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CATO v. JILEK

November 15, 1991

SHEILA CATO, JOSEPH CATO and THE LEADERSHIP COUNCIL FOR METROPOLITAN OPEN COMMUNITIES, Plaintiffs,
v.
GEORGE JILEK and BEVERLY JILEK, Defendants.


Shadur


The opinion of the court was delivered by: MILTON I. SHADUR

Sheila ("Sheila") and Joseph ("Joseph") Cato (collectively "Catos") and The Leadership Council for Metropolitan Open Communities ("Council") sue George ("George") and Beverly ("Beverly") Jilek (collectively "Jileks") under 42 U.S.C. § 1982 ("Section 1982," part of the Civil Rights Act of 1866), *fn1" and under Fair Housing Act § 804 (Section 3604, part of Title VIII of the Civil Rights Act of 1968, Sections 3601-3619) *fn2" for alleged discrimination in the rental of housing. Plaintiffs and Jileks have now moved separately for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn3" For the reasons stated in this memorandum opinion and order, plaintiffs' motion is granted as to liability (but not yet as to damages), while Jileks' motion is denied entirely.

 Facts

 Sheila, a white woman, and Joseph, a black man, were married on September 12, 1990. *fn4" Two months earlier (on July 5) Sheila (then known as Sheila Smith) and Joseph had inspected an apartment at 1461 Balmoral, Westchester, Illinois ("the apartment") in a building owned by Jileks (G. Jilek Dep. 15, 18, 36-38; Smith Dep. 41). After they saw the apartment, Sheila told George that she wanted to rent the apartment and offered to put a deposit on it (Smith Dep. 38, 43-44; G. Jilek Dep. 41). She explained to him that she and Joseph planned to marry on September 12 and that Joseph would be moving into the apartment after they were married (D. 12(m) para. 15; Smith Dep. 38). George offered to send Sheila an application, but she told him that she already had a form of application at home (from another prospective landlord, but unused) and would send it to him (Smith Dep. 44-45; G. Jilek Dep. 41).

 Sheila recalls that during the telephone conversation that took place between them the next day, *fn5" George told her that the apartment was unavailable because the previous tenant had decided not to leave (Smith Dep. 47; Smith Aff. para. 10). Indeed, George's recollection is that he then told Sheila that he had actually rented the apartment to someone else (G. Jilek Dep. 54, 78), though he may also have said that he wasn't sure when the existing tenant was leaving (id. at 78). According to Sheila, a few days later George repeated his indisputably false story about the apartment's unavailability because the existing tenant was staying--this time when Sheila telephoned George on July 9 (Smith Aff. para. 10).

 Council is an Illinois not-for-profit corporation that promotes integrated housing in the Chicago Metropolitan area (Amended Complaint para. 3). Jill Tivin ("Tivin") and John Kuhnen ("Kuhnen"), both of whom are white, were employees of Council during July 1990 (Kuhnen Aff. paras. 2,3; Tivin Dep. 9; Tivin Aff. para. 2). On July 10, acting as "testers" *fn6" for Council and thus posing as Mr. and Mrs. Williams ("Williamses"), Tivin and Kuhnen inspected the apartment. George decided to rent to the "Williamses" and accepted an application and deposit from Kuhnen on July 12 (G. Jilek Dep. 51; Kuhnen Dep. 27).

 On July 13 plaintiffs filed suit here, alleging violations of Sections 1982 and 3604. This Court entered a Temporary Restraining Order prohibiting Jileks from renting the apartment to anyone other than Catos. On September 1 Jileks rented the apartment to Sheila (Amended Complaint para. 10).

 After appropriate discovery by both sides, Jileks initially launched the efforts to obtain summary judgment, arguing that both Sheila and Joseph lack standing and that they have failed to prove the necessary elements of their Section 1982 and 3604 claims (D. Mem. 1). After Jileks' motion was fully briefed, plaintiffs cross-moved for summary judgment on the basis of the materials that were already before this Court.

 Standing

 Jileks' argument that Sheila and Joseph lack standing rests essentially on their assertion that Joseph was not a prospective tenant on July 5. That in turn leads to their contention that Joseph was unaffected by their actions, will not benefit from this Court's intervention, and hence lacks standing to sue. As a variation on the same theme, Jileks assert that because Joseph was not a prospective tenant and because Sheila is white, Sheila also lacks standing to sue under Section 1982 and 3604. It should scarcely be a source of surprise that those arguments fail as a matter of both fact and law.

 First, the record makes it clear that all parties did consider both Sheila and Joseph to be prospective tenants on July 5. Contrary to Jileks' current statements (D. Mem. 13-14; D. R. Mem. 2-5), Amended Complaint paras. 6, 11 and 12 do allege that Jileks denied housing to both Sheila and Joseph and that both Catos thereby suffered injury redressable under Sections 1982 and 3604. And the discovery materials show that Jileks too considered Joseph to be a prospective tenant:

 1. In response to plaintiffs' interrogatories, George referred to both Sheila and Joseph as potential tenants when he stated that "the persons who were interested were the Plaintiffs," and when he explained "the reason why Sheila Smith and Joseph Cato were not accepted . . ." (G. Jilek Int. 13).

 2. Both George and Beverly similarly referred to both Catos as prospective tenants throughout their depositions (see, e.g., the express plural references in G. Jilek Dep. 41, 53 and B. Jilek Dep. 34).

 In fact, Jileks' whole currently-advanced theory--that they denied Catos the apartment because Catos were an unmarried couple (something that went wholly unmentioned in George's original Answer filed in early August 1990, but was injected in May 1991 by Amended Answer para. 11)--has been premised on Jileks' view that Joseph was indeed a prospective tenant (see, e.g., B. Jilek Dep. 34).

 Despite Jileks' current assertions, then, it is undisputed that Joseph was a prospective tenant of the apartment on July 5. Thus Joseph plainly has standing to allege race-based discrimination under Sections 1982 and 3604.

 Nor is Sheila deprived of standing because she is white. Courts have consistently held that when a white person and a black person who live together are denied housing because of the black person's race, both parties are injured by that discriminatory treatment. Contrary to Jileks' position (D. Mem. 3-4; D. R. Mem. 6-7), that is so whether the two are married (see, e.g., Hodge v. Seiler, 558 F.2d 284 (5th Cir. 1977)), unmarried (see, e.g., Thronson v. Meisels, 800 F.2d 136 (7th Cir. 1986) and Lamb v. Sallee 417 F. Supp. 282, 286 (E.D. Ky. 1976)) or engaged to be married (see, e.g., Treadwell v. Kennedy, 656 F. Supp. 442, 443 (C.D.Ill. 1987)).

 Indeed, even if Joseph had not been a prospective tenant (as he was) Sheila still would have standing to sue under 1982 and 3604 for discrimination on the basis of her being engaged to a black man. There is no doubt that the fair housing statutes confer broad standing *fn7" and that white people have standing to sue for discriminatory housing practices that impair their right to associate with people of other races. As for the Fair Housing Act, Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 34 L. Ed. 2d 415 , 93 S. Ct. 364 (1972) notes that by its terms Section 3610 grants the right to seek judicial relief to "any person who claims to have been injured by a discriminatory housing practice" ( id. at 208) and ( id. at 210):

 While members of minority groups were damaged the most from discrimination in housing practices, the proponents of the legislation emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered.

 Trafficante, id. at 208-12 thus held that both white and black tenants of a large apartment complex had established injury in fact when they alleged that as a result of discriminatory rental practices they were denied the benefits of living together and associating with people who were not white. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 111-15, 60 L. Ed. 2d 66 , 99 S. Ct. 1601 (1979) similarly held that any member of a neighborhood had Title VIII standing to allege that the neighborhood was losing its integrated character due to discriminatory housing practices.

 To the same effect, Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 71 L. Ed. 2d 214 , 102 S. Ct. 1114 (1982) (emphasis added to the statutory language in original) teaches that Congress intended to create in all "persons" a right to truthful information about housing availability and that it was for that reason that Section 3604(d) makes it unlawful:

 to represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. *fn8"

 Section 1982 also applies when whites are discriminated against because of their association with blacks. Woods-Drake v. Lundy, 667 F.2d 1198, 1201-02 (5th Cir. 1982) ruled that both Sections 1982 and 3604 applied when white tenants were threatened with eviction for having black dinner guests. Even closer to the mark, Bills v. Hodges, 628 F.2d 844, 845 (4th Cir. 1980) decided that two white women who were evicted because they dated and entertained black men in their apartment could sue under Section 1982. *fn10" Surely if discrimination on the basis of a dating or dinner guest relationship confers standing, the same result follows a fortiori from the more substantial relationship of an engagement to be married.

 Section 3604 Liability

 Plaintiffs alleging disparate treatment under Title VIII are generally required to establish a prima facie case of discrimination by showing that (1) they belong to a minority group, (2) defendants were aware of that, (3) plaintiffs were willing and able to rent defendants' apartment and (4) defendants refused to deal with plaintiffs ( Hamilton v. Svatik, 779 F.2d 383, 387 (7th Cir. 1985); cf. Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184, 190 (7th Cir. 1982)). That fits this case precisely under the facts set out in Jileks' own D. 12(m):

 1. Joseph is a member of a minority group, and Sheila was his fiancee (and is now his wife). *fn11"

 2. Jileks were aware that Joseph was black. *fn12"

 3. Catos expressed their desire to rent the apartment. *fn13"

 4. George told Sheila that the apartment was unavailable under one cover story or another, while in fact it remained on the market and was available to testers who viewed it five days later.

 But Catos have gone far beyond that prima facie case by offering direct evidence of Jileks' discriminatory motives. *fn14" For example, George admitted in response to plaintiffs' interrogatories (G. Jilek Int. 13):

 The reason why Sheila Smith and Joseph Cato were not accepted, was because Carl Reinhart, *fn15" the tenant in 1-South told me, if Plaintiffs became tenants in the building: "George, if you rent the apartment to the two people you just showed the apartment to you will have a lot of trouble around here." I was afraid of my tenants and what they ...


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