Joplin v. Missouri Com'n on Human Rights, 12545

• Decision Date: 10 November 1982
• Docket Number: No. 12545,12545
• Citation: 642 S.W.2d 370
• Parties: Mary JOPLIN, Petitioner-Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 370

642 S.W.2d 370

Mary JOPLIN, Petitioner-Respondent, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Respondent-Appellant.

No. 12545.

Missouri Court of Appeals,

Southern District,

Division Three.

Nov. 10, 1982.

James E. Reeves, Ward & Reeves, Caruthersville, for petitioner-respondent.

John D. Ashcroft, Atty. Gen., Scott A. Woodruff, Asst. Atty. Gen., Jefferson City, for respondent-appellant.

PREWITT, Judge.

The Missouri Commission on Human Rights (Commission) found that respondent violated § 213.105(1), RSMo 1978, by refusing to negotiate with a black person for the rental of a dwelling. It ordered her to "desist from refusing to negotiate with black persons who wish to rent any of her dwellings"; to "post the Commission Fair Housing poster on the dwellings she rents"; and to pay the complainant five hundred dollars. Upon judicial review the circuit court set aside appellant's order, finding "that the Decision and Order is in excess of statutory authority and erroneously interprets Section 213.105(1) R.S.Mo., 1979; and that the award of $500.00 damages is an abuse of discretion and unreasonable". The Commission appeals.

Certain principles govern judicial review of the Commission's order. Courts may not reweigh the evidence but must review it in the light most favorable to the Commission's decision. County of St. Louis v. Brooks, 614 S.W. 283, 286 (Mo.App.1981). If supported by competent and substantial evidence the court must defer to the Commission's findings and cannot substitute its judgment of the facts for that of the Commission. Percy Kent Bag Company v. Missouri Commission on Human Rights, 632 S.W.2d 480, 487 (Mo. banc 1982). The deference given to an administrative board's findings include the determination of the credibility of witnesses. Prokopf v. Whaley, 592 S.W.2d 819, 823 (Mo. banc 1980). Following these principles, the Commission's findings of fact must be upheld.

The complainant, Gladys Johnson, a black woman, testified that on May 12, 1979, she asked respondent about renting the dwelling and was told it was already rented. Respondent testified that Johnson "asked if the house was for rent and I told her it was rented." The dwelling was rented later that day by a white person, Carol McPhail. Johnson and McPhail testified that the house appeared vacant on May 12. Earlier that week respondent had learned that her present renter had left the premises or would be leaving shortly. The rent was paid until the end of May. Where the testimony of respondent and Johnson differed, the Commission found that Johnson's version was more credible.

Respondent claims that Johnson's testimony did not constitute competent and substantial evidence because it was uncertain and contradictory. The basis for this contention is that during the taking of her deposition Johnson changed the date that she asked about renting the house from early April to May 12 after the attorney for the Commission discussed the dates with her; that the Commission found Carol McPhail's testimony to be credible and it contradicted Johnson's in two respects as, contrary to Johnson, McPhail stated there was no "FOR RENT" sign on the premises and that the house was vacant only for a few days; that Johnson stated that respondent told her the house was already rented, whereas, Johnson's mother testified respondent said, "It's not for rent"; and because when asked by respondent's attorney why the "refusal to rent this place to you was racially motivated or was discrimination against you", Johnson said, because the house stayed empty for about two months.

It was for the Commission to determine if these matters affected Johnson's credibility. Her deposition testimony did not destroy her testimony at the hearing. A statement by a party prior to the trial, although admissible as impeachment, does not destroy the trial evidence as proof. Wilson v. Missouri-Kansas-Texas Railroad Company, 595 S.W.2d 41, 44 (Mo.App.1980). Contradictions between court testimony and a deposition are matters for the trier of fact to assess. Id. The aforesaid principles would be applicable when the Commission is the finder of fact. McPhail's testimony does not appear to contradict Johnson's as to any principal issue, but even if so, the Commission was entitled to believe Johnson. Nor do we think that Johnson and her mother's testimony is significantly contrary as whether the house was "already rented", or "not for rent", both indicate that the house could not then be rented. ¹

It is not required that Johnson be able to formulate a basis for claiming that race was a motive in respondent refusing to negotiate with her. Section 213.105 is very similar to 42 U.S.C. § 3604 and we think that the federal decisions interpreting § 3604 are helpful here. Under those decisions if a prima facie inference of discrimination is shown, the burden shifts to the owner to show a satisfactory explanation and if that does not occur, discrimination is established. Smith v. Anchor Building Corporation, 536 F.2d 231, 233 (8th Cir.1976); United States v. City of Black Jack, Missouri 508 F.2d 1179, 1184-1185 (8th Cir.1974), cert. den. 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975); Williams v. Matthews Company, 499 F.2d 819, 827 (8th Cir.1974), cert. den. 419 U.S. 1021, 95 S.Ct. 495, 42 L.Ed.2d 294, 419 U.S. 1027, 95 S.Ct. 507, 42 L.Ed.2d 302 (1974). See also McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). As hereafter discussed, we believe a prima facie case of discrimination by failing to negotiate was shown and as respondent did not show otherwise to the satisfaction of the Commission, the discrimination was sufficiently established.

Aside from Johnson's testimony, respondent also contends that the Commission's decision was not supported by competent and substantial evidence because respondent presented uncontroverted evidence that she owned four other rent houses which were all rented to blacks; and that numerous other persons, both black and white, inquired about the rent house, and respondent treated all inquiries in the same manner by stating the house was rented. This house had never been rented to a black person. Respondent could refuse to negotiate for the rental of a house to a black while owning other houses which were rented to blacks. Why she might do this we do not know, but she could have her own reasons for wishing not to rent a certain house to a black. Respondent cites Day v. Niebur, 534 S.W.2d 843, (Mo.App.1976), stating that the facts here "fall squarely within" that decision as the evidence shows that respondent treated all inquiries the same. We do not think that decision controlling as the evidence here indicates that Johnson and McPhail were treated differently. When Johnson asked if the house was for rent it was indicated to her that it was not. McPhail did not get such a response. McPhail said that when she asked respondent if the house was for rent, respondent "never did say". This encouraged McPhail to talk to respondent later.

Respondent contends that her statement that the house was already rented was not sufficient to show a refusal to negotiate. She contends that it "was literally true" that the house was already rented because the tenant who was leaving had paid the rent for the full month and Johnson did not make any attempt to find out when the house would be available and talked to respondent at a time when respondent was busy at her business. She also contends that as the Commission found that Johnson did not meet respondent's qualifications to rent the house, ² respondent had no duty to negotiate with an unqualified renter.

The refusal to rent requires both a bona fide offer and that the offer be made by a qualified person but neither is required for a refusal to negotiate. United States v. Youritan Construction Company, 370 F.Supp. 643, 650 (N.D.Cal.1973). See also Grant v. Smith, 574 F.2d 252, 255 (5th Cir.1978). Respondent had a duty to at least discuss the rental with Johnson to see if she was qualified and not to mislead her as to the availability of the house. The false statement of an owner that a dwelling is no longer available is a refusal to negotiate under discriminatory housing acts. Howard v. W.P. Bill Atkinson Enterprises, 412 F.Supp. 610, 612-613 (W.D.Okl.1975). See also Wharton v. Knefel, 562 F.2d 550 (8th Cir.1977); LaPierre v. Massachusetts Commission Against Discrimination, 354 Mass. 165, 236 N.E.2d 192 (1968); Wurman v. City Commission on Human Rights, 53 Misc.2d 979, 281 N.Y.S.2d 198 (1967); City of New York v. Camp Construction Co., 51 Misc.2d 50, 272 N.Y.S.2d 631 (1966).

McPhail also talked to respondent at her business and believed that the house might be available for rent, but Johnson was led to believe otherwise. No explanation was given by respondent as to why they were treated differently. Even if the statement that the house was rented was literally true, it was clearly misleading. Respondent would have known that the statement she made indicated that the house had already been rented to someone who would shortly move in and the house would not be available for rent soon. It could not be expected that Johnson would ask further about the house being available, when it had been indicated to her that the house had recently been rented. As no satisfactory explanation was shown as to why Johnson and McPhail were treated differently, there was sufficient evidence before the Commission for it to find that respondent failed to negotiate with Johnson because of Johnson's race.

Respondent contends that the Commission had no statutory...