Ventura v. State Equal Opportunity Com'n, s. S-92-950

Citation246 Neb. 116,517 N.W.2d 368
Decision Date10 June 1994
Docket NumberNos. S-92-950,S-93-466,s. S-92-950
CourtSupreme Court of Nebraska
PartiesJeanie VENTURA, Appellant and Cross-Appellee, v. STATE of Nebraska EQUAL OPPORTUNITY COMMISSION, Appellee and Cross-Appellant, and Raymond Pina, also known as Raymond Pena, Appellee.

Page 368

517 N.W.2d 368
246 Neb. 116
Jeanie VENTURA, Appellant and Cross-Appellee,
STATE of Nebraska EQUAL OPPORTUNITY COMMISSION, Appellee and Cross-Appellant,
and Raymond Pina, also known as Raymond Pena, Appellee.
Nos. S-92-950, S-93-466.
Supreme Court of Nebraska.
June 10, 1994.

Page 371

Syllabus by the Court

1. Administrative Law: Judgments: Final Orders: Appeal and Error. A judgment rendered or final order made by the district court pursuant to the Administrative Procedure Act may be reversed, vacated, or modified on appeal for errors appearing on the record.

2. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

3. Administrative Law: Time. The procedures and procedural rules to be applied [246 Neb. 117] are those in effect on the date of the hearing and not those in effect when the act or violation is charged to have taken place.

4. Administrative Law. An administrative body has no power or authority other than that specifically conferred by statute or by construction necessary to accomplish the plain purpose of the act.

5. Administrative Law. As a general rule, administrative agencies have no general judicial powers, notwithstanding that they may perform some quasi-judicial duties.

6. Courts: Administrative Law. Only a judicial tribunal, and not an administrative agency acting as a quasi-judicial tribunal, can provide relief that was "within the general power of the court" to provide.

7. Discrimination: Evidence: Rebuttal Evidence: Proof. Under the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for employment discrimination cases, a plaintiff, in a housing discrimination case, must establish a prima facie case of racial discrimination, which can be rebutted by the defendant by articulating a legitimate nondiscriminatory reason for its action. If the defendant articulates a nondiscriminatory reason for his action, then the plaintiff is given the opportunity to show that the landlord's or seller's stated reason was in fact a pretext for discrimination.

8. Discrimination: Proof. In order to establish a prima facie case of housing discrimination, the plaintiff must prove by a preponderance of the evidence (1) that he is a member of a racial minority, (2) that he applied for and was qualified to rent or purchase the housing, (3) that he was rejected, and (4) that the housing opportunity remained available.

9. Discrimination: Proof. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

10. Discrimination: Presumptions: Proof. Once the defendant articulates a nondiscriminatory reason for his action, the presumption established by the plaintiff's prima facie case is no longer relevant; instead, the trier of fact must then decide the ultimate question of whether the plaintiff has proven that the defendant intentionally discriminated against him because of his race.

11. Discrimination: Proof. Disbelief by the trier of fact of the defendant's reasons, coupled with the elements of a prima facie case, may be sufficient to show intentional discrimination without any additional proof.

12. Discrimination: Words and Phrases: Evidence: Proof. "Testers" are individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices, and use of such evidence in proving housing

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discrimination is common and has been approved by the U.S. Supreme Court.

13. Discrimination: Evidence. A pretext may be found when the totality of the evidence presented leads the finder of fact to conclude that the proffered explanation is unworthy of credence.

14. Service of Process: Legislature: Intent. Where the Legislature has intended for service to be executed as a summons in civil cases, it has specifically stated so within the statutes.

[246 Neb. 118] 15. Demurrer: Pleadings: Appeal and Error. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.

16. Administrative Law: Judgments. An administrative agency's power to exercise judicial or quasi-judicial authority also implies the power to reconsider its own decision.

17. Courts: Jurisdiction: Appeal and Error. In civil appeals, after an appeal to an appellate court has been perfected, a lower court is without jurisdiction to hear a case involving the same matter between the same parties.

18. Administrative Law: Judgments: Appeal and Error: Time. The power of an administrative agency to reconsider its decision exists only until the aggrieved party files an appeal or the statutory appeal time has expired.

19. Motions for New Trial: Appeal and Error. The district court may hear a motion for new trial on the grounds of newly discovered evidence, if timely presented, although the cause is pending in a higher appellate court for review.

20. Complaints: Discrimination: Parties. Complainant is not a party of record where the Nebraska Equal Opportunity Commission has filed the original complaint on behalf of the complainant pursuant to Neb.Rev.Stat. § 20-333 (Reissue 1991).

Robert M. Brenner, Robert M. Brenner Law Office, Gering, for appellant.

Don Stenberg, Atty. Gen., Alfonza Whitaker, and Elaine A. Chapman, Lincoln, for appellee State.


LANPHIER, Justice.

Two appeals concerning the same cause of action are the subject of this opinion, S-92-950 (Ventura I ) and S-93-466 (Ventura II ). These appeals involve a housing discrimination complaint filed by Raymond Pina with the Nebraska Equal Opportunity Commission (Commission). The district court affirmed the decision of the Commission finding that Jeanie Ventura had engaged in illegal discrimination. Ventura appealed. That appeal is the subject of Ventura I. During the pendency of the appeal to the Nebraska Court of Appeals, Ventura filed a motion for new trial with the Commission on the [246 Neb. 119] grounds of newly discovered evidence. The Commission denied the motion. Ventura filed a petition for judicial review, and the district court dismissed the motion in part for lack of jurisdiction because of the pending appeal of the underlying case. Ventura appealed. The latter appeal is the subject of Ventura II. Subsequently, Ventura I was moved to our docket, and we moved Ventura II as well to address the jurisdictional questions which arose from the filing of the second appeal.


Raymond Pina, who is Mexican-American, was searching for an apartment or duplex in Gering, Nebraska, in July 1991. He saw an advertisement in the newspaper listing the unit in question. On July 17, at approximately 9:30 a.m., he called the telephone number in the newspaper and was told that the unit was available. At approximately 10:30 a.m., after driving by the unit, Pina called the number again and spoke to Ventura.

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He told Ventura that he wanted the apartment and that he would like to see it. When Pina gave Ventura his name, Ventura told him the unit had already been rented.

Later that same day, Pina spoke to Deborah Surber, a Caucasian coworker, about the incident. It appeared strange to her that the unit had rented within an hour after Pina had expressed an interest in it. She agreed to inquire about the unit in order to determine whether there was any discrimination involved in Ventura's decision not to rent the unit to Pina.

At approximately 1:30 p.m. on the same day, Surber contacted Ventura for information on the unit, and she was given an appointment to see it at 2:30 p.m. After examining the unit, Surber told Ventura she would take the unit, and agreed to return by 3:30 with a deposit check. Ventura informed Surber that she needed to submit the deposit by 3:30 because shortly thereafter another prospective tenant would be examining the unit.

As Surber was leaving, Pina returned to the unit and asked Ventura to show him the unit. Ventura stated that she had rented the unit to Surber. Pina left and then returned to the unit shortly after 3:30. He attempted to explain to Ventura that Surber and her husband did not want the unit and stated that he would like [246 Neb. 120] to rent the unit. Ventura did not allow Pina to see the apartment, and told him that another woman had an appointment to view it at 4 p.m.

The following day, several other individuals of Mexican-American descent called Ventura seeking to examine the unit. Rita Sabala and Ben Castinado testified that they called for information on the unit and were told the unit was still available. Castinado used Martinez as his last name when he called Ventura. They testified that after they stated their surnames to Ventura, Ventura became evasive and would not agree to a definite time when they could see the unit.

Garold Newton, a Caucasian, also called for the unit on July 18. Newton also stated his full name to Ventura. Newton testified that although Ventura stated she could not show him the unit on that day, she set an appointment on the following day for 5:30 p.m. The following day he learned that it had been rented to Charles Haggard, a Caucasian, later the prior evening.

Evidence presented at the hearing revealed that with the exception of one Hispanic that Ventura knew, the unit in question was rented only to Caucasians. In addition, the evidence also showed that the units with the highest monthly rental rates were rented to Caucasians, while the lower rental rate units were rented to...

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