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RODRIGUEZ v. GATTUSO

May 29, 1992

ROBERTO RODRIGUEZ et al., Plaintiffs,
v.
BIAGIO GATTUSO et al., Defendants.



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

 Roberto ("Roberto") and Carol ("Carol") Rodriguez (collectively "Rodriguezes") have sued Biagio ("Biagio") and Carmela ("Carmela") Gattuso (collectively "Gattusos"), charging them with housing discrimination in violation of 42 U.S.C. ยงยง 1982 and 3604(b). *fn1" This Court has conducted a bench trial of the issues after having vacated a default judgment that had previously been entered in favor of Rodriguezes, and counsel for the parties have submitted proposed findings of fact ("Findings") and conclusions of law ("Conclusions") both pretrial and post-trial.

 In accordance with Fed. R. Civ. P. ("Rule") 52(a), this Court finds the facts specially as set out in the following Findings and states its conclusions of law separately as set out in the following Conclusions. To the extent (if any) that the Findings as stated may be deemed conclusions of law, they shall also be considered Conclusions. In the same way, to the extent (if any) that matters later expressed as Conclusions may be deemed findings of fact, they shall also be considered Findings. In both those respects, see Miller v. Fenton, 474 U.S. 104, 113-14, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).

 Findings of Fact2

 1. Gattusos own and manage two six-apartment buildings, one located at 3810 N. Harlem Avenue, Chicago (owned by them since 1974) and the other located at 6744 W. Diversey Street, Chicago (owned by them since 1965). Both buildings' apartment units are offered for rent by Gattusos from time to time.

 2. Roberto is a United States citizen of black Latino ancestry, while his wife Carol is a United States citizen of white Latino ancestry. In physical appearance Carol is light-skinned, while Roberto's dark skin obviously reflects his ancestry. To anyone to whom color makes a difference, the distinction between Roberto's color on the one hand and Carol's (or that of any other "white" person) on the other may well be perceived as one of kind rather than degree.

 4. In May 1989, *fn3" after their house had been put up for sale, Rodriguezes were looking for an apartment to rent. On May 19 Roberto ran into his friend Mitchell Gonzalez ("Gonzalez," a light-skinned person of Latino ancestry) at the Harlem-Irving Park Mall, where Gonzalez was purchasing the rings for his wedding the following day. Knowing that Roberto and his wife were looking for an apartment, Gonzalez informed Roberto of a vacancy at 3810 N. Harlem, where he and his fiancee Laura Borges (also a light-skinned person of Latino ancestry) had just recently rented the apartment that they would occupy after their marriage.

 5. On the evening of that same day (May 19) Roberto telephoned Gattusos and was given an appointment by Carmela to see the available apartment at 4 p.m. the following day.

 6. On May 20 Roberto arrived at 3810 N. Harlem about 3:40 or 3:45 p.m. and waited outside in his car for about 10 to 15 minutes, after which he stood in front of the building at 4 p.m., the time set for his appointment. At that time he saw Carmela peering out from behind the building. Roberto then proceeded to the rear of the building, where he found Carmela and Biagio (who was standing on a ladder working on a window of the first floor apartment). Carmela was standing by the ladder as Roberto approached and identified himself as the person to whom she had given an appointment. Gattusos responded by telling Roberto that they were sorry but that Biagio had already accepted a $ 100 security deposit from a gentleman who was interested in renting the unit. They explained Carmela's having given Roberto the appointment to see the apartment on the basis that Biagio had not told his wife about the alleged other gentleman or about his having assertedly given Biagio $ 100 (an explanation that of itself strains credulity). At the trial Gattusos were unable to name that alleged person, nor did Biagio claim to have given him a receipt or to have requested or obtained any personal information about him (even his name, let alone his address or telephone number). *fn4" After admonishing Gattusos for letting him wait for so long before telling him that the unit was no longer available, Roberto left.

 7. On the following day (May 21) Roberto asked Carol to call again to verify that the apartment was in fact rented out. Carol (not identifying herself as Roberto's wife) called and was told--in direct contravention of the story that Gattusos had given Roberto the day before--that the unit was indeed available for rent. She was given an appointment to see the apartment at 7 p.m. the following day, May 22.

 8. On May 22 Carol arrived at 3810 N. Harlem at 7 p.m. and was greeted by Gattusos, who proceeded to show her the apartment and to explain to her that the rent was $ 535 per month, with two months' security deposit. After Carol told Gattusos that she liked the apartment and had the money with her to secure the unit, Gattusos rejected the money and told her that they first had to meet her husband and would want them to fill out a lease application. Gattusos gave an appointment to Carol and her husband (whom Gattusos thought they had not yet met) for the following day, May 23.

  9. On May 23 Carol, Roberto and their friend who had accompanied them, Josephine, arrived at 3810 N. Harlem at 7 p.m. Carol got out of the car to wait for Gattusos, while Roberto and Josephine briefly remained inside the car. When Gattusos appeared, they and Carol approached each other and proceeded to converse briefly in a friendly and amiable manner while Roberto and Josephine were still in the car and were then getting out. Both Roberto and Josephine saw Biagio show a manila folder to Carol with a document or documents inside. *fn5" Then when Gattusos saw the dark-skinned Roberto, Biagio looked startled--as though he had "seen a ghost" (sic). Suddenly the prior civil conversation that had been carried on between Gattusos and Carol became totally different. Both Gattusos reacted in an excited and nervous manner, offering several excuses that were inconsistent with their earlier indications to Carol of the apartment's availability: that there were two other couples ahead of the Rodriguezes, that the apartment wouldn't be ready for another few weeks, and then--when Roberto said that Rodriguezes wouldn't mind waiting two or three weeks--that Gattusos didn't know if Rodriguezes could pay the rent. *fn6" Because it was obvious that Gattusos were unwilling to rent the apartment to Rodriguezes, Roberto said "Let's go," and both Rodriguezes and Josephine left.

 10. On both occasions, May 22 and May 23, light-skinned Latino Carol was treated respectfully and with no apparent objection on Gattusos' part to the availability of the apartment for her. In total contrast, dark-skinned-Latino Roberto was told on May 20 that even though Carmela had given him an appointment, the apartment was not in fact available because somebody else had given Biagio a security deposit--a claimed incident in which the individual did not even leave his name or address or telephone number, let alone signing a lease application, but allegedly simply gave Biagio $ 100 in cash. *fn7" Again in total contrast, Roberto was rejected a second time when he appeared with ...


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