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12/15/88 Jack Turner Et Al., v. the Human Rights

December 15, 1988





532 N.E.2d 392, 177 Ill. App. 3d 476, 126 Ill. Dec. 707 1988.IL.1811

Petition for review of order of Human Rights Commission.


JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.


Jack Turner (Turner) and his wife, Maria, seek appellate review of the order of the Illinois Human Rights Commission (the Commission) finding that Turner racially discriminated against Albert and Barbara Fletcher (the Fletchers) with respect to the rental of Turner's home to the Fletchers. Turner's real estate agent, Re-Max Unlimited, Inc. (Re-Max), seeks appellate review of the Commission's order finding that Re-Max also racially discriminated against the Fletchers. The Fletchers also seek review of the Commission's order awarding them monetary damages and attorney fees. Because we conclude that the Commission's decision against Turner and Re-Max is not supported by the record, we reverse the Commission's orders.


The hearing before the administrative law Judge revealed the following factual evidence. Jack Turner, a white male in his late thirties, is the office manager of a firm in downtown Chicago that invests in United States government securities and money market instruments for corporate clients. Prior to the spring of 1983, Turner and his family lived in a home in Palatine (the Palatine house or the Palatine home). In mid-March of 1983, Turner approached Toni O'Malley (O'Malley) of Re- Max, a realtor, about buying a new home. He wanted to move because he had a substantial increase in salary and preferred to live in a larger home with more surrounding property.

When he originally spoke to O'Malley, Turner had not decided what he was going to do with his current Palatine home. He and O'Malley discussed selling rather than renting the Palatine home, the general economic outlook in the residential real estate market in the area, and how the Palatine house "would show." O'Malley told him the market was slow, that his house had not appreciated in value since he purchased it, and that it was unlikely the value of the home would appreciate substantially in the near future. O'Malley observed that the Palatine home would rent well because it was in mint condition and that it was a good investment for Turner to retain. She also noted that it might be possible to sell the Palatine house at a higher than market value if the terms of sale were structured with a low down payment and purchaser assumption of Turner's Veterans Administration mortgage upon the house. Turner reached no Conclusion whether to sell or rent the Palatine home based upon these March 1983 conversations with O'Malley.

In April, Turner spoke to his accountant. Turner had a substantial increase in salary in 1983 and had elected to defer the remainder of his salary until 1984. Turner wanted to shelter as much income as feasible during 1983, because of the increase he had received. Turner spoke to his accountant in general terms about the relative advantages of rental or sale of the Palatine home, including general information regarding the tax considerations of each alternative. On April 25, Turner signed a contract to purchase a house in Inverness (the Inverness house or the Inverness home).

A few weeks later, on May 9, Turner decided to rent that Palatine home and signed an agreement with O'Malley to act as his agent in the rental of the property. At the hearing, Turner specified three reasons for his decision to rent the Palatine home. Initially, Turner was uncomfortable about leaving the home vacant. In addition, he was concerned about the economic outlook in the residential real estate market and high interest rates and thought he should have someone live in the house until "things perked up" in the market. Lastly, based on conversations with his accountant, Turner thought that rental could create some tax write-offs on the house. Turner's wife played no part in the decision to rent or sell the house in Palatine.

Thereafter the Palatine house was placed on the rental market. Because Turner was frequently not at home, he did not know who, other than the Fletchers, might have seen the house with the prospect of renting it. O'Malley testified at the hearing that the house was shown for possible rental to five families, excluding the Fletchers, and that none of these others applied for rental of the Palatine home.

Sometime in mid-May Turner again spoke with his accountant. The Discussion covered three areas with respect to rental of the Palatine house. First, the accountant told Turner that there should be substantial appreciation in the property to make it economically feasible to rent. Turner responded that there did not appear to be any more appreciation left in the value of the house. The accountant also advised Turner that improvements to the property could be deducted for tax purposes, but only over a period of years rather than in one lump sum. The accountant further informed Turner that ideally he should have a positive cash flow, although the accountant thought he could absorb minor amounts of negative cash flow in some situations where appreciation would be substantial. Turner observed that there would be a negative cash flow of about $350 per month. The accountant advised Turner that if the negative cash flow were too large, Turner probably should not rent the property. However, the accountant did not decide the matter, and the final Conclusion was left up to Turner. Months later, in October, the accountant found a real estate tax shelter for Turner.

On Saturday, May 21, 1983, the Fletchers came to see the Turners' Palatine home accompanied by Lisa Trejo (Trejo), a sales associate with Red Carpet Duvall Carousel Realtors. The Fletchers are a married black couple in their early forties with a young son. They had purchased and lived in homes in Detroit, Michigan; Glendale, Wisconsin; Atlanta, Georgia; Troutwood (suburb of Dayton), Ohio; and Bourbonnais (suburb of Kankakee), Illinois, before moving to the Chicago area in 1983. Their most recent move was occasioned by Fletcher's acceptance of a position as divisional manager of human resources at a firm in Wheeling in late 1982. Fletcher had initially moved to a furnished apartment in Schaumburg with the intention that his family would join him in a few months. In March 1983, Fletcher's wife and son relocated from Bourbonnais to the Chicago area. The family placed most of their belongings in storage and lived temporarily in the furnished Schaumburg apartment. They began looking for a home which they could rent near Fletcher's place of employment and expected to find a suitable rental house within a few months. At the hearing, Fletcher specifically stated on a direct examination that, initially, they only wanted to rent a home rather than purchase one. The Turners' Palatine home was the third prospective rental they viewed with Trejo.

As the Fletchers and Trejo arrived in front of the Palatine house and approached the doorway, one of Turner's neighbors, who was white, was raking the yard of a nearby home. Three or four other people were in the immediate vicinity, either on the sidewalk or in front of houses. All of them were white. Fletcher noticed that, in Fletcher's words, "the eyes, then, were cast upon us, particularly of the neighbor who was raking. And some of the other people stopped, apparently, what they were doing ...

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