a current lease obligation (A. 152) and gave this as an excuse for not renting to the plaintiffs on September 4, 1976 (A. 152), This excuse is untenable for three reasons. First, the defendant did not apply this requirement uniformly; he rented an apartment to a white applicant, Mr. Campbell, even though he knew that Mr. Campbell had to make arrangements to be released 13/ from an existing lease. Second, it is clear from the testimony of the plaintiffs and the Director of Housing at Vanderbilt University, Dean K. C. Potter, that the plaintiffs had obtained permission to terminate their lease with Vanderbilt and that this was communicated to the defendant on September 4, 1976 (A. 92, 105, 119, 123, 132) . Third, if any doubt existed at all about the obligation under the Vanderbilt lease, this issue was completely removed from the case by September 10, 1976, when the plaintiff called to pursue his application for an apartment after the week's delay that the defendant demanded (A. 156). The 13/ The Court noted that there was no evidence as to whether any other person applied for Campbell's apartment while he was in the process of breaking his lease (A. 33). However, it would have been impossible for other persons to have applied, since 'Campbell rented the apartment immediately (A. 81). 33 defendant clearly did not have this third excuse available on this date when he withheld information about an available apartment. (A. 144). 14/ 15/ 16/ As this Court, other circuit courts, and the Supreme Court have recognized, the fair housing laws are the critical vehicle for removing the scourge of slavery and for securing the equal right to rent housing for all persons, whatever the color of their skin. The Congressional mandate to prohibit all racial discrimination - overt, or subtle - can be all too readily subverted if subjective, arbitrarily applied treatment of applicants is allowed to rebut prima facie proof of discrimina tion. United States v. Youritan Construction Co., supra; Williams v. Matthews, supra; see United States v. West Peachtree Tenth Corp.. supra. 437 F.2d at 228; compare Boyd v. Lefrak. supra. (specific objective criteria uniformly applied). 14/ Weathers v. Peter Realty, supra. 15/ Zuch v. Hussey. 394 F. Supp. 1028 (E.D. Mich. 1975), aff1d, 547 F.2d 1168 (6th Cir. 1977); United States v, Youritan Construction Co., supra; Williams v. Matthews Co., supra; United States v. Pelzer Realty, supra. 16/ Trafficante v. Metropolitan Life Ins. Co.. 409 U.S. 205 (1972); Jones v. Mayer, supra. 34 II DEFENDANT'S DELIBERATE FAILURE TO TELL THE HARPERS OF THE AVAILABILITY OF AN EFFICIENCY APARTMENT ON SEPTEMBER 10, 1976 VIOLATES THE PLAINTIFFS' RIGHTS UNDER THE FAIR HOUSING LAW. Section 804 of the Fair Housing Act of 1968, 42 U.S.C. § 3604(d) specifically provides: . "[I]t shall be unlawful— (d) To represent to any person because of race, color, religion, sex, or na tional origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available." On September 4, 1976, when the Harpers first sought an efficiency apartment at Natchez Village, Hutton required them to wait one week allegedly so that he could check their credit references (A. 152). On September 8, two days before the Harpers telephoned Hutton to learn the results of the credit check, another efficiency apartment became available (A. 140-142). Indeed, the district court found: "On September 8, defendant was informed by one of his tenants, Ms. Norma Shoshid, that she was breaking her lease, and would be vacating her one bedroom apartment by Sepetmber 30. (Plaintiffs' Exhibit No. 4.) Defendant rented the one bedroom apartment to a Miss Sims, who was then renting an efficiency apartment from defendant. This efficiency was subsequently rented by Ms. Jennifer Smart [a white person] on September 15" (A. 28) . 35 It is undisputed that when the Harpers telephoned Hutton on September 10, he did not tell them of the availability of Miss Sims' efficiency (A. 140, 144). Hutton testified at one point that when the Harpers asked about "going ahead," he told them the apartment "had already been leased" (A. 156). At two other times, Hutton testified that on"Friday the 10th . . . I didn't have anything available" (A. 140, 161), despite the doc umentary proof and the court's findings to the contrary (pi. Ex. 4, A. 46-49, 28). He also testified, in response to a specific question from the district court, that Derry Harper did not specifically ask if he had any other apartments available (A. 144). The district court did not refer to all of Hutton's testimony on this point but only stated: Defendant testified that he did not mention that the efficiency was avail able to Mr. Harper when Mr. Harper called on September 10 because Mr. Harper did not ask him whether he had any other apartments available for rent (A. 29) . The district court erred in not concluding as a matter of law that defendant's failure to inform the Harpers of the availability of the second efficiency was a violation of of 42 U.S.C. § 3604(d). United States v. Youritan 36 Construction Co., supra. 370 F. Supp. at 650-652; United States v. West Peachtree Tenth Corp., 437 F.2d 221, 226 (5th Cir. 1971); Todd v. Lutz. Prentice-Hall Equal Opportunity in Housing § 13,787 (W.D. Penn. 1976); accord, 12/Elazar v. Wright, supra. Hutton's testimony that he did not inform the Harpers of the availability of the Sims' efficiency because they did not specifically ask is patently unconvincing. When a person seeks a particular type of apartment in a complex, like an efficiency, it is obvious that he or she wishes to see all such units. Hutton's deliberate decision to with hold the fact that another efficiency was available is "inconsistent with commonsense or the ordinary business IB/ practices" of a manager who is attempting to maintain his complex at full occupancy. Hutton's opinion that he did not have to show black apartment seekers "everything" is a 17/ Hutton's failure also violated Section 604(a) of the Act which provides: "[I]t 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 to make unavail able or deny, a dwelling to any person because of race, rolor, religion, sex, or national origin (emphasis added). 18/ United States v. Pelzer. supra, 494 F.2d at 446. 37 violation of the fair housing laws. Johnson v. Jerry Pals Real Estate, 485 F.2d 528, 530 (7th Cir. 1973). As the court in Johnson, id, stated, to permit defendant to avoid renting to blacks by such methods "... would be to encourage real estate agents to use such an arti fice to avoid selling it properties to blacks, despite the clear con gressional mandate to the contrary. See Jones v. Mayer. 392 U.S. 409, 447-449 (1968); Smith v. Adler, 436 F .2d 344, 349-350 (7th Cir. 1970); Haythe v. Decker. 468 F.2d 336, 338 (7th Cir. 1972); United States v. Real Estate Development Corp., 347 F. Supp. 776, .781-783 (N.D. Miss. 197 2) ." 38