Wharton v. Knefel
| Citation | 562 F.2d 550 |
| Decision Date | 19 September 1977 |
| Docket Number | No. 76-1498,76-1498 |
| Parties | Ferdinand D. WHARTON, Jr., Appellant, v. Frances N. KNEFEL, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Robert H. Kubie, St. Louis, Mo., on brief for appellant.
J. Dennis O'Leary, Dubail, Judge, Kilker & Maier, St. Louis, Mo., for appellee; M. William Sitzer, St. Louis, Mo., Dubail, Judge, Kilker & Maier, St. Louis, Mo., on brief.
Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, * Senior District Judge.
Plaintiff, a black resident of St. Louis, Missouri, brought this civil action charging racial discrimination in refusing to rent an apartment to him because of his race, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982, 1 and the Civil Rights Act of 1968, 42 U.S.C. § 3604. 2 Jurisdiction is asserted under 28 U.S.C. §§ 1343(4) and 2201, 3 as well as under 42 U.S.C. § 3612. 4 In addition to injunctive relief, plaintiff sought compensatory and punitive damages, and reasonable attorney's fees and costs. The district court, 5 sitting without a jury, denied relief on the ground that "the plaintiff has simply failed to carry his burden of proof with regard to any discrimination." 6 The sole issue on this appeal is whether the district court's finding is clearly erroneous. We reverse and remand for further proceedings.
At the time of trial, the plaintiff was 56 years of age and had been an executive of the Monsanto Company in St. Louis for the past eleven years. Living in a two bedroom apartment in University City, he had become dissatisfied with his living conditions partially because of the noise from a nearby highway, and partially because he was in need of larger quarters because of recent changes in his family life. He and his wife had recently been divorced and, because of her decision to leave the country to go with the Peace Corps, he required additional room to house three college-age sons during holidays and vacations from school. What he wanted was "two bedrooms, a study or three bedrooms, one of which I planned to use as a study, preferably with two baths."
Such an apartment seemed readily available. While driving through an area known as the "Moorlands," in Clayton, Missouri, plaintiff noticed a sign in front of 7537 Parkdale reading "For Rent 3-4 Bedrooms 2-Baths 863-6034." 7 Plaintiff called defendant on Friday, August 8th. Defendant admitted in her deposition 8 that she "could not recall" that she was able to form an opinion as to his race from the sound of his voice. 9 Plaintiff went to defendant's apartment on the following Sunday afternoon to see the apartment. 10 Up to this point it is uncontroverted that there had been nothing to indicate that he was black.
Upon plaintiff's attempt to visit the apartment, he was met by defendant's daughter. She told him that her mother had taken her father to the hospital but had not yet returned, and that she, the daughter, could not show the apartment. Plaintiff gave her his business card with his telephone number. When defendant returned, she was given the card and informed of the plaintiff's race.
Plaintiff telephoned the defendant later that evening to inquire about the apartment. The defendant replied that she "had somebody who was interested in the apartment" that she "would have to check the references though and if it were not rented I could call him, I had his 'phone number." She conceded on the stand that this was false. The apartment had not been rented at that time. No one had yet filled out an application, nor had anyone put down a deposit. 11
The defendant explained her conduct on the ground that when she finds that a prospective tenant would not be suitable, one device employed by her, in order to avoid personalizing the objection, is to say, When asked "why (she) didn't want to show (her) apartment to Mr. Wharton" she replied "Because I had disastrous experiences in the past with divorced men in renting to them and it had cost me a great deal of money * * *." Specifically, they had "brought in women during the night" and had left the apartment dirty. Moreover, the activities of unsupervised teenagers had been disruptive to other tenants.
On the following morning plaintiff called Ms. Hedy Epstein, a white woman, Executive Director of the Greater St. Louis Committee for Freedom of Residence, told her what had transpired and that he thought he had suffered discrimination. Epstein stated that she would do some testing to determine whether or not discrimination had taken place. Accordingly, giving her name as "Mrs. Stone" she called defendant and asked if the apartment advertised on the sign 12 was still available. Informed that such an apartment was still available, Epstein went to see it, accompanied by a young white female law student, Susan Chapman, whom she introduced as "my daughter Susan." They were shown Apartment 2E at 7533 Parkdale. When asked by defendant about her family, Epstein replied that she was divorced and that she had three college-age children, who would be with her during vacations. At this time she was told that the apartment was available and that no one else had made a deposit on it. 13 Defendant admits that she gave Epstein an application form, 14 and told her that she could complete the form at home and mail it back to defendant with a check for $325. 15 As Epstein was leaving the apartment she asked if there were any "colored" living in the area. Defendant allegedly answered, in part, Coming back to this issue at a later point Epstein said "So you don't rent to them?" Defendant replied "No, I haven't had to."
On the following day, August 12, 1975, Epstein identified herself on the telephone to defendant, told her of plaintiff's request for assistance, stated that it appeared that discrimination might have taken place, and told her that if there had been discrimination, it was a violation of both federal and state laws. When she asked defendant what she might tell the plaintiff, defendant replied, "put this in writing please," whereupon Epstein urged defendant not to rent the apartment to anyone else until the matter had been resolved. Epstein reduced this conversation to a letter to defendant on the same day. The letter appears in the record as plaintiff's Exhibit 2.
Epstein's letter was received by defendant on August 13, 1975. The following day defendant telephoned a Mrs. Leonard Warren, Jr., who had, in the previous month, expressed an interest in the apartment in question. 16 On August 15, Mrs. Warren submitted a completed application for the vacant apartment, accompanied by a postdated check for the security deposit. The Warrens executed a lease for the apartment on August 17, 1975.
Stripped of all controversial testimony and relying solely upon admissions and uncontroverted evidence, what this case boils down to in brief is that the plaintiff, a black man who can not be so identified as black by his voice alone, went to see an apartment. He was there observed to be black. His inquiry to the owner that evening concerning the availability of the apartment was met with the statement that it had been committed to another applicant. It is conceded that this assertion was false. The following day a white "checker" (Epstein) made an appointment to see the apartment. During the appointment she represented herself as being in circumstances reasonably similar to those of the plaintiff, that is, divorced, with three college-age children. She was shown the apartment, given an application, and invited to submit her application with a deposit. When confronted with these events, the defendant quickly contacted a previously interested white couple (the Warrens) and completed the application, credit check, and formal rental procedures for their tenancy within five days. 17
The trial court totally rejected Epstein's testimony on the ground that it was tailored to prove that the conduct of the defendant had been racially discriminatory. True, she was a "checker," attempting to ascertain whether or not there had been racial discrimination in the rejection of the plaintiff as a tenant. But the fact that she was a "checker" does not in and of itself stamp her as lacking in credibility. The use of checkers in this situation is well established and has been recognized as necessary under similar circumstances. 18
Specifically, the trial court found that Epstein's written summary of her conversation with defendant "varies from (her) testimony and those portions of the conversation which are of benefit to the defendant are scratched out in (her) written summary so that (her) preconceived ideas as to the conduct of the defendant might be proved." 19 The scratching out to which the court refers is the deletion of the clause in Exhibit 1 (Epstein's handwritten chronology of events) respecting black applicants stating that "none have come here," whereas her trial testimony quotes defendant as saying that "No, I haven't had to" (rent to any blacks). 20 The change was made openly on the exhibit, without any attempt at subterfuge or rewriting of the page to conceal the change. It is at best a minor point, hardly justifying the significance given it by the district court in its analysis of Epstein's credibility.
The total omission from the findings of the corroboration of Epstein's testimony in all essential particulars by her companion, Susan Chapman, is not explained in the opinion. At oral argument it was sought to be justified on the ground that since Epstein was assertedly totally impeached, "Susan Chapman has to fall with her." This reasoning we reject for obvious reasons. In addition the trial court found that plaintiff's written summary of the entire incident (Exhibit 1) and...
To continue reading
Request your trial
-
CONSUMERS U. OF UNITED STATES v. American Bar Ass'n
...& Admin.News, 1976, at 5912; H.Rep.No.94-1558, at 6 (1976); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978); Wharton v. Knefel, 562 F.2d 550, 557 (8th Cir. 1977). Defendants cite several factors which they contend constitute "special circumstances" which would render unjust an award ......
-
Reproductive Health Services v. Freeman
...fee is not disputed. Nor have defendants shown "special circumstances (that) would render such an award unjust." Wharton v. Knefel, 562 F.2d 550, 557 (8th Cir. 1977). Finally, we do not believe the district court abused its discretion in awarding attorneys' fees based on all of the plaintif......
-
Green v. Ten Eyck, s. 77-1476 and 77-1477
...5912, quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). See Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977). We feel that this is an appropriate case for an award of attorney's fees on appeal as the plaintiffs prevailed on appeal with ......
-
Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, 77-1889
...party to the lawsuit. The district court did not abuse its discretion in awarding fees to the inmates in this case. See Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977). Accordingly, we affirm the award of attorney fees against the members of the Board in their official The decision of the d......
-
To Catch a Criminal, to Cleanse a Profession: Exposing Deceptive Practices by Attorneys to the Sunlight of Public Debate and Creating an Express Investigation Deception Exception to the Aba Model Rules of Professional Conduct
...Id.at 3-4. 362. Id.at 4. 363. Id. 364. Id. 365. See, e.g., Richardson v. Howard, 712 F.2d 319, 321 (7th Cir. 1983); Wharton v. Knefel, 562 F.2d 550, 554 n.18 (8th Cir. 366. See generally Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982) (examining whether persons posing as "testers" ......