Greater New Orleans Fair Housing Action Center, Inc. v. Hotard, et al

Filing 47

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Sarah S. Vance on 8/7/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREATER NEW ORLEANS FAIR
HOUSING ACTION CENTER, INC.
VERSUS
JIM HOTARD AND 3839 ULLOA
STREET, L.L.C.

CIVIL ACTION
NO. 15-1320
SECTION “R” (3)

FINDINGS OF FACT AND CONCLUSIONS OF LAW
I.

INTRODUCTION
This case arises from allegations of housing discrimination at an

apartment building located at 3839 Ulloa Street, in New Orleans, Louisiana.
The building is owned and operated by Defendants Jim Hotard and 3839
Ulloa Street, LLC.1 Plaintiff Greater New Orleans Fair Housing Action
Center, Inc., filed this lawsuit on April 23, 2015, asserting a claim under the

Hotard is the sole member of 3839 Ulloa Street, LLC. For
simplicity, all references to “Hotard” or “defendant” refer to both defendants.
1
1

Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq.2 Plaintiff seeks declaratory
and injunctive relief, damages, attorneys’ fees, and costs.3
Plaintiff’s complaint alleged that defendant Hotard treated potential
renters for his property differently on the basis of their race.

More

specifically, plaintiff alleges that Hotard refused to respond to email
inquiries regarding his property from African-American testers but
responded promptly to email inquiries from white testers.4 Further, plaintiff
alleges that Hotard responded less favorably to phone inquiries from
African- American testers than he did to phone inquiries from white testers.5
On July 17, 2017, the Court held a bench trial.

The Court has

jurisdiction over plaintiff’s FHA claim under 28 U.S.C. §§ 1331, 1343(a)(3),
and 42 U.S.C. § 3613. After hearing live testimony and reviewing all the
evidence, the Court rules as follows.

R. Doc. 1. Plaintiff’s complaint also asserted a claim under the
Louisiana Equal Housing Opportunity Act, La. Rev. Stat. Ann. § 51:2601, et
seq., but the joint pre-trial order signed by the parties and approved by the
Court makes no mention of any claim under Louisiana law. Because it is “a
well-settled rule that a joint pretrial order signed by both parties supersedes
all pleadings and governs the issues and evidence to be presented at trial,”
the Court finds that plaintiff has abandoned its claim under the Louisiana
Equal Housing Opportunity Act. Vanhoy v. United States, 514 F.3d 447, 450
n.10 (5th Cir. 2008) (quoting McGehee v. Certainteed Corp., 101 F.3d 1078,
1080 (5th Cir. 1996)).
3
R. Doc. 1 at 11-12.
4
Id. at 4-6.
5
Id. at 6-8.
2
2

II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Background

Defendant James Hotard owns and manages property in the greater
New Orleans area.6 At all times relevant to this lawsuit, Hotard owned three
multifamily properties in the greater New Orleans area, located at 1434 St.
Andrew Street, 2217 Lapeyrouse Street, and 3839 Ulloa Street.7 These
buildings had 55 available units combined.8 Hotard manages and maintains
all of his properties, as well as a 52-unit building on the West Bank that he
does not own.

Hotard also has a small credit-card-processing service

business.9
The property at issue is located at 3839 Ulloa Street, in Mid-City New
Orleans. The apartment building has 20 units, and at the time of the events
relevant to this lawsuit, 17 of the 20 units were occupied by AfricanAmericans.10 The Ulloa building, like all of Hotard’s buildings, had many
Section 8 tenants, as well as other tenants referred from various charities.11

6
7
8
9
10
11

Testimony of James Hotard.
Id.
Id.
Id.
Id.; Defs.’ Ex. 3.
Testimony of Hotard.
3

The area where the property is located has undergone demographic
changes over the last two decades. According to census data, since the year
2000, the proportion of African Americans to white residents has
decreased.12 Further, the specific block where the property is located has
seen a significant decrease in African-American residents.13
The Greater New Orleans Fair Housing Action Center (GNOFHAC) is
a private section 501(c)(3) nonprofit organization that works to end housing
discrimination and segregation in Louisiana.14 The organization focuses on
four areas: enforcement (i.e., bringing claims on behalf of individuals who
have experienced housing discrimination), policy advocacy, education and
outreach, and homeownership protection.15
One of the ways that GNOFHAC identifies housing discrimination is
through testing.16 Testing is an investigative tool commonly used by fair
housing organizations to determine if landlords and others offering housing
are discriminating or engaging in differential treatment.17 GNOFHAC’s
Investigations Coordinator Michelle Morgan testified that GNOFHAC gives

Testimony of Cashauna Hill; Pl. Ex. 48.
Id.
14
Testimony of Hill. Despite its name, GNOFHAC has recently
expanded its focus to the entire state of Louisiana. Id.
15
Id.
16
Testimony of Michelle Morgan.
17
Id.
4
12
13

paired testers “profiles” that include assigned information on the tester’s
income, education, work history, and other information relevant to
housing.18 The testers are equally qualified for the housing, and similar in all
relevant characteristics except for the characteristic subject to testing.19 For
example, if testing for racial discrimination, the testers’ profiles will match
except for race. The testers record their interactions with landlords through
audio-recording devices, and also provide written reports of their
encounters.20 GNOFHAC provides their testers with a training manual, inclass training exercises, and mock encounters.21 Morgan testified that the
testers are not told in advance what they are testing for, as to not bias or
compromise the test.22 The testers are compensated for their work.23
B.

The Tests, and GNOFHAC’s Response

Morgan testified that in March of 2013, a Craigslist advertisement for
two available units at Hotard’s Ulloa Street property came to her attention.24
Morgan was not sure how she came across the ad, and suggested that either

Id.
Id. Morgan testified that that the protected class tester will
actually be slightly more qualified. For example, a black tester’s profile may
include a salary of $43,500 compared to $41,000 for the white tester. Id.
20
Id.
21
Id.; Pl. Ex. 14.
22
Testimony of Morgan.
23
Id.
24
Id.
5
18
19

a staff member referred it to her, or she came across it during her own search
of new advertisements.25 Morgan testified that the ad stuck out to her
because it said “no Section 8” on it, and Morgan believed this was coded
language suggesting that the units were not available to African Americans.26
As the advertisement solicited email responses, Morgan decided to conduct
an email test.27
Morgan reached out to Jesse Chanin and Denise Frazier, two previous
testers with multiple years of experience conducting tests for GNOFHAC.28
Jesse used the name “Jessy,” and Denise used the name “Trynesse,” which
Morgan testified is an identifiably African-American name.29 On March 11,
2013, the testers sent similarly worded emails to Hotard, both indicating an
interest in the apartment and requesting further information to set up a
viewing.30 Hotard responded to Jessy with his phone number, but did not
respond to Trynesse.31 Based on the lack of response, Morgan decided to set
up a second test to be conducted that same day.

Id. There is no evidence that GNOFHAC received a complaint
about the advertisement from someone in the community.
26
Id.; Pl. Ex. 18.
27
Testimony of Morgan; Pl. Ex. 18.
28
Testimony of Morgan.
29
Id.
30
Id.; Pl. Ex. 19; Pl. Ex. 20.
31
Pl. Ex. 19; Pl. Ex. 21.
6
25

This time, instead of using actual testers, Morgan decided to create
fake email addresses and email Hotard herself.32 Morgan used the names
“Jahmal” and “Marzy,” and when asked why she used those names, Morgan
asserted that Jahmal is “identifiably African American.”33 As with the first
test, the emails sent to Hotard were similarly worded and both sought a time
to view the apartment.34 Hotard responded to Marzy and offered to show her
the apartment, but Hotard did not respond to Jahmal’s email.35 Morgan then
decided to set up a third email test.
For the third test, conducted on March 13, 2013, Morgan used the
names “Demaria” and “Elizabeth.” Morgan testified that she felt “Demaria”
was “identifiably African American” and that “Elizabeth” was “neutral.”36 As
with the first two tests, Hotard responded to Elizabeth’s email but did not
respond to Demaria’s.37
On March 26, 2013, Hotard placed another ad for the same units on
Craigslist, but this ad requested phone inquiries instead of emails.38 Morgan

Testimony of Morgan.
Id. Morgan did not testify as to why she chose “Marzy,” and it is
not clear if Morgan felt that “Marzy” is “identifiably” white. Morgan never
explained her basis for her beliefs that these names are racially identifiable.
34
Pl. Ex. 23; Pl. Ex. 24.
35
Pl. Ex. 24; Pl. Ex. 25.
36
Testimony of Morgan.
37
Id.; Pl. Ex. 28; Pl. Ex. 30; Pl. Ex. 32.
38
Pl. Ex. 34.
7
32
33

testified that she wanted to continue testing, but because the advertisement
changed to phone inquiries, Morgan switched to phone tests.39 For her first
phone test, Morgan reached out to Herschel Williams and Alex Owen, two
testers with experience testing for GNOFHAC.40 Morgan gave Herschel and
Alex their testing profiles, and a contact number to call Hotard. Herschel
and Alex recorded their phone calls to Hotard, and the recordings were
played for the Court.
On March 27, 2013, Herschel called Hotard’s number listed on the ad.
He reached Hotard’s voicemail, which listed another number to contact if
interested in apartment vacancies.41 After leaving a voicemail, Herschel
proceeded to call that second number, and left a voicemail there as well.42
While Herschel was on the phone, Hotard called him back, but did not leave
a message.43 Herschel then tried Hotard again on both March 27 and 28,
leaving multiple voicemails, and also texted him.44 Hotard never called
Herschel back.

39
40
41
42
43
44

Testimony of Morgan.
Id.
Pl. Ex. 39A (recording).
Pl. Ex. 39B (recording).
Testimony of Morgan.
Id.; Pl. Ex. 39C-E (recordings).
8

Also on March 28, Alex called Hotard and left a voicemail. Hotard
called Alex back shortly thereafter, and the two briefly discussed the
apartment and set up a time for Alex to view the apartment on April 1.45 Alex
viewed the apartment with Hotard on April 1, and on April 4, Hotard called
Alex again to see if he was still interested in the apartment.46
Morgan then set up the fifth and final test, to be conducted over April
4 and 5. Morgan picked Jahmal Clark and Matt Robinson for this test, two
individuals with previous testing experience.47 On April 4, Jahmal called
Hotard on both numbers and left messages on both.48 Shortly after, Hotard
called Jahmal back, and the two discussed the unit and a possible visit.49
Jahmal asked if he could see the apartment on the following day (April 5),
and Hotard told him he would be out of town.50 Hotard also said he was very
busy that weekend, but that Monday would be a “great day.51 Hotard told
Jahmal to call back Monday morning to set up the viewing.52

45
46
47
48
49
50
51
52

Pl. Ex. 39F-G (recordings).
Testimony of Morgan; Pl. Ex. 37; Pl. Ex. 39J (recording).
Testimony of Morgan.
Pl. Ex. 39K, L.
Pl. Ex. 39M.
Id.
Id.
Id.
9

That following day at 2:50 p.m., the same day Hotard told Jahmal he
would be out of town, Matt called Hotard.53 Hotard answered, and when
Matt asked to see the apartment, Hotard told him to come by that day at 3:30
p.m.54 Matt then met Hotard at the apartment building and viewed the
unit.55 On that following Monday, Jahmal called Hotard back and left a
voicemail, but Hotard never called Jahmal back.56
Following this fifth test, Morgan felt that GNOFHAC had enough
evidence to initiate a complaint.57 GNOFHAC also notified its Education and
Outreach Department about the 3839 Ulloa tests so that the department
could

begin

working

discrimination.58

to

combat

and

counteract

the

perceived

Sophie Rosen, GNOFHAC’s Education and Outreach

Director at the time, testified that the Department explored various options
to notify the residents of the neighborhood and potential tenants about
housing discrimination from May through September 2013.59 The options
included yard signs, mailers, and other informational posters.60 Rosen’s

53
54
55
56
57
58
59
60

Pl. Ex. 39N.
Id.
Pl. Ex. 44.
Pl. Ex. 39P.
Testimony of Morgan.
Testimony of Sophie Rosen.
Id.
Id.
10

Department ultimately decided on mailers, and began the process of
designing, ordering, and distributing the mailers.61
Rosen testified as to the cost of the mailers, both in terms of printing
and shipping, and GNOFHAC introduced the receipts as evidence.62 Rosen
also testified as to the amount of hours spent working on combating the
perceived discrimination at 3839 Ulloa Street.63 Rosen further testified as to
the other events that the Department was planning at the time, including
Fair Housing Five, Fair Housing University, and Fit for King.64 Because of
the time and money spent on responding to the perceived discrimination at
3839 Ulloa Street, Rosen testified that her Department was unable to achieve
their goals with the other events, and had to cancel one of the Fair Housing
University courses.65
C.

Testimony of James Hotard

After the plaintiff rested, Hotard testified in his defense. Hotard began
his testimony by discussing his work and family life. Hotard testified that he

Id.
Id.; Pl. Ex. 6; Pl. Ex. 7.
63
Testimony of Rosen.
64
Id. Fair Housing Five is a youth initiative to educate young
people about housing discrimination, Fair Housing University focuses on
adult education and includes courses on topics such as mortgages,
foreclosure scams, disaster prevention, etc., and Fit for King is GNOFHAC’s
annual civil rights conference. Id.
65
Id.
11
61

62

has eight biological children and that his family also adopted another child.66
He also testified that the majority of his days are spent addressing the various
maintenance needs that arise at his properties, and that he does not have any
employees to assist him.67 He further testified that in addition to his work
and family life, he is a part-time rugby coach and is involved in the Boys Hope
Girls Hope organization.68
Hotard also testified as to how he attracts tenants for his various
properties. Hotard said he relies on word-of-mouth communication from
his tenants, advertisements in the classifieds in the Times-Picayune, the
availability list with the Housing Authority of New Orleans (HANO), social
workers who refer potential tenants, and charities like the Star Corporation,
Responsibility House, Unity, and Volunteers of America that make referrals
to Hotard.69 Many of Hotard’s tenants come through the Section 8 program,
which is administered by HANO.70 And while Hotard testified that he
generally had a good experience leasing to tenants through HANO, HANO’s
bureaucracy can cause delays, and he said it sometimes takes up to two
months from filling out the HANO paperwork until the tenant can actually

66
67
68
69
70

Testimony of Hotard.
Id.
Id.
Id.
Id.
12

move in and begin paying rent.71 For non-Section 8 tenants, the time
between seeing the apartment and moving in can be as little as a day or two.72
Hotard also testified that he had some payment issues with HANO, and
working with HANO can mean he loses a “whole month’s worth of rent.”73
Further, unlike some of the other organizations that refer tenants to him,
HANO does not have social workers who can help if any problems arise with
a tenant.74
In March of 2013, Hotard decided to place an advertisement online
through Craigslist for two vacant units at the 3839 Ulloa Street property.
Hotard had never used Craigslist for his properties before, but decided to do
so because it was free, and Hotard thought it might help him get some
tenants who were not Section 8 tenants connected with HANO.75 Hotard
testified that he wanted to recruit non-HANO tenants because of the
payment issues he had experienced.76
Hotard testified that he got “a lot” of email responses, and that it was
“just cuckoo.”77 He responded to the emails on his iPhone, and responded to

71
72
73
74
75
76
77

Id.
Id.
Id.
Id.
Id.
Id.
Id.
13

whatever email was most recent if he had an opportunity to look at his phone.
But he testified emphatically that his decision whether to respond had
nothing to do with the name of the person who sent the email. He also
testified that he did not know the race of any of the individuals who emailed
him about the apartment.78
Hotard testified that when he responded to the emails, he did not get
many follow-ups.

He therefore decided to put up a new ad, but with his

phone number listed instead.79 He regretted the change, however, because
he got “overwhelmed with phone calls.” Hotard also introduced his phone
records from this time period as evidence, and the records indicated that he
indeed did receive a large number of phone calls each day during the time
the ad was listed, and received over 100 phone calls a day more than once.80
Indeed, the phone records showed that Hotard’s cell phone received 3,588
phone calls from March 10, 2013 through May 10, 2013.81 He said he did his
best to return all of the calls, and that he had no “method” or “rhyme or
reason” for trying to determine which calls to return.82 He also testified that
a person’s race had no effect on his decision to return a call, and that he

78
79
80
81
82

Id.
Id.
Testimony of Hotard; Testimony of Morgan; Pl. Ex. 65.
Pl. Ex. 65.
Testimony of Hotard.
14

returns the phone calls of African-Americans.83 He testified specifically that
while he did not remember getting the calls from Herschel and Jahmal, he
would not have made any determination of a caller’s race based solely on
their voices.84 Further, when asked by plaintiff’s counsel if he “recognize[d]
Herschel as being African American when he called,” Hotard answered
“no.”85
Finally, Hotard testified that race never plays a role in his decision of
whether to rent to someone. He testified that of his 55 units in 2013, 49 were
rented to African-Americans.86 Further, he testified that in April of 2013 he
began working with an African-American Section 8 tenant, Ronald Leblanc,
to rent one of the two available Ulloa Street units.87 Hotard testified that the
charity group Volunteers of America referred Leblanc to Hotard. Hotard
further testified that he called Leblanc, drove to pick him up at a drug
rehabilitation facility, and then showed him the apartment.88 On May 9,
2013, Leblanc signed his lease and moved in.89

83
84
85
86
87
88
89

Id.
Id.
Id.
Id.
Id.; Defs’. Ex. 4; Defs’. Ex. 5.
Testimony of Hotard.
Defs’. Ex. 5.
15

Hotard testified that Leblanc did not stay in the unit for long, however,
because Leblanc began using drugs again.90 Hotard testified that Leblanc
had many visitors, including some who would throw rocks at his window to
the point where the window broke.91

Hotard further testified that the

troubles continued until one day Hotard got a phone call from the police
telling him that Leblanc was found in his apartment bleeding, with his throat
cut.92 Leblanc never came back to the unit.93
After Hotard cleaned the unit and changed the locks, Hotard rented
the unit to Ms. Ada Golson, an African-American.94 Hotard testified that
Golson called him to inquire about the unit. When Golson told Hotard that
she needed a ride to view the apartment, Hotard drove to pick her up.95
Golson loved the apartment, and Hotard and Golson began to fill out the
HANO paperwork so that Golson could move in.96
Ms. Golson corroborated Hotard’s testimony. She testified that she
moved in to the unit at 3839 Ulloa Street in August of 2013. She further
testified that when she called Hotard in late July to inquire about the unit,

90
91
92
93
94
95
96

Testimony of Hotard.
Id.
Id.
Id.
Id.
Id.
Id.
16

he told her about the unit at Ulloa Street as well as another vacant unit in one
of his other properties.97 She said that Hotard came and picked her up at
work, took her to both properties, and then went to HANO himself to help
her with the paperwork necessary for her to move in.98
Plaintiff introduced no evidence at trial showing that Hotard actually
knew the race of any of the testers who emailed or called him.
C.

Standing

Defendants’ proposed findings of fact and conclusions of law argue that
plaintiff has not suffered any injury as a result of Hotard’s actions, and
therefore plaintiff lacks standing to pursue its claims.99

As standing

implicates the Court’s jurisdiction to resolve this dispute, the Court must
determine as a threshold matter whether plaintiff has standing.
The “Supreme Court has held that the sole requirement for standing
under the FHA is the Article III minima.” Lincoln v. Case, 340 F.3d 283, 289
(5th Cir. 2003) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 372
(1982). Article III standing consists of three elements: (1) the plaintiff must
have suffered an “injury-in-fact,” which is an “actual or imminent” invasion
of a legally protected interest that is “concrete and particularized”; (2) the

97
98
99

Testimony of Ada Golson.
Id.
R. Doc. 40 at 5.
17

injury must be “fairly traceable” to the challenged conduct of the defendant;
and (3) it must be likely that plaintiff’s injury will be redressed by a favorable
judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). As the
party invoking federal jurisdiction, the plaintiff bears the burden of
establishing each element. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016).
The Fair Housing Act provides a private right of action to any
“aggrieved person,” including corporations, partnerships, organizations, and
associations. 42 U.S.C. § 3613(a)(1)(A). Any person who “claims to have
been injured by a discriminatory housing practice” is an “aggrieved person.”
Id. § 3602(i). Fair housing organizations such as plaintiff suffer injury when
discriminatory housing practices frustrate the organizations’ mission and
force them to “divert significant resources to counteract the defendant’s
conduct.” N.A.A.C.P. v. City of Kyle, Tex., 626 F.3d 233, 238 (5th Cir. 2010)
(citing Havens, 455 U.S. at 379). The Supreme Court has held that this
“concrete and demonstrable injury to the organization’s activities—with the
consequent drain on the organization’s resources,” is sufficient to grant
Article III standing. Havens, 455 U.S. at 379.
Plaintiff’s testimony and evidence indicates that, as a result of what it
perceived to be discriminatory housing practices by Hotard, it diverted
18

resources to counteract those practices. Morgan testified that she spent
nearly 15 hours coordinating and supervising the tests, as well as reviewing
and analyzing the results.100 She also testified that she paid the testers for
their work.101 Further, Rosen testified as to the time and resources her staff
spent in distributing an informational flyer on race-based discrimination in
the area of Hotard’s building to combat housing discrimination.102 Finally,
Rosen testified that the time and resources spent on investigating and
counteracting Hotard were diverted from other planned projects, like the
Fair Housing University courses and the Fit for King Conference.103
The testimony offered by plaintiff’s witnesses was not speculative or
unsupported by proof.

On the contrary, plaintiff introduced exhibits

detailing the financial and time costs it incurred. This included time and
money spent preparing tests, training the testers, monitoring the testers and
the results of the tests, and paying the testers for their work. This time and
money would have been spent on other activities consistent with plaintiff’s
mission were it not for Hotard’s actions. Further, if plaintiff succeeds on its
challenge, it will obtain not only resources to compensate it for the money it

100
101
102
103

Testimony of Morgan; Pl. Ex. 47.
Testimony of Morgan; Pl. Ex. 49.
Testimony of Rosen; Pl. Ex. 5; Pl. Ex. 6; Pl. Ex. 7.
Testimony of Rosen.
19

spent but can also obtain injunctive relief which will further its mission.
Based on this evidence, the Court finds that plaintiff has demonstrated
an injury-in-fact, fairly traceable to defendant’s conduct, and that this injury
is likely to be redressed by a favorable judicial decision. Accordingly, the
Court finds that plaintiff has standing to pursue its claims. See Inclusive
Communities Project, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs, 749 F.
Supp. 2d 486, 495-497 (N.D. Tex. 2012) (finding that fair housing
organization has standing based on diversion of time and resources); Banks
v. Hous. Auth. of City of Bossier City, La., No. 11-0551, 2011 WL 4591899, at
*4 (W.D. La. Sept. 30, 2011) (finding that GNOFHAC had organizational
standing at motion to dismiss stage based on diversion of resources); cf.
Louisiana Acorn Fair Hous. Org. v. Ramada Vacation Suites, No. 00-624,
2001 WL 725309, at *4 (E.D.La. June 25, 2001) (holding that there was no
standing where organization relied on “conjectural and hypothetical”
testimony without specifics or evidence to show diversion of resources).
D.

The Fair Housing Act

The Fair Housing Act “prohibits discrimination in the provision of
housing,” Artisan/American Corp. v. City of Alvin, Tex., 588 F.3d 291, 295
(5th Cir. 2009), and expressly prohibits the refusal to “sell or rent after the

20

making of a bona fide offer,104 or to refuse to negotiate for the sale or rental
of, or otherwise make unavailable or deny, a dwelling to any person because
of race, color religion, sex, familiar status, or national origin.” 42 U.S.C. §
3604(a).

A claim under the FHA may be established with proof of

discriminatory treatment, or proof of a significant discriminatory effect (also
known as disparate impact). Artisan/American, 588 F.3d at 295; Simms v.
First Gibraltar Bank, 83 F.3d 1546, 1554 (5th Cir. 1996). Plaintiff does not
bring a disparate impact claim.105 With discriminatory treatment claims,
there can be no liability without a finding that the protected trait (i.e., race)
motivated the challenged action. Simms, 83 F.3d at 1556; Woods-Drake v.
Lundy, 667 F.2d 1198, 1202 (5th Cir. 1982) (“Plaintiff need only prove that
race was one significant factor in defendant’s dealings with them in order to

Liability under section 3604(a) does not always require a bona
fide offer, as efforts to make housing unavailable, such as a refusal to
negotiate, can make it impossible for a prospective buyer to ever make an
offer. See Grant v. Smith, 574 F.2d 252, 255 (5th Cir. 1978) (“To require a
bona fide offer in such circumstances could render these protective
provisions of section 3604 meaningless.”).
105
Although plaintiff’s proposed findings of fact and conclusions of
law refer generally to the demographics of the area where the property at
issue is located, they submit no statistical evidence to suggest that Hotard’s
practices or conduct have had a significant discriminatory effect on AfricanAmericans in the area at large. Accordingly, the Court finds that plaintiff is
not bringing a discriminatory effect (or disparate impact) claim. See
generally Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities
Project, Inc., 135 S. Ct. 2507 (2015) (discussing disparate impact FHA
claims).
21
104

establish a violation of the Fair Housing Act.”) (collecting cases); see also
Miller v. Towne Oaks East Apts., 797 F. Supp. 557, 561 (E.D. Tex. 1992) (after
bench trial, noting that plaintiff must “prove that race was one significant
factor in defendant’s dealings with him” to succeed on his Fair Housing Act
claim).
As described above, plaintiff conducted five paired tests on Hotard’s
available apartments, three by email and two by phone. Plaintiff’s proposed
findings of fact and conclusions of law argue that Hotard made his units
unavailable to the African-American testers because of their race.106

In

support, plaintiff points to Hotard’s failure to respond to emails from
African-American testers while responding to emails from white testers, as
well as his differential treatment of the African-American testers’ phone
inquiries compared with the white testers’ inquiries.
Plaintiff has not introduced any direct evidence of intentional racebased discrimination towards the testers.107 And although the test results
did show differential responses, plaintiff has failed to establish by a
preponderance of the evidence that Hotard knew the race of the African-

R. Doc. 43 at 18.
Direct evidence as relevant here would be evidence “which, if
believed, proves” that race was a motivating factor in Hotard’s decision
“without inference or presumption.” See, e.g., Jones v. Robinson Property
Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citations omitted).
22
106
107

American testers.108 This is fatal to plaintiff’s Fair Housing Act claim. The
clear language of section 3604(a) prohibits the refusal “to negotiate for the
sale or rental of, or otherwise make unavailable or deny, a dwelling to any
person because of race.”

42 U.S.C. § 3604(a) (emphasis added).

As

explained above, while plaintiffs need not establish that housing decisions
were made solely on the basis of race, they must show that race was a factor.
See, e.g., Artisan/American, 588 F.3d at 295. A plaintiff cannot make this
showing if the decisionmaker was unaware of the potential renter’s race.
Although the Fifth Circuit has never explicitly held that there can be no
Fair Housing Act violation when the defendant is unaware of the plaintiff’s
status as a member of a protected class, this conclusion is clear from the text
of section 3604(a), as well as Fifth Circuit caselaw requiring proof that race
was a factor in the adverse decision. Common sense supports this conclusion
as well: one cannot discriminate against someone on the basis of that
person’s race if the alleged discriminator does not know the race of that

Because this case culminated in a bench trial, the Court need not
address the McDonnell Douglas burden-shifting framework. The Fifth
Circuit has repeatedly explained that the McDonnell Douglas analysis is
“applicable only in a directed verdict or a summary judgment situation, and
is not the proper vehicle for evaluating a case that has been fully tried on the
merits.” Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 (5th
Cir. 2004) (internal quotation marks omitted) (quoting Powell v. Rockwell
Int’l Corp., 788 F.2d 279, 285 (5th Cir. 1986)); see also Inclusive
Communities Project, 860 F. Supp. 2d at 318-19.
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person.
This conclusion is also consistent with a multitude of cases addressing
Fair Housing Act claims against defendants who claimed to be unaware of
the plaintiff’s race at the time of the challenged action. For example, in
Mitchell v. Shane, the Second Circuit affirmed the judgment in favor of
defendants accused of a Fair Housing Act violation because there was “no
evidence that the [defendants] had any knowledge of the [plaintiffs’] racial
background until after the [defendants] had rejected the [plaintiffs’] offer.”
350 F.3d 39, 49 (2d Cir. 2003); see also Banks v. Prudential California
Realty, 15 F.3d 1082, 1994 WL 6572, at *4 (9th Cir. 1994) (affirming jury
instruction in Fair Housing case that required finding that defendant knew
plaintiffs’ race at the time defendant made housing decision); Hamilton v.
Svatik, 779 F.2d 383, 387 (7th Cir. 1985) (stating that defendant’s awareness
of plaintiff’s race is necessary to establish a prima facie case under the Fair
Housing Act); Fincher v. South Bend Housing Authority, 612 F. Supp. 2d
1009, 1025 (N.D. Ind. 2009) (granting summary judgment for defendant in
Fair Housing Act case because plaintiff “fails to state that the [defendant]
was aware of his membership in a protected class, let alone provide evidence
to demonstrate that fact”); Sherry v. Coldwell Banker Preferred-Canton,
N0. 07-13648, 2008 WL 3876351, at *6 (E.D. Mich. Aug. 18, 2008) (granting
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summary judgment for defendants on Fair Housing Act racial discrimination
claim because “plaintiffs have failed to produce any evidence whatsoever that
any of the defendants . . . had any awareness, or any possible way of being
aware, of their race”).109
The Court finds Hotard’s testimony that he did not know the race of
the testers that contacted him to be credible, especially because it is
uncontested that he never saw any of the African-American testers. Plaintiff
seeks a finding from the Court that Hotard knew the race of the AfricanAmerican email testers based solely on their names, and knew the race of the
phone testers based solely on their voices. But even assuming that awareness
of a name and voice alone could establish one’s knowledge of another’s race,
the Court finds that plaintiff has failed to show that Hotard knew the tester’s

It is also consistent with cases arising under other antidiscrimination statutes, including cases within the Fifth Circuit. See, e.g.,
Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 1306 (11th Cir. 2002)
(“[A]n employer cannot intentionally discriminate against an individual
based on his religion unless the employer knows the individual’s religion.”)
(citations omitted); Clay. Holy Cross Hospital, 253 F.3d 1000, 1007 (7th Cir.
2001) (no claim for pregnancy-based discrimination when decision-maker
did not know plaintiff was pregnant); Robinson v. Adams, 847 F.2d 1315,
1316 (9th Cir. 1987) (“An employer cannot intentionally discriminate against
a job applicant based on race unless the employer knows the applicant’s
race.”); Phillips v. TXU Corp., No. 05-1588, 2006 WL 3900112, at *6 (N.D.
Tex. Dec. 29, 2006) (“[Plaintiff’s] discrimination claims cannot survive
summary judgment if she cannot show that the decisionmakers on her
application were aware of her race.”).
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109

races based on their names and voices in this case. Plaintiff provides no
expert testimony to support its contention, even though expert testimony is
typically used to prove linguistic profiling or that race is identifiable by a
person’s name. See, e.g., U.S. E.E.O.C. v. Target Corp., 460 F.3d 946, 96162 (7th Cir. 2006) (noting that EEOC “presented expert testimony indicating
that some people can determine a speaker’s race based on his or her voice or
name”); United States v. Bostic, 713 F.2d 401, 404 (8th Cir. 1983) (noting
that witness’s testimony that he identified defendant’s race based on
defendant’s voice should be viewed with “circumspection” because the
witness was not a linguistic expert); United States v. Housing Authority of
City of Chickasaw, 504 F. Supp. 716, 725-26 (S.D. Ala. 1980) (finding study
not reliable because no evidence established qualifications of pollsters to
identify race of person on the basis of person’s voice); see also Michael Erard,
Language Matters, 5 J. L. & SOC. CHALLENGES 225, 225 (2003) (discussing
use of linguistic profiling expert testimony in housing discrimination cases);
Dawn L. Smalls, Linguistic Profiling and the Law, 15 STAN. L. & POL’Y REV.
579, 586-87 (2004) (same); Audrey J. Lee, Unconscious Bias Theory in
Employment Discrimination Litigation, 40 HARV. C.R.-C.L. L. REV. 481,
493-500 (2005) (discussing role of expert testimony in discrimination cases
based on implicit bias towards names and voices).
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Further, other courts in similar discrimination cases have cast doubts
on these evidentiary arguments. See Bafford v. Township Apartments
Assocs., No. 06-657, 2007 WL 4247763, at *5 (M.D. Fla. Nov. 30, 2007)
(stating that plaintiff’s “speculation” that defendant’s real estate broker knew
plaintiff’s race based solely on their telephone conversations was
“insufficient to impute knowledge of his race to” the real estate broker); see
also Wharton v. Knefel, 562 F.2d 550, 552 n.9 (8th Cir. 1977) (noting that
district court expressed that “there isn’t a way in the world that this Court at
least could ascertain by his voice what his race was”); City of Chickasaw, 504
F. Supp. 716, 725-26 (S.D. Ala. 1980).
The Court also finds Hotard’s testimony that an individual’s name
would not affect his decision to respond to an email or return a call to be
credible. It is undisputed that the vast majority of Hotard’s units have been
rented to African-Americans, and Hotard’s and Golson’s testimony make
clear that Hotard has, in more than one instance, gone out of his way to
accommodate potential African-American tenants and work with them to fill
out the necessary paperwork so that they can move into his units. Hotard’s
willingness to pick up these potential tenants and take time to help them with
paperwork is inconsistent with a landlord who refuses to negotiate with
potential tenants because they are African-American.
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Further, Hotard

credibly explained that his ads’ reference to “no Section 8” was not coded
racial language, but based on Hotard’s desire to avoid HANO’s bureaucracy
(and the associated delays), as well as previous payment issues with HANO
that Hotard experienced.
Finally, the Court finds Hotard’s testimony that he did his best to
return every phone call, and that there was no rhyme or reason to his
decision whether to call an individual back or respond to an email, to be
credible. As both Hotard’s testimony and his phone records show, Hotard
was “overwhelmed” by the responses, and anyone would be hard pressed to
answer or return 100 or more phone calls in one day. That some phone calls
went unanswered, in the context of a 100-call day, does not suggest an
unwillingness to negotiate, nor does it suggest that Hotard’s testimony
should be viewed as suspect.
Plaintiff bears the burden of establishing that race was a factor in the
challenged decision. In light of Hotard’s testimony that he was not aware of
the African-American testers’ races during his dealings with them, and
plaintiff’s failure to present evidence to the contrary, the Court finds that
plaintiff has not shown that Hotard knew the African-American testers’
races. Accordingly, plaintiff has failed to establish that race was a factor in
Hotard’s decisions. A fortiori, plaintiff has failed to establish that Hotard
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discriminated against the testers on the basis of race.
E.

Punitive Damages

The Court’s finding that Hotard did not discriminate on the basis of
race precludes any liability, so accordingly Hotard cannot be liable for
punitive damages. In any event, even if the Court were to find that Hotard
did discriminate on the basis of race, the Court would not award punitive
damages. In Fair Housing Act cases, “if the court finds that a discriminatory
housing practice has occurred . . . the court may award to the plaintiff actual
and punitive damages.” 42 U.S.C. § 3613(c)(1). In the Fifth Circuit, the
standard for punitive damages in Fair Housing Act cases is “whether the
defendant acted with malice or reckless indifference that his actions might
violate a federal statute of which he was aware.” Lincoln, 340 F.3d at 291
(internal modifications and citation omitted).

There is no evidence

whatsoever that Hotard acted with malice towards any of the testers he
encountered, and none of the evidence or testimony introduced at trial
support a finding that Hotard acted with reckless indifference.110
Additionally, the facts of this case are far less egregious than another Fair

It is also not clear that Hotard was aware of his obligations under
the Fair Housing Act. Although Hotard’s awareness of his obligations under
the Act is listed as an uncontested fact in the joint pretrial order, Hotard
testified at trial that he lacks basic familiarity with Landlord-Tenant law and
has never been trained on the subject. Testimony of Hotard.
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110

Housing case within the Fifth Circuit, and that court did not find that
punitive damages were justified. Cf. United States v. Collier, No. 08-686,
2010 WL 3881381, at *5-6, 10-14 (W.D. La. Sept. 28, 2010) (finding punitive
damages not warranted despite evidence of defendant’s frequent usage of
racial slurs, as well as defendant’s “disingenuous scheme . . . to exclude
blacks” from his property); see also Miller, 797 F. Supp. at 562. Accordingly,
to the extent that Hotard could be liable under the Fair Housing Act at all, he
is not liable for punitive damages.

III. CONCLUSION
Because plaintiff has failed to establish by a preponderance of the
evidence that defendant discriminated against its testers on the basis of their
race, the Court finds that defendants are not liable to plaintiff. According,
the Court renders judgment in favor of defendants.

7th
New Orleans, Louisiana, this _____ day of August, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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