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SNYDER v. BARRY REALTY

December 10, 1996

EDWARD SNYDER and JANET SNYDER, Plaintiff,
v.
BARRY REALTY, INC., an Illinois corporation, and various unidentified employees known as "Tammy" and "Carol," DON BARRY, MAURICE J. O'BRIEN, PATRICK W. O'BRIEN, and PAUL H. O'BRIEN, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are Plaintiffs' Motion for Partial Summary Judgment, and Defendants' Motion for Summary Judgment. For the following reasons, both motions are denied.

 I. Background

 Edward Snyder ("Snyder") and Janet Snyder (collectively "the Snyders") are a married couple with five minor children. Snyder decided to relocate to Evanston, Illinois, because he was accepted to, and intended to enroll in, a graduate program at nearby Northwestern University. Around June 9, 1994, Snyder traveled from California to Evanston to obtain an apartment for his family. Upon his arrival in Evanston, Snyder approached employees of Defendant, Barry Realty, Inc. ("Barry"), and requested to see an apartment. Soon thereafter, employees of Barry showed Snyder two apartments located at 632 Hinman Avenue in Evanston. Defendants Don Barry and Michael Aufrecht own the land and building at that address. Snyder then completed an application for unit 1A ("the unit") of the building, a three-bedroom apartment. In his application, Snyder disclosed that he intended that his spouse and five minor children would live in the unit with him, for a total of seven people in the unit.

 Around June 23, 1994, an employee of Barry informed Snyder that Barry was rejecting Snyder's rental application. The stated basis for the rejection was Barry's occupancy policy, which provided for a maximum occupancy of four people for a three-bedroom apartment. Barry arrived at this occupancy policy through their "bedrooms plus one" rental policy. Under this policy, a maximum of three people may occupy a two-bedroom apartment, a maximum of four people may occupy a three-bedroom apartment, and a maximum of five people may occupy a four-bedroom apartment.

 The court notes that Barry's occupancy policy is more stringent than Evanston's statutory occupancy requirements. Evanston's occupancy ordinance, No. 68-0-90, states that every bedroom occupied by more than one person shall have at least fifty square feet of floor space for each occupant. The Snyders could have lived in the unit without violating Evanston's occupancy ordinance. However, Barry refused Plaintiffs' application because of its own, more stringent, policy. The Snyders now assert that Barry discriminated against them based on their familial status by rejecting their application based on that policy. Both parties have moved for summary judgment.

 II. Discussion

 Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, the court may review the entire record, drawing all reasonable inferences from the record in the light most favorable to the non-moving party. Cornfeld by Lewis v. School Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993). The burden of establishing the lack of any genuine issue of material fact rests with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470, 473 (7th Cir. 1988).

 The Fair Housing Act ("FHA") makes it unlawful to "refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of . . . familial status . . . ." 42 U.S.C. § 3604(a). "Familial Status" refers to the presence of minor children in the household. 42 U.S.C. § 3602(k). "It has long been recognized that to give full measure to the Congressional purpose behind the FHA, courts have given broad interpretation to the statute." Baxter v. City of Belleville, Ill., 720 F. Supp. 720, 731 (S.D. Ill. 1989) (citations omitted).

 The Department of Housing and Urban Development ("HUD") "has adopted a three-part test set forth in McDonnell Douglas Corp. v. Green, for evaluating claims of discrimination under the Fair Housing Act." U.S. v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992) (citation omitted). See also Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1533 (7th Cir. 1990) (noting that courts use employment discrimination analysis in FHA cases). First, plaintiffs must bear the initial burden of proving a prima facie case of housing discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 There are two theories of discrimination by which plaintiffs may proceed under the FHA: disparate treatment and disparate impact. Here, the Snyders' only viable option is disparate impact, as they do not state that Barry only applied its occupancy policy to families. See Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir. 1977) (noting that courts need not find an absence of discrimination simply because a policy impacts non-protected as well as protected groups). To establish a prima facie case of disparate impact under the FHA, plaintiffs "must show at least that the defendant's actions had a discriminatory effect." Id. at 1289-90; Keith v. Volpe, 858 F.2d 467, 482 (9th Cir. 1988).


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