UNITED STATES OF AMERICA,
v.MEADOWS OF JUPITER LTD.; RMF
JUPITER APARTMENTS, LTD.;
RMF PROPERTIES, INC.;
WALTER J. MACKEY, JR.;
ETHEL ALLEN; and
_____________________________MEADOWS OF JUPITER LTD.; RMF
JUPITER APARTMENTS, LTD.;
RMF PROPERTIES, INC.;
WALTER J. MACKEY, JR.;
ETHEL ALLEN; and
Third Party Plaintiffs,
HANOVER INSURANCE COMPANY,
Third Party Defendant.
_____________________________UNITED STATES' REPLY TO DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION TO THE UNITED STATES' MOTION FOR PARTIAL SUMMARY JUDGMENT ON FAMILIAL STATUS DISCRIMINATION I. INTRODUCTION
Defendants' Memorandum in Opposition to the United States' Motion for Summary Judgment (hereinafter "Defs. Opp. Memo.") fails to show that there are any genuine material issues of fact that preclude the entry of partial summary judgment. The undisputed facts establish that defendants have: (1) adopted and maintained a policy of policy and practice prohibiting children from living in the first floor dwellings of buildings 25 and 26 at Mallards Cove; and (2) made statements to prospective tenants announcing "all-adult" and "no children" policies generally at Mallards Cove, and specifically for buildings 13, 25 and 26. As a matter of law, such conduct violates the Fair Housing Act, and the Court should enter partial summary judgment accordingly.II. ARGUMENT
A. DEFENDANTS CONCEDE THE MATERIAL ISSUES OF FACT ENTITLING THE UNITED STATES TO SUMMARY JUDGMENT ON FAMILIAL STATUS DISCRIMINATION
Defendants admit that defendants Allen and Ventimiglia intentionally discriminated against families with children. Specifically, they concede that they have an intentional policy and practice of excluding families with children from certain units in the complex:
I have never intentionally discriminated against anyone on the basis of familial status, except for the no children policy on the lower floors of buildings 25 and 26, which I believe is founded in a legitimate non-discriminatory reason.
(See Allen Aff. ¶ 4 and Ventimiglia Aff. ¶2 attached to Defs. Opp. Memo.) (emphasis added); See also Defs. Opp. Memo. at p. 9 ("Defendants do not deny that Ethel Allen and Teresa Ventimiglia have generally refused to rent the eight ground floor apartments of buildings 25 and 26 surrounding the pool to families with young children."). They also admit that "neither Ms. Allen or Ms. Ventimiglia disputes that they may have made the statements attributable to them" as outlined in the United States' Motion for Partial Summary Judgment and that "the bottom floors of buildings 25 and 26, which surround the pool, are restricted to all adults." (Defs. Opp. Memo. pp. 4-5) (emphasis added). Because these undisputed material facts establish violations of the Fair Housing Act ("the Act"), the United States is entitled to summary judgment.
Defendants raise a number of irrelevant arguments regarding the material facts. First, they suggest that the United States' Motion should be denied because the admitted intentional discrimination was limited to only some units in the complex. (See Defs. Opp. Memo. p. 11). However, the fact that the defendants' discriminatory practice and policy were allegedly limited to eight units does not create an issue of material fact concerning the policy and practices defendants concede were in place. (1) The plain language of Section 3604(a) of the Act makes it unlawful to "refuse to rent" or otherwise make unavailable "a dwelling." See 42 U.S.C. § 3604(a) (emphasis added). As the HUD regulations state, it is unlawful:
to restrict or attempt to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying or renting a dwelling so as to perpetuate, or tend to perpetuate, segregated housing patterns, or to discourage or obstruct choices in a community, neighborhood or development." 24 C.F.R. § 100.70(a) (emphasis added). (2)
Among the practices prohibited are "[a]ssigning any person to a particular section of a community, neighborhood or development, or to a particular floor of a building," because of familial status. 24 C.F.R. § 100.70(c)(4). Defendants' admitted policy and practice of "refus[ing] to rent," (Defs. Opp. Memo. p. 9), the eight lower level units in buildings 25 and 26 to families with children, therefore, violates Section 3604(a) of the Act. Similarly, their practice of not informing families with children about availabilities for those units violates Section 3604(d) of the Act. (3) (See Defs. Opp. Memo. p. 6).
Second, defendants argue that their admitted discriminatory statements should be disregarded because, they allege, those statements are factually untrue. (See Defs. Opp. Memo. pp. 5-6). Defendants do not dispute that the statements, on their face, indicate a discriminatory policy of excluding families with children from, at the very least, certain buildings at Mallards Cove. See id. Rather, defendants try to raise a genuine issue of material fact by disputing the veracity of their own statements. However, Section 3604(c) of the Act prohibits making statements indicating a preference, limitation, or discrimination on the basis of familial status. See 42 U.S.C. § 3604(c). The test is an objective one. (See U.S. Memo. III.C.2). In this case, defendants have admitted that they made statements (i.e. "all adults" and "no children") that undisputably indicate such a preference and limitation. Nothing more is required. (4)
Third, defendants attempt to invalidate the authenticity of the results of one white tester's (Ms. Melendrez's) visit because she "has not yet been deposed, so these documents are inadmissible evidence at this point, as they are unauthenticated and are hearsay." Defendants fail to acknowledge that defendant Ventimiglia admitted at deposition that she did not dispute the statements attributed to her in Ms. Melendrez's documents. (Exh. 2 Ventimiglia Depo. 108:8-117:13) (See also Defs. Opp. Memo. p. 5). Additionally, the United States has attached an affidavit from Ms. Melendrez attesting to the truth and accuracy of her tester documents and the contents therein. (Exh. 3).
B. THE UNDISPUTED MATERIAL FACTS ESTABLISH DIRECT EVIDENCE OF FAMILIAL STATUS DISCRIMINATION
Defendants wrongly apply the McDonnell Douglas framework in arguing that there are legitimate nondiscriminatory reasons for their intentional discrimination against families with children. That framework only applies when the evidence is circumstantial. Here the undisputed evidence is direct and defendants admit their discrimination was intentional. (5) See infra 2-3.
As outlined in the United States' Memorandum, when a plaintiff uses direct evidence to establish a prima facie case of discrimination, "the ultimate issue of discrimination is proved; no inference is required." Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir. 1982). Where, as in this case, the evidence for a prima facie cases consists of direct evidence, defendants therefore "cannot rebut this type of showing of discrimination simply by articulating or producing evidence of legitimate, nondiscriminatory reasons." Id. Yet, this is exactly what defendants attempt to do in their Opposition Memorandum. Instead, in order to overcome the United States' undisputed direct evidence, defendants must "prov[e] by a preponderance of the evidence that the same decision would have been reached even absent the presence of [the discriminatory] factor." Id. Defendants cannot prove this because they have admitted that their policies regarding lower level units in buildings 25 and 26, at the very least, would not have been made but for the potential presence of families with children.
Defendants correctly point out that the United States must show that defendants acted with "discriminatory motivation." However, defendants confuse discriminatory "motivation" with animus. See e.g. Goodman v. Lukens Steel Co., 482 U.S. 656, 669, (1987) (liability for intentional discrimination under § 1981 requires only that decisions be premised on race, not that decisions be motivated by invidious hostility or animus); Ferrill v. The Parker Group, Inc., 168 F.3d.468, 473 n. 7 (11th Cir. 1999) ("ill will, enmity, or hostility are not prerequisites of intentional discrimination" under § 1981). (6)
There is no clearer instruction regarding direct evidence of discrimination than the Supreme Court's pronouncement in Int'l Union, UAW v. Johnson Controls:
[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.
499 U.S. 187, 199 (1991) (emphasis added). In Johnson Controls, the plaintiffs brought a Title VII class action against their employers for discrimination on the basis of sex regarding its policy of excluding women who are pregnant or capable of becoming pregnant from jobs involving high levels of lead exposure. Id. The Supreme Court unequivocally rejected the lower courts' assumptions that "ostensibly benign" reasons for the sex-based exclusion policy eliminated the discriminatory nature of the sex-based discrimination. Id. 499 U.S. at 198.
Second, defendants' reliance on Lee v. Russell County Bd. of Educ., 684 F.2d 769 (11th Cir. 1982), is misplaced. The Eleventh Circuit's reference to direct evidence of "discriminatory motivation" was not a requirement that a plaintiff show animus, as defendants argue. Rather, direct evidence, if utilized, must show that defendants' challenged policy was motivated by a factor (i.e. familial status or race) that is unlawful. Id. at 774-776. Indeed, the Lee court emphasized this point when it provided the following issue to be addressed on remand: "Does plaintiffs' direct evidence prove that race  was a significant factor in the board's decision?" Id. at 776.
Here, the United States has shown that defendants acted with a motivation to exclude families with children from, at the very least, the lower level units of buildings 25 and 26. The supposed "beneficience" of defendants' purpose does not undermine the conclusion that an explicit policy excluding or limiting families with children at the complex is familial status discrimination under the Act. See Johnson Controls 499 U.S. at 200. Accordingly, under the direct evidence analysis, the United States is entitled to summary judgment on defendants' liability for familial status discrimination as a matter of law. (7)
Even if this court were to apply the McDonnell Douglas test to this direct evidence case, defendants' three "legitimate nondiscriminatory reasons" are inadequate to defeat the United States' Motion. Defendants' first purported legitimate nondiscriminatory reason that - "a well founded concern for safety based upon a demonstrable historical event" - must be rejected because there is no safety exception to the Act. (8) Had Congress intended to make a safety exception to the Act's prohibition of familial status discrimination, it would have, as it did for housing for older persons. See 42 U.S.C. 3607(b). Decisions about the welfare of children's safety should generally be left to their parents. See U.S. Memo. 22-24; cf. Johnson Controls, 499 U.S. at 207 ("With the [Pregnancy Discrimination Act] Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.")
The defendants' purported concern about children's safety in buildings 25 and 26 is belied by the maintenance of two large barrier-free lakes located near, at least, six other buildings in the complex, where defendants contend they are willing to rent to families with children. (Exh. 4 Allen Depo. 156:24-157:12; and Exh. 5 Complex Map). Furthermore, despite defendants' alleged concern for the safety of children, they do not provide a lifeguard at the pool. These inconsistencies expose the purported justification as a pretext for discrimination.
Defendants' second and third purported legitimate non-discriminatory reasons - potential liability and an inability to procure affordable insurance rates - are also both pre-textual and legally insufficient to support a blanket exclusion of children from particular dwellings. Defendant Allen testified at deposition that she made the decision to exclude families with children without consulting with anyone about potential liability and without inquiring into the potential increased costs of insurance. (Exh. 4 Allen Depo. 152:13-153:6). Incremental costs, as articulated by the defendants, standing alone, do not justify the exclusion of children from a dwelling. See Johnson Controls, 499 U.S. at 210 ("We merely reiterate our prior holdings that the incremental cost of hiring women cannot justify discriminating against them.")III. CONCLUSION
Accordingly, for the reasons stated above, the Court should grant the United States' Motion for Partial Summary Judgment.
STEVEN H. ROSENBAUM
TIMOTHY J. MORAN
JE YON JUNG
U.S. Department of Justice
Civil Rights Division
Housing and Civil
950 Pennsylvania Avenue N.W.
Washington, D.C. 20530
Phone: (202) 305-1457 Fax: (202) 514-1116 firstname.lastname@example.org
CERTIFICATE OF SERVICE
I hereby certify that the United States' Reply to Defendants' Memorandum of Law In Opposition to the United States' Motion for Partial Summary Judgement on Familial Status Discrimination was served by facsimile and first-class mail on the following:
Nathan E. Nason, Esq.
Nason, Yeager, Gerson, White & Lioce, P.A.
1645 Palm Beach Lakes Blvd., Suite 1200
West Palm Beach, FL 33401
Elizabeth M. Rodriguez, Esq.
25 West Flagler Street
Miami, FL 33130
on this ____ day of August, 2003.
Je Yon Jung
U.S. Department of Justice
Civil Rights Division
Housing and Civil
Enforcement Section- NWB
950 Pennsylvania Avenue, N.W.
Washington, DC 20530(202) 305-1457
cc: AUSA Veronica Harrell-James
1. Notwithstanding the absence of genuine material issues of fact, defendants' assertion that their discriminatory policy was limited only to the ground floor units of buildings 25 and 26 is not supported by the record. Defendants Allen's affidavit states, without any support, that "apartments on the upper floors of [buildings 25 and 26] have been frequently rented to families with children." However, based on defendants' own document disclosures of their rental records, neither the upper nor lower level units in buildings 25 and 26 have been rented to families with children, other than defendant Ventimiglia, prior to the United States' lawsuit in August, 2002. (See Exh. 1 Delancey Declaration). In any event, defendants' assertions are irrelevant for purposes of this motion, because even the more limited exclusion violates the Fair Housing Act.
2. HUD's regulations are entitled to deference. Meyer v. Holley, 123 S. Ct. 824, 830 (2003).
3. Defendants' assertion that "children make up a full 31% of the inhabitants of Mallard's Cove as a whole", see Defs. Opp. Mem. at 5, is untrue. Assuming that defendants' demographic analysis is correct, it shows that only 20 percent of the occupants (73 out of a total of 369 occupants) are children. (See "demographic analysis" attached to Defs. Opp. Memo.).
4. For example, defendants told a tester that the complex had "gone to all adults" and therefore they needed to know whether the tester had children. They told another tester that building 25 was "a no children building." Another tester was told, with respect to building 13, "And that's uhm, an all-adult building, that's why I was asking if you have children." See U.S. Memo. at 7-10. As a matter of law, and applying the objective "ordinary listener" standard that is applicable to Section 3604(c), (See U.S. Memo. III.C.2), these statements indicate a preference, limitation, and discrimination on the basis of familial status, in violation of the Act.
5. In fact, all of the cases cited by defendants in support of their application of the McDonnell Douglas analysis are cases involving circumstantial evidence of discrimination. (See Def. Opp. Memo. § III.C.)
6. See also Garza v. County of Los Angeles, 918 F.2d 763, 777, n.1 (noting that "there can be intentional discrimination without an invidious motive")(9th Cir. 1990) (Kozinski, J., concurring and dissenting in part), cert. denied, 498 U.S. 1028 (1991).
7. Defendants' reliance on the Second Circuit's decision in Soules v. HUD, 967 F.2d 817 (2nd Cir. 1992) is misplaced. Soules simply held that a landlord asking a prospective tenant whether she had children, standing alone, did not violate the Fair Housing Act. Id. 967 F.2d at 824.
8. Moreover, defendants' claim that the safety justification is based upon a "demonstrable historic event" is contradicted by their own admission that defendant Allen could not remember the tenants' name, their unit number, or how long they lived in the complex, nor could they provide any documentation supporting this "demonstrable historic event."
Document Filed: August 22, 2003 >