Harper v. Hutton Appellants' Brief

    )-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

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LAfl7 /L <M>

-21-

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i/i/ < in pi1)

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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 ^

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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