he identified only one, speaking in singular terms:
Joseph's race was "the reason why Sheila Smith and Joseph Cato were not accepted" (G. Jilek Int. 13).
When it comes to the issue of intent (and of establishing admissions on that score), that interrogatory response is plainly more reliable and compelling than Jileks' later depositions for more than one reason. First, unlike depositions, written responses to interrogatories are prepared statements. Jileks had the opportunity to consult with their attorney and consider their responses carefully before submitting them. In addition, Jileks' interrogatory responses were filed on September 21, 1990--just 2-1/2 months after George had actually rejected Catos' tenancy. George's and Beverly's depositions, on the other hand, were not taken until January 17 and March 27 of this year. Thus no mention of marital status was made in this litigation--despite the express earlier opportunity to identify every motivation--until six months after Jileks had made their decision to reject Catos. Hence the only reasonable inference is that marital status was not in George's mind at the time that he did so, but was an afterthought advanced only under the prompting of this litigation.
Once again, though, it is important not to get caught in the deceptive snare that Jileks and their counsel have fashioned with the bogus marital status issue. That argument cannot begin to explain George's actions at the critical time that he rejected Catos' tenancy--with no married couple even on the horizon as prospective tenants--by lying about the apartment's availability, something explainable only in race-based terms.
Section 1982 Liability
What has been said to this point also establishes Jileks' liability under Section 1982, even though that statute unlike Section 3604 requires proof of discriminatory intent ( Hamilton, 779 F.2d at 387; Phillips, 685 F.2d at 187). George's admissions that he rejected Catos because of Joseph's race, and Beverly's deferral to her husband's race-based decision,
equally establish that Jileks acted with the prohibited intent, again even viewing the facts in the light most favorable to Jileks.
Sheila and Joseph Cato have standing to sue under Sections 3604 and 1982 as a matter of both fact and law. In addition, there is no genuine issue of material fact as to Jileks' liability under both Sections, and Catos are entitled to a judgment as to liability as a matter of law under Rule 56(c). Jileks' motion for summary judgment is of course denied.
It was explained earlier that plaintiffs' cross-motion for summary judgment came only in response to this Court's inquiry after Jileks' motion had been fully briefed. Neither party tendered any further submissions, so that neither side has had the opportunity to address the issue of the appropriate remedy. This action is set for a status hearing at 10 a.m. November 25, 1991 to discuss further proceedings in that respect.
Milton I. Shadur
United States District Judge
Date: November 15, 1991