U.S. v. Badgett, 91-3458
| Citation | 976 F.2d 1176 |
| Decision Date | 23 November 1992 |
| Docket Number | No. 91-3458,91-3458 |
| Parties | UNITED STATES of America, Appellant, v. J. Rogers BADGETT, Sr., d/b/a Georgetown Apartments; Jean Brittain, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Rebecca K. Troth, Dept. of Justice, Washington, D.C., argued (David Flynn and Marie McElderry, on brief), for appellant.
Counsel who presented argument on behalf of the appellee was Thomas J. Walsh, Jr., Memphis, Tenn., argued (Glen Reid, Jr., on brief), for appellee.
Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge and BEAM, Circuit Judge.
This appeal comes to us from a Fair Housing Act case filed in the district court for the Eastern District of Arkansas. The district court found a housing policy requiring single occupancy for one-bedroom apartments to be facially neutral and therefore not to be a violation of the Fair Housing Act, as amended in 1989. We reverse and remand for further proceedings consistent with this opinion.
Georgetown Apartments, ("Georgetown"), is a 156-unit apartment complex located in Little Rock, Arkansas. J. Rogers Badgett, Sr., ("Badgett") is the sole owner of Georgetown Apartments, and Jean Brittain, ("Brittain") was employed by Badgett as a Georgetown leasing agent. 1 Until March of 1989, Georgetown was an all-adult complex that had an explicit policy which excluded families with children. Georgetown also has a long-standing policy of limiting occupancy of one-bedroom apartments to one person. Appellees admitted during discovery that they also have a policy limiting occupancy of two- and three-bedroom apartments to two people.
The applicable Little Rock Code requires that every dwelling have at least 150 square feet of floor space for the first occupant and at least 100 square feet of additional space for each additional occupant. Every room to be used for sleeping must have at least 70 square feet of space for the first occupant, and at least 50 square feet for each additional occupant. Little Rock Code § 8-406(a) and (b), Appellant's Appendix at 23. Total living space in a one-bedroom apartment at Georgetown is 636 square feet. It is undisputed that the living space in a one-bedroom apartment is well in excess of the legally required minimum for two persons under the Little Rock municipal code.
On May 15, 1989, Ms. Donna Mayeaux, ("Mayeaux"), and her five-year-old daughter, Lauren, went to Georgetown to inquire about renting a one-bedroom apartment. Brittain refused to show Mayeaux a one-bedroom apartment on the grounds that Georgetown did not rent one-bedroom apartments to more than one person. Brittain mentioned the two-bedroom apartments, but told Mayeaux the complex had no playground equipment, and no other children of the same age, so her daughter would have no playmates. Brittain admitted in court that such information would have discouraged her from renting at Georgetown, had she been in Mayeaux's position. Mayeaux and her daughter left without looking at an apartment.
Mayeaux filed a complaint with the Department of Housing and Urban Development ("HUD") alleging that Appellees discriminated against her on the basis of her family status. The Secretary of HUD filed a charge with a HUD administrative law judge. Badgett removed to federal court under 42 U.S.C. § 3612(a) and on April 16, 1990, the United States filed a complaint in the Eastern District of Arkansas pursuant to 42 U.S.C. § 3612(o ). 2
The complaint alleged that Appellees illegally discouraged Mayeaux from renting any apartment at Georgetown on the basis of her familial status, and refused to rent Mayeaux a one-bedroom apartment because of an unreasonable occupancy standard, in violation of 42 U.S.C. § 3604(a)-(d). The complaint sought monetary damages, and an injunction prohibiting Appellees from further discrimination. Trial was held on August 28, 1991. At the conclusion of the trial, the court ruled from the bench in favor of Appellees. Judgment was filed on August 29, 1991. The government appeals this decision.
The district court held that the occupancy standard at issue, which limited occupancy of one-bedroom apartments to one person, did not violate the Fair Housing Act because the requirement was facially neutral. In doing so, the district court applied an incorrect analysis. HUD has adopted the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) for evaluating claims of discrimination under the Fair Housing Act. See, HUD v. Blackwell, 908 F.2d 864 (11th Cir.1990); Pinchback v. Armistead Homes Corp., 689 F.Supp. 541 (D.Md.1988), aff'd in part, vacated in part, 907 F.2d 1447 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 515, 112 L.Ed.2d 527 (1990). The McDonnell Douglas test recognizes that direct proof of unlawful discrimination is rarely available. Therefore, after a plaintiff makes a prima facie case, a presumption of illegality arises and respondent has the burden of articulating a legitimate, non-discriminatory justification for the challenged policy. This scheme is routinely used in housing and employment discrimination cases. The test is:
First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate undiscriminatory [sic] reason for its action. Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by a preponderance that the legitimate reasons asserted by the defendant are in fact mere pretext.
Pollitt v. Bramel, 669 F.Supp. 172, 175 (S.D.Ohio 1987), (citations omitted). The district court failed to apply the McDonnell Douglas standard, and therefore erred as a matter of law.
The elements of a prima facie case of discrimination will vary from case to case, depending on the allegations and the circumstances. HUD has a rule of thumb that an occupancy policy of two persons per bedroom is presumptively reasonable. Memorandum for Regional Counsel: Fair Housing Enforcement Policy, Intervenor's Brief, Appendix B at 2 (hereinafter "HUD Memorandum"); but see, United States v. Lepore, No. 1:CV-90-1956, slip op., 1991 WL 330890 (M.D.Pa. Dec. 23, 1991) (Appellant's Appendix at 35) ( that a two-person occupancy restriction discriminated on the basis of familial status, and therefore violated the Fair Housing Act) (hereinafter "Lepore "). HUD's general rule does not mean that a single occupancy requirement is always invalid, but it does render such a requirement suspect; particularly when the single occupancy requirement is accompanied by other factors enumerated in the HUD Memorandum.
Some of the factors identified in the HUD Memorandum are applicable to Georgetown. Georgetown previously marketed itself as an "adults only" complex. In addition, Georgetown has "taken other steps to discourage families with children from living in its housing", HUD Memorandum at 4, through Brittain's representations of the disadvantages of living in the complex. The mere fact that the one person/one bedroom requirement was "applied to everybody, whether they be married [sic] or whether they be couples [sic] seeking to live together without benefit of marriage or whether they be a child [sic]," Transcript of Court's Findings, Addendum to Appellant's Brief at 3, is not sufficient to demonstrate compliance with the Fair Housing Act. If the result of this policy is a disparate impact on a protected class, facial neutrality will not save the restriction from violating the Act. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also, FEHC v. Merribrook Apartments, FEHC Decision # 89-19 (Calif. Fair Empl. & Hous. Comm'n, Nov. 11, 1988) (one person per bedroom restriction used to maintain a no children policy).
The district court stated: "if Congress really intended that you could not have a restriction on one bedroom...
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