Treece et al v. Harlan

Filing 332

ORDER AND REASONS - IT IS ORDERED that Defendants' 204 motion for partial summary judgment is DENIED. IT IS FURTHER ORDERED that Plaintiffs' 212 motion for partial summary judgment is GRANTED IN PART. Plaintiffs are entitled to summar y judgment that there is a substantial statistical disparity between the effect of Perrier Condominium's square foot and 400 square foot occupancy limits on families with children and households without children. IT IS FURTHER ORDERED that Plai ntiffs' motion for partial summary judgment is DEFERRED IN PART. The Court has made no finding regarding whether the "robust causality" requirement of Plaintiffs' prima facie case has been met. IT IS FURTHER ORDERED that Plainti ffs' motion for partial summary judgment is DENIED IN PART as there are disputed issues of material fact regarding the Defendants' justifications for enforcing an occupancy limit and whether there are nondiscriminatory alternatives to serve those interests. IT IS FURTHER ORDERED that Defendants' 207 motion in limine to exclude the testimony of Dr. Bradford is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' 206 motion in limine to exclude the testimony of Dr. Robins is G RANTED. IT IS FURTHER ORDERED that this action be ADMINISTRATIVELY CLOSED and STAYED. The Clerk of Court shall mark this action as "CLOSED" for statistical purposes. This Court shall retain jurisdiction, and these cases shall be restored to the trial docket upon motion of a party either upon the U.S. Supreme Court's denial of the petition for a writ of certiorari or, if the petition is granted, issuance of an opinion in Inclusive Communities. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DWAYNE TREECE, ET AL.
Plaintiffs

CIVIL ACTION

VERSUS

NO. 17-10153

PERRIER CONDOMINIUM OWNERS
ASSOCIATION, INC., ET AL.,
Defendants

SECTION: “E”

ORDER AND REASONS
Before the Court are two motions for partial summary judgment, one filed by
Defendants Katherine Acuff, Chris Jablonowski, Hanna Haile, and the Perrier
Condominium Owners Association, Inc (PCOA),1 and one filed by Plaintiffs Dwayne and
Phallon Treece and Clifford Harlan.2 Defendants filed an opposition to Plaintiffs’ motion,3
and Plaintiffs filed an opposition to Defendants’ motion. 4 Plaintiffs and Defendants both
filed replies in support of their respective motions.5 Plaintiffs filed a supplemental
opposition to Defendants’ motion.6 For the following reasons, Defendants’ motion for
partial summary judgment is DENIED, and Plaintiffs’ motion for partial summary
judgment is GRANTED IN PART, DEFERRED IN PART, and DENIED IN PART.
Also before the Court, are two motions in limine. Plaintiffs filed a motion in limine
to exclude the testimony of Dr. Russell Robins.7 Defendants filed a motion in limine to
exclude the testimony of Dr. Calvin P. Bradford. 8 Defendants filed a response to Plaintiffs’

R. Doc. 204.
R. Doc. 212.
3 R. Doc. 268.
4 R. Doc. 262.
5 R. Doc. 288; R. Doc. 293.
6 R. Doc. 301.
7 R. Doc. 206.
8 R. Doc. 207.
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motion,9 and Plaintiffs filed a response to Defendants’ motion.10 Defendants filed a reply
in support of their motion.11 For the following reasons, Plaintiffs’ motion in limine to
exclude the testimony of Dr. Russell Robins is GRANTED, and Defendants’ motion in
limine to exclude the testimony of Dr. Calvin P. Bradford is GRANTED.
BACKGROUND
In August 2017, Plaintiffs Dwayne and Phallon Treece, along with their four
children, rented a condominium unit in a four-unit building located at 6032–6038
Perrier Street, New Orleans, Louisiana (“the Perrier Condominium”).12 Plaintiff Clifford
Harlan owns the unit the Treeces rented.13 Defendants Acuff, Jablonowski, and Haile
individually own the other three units.14 The four unit owners are the sole members of the
Perrier Condominium Owner’s Association (PCOA), which governs the Perrier
Condominium regime.15
Plaintiffs allege Defendants violated the Fair Housing Act by enacting and
enforcing an occupancy limit on the Perrier Condominium that has a disparate impact on
families with children, discriminating against the Treeces based on their familial status,
attempting to evict the Treeces based on their familial status, and attempting to force
Harlan to evict the Treeces based on their familial status.16 Plaintiffs seek declaratory
relief, injunctive relief, and damages for these alleged violations. 17 The parties now, in
effect, cross move for partial summary judgment on Plaintiffs’ disparate impact claim

R. Doc. 245.
R. Doc. 249.
11 R. Doc. 283.
12 R. Doc. 1 6 ¶ 1; R. Doc. 49 ¶ 1.
13 R. Doc. 1 6 ¶ 13; R. Doc. 49 ¶ 13.
14 R. Doc. 1 6 ¶¶ 1 4–17; R. Doc. 49 ¶¶ 1 4–17.
15 Id.
16 R. Doc. 1 6. ¶¶ 2–3.
17 Id. at 17–18.
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under 42 U.S.C. § 3604(a). Defendants move for summary judgment on Plaintiffs’ § 3617
claim.18 The parties also seek to exclude each other’s expert witnesses.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”19 “An issue is material if its resolution could affect the outcome of the action.”20
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”21 All reasonable inferences are drawn in favor of the nonmoving party.22
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 23
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material
fact.”24 If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
In their opposition to Plaintiffs’ motion for partial summary judgment, Defendants argue Plaintiffs lack
standing to pursue certain claims. R. Doc. 268, at 6. Standing arguments are properly made in a motion to
dismiss under Federal Rule of Civil Procedure 1 2(b)(1). In this case, Defendants have already brought a
motion to dismiss for lack of jurisdiction. R. Doc. 30. The Court denied that motion in part and held
Plaintiffs have standing to seek declaratory and injunctive relief. R. Doc. 41, at 8. The sole requirement for
standing under the FHA, is the “[Article] III minima of injury in fact.” Havens Realty Corp. v. Coleman, 455
U.S. 363, 37 2 (1982). Plaintiffs’ pleadings satisfy the FHA’s permissive standing requirements.
19 F ED. R. CIV . P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
20 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
21 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
22 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
23 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
24 Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014) (quoting Celotex, 477 U.S.
at 323).
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submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim.25
When proceeding under the first option, if the nonmoving party cannot muster
sufficient evidence to dispute the movant’s contention that there are no disputed facts, a
trial would be useless, and the moving party is entitled to summary judgment as a matter
of law.26 When proceeding under the second option, the nonmoving party may defeat a
motion for summary judgment by “calling the Court’s attention to supporting evidence
already in the record that was overlooked or ignored by the moving party.”27 The burden
then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon
by the nonmovant.28 If the movant meets this burden, “the burden of production shifts
[back again] to the nonmoving party, who must either (1) rehabilitate the evidence
attacked in the moving party’s papers, (2) produce additional evidence showing the
existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit
explaining why further discovery is necessary as provided in Rule 56(f).” 29 “Summary
judgment should be granted if the nonmoving party fails to respond in one or more of
these ways, or if, after the nonmoving party responds, the court determines that the

Celotex, 477 U.S. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297
(5th Cir. 1987) (citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S.
at 322–24, and requiring the movants to submit affirmative evidence to negate an essential element of the
nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an
essential element); 10A CHA RLES ALAN WRIGHT, ARTHUR R. MILLER & MA RY KAY KANE , FEDERAL PRACTICE
A N D PROCEDURE § 27 27.1 (2016) (“Although the Court issued a fiv e-to-four decision, the majority and
dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.” (internal citations omitted)).
26 First Nat’l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249–50 (1986).
27 Celotex, 477 U.S. at 332–33.
28 Id.
29 Id. at 332–33 & n.3.
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moving party has met its ultimate burden of persuading the court that there is no genuine
issue of material fact for trial.”30
“[U]nsubstantiated assertions are not competent summary judgment evidence.”31
The opposing party must “identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”32
FACTS
I.

Undisputed Facts33
The Perrier Condominium contains four units.34 Plaintiff Harlan and Defendants

Acuff, Jablonowski, and Haile each own one of the units.35 The four unit owners are the
sole members of the Perrier Condominium Owners Association (PCOA), which governs
the Perrier Condominium regime.36 In August 2017, the Treeces, a family of six, rented
Unit 6036 from Plaintiff Harlan.37
The Perrier Condominium is subject to a facially neutral use and occupancy rule
stated in the Condominium Declaration.38 The occupancy rule states “no unit shall be
occupied, even for permitted use, by more than one (1) person making such Unit his or
her residence for each two hundred fifty (250) square feet of floor area within the Unit.”39

Id.; see also First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324).
32 Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (quoting Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 915–16 & n.7 (5th Cir. 1 992)).
33 Sev eral of the facts recited in this section are undisputed for purposes of this motion only.
34 R. Doc. 204-1, at 8; R. Doc. 262-1, at 1.
35 R. Doc. 204-1, at 8; R. Doc. 262-1, at 2.
36 R. Doc. 204-1, at 8; R. Doc. 262-1, at 2.
37 R. Doc. 1 6 ¶ 1; R. Doc 49 ¶ 1 .
38 R. Doc. 204-1, at 8; R. Doc. 262-1, at 2.
39 R. Doc. 204-2, at 8; R. Doc. 262-1, at 2.
30
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The occupancy rule allows up to five people to occupy Unit 6036. 40 The Treece family
exceeds the occupancy limit as applied to Unit 6036.41
The PCOA, in part, justifies the occupancy limit as necessary to reduce wear and
tear on the Perrier Condominium and its infrastructure.42 PCOA governing documents
empower the PCOA to make repairs to units at the expense of the unit owners. 43 The
PCOA has not computed the maximum number of residents that the Perrier
Condominium’s infrastructure can handle.44
The PCOA also justifies its occupancy rule based on “quality of life” concerns such
as street parking, backyard space, garbage can management, laundry use, and noise.45
The Perrier Condominium does not have a parking lot.46 The Perrier Condominium has
four garbage cans.47 The PCOA rules include a rule governing noise and nuisance.48
Harlan’s unit could be modified to ameliorate noise concerns.49
On August 16, 2017, Harlan informed Acuff, Jablonowski, and Haile by email that
he had rented his unit to the Treeces.50 Acuff, whose unit abuts Harlan’s unit, responded
by email asking, “How long is their lease? And how many children do they have? They are
moving in as I write this and I am listening to a kid screaming through the wall and
running all over the floors.”51 Haile responded to Harlan’s email and stated, “[t]his renter,

R. Doc. 204-1, at 8; R. Doc. 262-1, at 2.
R. Doc. 1 6 ¶ 41; R. Doc 49 ¶ 41.
42 R. Doc. 212-2 ¶ 1 2; R. Doc. 268-1 ¶ 12.
43 R. Doc. 212-2 ¶ 46; R. Doc. 268-1 ¶ 46.
44 R. Doc. 212-2 ¶ 27; R. Doc. 268-1 ¶ 27. Defendants argue making this computation is cost-prohibitive,
but they do not contest that it has not occurred.
45 R. Doc. 212-2 ¶¶ 30–31; R. Doc. 268-1 ¶¶ 30–31.
46 R. Doc. 212-2 ¶ 34; R. Doc. 268-1 ¶ 34.
47 R. Doc. 212-2 ¶ 35; R. Doc. 268-1 ¶ 35.
48 R. Doc. 212-2 ¶ 40; R. Doc. 268-1 ¶ 40.
49 R. Doc. 212-2 ¶ 44; R. Doc. 268-1 ¶ 44.
50 R. Doc. 212-2 ¶ 55; R. Doc. 268-1 ¶ 55.
51 R. Doc. 212-2 ¶ 56; R. Doc. 268-1 ¶ 56; R. Doc. 1 28-3, at 1.
40
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Dwayne, had actually contact me in regards to renting my unit the very first week I posted
it. He came to look with his youngest child. He is a nice guy but I decided the condo was
not the best fit as they have 3 small children.”52 Acuff responded by stating “this could be
a serious issue. Reasonable limitations on occupancy are 2 people per bedroom. I don’t
even know that the systems in this building can handle that many people in one unit.” 53
The next day, Acuff emailed the unit owners and stated she had conducted a social
media search confirming the Treeces had three children, maybe four.54 Acuff then texted
Haile and Jablonowski a picture of the Treeces’ stroller parked in a common area of the
Perrier Condominium. 55 Haile responded, “This is completely unacceptable, they will not
be storing strollers like that.”56 Soon after, Acuff shared with Haile that she had suggested
to Harlan he could evict the Treeces for lying on their application by not listing all of their
children.57 Haile said Harlan needed to get this “sorted out” and that he should be able to
break the lease.58 An hour later, Acuff texted Harlan and Haile that “the bylaws also
require 250 per square feet, which means you need 1500” square feet to accommodate six
people.59
The next day, on August 18, 2017, Acuff texted Haile that she was going to propose
a change to the bylaws to limit occupancy to three people per unit. 60 Five days later, on
August 21, 2017, Acuff emailed the other three owners to say she would like to have a
condominium association meeting “to discuss possible amendments to our bylaws in light

R. Doc. 212-2 ¶ 57; R. Doc. 268-1 ¶ 57; R. Doc. 128-3, at 1.
R. Doc. 212-2 ¶ 58; R. Doc. 268-1 ¶ 58; R. Doc. 117-5, at 1 4.
54 R. Doc. 212-2 ¶ 60; R. Doc. 268-1 ¶ 60; R. Doc. 1 28-5.
55 R. Doc. 212-2 ¶ 61; R. Doc. 268-1 ¶ 61.
56 R. Doc. 212-2 ¶ 61; R. Doc. 268-1 ¶ 61.
57 R. Doc. 212-2 ¶ 62; R. Doc. 268-1 ¶ 62.
58 R. Doc. 212-2 ¶ 62; R. Doc. 268-1 ¶ 62.
59 R. Doc. 212-2 ¶ 63; R. Doc. 268-1 ¶ 63.
60 R. Doc. 212-2 ¶ 64; R. Doc. 268-1 ¶ 64.
52
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of recent events. In that same vein, I think we need to have our bylaws reviewed and
updated by an attorney.”61 Acuff also emailed Harlan suggesting various bases on which
Harlan could seek to terminate the Treeces’ lease, including violations of noise
restrictions and the occupancy limit.62 Harlan wrote back that “the fair housing act says
one can’t be discriminated against based on family status,” and he was concerned evicting
a family for failing to list their minor children on the lease might violate the Fair Housing
Act.63 Acuff responded on August 21, 2017, stating “[y]ou can’t discriminate on family
status, but you can reasonably restrict occupancy levels.”64
On August 22, 2017, Harlan delivered to Dwayne and Phallon Treece a “Five (5)
Day Notice to Vacate Premises.”65 The notice stated,
PLEASE TAKE NOTICE that you have violated the following terms in
your lease agreement dated August 16, 2017: Section 4: USE OF PREMISES
Tenants have violated the lease agreement by occupying the premises with
six (6) individuals, rather than the two (2) individuals disclosed and named
on the lease agreement. Six (6) occupants is over the Landlord's
Condominium Owners’ Association Use and Occupancy Restrictions which
state “The Units are also restricted to occupancy by no more than one (1)
person per two hundred fifty (250) square feet of Unit floor space.”
That same evening the unit owners met and by a vote of three in favor and one (Harlan)
against, voted to change the occupancy restriction to read, “The Units are also restricted
to occupancy by no more than one (1) person per FOUR HUNDRED (400) square feet of
Unit floor space” (the “400 square foot rule”).66 The PCOA and its members have not
voted to rescind the 400 square foot occupancy standard. 67 The PCOA submitted the 400
R. Doc. 212-2 ¶ 65; R. Doc. 268-1 ¶ 65; R. Doc. 1 28-6, at 3.
R. Doc. 212-2 ¶ 66; R. Doc. 268-1 ¶ 66; R. Doc. 1 28-7, at 2.
63 R. Doc. 212-2 ¶ 67 ; R. Doc. 268-1 ¶ 67; R. Doc. 128-7, at 1 .
64 R. Doc. 212-2 ¶ 68; R. Doc. 268-1 ¶ 68; R. Doc. 128-7, at 1.
65 R. Doc. 212-2 ¶ 69; R. Doc. 268-1 ¶ 69.
66 R. Doc. 212-2 ¶ 7 0; R. Doc. 268-1 ¶ 7 0; R. Doc 1 28-10; R. Doc. 128-11. Defendants do not deny this vote
and meeting occurred.
67 R. Doc. 212-2 ¶ 7 2; R. Doc. 268-1 ¶ 7 2. Defendants do not deny they have not voted to rescind their
previous vote.
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square foot occupancy restriction to an attorney for “review, advice, approval, and
implementation.”68 The amendment was never recorded on the public record.69
Despite the notice to vacate, Harlan never evicted the Treeces, and on August 31,
2017, Acuff emailed Harlan stating, “If this isn’t resolved in a timely manner, we, as an
association, can also levy penalties for failure to observe the terms and conditions of the
rules. Any expenses we incur as an association can also be assessed against the defaulting
owner.”70 On September 8, 2017, Harlan informed the condominium association
members “I feel that I am being forced to evict by the other members of the condo
association.”71
The other PCOA members then decided to pursue an eviction themselves.72
Defendant Haile emailed the other PCOA members, “I believe we need to move on with
an eviction ASAP. If they sue us, they will sue us. But at least they will be out . . . . I believe
time for nice is over. It’s been over.”73 The PCOA members held a special meeting on
September 29, 2017.74 The owners voted, over Harlan’s objection, to (1) impose a fine of
$100 per day against Harlan beginning Monday, October 2, 2017 for his continued lease
of his unit to Dwayne and Phallon and their family and violating the occupancy limit; (2)
pursue Dwayne and Phallon’s eviction; (3) assess legal fees associated with such eviction
against Harlan if the eviction were successful; (4) retain the professional services of an

R. Doc. 212-2 ¶ 7 3; R. Doc. 268-1 ¶ 73; R. Doc. 128-31, at 8. Defendants do not point to any evidence
denying the amendment was submitted to their attorney for implementation.
69 R. Doc. 204-1, at 8; R. Doc. 262-1, at 2. Plaintiffs do not point to any evidence showing the amendment
has been filed on the public record.
70 R. Doc. 212-2 ¶ 7 9; R. Doc. 268-1 ¶ 79; R. Doc. 128-15.
71 R. Doc. 212-2 ¶ 83; R. Doc. 268-1 ¶ 83; R. Doc. 128-17, at 3.
72 R. Doc. 212-2 ¶ 84; R. Doc. 268-1 ¶ 84; R. Doc. 128-18, at 5.
73 R. Doc. 212-2 ¶ 85; R. Doc. 268-1 ¶ 85; R. Doc. 128-18 at 8.
74 R. Doc. 212-2 ¶ 87 ; R. Doc. 268-1 ¶ 87 .
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attorney to represent the Association; and (5) install a camera in the Perrier
Condominium’s common stairwell.75
The following material statistics are not in dispute. 76 Based on the United States
Census Bureau’s Public Use Microdata Sample, there are 82,003 renter households in
New Orleans.77 Of those renter households, 19,034 are families with children, and 62,969
are households without children.78 Of the renter households with children, 758 are
households of six persons, and 7,844 are households of four to six persons. 79 Of the renter
households without children, 24 are households of six persons and 851 are households of
four to six persons.80
II.

Disputed Facts
Defendants assert it is undisputed that the Perrier Condominium building is over

a hundred years old and has terra cotta waste piping, which is beyond its useful life and
subject to failure.81 The sewer line has been mechanically snaked numerous times because
of clogs, which increases the likelihood of irreparable damage to the pipe. 82 Additional
usage of the sewer line, from an increased number of occupants, heightens the likelihood
of clogs, damage from snaking, and failure in the sewer line 83 and shortens the interim

R. Doc. 212-2 ¶ 87 ; R. Doc. 268-1 ¶ 87 .
R. Doc. 204, at 8; R. Doc. 212-2 ¶¶ 1 –10; R. Doc. 262, at 7 –8; R. Doc. 262-1, at 3; R. Doc. 268-1, at ¶¶ 1–
1 0. The parties dispute the relevance of each of these statistics, to some extent, but they do not dispute the
accuracy of them. Further, the Court takes judicial notice of the United States Census Bureau’s Public Use
Microdata Sample. FED. R. EV ID. 201(b) (“The court may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”).
77
U.S. CEN SUS BUREA U , https://data.census.gov/cedsci/table?q=New%20Orleans%20s2501&tid
=ACSST5Y2017.S2501&layer=place&cid=S2501_C01_001E&vintage=2018&hidePreview=false.
78 Id.
79 Id.
80 Id.
81 R. Doc. 204-1, at 9 (citing Ehlinger Rep. 2–3; Jablonowski Dep. 253:6–13; PCOA Dep. 295:5–302:12,
329:8–11; R. Doc. 204-2, at 78–86; R. Doc. 204-2, at 96).
82 Id. (citing Ehlinger Rep. 2–3; Jablonowski Dep. 253:6–13; PCOA Dep. 295:5–302:12, 329:8–11; R. Doc.
204-2, at 7 8–86; R. Doc. 204-2, at 96).
83 Id. (citing Ehlinger Dep. 100:22–102:19; Jablonowski Dep. 254:3–9).
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period within which an expensive replacement will be needed. 84 Defendants further assert
the Perrier Condominium is serviced by a single, undersized water supply line made of
low quality, galvanized steel, which is beyond its useful life and has corroded from
within.85 As a result, the water flow and pressure has been reduced, and increased usage
of the water supply line would exacerbate the corrosion and likelihood of failure.86
Defendants state it will cost approximately $63,685.00 to correct the Perrier
Condominium’s existing terra cotta waste piping.87
Plaintiffs dispute these assertions and offer evidence the piping has not been fully
inspected,88 exactly how much of the building’s piping and water line are made of
galvanized steel or terra cotta is unknown, 89 and the PCOA has not conducted a study to
quantify the risk to the building’s infrastructure that would be caused by additional
occupants above what current rules allow.90 Plaintiffs also dispute the amount it would
cost to repair the plumbing in Perrier Condominium. 91
Defendants next assert it is an undisputed fact the number of occupants per unit
bears directly on the quality of life in the Perrier Condominium.92 Defendants state more
occupants would increase demands on the water supply, which will lower water pressure
and flow, and will compete for the use of the Perrier Condominium’s common areas and

Id. (citing Ehlinger Rep. 2).
Id. (citing PCOA Dep. 252:11–259:7; Ehlinger Rep. 3; Ehlinger Dep. 103:23–25; Jablonowski Dep. 254:3–
9).
86 Id. (citing PCOA Dep. 252:11–259:7; Ehlinger Rep. 3; Ehlinger Dep. 103:23–25; Jablonowski Dep. 254:3–
9).
87 Id. (citing Ehlinger Rep. 1 ).
88 R. Doc. 262-1, at 3; R. Doc. 212-2 ¶ 1 5 (citing Ehlinger Dep. 1 08:17–15, 41:14–43:16; 109:19–110:21;
1 23:12–21; 97:25–98; 96:10–97:18).
89 R. Doc. 262-1, at 3; R. Doc. 212-2 ¶ 17 (citing PCOA Dep. 292:6–13; 300:15-303:3; Ehlinger Dep. 44:17–
44:25, 41:14–43:16, 41:14–43:16, 41:14–43:16, 109:19–110:21).
90 R. Doc. 262-1, at 3; R. Doc. 212-2 ¶ 18 (citing PCOA Dep. 297:13–20).
91 R. Doc. 262-1, at 3.
92 R. Doc. 204-1, at 10.
84
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amenities such as the laundry room, shed, backyard, and off street parking.93 More
occupants would also increase the need for garbage facilities and increase the likelihood
of sound disturbances and unreasonable noise.94
Plaintiffs dispute these claims95 by pointing to evidence that (1) the PCOA was
unable to identify how an additional child, who cannot drive, would impact street
parking;96 (2) a rule restricting the number of cars, rather than the number of occupants,
is a possible alternative to reducing congestion;97 (3) the PCOA was unable to quantify
how many additional garbage cans they might need to acquire if the total occupancy of
the building increased;98 (4) two of the four units, including the one in which the Treeces
resided, had their own, in-unit washing machines;99 (5) a rule restricting usage, rather
than occupancy, would ameliorate wear and tear concerns with the laundry facilities;100
(6) there have been no issues coordinating back yard usage to date, even when unit owners
had parties and houseguests increasing the number of people in the backyard;101 (7) the
PCOA’s governing documents include rules prohibiting unreasonable noise and
nuisances,102 and enforcement of those restrictions is an alternative to address the noise
concerns;103 and (8) there are structural modifications to Harlan’s unit that could be made
to ameliorate noise concerns.104

Id. (citing PCOA Dep. 264:9–275:5).
Id. (citing PCOA Dep. 264:9–275:5; Favalora Dep. 97).
95 R. Doc. 262-1, at 3–4.
96 R. Doc. 212-2 ¶ 32 (citing PCOA Dep. 271:8–271:17).
97 Id. ¶ 33 (citing PCOA Dep. 268:12–270:4).
98 Id. ¶ 36 (citing PCOA Dep. 273:25–274:6).
99 Id. ¶ 37 (citing P. Treece Dep. 350:18–24 Acuff Dep. 113:13–114:9).
100 Id. ¶ 38 (citing PCOA Dep. 303:12–303:20).
101 Id. ¶ 39 (citing PCOA Dep. 264:12–266:12).
102 Id. ¶ 40 (citing PCOA Decl. § 7 .4; PCOA Rules and Regulations § 1 1).
103 Id. ¶ 41 (citing PCOA Dep. 212:24–2:12:3, 237:1–238:21).
104 Id. ¶ 44 (citing PCOA Dep. 235:5–21; Acuff Dep. 198:1–20; Haile Dep. 209:19–210:4; Jablonowksi Dep.
23:22–38:9; R. Doc. 1 28-19, at 6–7 ).
93

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LAW AND ANALYSIS
The Fair Housing Act (FHA),105 “prohibits discrimination in the rental or sale of a
dwelling based on certain protected characteristics.”106 The statute “reflects ‘the policy of
the United States to provide within constitutional limitations, for fair housing
throughout the United States.’”107 “The FHA, as originally enacted in 1968, prohibited
discrimination based on race, color, religion, or national origin.”108 “In 1988, Congress
extended coverage to persons with handicaps and also prohibited ‘familial status’
discrimination, i.e., discrimination against parents or other custodial persons domiciled
with children under the age of 18.”109
Plaintiffs claim they are entitled to relief under the FHA based on Defendants’
violations of 42 U.S.C. § 3604(a), (b), (c), and (d) and § 3617.110 The instant cross motions
seek summary judgment on Plaintiffs’ “disparate impact” claim under 42 U.S.C. §
3604(a), which provides:
[I]t shall be unlawful to refuse to sell or rent after the making of a bona fide
offer, 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, familial status, or national origin.
Defendants’ motion also seeks summary judgment on Plaintiffs’ claim under 42 U.S.C. §
3617, which provides:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of his having exercised
or enjoyed, or on account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or protected
by section 3603, 3604, 3605, or 3606 of this title.

42 U.S.C. §§ 3601–3631.
Inclusive Comtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
107 Id. at 900–01 (citing 42 U.S.C. § 3604).
108 City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 7 28 n.1 (1995).
109 Id. (citing 42 U.S.C. § 3602(k)).
110 R. Doc. 1 6 ¶¶ 7 0–7 9.
105

106

13

Plaintiffs argue they are entitled to summary judgment on their disparate impact claim
because Defendants violated § 3604(a) by enacting and enforcing an occupancy
restriction that has a disparate impact on families with children. Defendants, on the other
hand, argue they are entitled to summary judgment that the occupancy rule did not violate
§ 3604(a), and for that same reason, they cannot be held not liable under § 3617 for
interfering with Plaintiffs’ rights under § 3604(a).
I.

The 400 Square Foot Rule Is Not Currently in Effect, but Its Future
Enforcement May Be Challenged.
It is undisputed that, on August 22, 2017, the Perrier Condominium unit owners

met and, by a vote of three in favor and one (Harlan) against, voted to change the
occupancy restriction to read, “The Units are also restricted to occupancy by no more than
one (1) person per FOUR HUNDRED (400) square feet of Unit floor space” (the “400
square foot rule”).111 It also is undisputed the PCOA and its members have not voted to
rescind the 400 square foot occupancy standard,112 and the PCOA submitted the four
hundred square foot occupancy rule to an attorney for “review, advice, approval, and
implementation.”113 The amendment was never recorded in the public record.114
Plaintiffs seek to enjoin the Defendants from taking any further action to
implement the “400 square foot rule” because it allegedly will have a disparate impact on
families with children. Defendants correctly point out the 400 square foot rule has never
gone into effect because it has not been registered with the Conveyance Office of Orleans

R. Doc. 212-2 ¶ 7 0; R. Doc. 268-1 ¶ 7 0; R. Doc 128-10; R. Doc. 128-11. The Defendants do not deny this
v ote and meeting occurred.
112 R. Doc. 212-2 ¶ 72; R. Doc. 268-1 ¶ 72; R. Doc. 128-19. Defendants do not contend they have voted to
rescind their previous vote.
113 R. Doc. 212-2 ¶ 7 3; R. Doc. 268-1 ¶ 73; R. Doc. 1 28-31, at 8. Defendants do not point to any evidence
denying the amendment was submitted to their attorney for implementation.
114 R. Doc. 204-1, at 8; R. Doc. 262-1, at 2. Plaintiffs do not point to any evidence showing the amendment
has been filed on the public record.
111

14

Parish, Louisiana, as required by the Perrier Condominium Declaration.115 Plaintiffs’ right
to seek injunctive relief with respect to this rule does not depend on the rule being in
effect. As a result, the Court will address below whether the 400 square foot rule would
have a disparate impact on families with children if implemented.
II.

Plaintiffs Are Entitled to Partial Summary Judgment that the PCOA
Has in Place, or May in the Future Put into Effect, Policies that Have a
Substantial Discriminatory Effect on a Protected Class.
In Texas Department of Housing & Community Affairs v. Inclusive Communities

Project, Inc.,116 the Supreme Court affirmed a long line of circuit court precedent 117 and
held disparate impact claims are cognizable under § 3604(a) of the FHA. The Court found
“[r]ecognition of disparate-impact claims is consistent with the FHA’s central purpose
. . . [of] eradicat[ing] discriminatory practices within a sector of our Nation’s economy.” 118
A disparate impact claim asserts a policy or practice has an “unjustified,
disproportionally adverse effect on [a protected class].”119 In other words, the policy or
practice has a significant discriminatory effect. 120 The relevant question in a disparate
impact claim “is whether a policy, procedure, or practice specifically identified by the
plaintiff has a significantly greater discriminatory impact on members of a protected
class.”121

Section 14.3(c) of the Perrier Condominium’s Declaration states “[an] amendment shall be effective when
registered in the Conveyance Office of Orleans Parish, Louisiana.” R. Doc. 212-17, at 26.
116 1 35 S. Ct. 2507 (2015).
117 E.g. Simms v. First Gibraltar Bank, 83 F.3d 1546, 1555 (5th Cir. 1996) (“We agree that a violation of the
FHA may be established not only by proof of discriminatory intent, but also by a showing of significant
discriminatory effect.” (citing Hanson v. Veterans Administration, 800 F.2d 1381, 1 386 (5th Cir. 1 986)).
118 Id. at 2521.
119 Inclusive Comtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 901 (5th Cir. 2019) (citing ICP, 135
S. Ct. at 2513 (2015)).
120 Simms, 83 F.3d at 1555 (citing Hanson, 800 F.2d at 1 386)).
121 Id. (citing Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1284 (5th Cir. 1994), cert. denied, 513
U.S. 1 149 (1995)).
115

15

To assert a disparate impact claim under the FHA, a plaintiff must first prove a
prima facie case of discrimination by showing (1) a challenged policy or practice (2)
robustly causes a (3) substantial (4) discriminatory effect on a (5) protected class.122 If the
plaintiff makes a prima facie case, the defendant must then prove the challenged practice
is necessary to achieve one or more of the defendant’s substantial, legitimate,
nondiscriminatory interests.123 If the defendant meets its burden, the plaintiff must then
show the defendant’s interests “could be served by another practice that has a less
discriminatory effect.”124
In this case, Plaintiffs identify the Perrier Condominium’s “250 square foot per
person” occupancy limit (the “250 square foot rule”) and the Perrier Condominium’s “400
square foot per person” occupancy limit (the “400 square foot rule”) as the “policies” that
allegedly have a disparate impact on families with children. 125 Plaintiffs identify “families
with children” as the affected protected class under the FHA.126
The only disputed elements of Plaintiffs’ prima facie claim, then, are whether the
occupancy rules (1) “robustly cause” a (2) “substantial” (3) “discriminatory effect” on
families with children.
A.

Plaintiffs have shown the 250 square foot rule and 400 square
foot rule have a discriminatory effect on families with children.

To prove a policy or practice has a discriminatory effect on a protected class, a
plaintiff must prove the policy “actually or predictably results in . . . discrimination.” 127
ICP, 1 35 S. Ct. at 2514 (quoting 24 C.F.R. § 1 00.500(c)(1)).
Id. at 2514–15 (quoting 24 C.F.R. § 1 00.500(c)(2)).
124 Id. at 2515 (quoting 24 C.F.R. § 1 00.500(c)(3)).
125 R. Doc. 16, at 17–18; R. Doc. 268, at 6–7 (conceding Harlan has standing to challenge the 250 square
foot rule as it applies to unit 6036).
126 42 U.S.C. § 3602 (“(K) ‘Familial status’ means one or more individuals (who have not attained the age of
1 8 y ears) being domiciled with—(1) a parent or another person having legal custody of such individual or
individuals . . . .”).
127 Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 575 (2d Cir. 2003).
122
123

16

“[N]ormally a plaintiff must provide comparative statistical evidence demonstrating a
disparity in impact of a particular policy” to show the policy predictably results in
discrimination

and does not “merely raise[] an inference of discriminatory

impact.”128 This is often referred to as the “statistical disparity” requirement.129
In this case, the parties dispute the proper method for calculating whether there is
a statistical disparity in a disparate impact case under the FHA. Neither the Supreme
Court nor the Fifth Circuit has delineated a single method by which a plaintiff must prove
a statistical disparity in the FHA context, but the Supreme Court and the Fifth Circuit
have analogized disparate impact cases arising under the FHA to disparate impact cases
arising under other civil rights laws. 130 As a result, the Court turns to the Fifth Circuit’s
decision in the non-FHA case of Veasey v. Abbott for guidance.131
In Veasey, the plaintiffs challenged, under the Voting Rights Act, a Texas voter
identification (ID) law, titled Senate Bill 14 (SB 14).132 SB 14 required “individuals to
present one of several forms of photo identification in order to vote” (SB 14 ID). 133 The
plaintiffs claimed this law disproportionately prevented minorities from voting because
minority members were more likely to lack SB 14 ID.134 The Fifth Circuit concluded the
district court did not err in finding SB 14 had a disparate impact on minorities and relying
on expert testimony as to SB 14’s statistical impact on minority voters to make that

Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002) (citing Munoz v. Orr, 200 F.3d 291,
299–300 (5th Cir.2000)).
129 ICP, 1 35 S. Ct. at 2523 (holding a disparate-impact claim may rely on a statistical disparity so long as the
plaintiff points “to a defendant's policy or policies causing that disparity”).
130 ICP, 1 35 S. Ct. at 2510 (“Two antidiscrimination statutes that preceded the FHA are relevant to its
interpretation. Both § 7 03(a)(2) of Title V II of the Civ il Rights Act of 1 964 and § 4(a)(2) of the Age
Discrimination in Employment Act of 1967 (ADEA) authorize disparate-impact claims.”); Simms, 83 F.3d
at 1 555.
131 830 F.3d 216 (5th Cir. 2016).
132 Id. at 225.
133 Id.
134 Id. at 250.
128

17

finding.135 To determine whether SB 14 had a discriminatory effect on minorities, the Fifth
Circuit referenced the following results of four methods of analysis used to determine the
races of those voters who lacked SB 14 ID:136
•

Analysis A “revealed Hispanic registered voters and Black registered voters were
respectively 195% and 305% more likely than [or 2.95 and 4.05 times as likely as]
their Anglo peers to lack SB 14 ID.”137

•

Analysis B “concluded that Blacks were 1.78 times more likely than Whites, and
Latinos 2.42 times more likely [than Whites], to lack SB 14 ID.”138

•

Analysis C “found that 4% of eligible White voters lacked SB 14 ID, compared to
5.3% of eligible Black voters and 6.9% of eligible Hispanic voters.” 139

•

Analysis D “concluded that SB 14 disproportionately impacts the poor” based on
“expert testimony that 21.4% of eligible voters earning less than $20,000 per year
lack SB 14 ID, compared to only 2.6% of voters earning between $100,000 and
$150,000 per year.”140

These results share a common thread—they compare the percentage of protected class
members (i.e. minority voters, poor voters) affected by the law to the percentage of nonprotected class members (i.e. White voters, wealthy voters) affected by the law 141 and
show the percentage of affected protected class members is larger than the percentage of
affected non-protected class members.142 The Second Circuit, in Tsombanidis v. West
Id.
In V easey, the court relied on multiple data sources used by the parties’ experts. Id. In the instant case,
the parties agree that one source, the United States Census Bureau’s Public Use Microdata Sample, should
be used to determine the number of renters in New Orleans who do and do not h ave children in their
households. Accordingly, the Court’s focus is not on which data sources were used in V easey. Instead, the
Court is concerned with how the Fifth Circuit analyzed the statistics presented to it, assuming the sources
were reliable.
137 Id. at 250.
138 Id. at 251.
139 Id.
140 Id.
141 United States v. St. Bernard Par., No. CIV.A. 12-321, 2013 WL 17 07829, at *4 (E.D. La. Apr. 1 9, 2013).
142 Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 57 5 (2d Cir. 2003). This method can also be
represented by comparing the percentage of minority representation in the affected group against that
minority’s representation in the general population. See, e.g., Nat’l Fair Hous. All. v. Travelers Indem. Co.,
261 F. Supp. 3d 20, 34 (D.D.C. 2017) (“NFHA pleaded facts that show that because of the different
composition of the affected population (voucher recipients) as compared to the District's population as a
whole, members of a protected class are more likely to be harmed by Travelers' policy than are other
135

136

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Haven Fire Department, an FHA case, endorsed this approach, which it expressed in the
following formula (sometimes referred to by this Court as the “Veasey/Tsombanidis
formula”):
To succeed on a disparate impact claim under the FHA, a plaintiff must show :
1. “that x% of all of the [protected class members are] prohibited [from an
activity] by the facially neutral [policy] at issue,”
2. “that y% of all of the [non-protected class members are] prohibited [from an
activity] by the [facially neutral policy], and, crucially,”
3. “that x is significantly greater than y.”143
To confirm that this formula is consistent with the Fifth Circuit’s reasoning in Veasey,
one may express the results of statistical analysis C in Veasey using the Tsombanidis
formula:
1. “5.3% [x%] of eligible Black voters and 6.9% [x%] of eligible Hispanic voters”
lacked SB 14 ID
2. “4% [y%] of eligible White voters” lacked SB 14 ID, and
3. 5.3% [x] and 6.9% [x] are significantly greater than 4% [y].144
Likewise, the results of statistical analysis D may be expressed using this formula:
1. “21.4% [x%] of eligible voters earning less than $20,000 per year lack[ed] SB
14 ID,” while
2. “2.6% [y%] of voters earning between $100,000 and $150,000 per year” lacked
SB 14 ID, and

individuals.” For ex ample, “92% of participating households [we]re non-Hispanic African American or
Black (compared to 45.2% in the whole D.C. population).”); see also Hous. Inv’rs, Inc. v. City of Clanton,
68 F. Supp. 2d 1 287, 1299 (M.D. Ala. 1999) (“Whether the measure of disparate impact used is
disproportional representation, in which the percentage of minority representation in the affected group is
compared against that minority's representation in the general population, or disproportionate adverse
impact, in which the minority group’s percentage representation in the affected group is compared against
the majority group's representation in the affected group, the starting point is always the subset of the
population that is affected by the disputed decision.”).
143 Tsombanidis, 352 F.3d at 575–7 6.
144 830 F.3d at 251.
19

3. 21.4% [x] is significantly greater than 2.6% [y].145
Within the FHA context, courts routinely apply the Veasey/Tsombanidis formula.
For instance, in Gashi v. Grubb & Ellis Property Management Services, Inc., the District
Court for the District of Connecticut relied on the United States Census Bureau’s Public
Use Microdata Sample and the analysis of Dr. Calvin Bradford to determine an occupancy
limit of “two persons per bedroom” had a disparate impact on families with children in
violation of the FHA.146 Employing the method used by the Fifth Circuit in Veasey and
articulated in the Veasey/Tsombanidis formula, the Court stated:
1. “[T]here are 14,540 households with children in the city of Stamford. Of
those, 4,473 are estimated to be three person households. Accordingly,
three person families with children represent 30.76% [x%] of all
households with children,”
2. “Additionally, Dr. Bradford estimates there are 31,634 households with
no related children in Stamford. Of these households, 3,125, or 9.88%
[y%], are three person households without children,” and
3. “30.76% [x%] of households with children are affected by the occupancy
policy, while only 9.88% [y%] of households without children are
affected [x is significantly greater than y].”147

Id. The results of statistical analysis A and B also may be expressed using the V easey/Tsombanidis
formula. Analyses A and B revealed minority voters were a certain number of “times more likely” than White
v oters to lack SB 1 4 ID. Id. at 250–51. This is simply a statement of the conclusion of the
V easey/Tsombanidis formula—that x is significantly greater, or a certain number of “times” greater, than
y. For example, Analysis B found Black voters were 1.78 times more likely than White voters to lack SB 14
ID. Id. at 251. Within the Veasey/Tsombanidis formula, this means the percentage of Black voters who
lacked SB 1 4 ID [x%] was 1 .78 times larger than the percentage of White voters who lacked SB 1 4 ID [y%].
While the results of analysis B did not reveal exactly what the x and y numbers were, they did reveal that x
was 1 .78 times larger than y. In other words, x was “significantly greater than” y.
In Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mount Holly, the Third Circuit made it
clear that the Veasey/Tsombanidis formula leads to the conclusion that a group is a certain number of
“times more likely” to be affected by a policy. 658 F.3d 37 5, 382 (3d Cir. 2011). The court found a housing
policy had a disparate impact on families with children and stated, “22.54% of African–American
households and 32.31% of Hispanic households in Mount Holly will be affected by the [housing policy]. The
same is true for only 2.73% of White households. In short, the Residents’ statistical expert has calculated
that African–Americans would be 8 times more likely to be affected by the project than Whites [22.54% is
about eight times as large as 2.73%], and Hispanics would be 11 times more likely to be affected [32.31% is
about 11 times larger than 2.73%]. Id.
146 801 F. Supp. 2d 1 2, 1 6–17 (D. Conn. 2011).
147 Id.
145

20

In Greater New Orleans Fair Housing Action Center v. St. Bernard Parish,
another section of this court held a moratorium on constructing multi-family housing had
“a disparate impact on African–Americans by reducing the amount of available housing
structures with 5 or more units” finding:
1. “17.61% [x%] of African–American households in the New Orleans
metropolitan area live in structures with 5 or more units,”
2. “compared to only 9.54% [y%] of Caucasian households,” and
3. “African–American households are 85% more likely to live in structures with
more than 5 units than Caucasian households [x is significantly greater than
y].”148
While another methodology might prove more apt in a different case, 149 the Court has
found no cases repudiating the method used by the Fifth Circuit in Veasey and articulated
as a formula by the Second Circuit in Tsombanidis.150

641 F. Supp. 2d 563, 567–68 (E.D. La. 2009).
The Supreme Court has approved the use of a case-by-case approach for establishing a statistical
disparity in a disparate impact case, recognizing that statistics “come in infinite v ariety and . . . their
usefulness depends upon all of the surrounding facts and circumstances.” Teamsters v. United States, 431
U.S. 324, 339–40 (1 977); see also Mt. Holly Gardens, 658 F.3d at 382 (“‘[N]o single test controls in
measuring disparate impact,’ but the [plaintiff] must offer proof of disproportionate impact, measured in a
plausible way.” (quoting Hallmark Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1 276, 1 286 (1 1th Cir.
2006)).
150 See, e.g., Mt. Holly Gardens, 658 F.3d at 382 (finding a housing policy had a disparate impact on
minorities because “22.54% [x% ] of African–American households and 32.31 % [x% ] of Hispanic
households in Mount Holly will be affected by the [housing policy]. The same is true for only 2.73% [y%] of
White households [x is significantly greater than y]”); Huntington Branch, N.A.A.C.P. v. Town of
Huntington, 844 F.2d 926, 938 (2d Cir.), aff'd in part sub nom. Town of Huntington, N.Y. v. Huntington
Branch, N.A.A.C.P., 488 U.S. 15 (1988) (finding a disparate impact in a case in which a policy impacted
28% [x% ] of minorities but only 11% [y%] of whites [x is significantly greater than y]); United States v.
Tropic Seas, Inc., 887 F. Supp. 1347, 1 360 (D. Haw. 1995) (“Clearly, Tropic Seas’ occupancy provision has
a direct “discriminatory effect” on the Sallees . . . based on their familial status . . . [because the] occupancy
provision regarding studio and one-bedroom apartments would exclude 92 to 95 percent [x%] of all families
with children, but only 19 to 21 percent [y%] of all families without children [x is significantly greater than
y].”). In Rhode Island Commission for Human Rights v. Graul, 120 F. Supp. 3d 110, 1 26 (D.R.I. 2015), the
Court found “2 heads per bedroom policy” had a disparate impact on families with children because, based
on Dr. Bradford’s analysis, even under the most favorable scenario to the defendants, “households with
children are more than three times as likely to be adversely impacted by the rule when compared to
comparable households with no children.” This is similar to Analyses A and B in V easey.
148
149

21

The relatively straightforward Veasey/Tsombanidis formula outlined above may
be applied to the Perrier Condominium’s 250 square foot rule, which prohibits
households of six from residing in Unit 6036, and to the 400 square foot rule which
prohibits households of 4 from residing in Unit 6036, to determine whether the policies
have a disparate impact on families with children.151
Regarding the 250 square foot rule:
1. Of the 19,034 renter families with children in New Orleans, 758, or 3.98% [x%],
are families with children of six affected by the PCOA’s occupancy rule. 152
2. Of the 62,969 renter households without children in New Orleans, 24, or .038%
[y%], are households of six affected by the occupancy rule. 153
3. 3.98% [x] is 104.7 times as large as.038% [y] [x is greater than y].154
Regarding the 400 square foot rule:

United States v. St. Bernard Par., No. CIV.A. 12-321, 2013 WL 17 07829, at *4 (E.D. La. Apr. 1 9, 2013).
R. Doc. 204, at 8; R. Doc. 212-2 ¶¶ 1–10; R. Doc. 262, at 7 –8; R. Doc. 262-1, at 3; R. Doc. 268-1, at ¶¶ 1–
1 0; U.S. Census Bureau, https://data.census.gov/cedsci/table?q=New%20Orleans%20s2501&tid
=ACSST5Y2017.S2501&layer=place&cid=S2501_C01_001E&vintage=2018&hidePreview=false.
The
parties do not dispute the use of city-wide statistics to analyze a disparate impact claim. R. Doc. 207-2, at
22 (Plaintiffs’ expert using city-wide statistics); R. Doc. 206-3, at 9 (Defendants’ expert using city-wide
statistics); see also Gashi v. Grubb & Ellis Prop. Mgmt. Se rvs., Inc., 801 F. Supp. 2d 12, 17 (D. Conn. 2011)
(citing Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 577 (2d Cir. 2003); Huntington Branch, 844
F.2d at 937–38) (approving of the use of city-wide data in determining whether a facially neutral policy has
a disparate impact on a particular group).
153 R. Doc. 204, at 8; R. Doc. 212-2 ¶¶ 1–10; R. Doc. 262, at 7 –8; R. Doc. 262-1, at 3; R. Doc. 268-1, at ¶¶ 1–
1 0; U.S. CEN SUS BUREA U , https://data.census.gov/cedsci/table?q=New%20Orleans%20s2501&tid
=ACSST5Y2017.S2501 &lay er=place&c id=S2501 _C01 _001 E&v intage=201 8&hidePrev iew=false .
Defendants have taken conflicting positions about the “y” number. In their statement of undisputed facts,
they state it is “.1%.” R. Doc. 204-1, at 8. Elsewhere they state it as “1%.” R. Doc. 204-1, at 18. In Dr. Robins
report, the math clearly shows it is .04%.” R. Doc. 206-3, at 9. The Court will use “.04%” as the y going
forward because it is mathematically accurate, but any of these potential “ y” numbers would lead to the
same result.
154 3.98 / .038 = 104.7. The Court uses the phrase “as large as” because “some people believe that ‘three
times more than’ means the original quantity multiplied by the ‘more than’ quantity, plus the original
quantity. In that interpretation, ‘three times more than’ your 3 percent fee is 1 2 percent: three times your
fee (9 percent) plus the original 3 percent. To avoid that confusion, saying you charge ‘three times as much
as’ appeases the mathematical geniuses in your audience.” Merrill Perlman, The Phrase You’re Three Times
More Likely to Write Wrong, COLUMBIA JOURN ALISM REV . (June 1 2, 2017),
https://www.cjr.org/language_corner/three-times-more.php.
151

152

22

1. Of the 19,034 renter families with children in New Orleans, 7,844, or 41.2%
[x%], are families with children of four to six affected by the PCOA’s occupancy
rule.155
2. Of the 62,969 renter households without children in New Orleans, 851, or
1.35% [y%], are households of four to six affected by the occupancy rule. 156
3. 41.2% [x] is 30.5 times as large as 1.35% [y] [x is greater than y].157
The Court finds there are statistical disparities with respect to the 250 and the 400 square
foot rules.
Although Plaintiffs agree the above statistical disparity analysis validates their
disparate impact claim,158 they also argue that, rather than using the Veasey/Tsombanidis
formula, the Court should base its analysis on the absolute numbers showing that families
with children make up 96.93%, or 758 out of 782, of six person renter households in New
Orleans159 while households without children make up only 3.07%, or 24 out of 782, of six
person renter households in New Orleans.160 Plaintiffs argue these figures demonstrate
there are 31.58 times as many renter households of 6 in New Orleans with children than
without children and this shows a substantial disparity.161
Plaintiffs’ methodology is to compare the absolute number of six person families
with children (758) with the absolute number of six person households without children
R. Doc. 204, at 8; R. Doc. 212-2 ¶¶ 1–10; R. Doc. 262, at 7–8; R. Doc. 262-1, at 3; R. Doc. 268-1, at ¶¶ 1–
1 0; U.S. CEN SUS BUREA U , https://data.census.gov/cedsci/table?q=New%20Orleans%20s2501&tid
=ACSST5Y2017.S2501&layer=place&cid=S2501_C01_001E&vintage=2018&hidePreview=false.
156 R. Doc. 204, at 8; R. Doc. 212-2 ¶¶ 1–10; R. Doc. 262, at 7 –8; R. Doc. 262-1, at 3; R. Doc. 268-1, at ¶¶ 1–
1 0; U.S. Census Bureau, https://data.census.gov/cedsci/table?q=New%20Orleans%20s2501&tid
=ACSST5Y2017.S2501&layer=place&cid=S2501_C01_001E&vintage=2018&hidePreview=fals e.
157 30.5 / 1 .35 + 30.5.
158 R. Doc. 262, at 6.
159 According to Dr. Bradford, there are 782 renter households of six in New Orleans. R. Doc. 207-2, at 23.
7 58 of those are families with children. Id. Accordingly, families with children make up 96.9% of the renter
households of six in New Orleans (7 58 / 782 = .969). Id.
160 According to Dr. Bradford, there are 782 renter households of six in New Orleans. Id. Of those, 24 are
households without children. Id. Accordingly, households without children make up 3.1% of the renter
households of six in New Orleans (24 / 782 = .031).
161 24 x 31 .58 = 7 58. R. Doc. 212-1, at 14. Plaintiffs employ the same methodology to analyze the impact of
the 400 square foot rule. R. Doc. 212-1, at 15.
155

23

(24) and calculate the percentage of six person households that are families with children
(96.93%) to show that families with children are 31.58 times as likely to be affected. The
Court finds this is not the correct method of determining whether a statistical disparity
exists in this case. Those absolute numbers (even if couched as percentages), rather than
proportional numbers, do not reveal whether the PCOA occupancy rules have a
proportional or disparate impact on families with children who rent when compared to
the total population of renters.162 The mere fact that more members of a protected class
than non-members of a protected class are affected by a given policy shows a statistical
imbalance, but that alone does not establish the statistical disparity necessary to prove a
disparate impact claim.163 Indeed, the Court has found no examples in which a court used
Griggs v. Duke Power Co., 401 U.S. 424, 430 n.6 (1971) (finding an employer’s policy requiring job
applicants to have a high school diploma or pass a standardized test had a disparate impact on AfricanAmericans because “1960 census statistics show[ed] that, while 34% of white males had completed high
school, only 12% of Negro males had done so” and “58% of whites pass[ed] the tests, as compared with only
6% of the blacks.” The Court did not compare the absolute number of African -American and White
individuals who failed to meet the requirements nor did the Court calculate the percentage of AfricanAmericans who made up the pool of individuals who failed to meet the requirements. Instead, it relied on
the “proportional” number of African Americans and Whites who met the policy’s requirements.);
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 938 (2nd Cir. 1988), aff'd, 488 U.S. 15,
1 9 (1 988) (analogizing the Supreme Court’s use of proportional statistics rather than absolute numbers
in Griggs v. Duke Power Co., 401 U.S. 424 (1971), to the FHA context)).
163 Bailey v. Lawler-Wood Hous., LLC, No. CIV .A. 05-5193, 2007 WL 1 01191, at *3 (E.D. La. Jan. 9,
2007), aff'd sub nom. Bonvillian v. Lawler-Wood Hous., LLC, 242 F. App’x 159 (5th Cir. 2007); Wards
Cove Packing Co. v. Antonio, 490 U.S. 642, 653 (1989) (“Racial imbalance in one segment of an employer's
work force does not, without more, establish a prima facie case of disparate impact with respect to the
selection of workers for the employer's other positions, even where workers for the different positions may
hav e somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As
long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery
positions, if the percentage of selected applicants who are nonwhite is not significantly less than the
percentage of qualified applicants who are nonwhite, the employer's selection mechanism probably does
not operate with a disparate impact on minorities.” (internal citation omitted)); Reyes v. Waples Mobile
Home Park Ltd. P’ship, 903 F.3d 415, 426 (4th Cir. 2018), cert. denied sub nom. Waples Mobile HomePark
Ltd. P'ship v. de Reyes, 139 S. Ct. 2026 (2019) (“[e]xpound[ing] the Supreme Court’s explanation into a
more concrete example,” by hypothesizing “there would likely be no prima facie case of a disparate impact
on nonwhites if 5% of the workers were non-white as long as approximately 5% of the qualified applicants
were non-white”).
The percentages of renter households of six, or four to six, that are families with children may be
relevant in determining whether the policies in this case have a disparate impact on families with children
so long as those percentages are compared to the protected class’s representation in the total population.
See Hous. Inv’rs, Inc. v. City of Clanton, 68 F. Supp. 2d 1287, 1299 (M.D. Ala. 1999) (“Whether the measure
of disparate impact used is disproportional representation, in which the percentage of minority
representation in the affected group is compared against that minority's representation in the general
162

24

Plaintiffs’ methodology to analyze the impact of an occupancy limit on a protected
class.164
In sum, to analyze Plaintiffs’ disparate impact claim, the Court “compare[s] the
percentage of [families with children] affected by the [Perrier Condominium’s occupancy
limits] with the percentage of [households without children] affected by the [limits].”165
After conducting this comparison the Court finds the 250 square foot rule affects 3.98%
of renter families with children in New Orleans and .038% of renter households without
children in New Orleans rule; 3.98% is 104.7 times as large as .038%. This means families
with children are 104.7 times as likely to be affected by the 250 square foot rule as
households without children. Likewise, the 400 square foot rule affects 41.2% of renter
families with children in New Orleans and 1.35% of renter households without children
in New Orleans; 41.2% is 30.5 times as large as 1.35%. This means families with children
are 30.5 times as likely to be affected by the 400 square foot rule as households without

population, or disproportionate adverse impact, in which the minority group's percentage representation
in the affected group is compared against the majority group's representation in the affected group, the
starting point is always the subset of the population that is affected by the disputed decision.”).
164 For example, the court in Gashi v. Grubb & Ellis Property Management Services did not compare the
number of three person households with children to the number of three person households without
children, and it did not determine what percentage of three person households were households with
children. 801 F. Supp. 2d 1 2, 1 6–17 (D. Conn. 2011). In fact, the court rejected the argument by the
defendants in that case that the occupancy policy did not disparately affect families with children because
“the number of three person households without children in Stamford is 3,125, while the number of three
person households with children is 4,473, suggesting there is no disparate impact on three person
households with children.” Id. at 17 (citing Huntington Branch, 844 F.2d at 938 (“[R]elying on absolute
numbers rather than on proportional statistics . . . significantly underestimat[es] the disproportionate
impact of the Town’s policy.”)).
In cases involving disparate impact challenges to decisions regarding the construction of public
housing, some courts have made a disparate impact finding by comparing the number of minority
individuals who would benefit from the housing with the number of non-minority individuals who would
benefit. See, e.g., Keith v. Volpe, 858 F.2d 467, 484 (9th Cir. 1988) (“The evidence presented shows that
Hawthorne’s refusal to permit construction of the project had a greater adverse impact on minorities. Of
the persons who would benefit from the state-assisted housing because they are low-income displacees,
two-thirds are minorities. The failure to build the projects had twice the adverse impact on minorities as it
had on whites. This showing established a racially discriminatory effect.” (internal citation omitted)).
These cases have received some negative scrutiny, see THE STA TISTICS OF DISCRIMIN A TION § 5:6, and the
Court declines to follow them in this case for the reasons set forth above.
165 United States v. St. Bernard Par., No. CIV.A. 12-321, 2013 WL 17 07829, at *4 (E.D. La. Apr. 1 9, 2013).
25

children. Because the percentage of families with children affected by the rules is larger
than the percentage of households without children affected by the rules, Plaintiffs have
shown there is a statistical disparity between the impact of the Perrier Condominium’s
occupancy rules on families with children and households without children.
B.

Plaintiffs have shown the statistical disparities in this case are
substantial.

To prove a policy has a discriminatory effect on a protected class, a plaintiff also
must show a statistical disparity between the policy’s effect on the protected class and the
non-protected class is “substantial”166 or “significant.”167 This substantiality requirement
ensures a statistical disparity is not merely the result of chance.168
The Fifth Circuit has not identified exactly how large a statistical disparity must be
to be “substantial,” but the court’s decision in Veasey again provides guidance.169 In
Veasey the Fifth Circuit determined the district court did not err in holding SB 14, a voter
ID law, had a disparate impact on minorities because it disproportionately prevented
minority members from voting.170 The Fifth Circuit pointed out several analyses
supporting this finding. Analysis A, which indicated the largest statistical disparity ,
showed Black voters were “305% more likely than [or 4.05 times as likely as] their Anglo

Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002) (“[P]rima facie disparate impact
case requires a showing of a substantial statistical disparity between protected and non-protected workers
in regards to employment or promotion.’” (quoting Munoz v. Orr, 200 F.3d 291, 299–300 (5th Cir. 2000));
St. Bernard Par., 2013 WL 17 07829, at *4 (same).
167 Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575–7 6 (2d Cir. 2003) (holding a plaintiff must show
the percentage of protected class members affect by a policy is “significantly” greater than the percentage
of non-protected class members affected by a policy.).
168 R.I. Comm’n for Human Rights v. Graul, 120 F. Supp. 3d 110, 126 (D.R.I. 2015) (“The plaintiffs burden
does not require any particular methodology, so long as the statistics show that ‘the disparity is statistically
significant, or unlikely to have occurred by chance, applying basic statistical tests as the method of
proof.’” (citing Fudge v. Providence Fire Dep’t, 766 F.2d 650, 658 (1 st Cir. 1 985)).
169 830 F.3d 216 (5th Cir. 2016).
170 Id. at 250–51.
166

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peers to lack SB 14 ID.”171 Other Courts have found similar disparities to be
“substantial.”172
In this case, families with children are 104.7 times as likely as households without
children to be affected by the Perrier Condominium’s 250 square foot rule. This disparity
of “104.7 times as likely” is far greater than any of the statistical disparities relied on in
Veasey—the biggest of which was a “4.05 times as likely.” Accordingly, the Court finds the
statistical disparity between the effect of the 250 square foot rule on families with children
and households without children is substantial.
Similarly, families with children are 30.5 times as likely as households without
children to be affected by the Perrier Condominium’s 400 square foot rule. This disparity
“of 30.5 times as likely” is again far greater than any of the statistical disparities found
substantial in Veasey. Accordingly, the Court finds the statistical disparity between the
effect of the 400 square foot rule on families with children and households without
children is substantial.
Focusing on the 250 square foot rule, Defendants argue that, even though the
percentage of families with children excluded by the occupancy limits is many times larger
than the percentage of households without children that are excluded, the statistical
disparity still is not substantial because (1) in keeping with the “four-fifths” rule, the
percentage of families with children of six who can rent unit 6036 is more than 80% of
the percentage of households without children of six who can rent unit 6036, and (2) a

Id. at 250.
See, e.g., Greater New Orleans Fair Hous. Action Ctr. v. St. Bernard Par., 641 F. Supp. 2d 563, 567 (E.D.
La. 2009) (finding a substantial disparate impact because African Americans were 1.85 times as likely as
Whites to be affected by a housing policy); R.I. Comm'n for Human Rights v. Graul, 120 F. Supp. 3d 110,
1 26 (D.R.I. 2015) (finding “households with children [we]re more than three times as likely to be adversely
impacted by the rule when compared to comparable households with no children” and holding that
statistical disparity was substantial enough to establish a prima facie disparate impact case).
171

172

27

high percentage—96.9%—of families with children are allowed to live in the Perrier
Condominium. Defendants arguments are not persuasive.
First, the “four-fifths” rule is inapplicable in this case. The four-fifths rule derives
from the EEOC Uniform Guidelines on Employment Selection Procedures and has been
looked to by courts for guidance in gauging the significance of statistical evidence of
discrimination in employment cases. The rule states:
A selection rate for any race, sex, or ethnic group which is less than fourfifths ( 4/5 ) (or eighty percent) of the rate for the group with the highest rate
will generally be regarded by the Federal enforcement agencies as evidence
of adverse impact, while a greater than four-fifths rate will generally not be
regarded by Federal enforcement agencies as evidence of adverse impact.173
This rule is not binding on courts and is merely a “rule of thumb” to be considered in
appropriate circumstances.174 In fact, the guideline itself recognizes it does not work in
some situations by including the statement that, “Smaller differences in selection rate
may nonetheless constitute adverse impact, where they are significant in both statistical
and practical terms or where a user’s actions have discouraged applicants
disproportionately on grounds of race, sex, and ethnic origin.” 175
In this case, 99.96% of households without children in New Orleans are permitted
to rent Unit 6036. Eighty percent of 99.96% is 79.97%. 176 Accordingly, the four-fifths rule
would not support an inference of a substantial statistical disparity in this case so long as
more than 79.97% of families with children are permitted to rent Unit 6036 under the
250 square foot rule. Defendants point out that 96.9% of families with children, a far high

29 C.F.R. § 1 607.4(D).
E.E.O.C. v. Joint Apprenticeship Comm. of Joint Indus. Bd. of Elec. Indus., 186 F.3d 110, 118 (2d Cir.
1 999). The Supreme Court has approved the use of a case-by-case approach for disparate impact claims,
recognizing that statistics “come in infinite v ariety and . . . their usefulness depends upon all of the
surrounding facts and circumstances.” Teamsters v. United States, 431 U.S. 324, 339–40 (1977).
175 29 C.F.R. § 1 607.4(D).
176 99.96 x .8 = 79.97.
173

174

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percentage than 79.97%, are permitted to rent Unit 6036, and, as a result, they argue the
four-fifths rule shows the occupancy limit has no substantial discriminatory effect on
families with children.
Though Defendants are correct that the four-fifths rule does not demonstrate a
substantial statistical disparity in this case, there are several reasons why the nonbinding
four-fifths rule does not and should not apply. To start, the four-fifths rule can lead to
incorrect inferences in cases, such as this one, in which the highest acceptance rate is near
100% (in this case, 99.96% of households without children are accepted in Unit 6036). As
one treatise author has put it,
One important limitation inherent in the ratio-of-selection-rates measure
used by the four-fifths rule is that it is insensitive to sample size . . . [which
may] result in findings of no adverse impact when nonrandomly produced
disparities are present. The four-fifths rule, for example, would yield a
permissible disparity if 5,000 of 5,000 favored group members and 4,000
of 5,000 disfavored group members passed the test. The ratio of selection
rates would be 80%, which is acceptable. With such a large sample,
however, the result was quite unlikely to have been produced by chance.177
Further, the Court has found no precedent applying the four-fifths rule in the FHA
context.178 It was not designed even to be a rule a thumb in this context, and accordingly,
the Court will not afford it any weight in reaching its decision.
Second, Defendants are simply incorrect in stating that an acceptance rate of
96.9% precludes any possibly of finding a disparate impact. In Veasey the Fifth Circuit

STA TISTICS OF DISCRIMIN A TION § 5:6.
In R.I. Comm'n for Human Rights v. Graul, the court discussed the four-fifths rule and ultimately
applied a v ersion of the so called “five-fourths” rule Dr. Bradford put forth in that case and has put forth in
the instant case. 120 F. Supp. 3d 110, 126 n.23 (D.R.I. 2015). The court in Rhode Island correctly noted that
the four fifths rule applies only when analyzing acceptance rates, but that “evaluation of occupancy policies
compares groups adversely affected rather than receiving an advantage.” Id. The court did, however, rely
to some degree on the “five-fourths” rule, which is wholly different than the four-fifths because it compares
fail rates rather than acceptance rates. In the instant case, the Court need not address the five-fourths rule
as the statistical disparities are all substantial under the Fifth Circuit’s precedent in V easey. 830 F.3d 216,
250–51 (5th Cir. 2016).
177

178

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found the Texas voter ID law had a disparate impact on minority voters even though,
according to Analysis C, 94.7% Black voters and 93.1% of Hispanic voters were unaffected
by the law.179 What was crucial to the disparate impact finding in Veasey was that
minority voters were significantly more likely to be affected by the law than White
voters.180 The high acceptance rate for minority voters was not dispositive. The Court
acknowledges an acceptance rate could, in some cases, be so high that it defeats the
substantiality requirement.181 This case, however, is not such a case. It is undisputed that
hundreds or thousands of families with children could be affected by the PCOA’s
occupancy rules.182 Accordingly, the Court finds the statistical disparity between the effect
of the PCOA’s occupancy rules on families with children and households without children
is substantial.
III.

The Court Defers Ruling
Requirement Has Been Met.

on

Whether

the

Robust

Causality

The last element of Plaintiffs’ prima facie case is “robust causality.” In Texas
Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.

830 F.3d 216, 250–51 (5th Cir. 2016) (“4% of eligible White voters lacked SB 1 4 ID, compared to 5.3% of
eligible Black voters and 6.9% of eligible Hispanic voters.”).
180 Id. Defendants reliance on Moore v. Southwestern Bell Telephone Company is incorrect. 593 F.2d 607
(5th Cir. 1979). In Moore the Fifth Circuit stated, “The District Court here found that the pass rate for black
applicants in the relevant geographical district and time period was 93% That of white applicants. This
Court is bound by findings of “subsidiary fact” adopted by a district court unless they are clearly erroneous,
which these findings are not. We affirm the District Court's holding: a 7 .1% Selection differential between
black and white applicants does Not evidence the required disproportionate impact needed to make out a
Prima facie case of discrimination.” 593 F.2d at 608 (internal citations omitted). This is simply a
restatement of the four-fifths rule. The Fifth Circuit by no means held that so long as a minority group’s
ov erall selection rate is above 93% there can be no disparate impact.
181 For example, if, hy pothetically, the 250 square foot rule excluded only 1 family with children and 1
household without children from living in Unit 6036, then technically families with children would be 2.5
times as likely to be affected by the rule (1 / 19,034 = .005% and 1 / 62,969 = .002% and .005% is 2.5 times
as large as .002%). However, the Court agrees this would likely not be a “substantial” statistical disparity
because it does not show the disparity is anything other than the result of chance.
182 The acceptance rate for the 400 square foot rule is lower than for the 250 square foot rule. As a result,
the Court likewise finds the statistical disparity born out by 400 square foot rule is substantial.
179

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(ICP), the Supreme Court held a prima facie disparate impact case based on a statistical
disparity includes a “robust causality” requirement. 183 The Court stated,
[A] disparate-impact claim that relies on a statistical disparity must fail if
the plaintiff cannot point to a defendant's policy or policies causing that
disparity. A robust causality requirement ensures that “[r]acial imbalance
... does not, without more, establish a prima facie case of disparate impact”
and thus protects defendants from being held liable for racial disparities
they did not create. Without adequate safeguards at the prima facie stage,
disparate-impact liability might cause race to be used and considered in a
pervasive way and “would almost inexorably lead” governmental or private
entities to use “numerical quotas,” and serious constitutional questions
then could arise.184
The Fifth Circuit expounded on the “robust causality” requirement in Inclusive
Communities Project, Inc. v. Lincoln Properties Co.185 In that case, the plaintiffs claimed
a property management company’s policy of refusing to rent to individuals using Section
8 vouchers violated the FHA because African American’s were the dominate group of
voucher holders and, accordingly, the company’s policy had a disparate impact on African
Americans.186 Over a strong dissent, the Fifth Circuit affirmed the trial court’s decision to
dismiss the plaintiffs’ disparate impact claim because the plaintiffs failed to provide
statistical evidence to make a prima facie showing that the company’s policy robustly
caused a disparate impact on African Americans. 187 The court stated,
Neither the aforementioned “city-level data” nor the “census-level data”
cited by ICP supports an inference that the implementation of DefendantsAppellees’ blanket “no vouchers” policy, or any change therein, caused black
persons to be the dominant group of voucher holders in the Dallas metro
area (or any of the other census areas discussed by ICP). . . . Indeed, ICP
pleads no facts showing Dallas’s racial composition before the Defendants-

1 35 S. Ct. 2507, 2523 (2015) (quoting and citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653
(1 989), superseded by statute on other grounds, 42 U.S.C. § 2000e–2(k)).
184 Id.
185 920 F.3d 890 (5th Cir. 2019).
186 Id. at 895, 897.
187 Id. at 906.
183

31

Appellees implemented their “no vouchers” policy or how that composition
has changed, if at all, since the policy was implemented. 188
The dissent in Inclusive Communities argued the majority took the robust
causality requirement too far by requiring a plaintiff to prove a challenged policy caused
a “pre-existing condition.”189 According to the dissent, the robust causality requirement
merely requires a plaintiff to “identify a policy or practice causing the alleged disparate
impact on minorities.”190
After losing their appeal, the plaintiffs in Inclusive Communities, moved for
rehearing en banc, which was denied by a 9 to 7 vote. 191 An opinion joined by seven judges
dissenting from the denial of rehearing en banc192 argued, much like dissent from the
panel decision, that “requiring plaintiffs to establish the level of proof the majority
opinion advocates at this stage of litigation ‘would render disparate impact liability under
the FHA a dead letter’ soon after the Supreme Court established disparate impact liability
exists under the FHA.”193 Beyond this division within the Fifth Circuit, there is also some
division between the circuit courts of appeal on this issue. For example, in Reyes v.
Waples Mobile Home Park LP, the Fourth Circuit took a seemingly opposing view to the
Fifth Circuit.194

Id. at 907.
Id. at 921 (Davis, J., dissenting in part).
190 Id.
191 Inclusive Comtys. Project, Inc. v. Lincoln Prop. Co., 930 F.3d 660 (5th Cir. 2019).
192 Id. at 661 (Haynes, J., dissenting).
193 Id. (citing Inclusive Comtys., 920 F.3d at 924 (5th Cir. 2019) (Davis, J., dissenting in part)).
194 903 F.3d 415 (4th Cir. 2018), cert. denied sub nom. Waples Mobile Home Park Ltd. P’ship v. de Reyes,
1 39 S. Ct. 2026 (2019). The Fifth Circuit majority stated its holding comported with both the Fourth Circuit
majority and dissent in Reyes. The dissent in the Fifth Circuit called this statement by the majority into
question. Inclusive Comtys., 920 F.3d at 921 (5th Cir. 2019) (Davis, J., dissenting in part).
188
189

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On October 14, 2019, the plaintiffs in Inclusive Communities filed a petition for a
writ of certiorari with the United States Supreme Court. 195 On December 9, 2019, the
Supreme Court requested the defendant submit a response. 196 The defendant’s response
was filed on February 11, 2020.197
The Court finds Plaintiffs have shown the Perrier Condominium’s occupancy rules
have a discriminatory effect on families with children and that the effect is substantial,
but the proof necessary to establish the “robust causality” element of a prima facie
disparate impact case may be affected by the Supreme Court’s potential decision in
Inclusive Communities.198 In light of the Supreme Court’s potential review of the Fifth
Circuit opinion in the near future, the Court will stay this case pending the Supreme
Court’s decision.199
IV.

Disputed Issues of Material Fact Preclude Summary Judgment on
Whether There Are Justifications for the Occupancy Limits.
Defendants argue that, even if Plaintiffs have established a prima facie case that

the PCOA occupancy rules cause a substantial discriminatory effect on a protected class
under the FHA, Defendants have proven the challenged practice is necessary to achieve a
valid, nondiscriminatory interest and summary judgment in their favor is in order.200 It
Petition for Writ of Certiorari, Inclusive Comtys. Project, Inc. v. Lincoln Prop. Co., et al., U.S. (No. 19497 ).
196 No. 1 9-497, SUPREME COURT OF THE UN ITED STA TES , https://www.supremecourt.gov/search
.aspx?filename=/docket/docketfiles/html/public/19-497.html.
197 Brief in Opposition to Petition for Writ of Certiorari, Inclusive Comtys. Project, Inc. v. Lincoln Prop.
Co., et al., U.S. (No. 19-497).
198 920 F.3d 890 (5th Cir. 2019).
199 The expert testimony of Dr. Robins and Dr. Bradford concerned only Plaintiffs’ prima facie case. Because
the Court has resolved all aspects of whether Plaintiffs have made a prima facie case, but causation, the
Court finds the testimony of Dr. Robins and Dr. Bradford is not needed to make that determination and, as
a result, will not be helpful to the jury. Accordingly, under Federal Rule of Ev idence 403, the Court grants
Defendants’ motion in limine to exclude the testimony of Dr. Bradford, R. Doc. 207, and Plaintiffs’ motion
in limine to ex clude the testimony of Dr. Ro bins, R. Doc. 206. In the event the parties believe expert
testimony is needed and would be helpful after the Supreme Court’s decision in Inclusive Communities, the
parties may request leave to provide additional expert testimony.
200 Inclusive Comtys., 920 F.3d at 901 (5th Cir. 2019) (citing 24 C.F.R. § 1 00.500(c)(2)).
195

33

is true that a housing provider has “leeway to state and explain the valid interest served
by [the] polic[y].”201 Nevertheless, a defendant’s proffered reasons for a policy cannot be
merely speculative and must be supported by facts or documentation. 202 Because
disparate impact liability “mandates the removal of policies that create artificial,
arbitrary, or unnecessary barriers for members of a protected class,” the interest proffered
must be “sufficiently compelling to justify the challenged practice.” 203 A reason is not
“legitimate” or “valid” if it was not present at the time a rule’s adoption, but rather is a
post hoc rationalization for a discriminatory policy, or when the justification is otherwise
arbitrary.204
In Fair Housing Center of Washington v. Breier-Scheetz Properties, LLC, the
defendants attempted to justify an occupancy limitation of “one person per studio
apartment” by arguing the limitation ensured fair billing, because the utilities for the
studio apartments were billed as a group, not individually, and by arguing the apartments
were too small for more than one person.205 The District Court for the Western District of
Id. at 902 (quoting ICP, 1 35 S. Ct. at 2522–23). This requirement is different for public and private
defendants. The FHA exempts governmental entities from liability by stating “[n]othing in this subchapter
limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum
number of occupants permitted to occupy a dwelling.” 42 U.S.C. 3607(b)(1). The “reasonableness” standard
applied to the review of occupancy limits enforced by public entities does not carry over to private entities.
United States v. Badgett, 976 F.2d 1176, 1 179 (8th Cir. 1 992) (holding 3607(b)(1) did not apply to
restrictions that were not “not governmentally imposed”). Instead, a private entity must demonstrate a
specific, valid, non-discriminatory justification for an occupancy limit.
202 See Gashi v. Grubb & Ellis Prop. Mgmt. Servs., 801 F. Supp. 2d 1 2, 1 8 (D. Conn. 2011) (granting
summary judgment and noting that, “[a]bsent any []documentation, defendants cannot show that
structural limitations are a legitimate concern, and accordingly, fail to raise a material issue of fact to
support the assertion that the occupancy policy furthers a legitimate interest in addressing structural
concerns”).
203 Fair Hous. Ctr. of Wash. v. Breier-Scheetz Props., LLC, No. C16-922 TSZ, 2017 U.S. Dist. LEXIS 73037,
at *3 (W.D. Wash. May 11, 2017) (citing Inclusive Communities, 1 35 S. Ct. at 2522); see also R.I. Comm'n
for Human Rights v. Graul, 1 20 F. Supp. 3d 1 10, 1 27 (D.R.I. 2015) (holding a defendant’s purported
justifications did not “overcome” the discriminatory impact of his housing policy).
204 E.g., Fair Hous. Ctr. of Wash., 2017 U.S. Dist. LEXIS 73037, at *4 (finding the defendant’s interest in
equalizing utility usage was an impermissible post hoc rationale for an occupancy limit and that limiting
occupancy to one person per studio apartment to reduce wear and tear was arbitrary absent evidentiary
support).
205 Id.
201

34

Washington found the fair billing rationale was pretextual because the “free-rider”
problem would arise even in the absence of the occupancy limit as not each person uses
utilities equally.206 Moreover, the court held the defendants’ “subjective judgment that
installing new meters for each apartment would be necessary if the occupancy policy were
removed, without any objective evidence in support of that judgment, [wa]s not sufficient
to rebut plaintiff’s prima facie case of discrimination under the Fair Housing Act.” 207 The
defendant also failed to provide any evidence the apartments could not adequately
accommodate more than one person other than their own conclusion the apartments are
too small.208
In this case, Defendants have put forth three interests served by the Perrier
Condominium’s occupancy limit: (1) protecting the building’s infrastructure, particularly
its plumbing, (2) preserving the quality of life at the Perrier Condominium, and (3)
complying with applicable municipal code provisions. The municipal code at issue in this
case does not require the Perrier Condominium to impose an occupancy restriction of 250
or 400 square feet per person.209 Accordingly, the municipal code does not justify the
Perrier Condominiums’ occupancy rule. Defendants’ two other alleged interests may
justify the Perrier Condominium’s occupancy rule, but Defendants have not shown there

Id.
Id.
208 Id.
209 CODE OF THE CITY OF NEW ORLEA N S, LOUISIANA § 26-197 (“Every living room shall contain at least
1 20 square feet and every bedroom shall contain a minimum of 70 square feet, and every bedroom occupied
by more than one person shall contain a minimum of 50 square feet of floor area for each occupant
thereof.”); Code of the City of New Orleans, Louisiana § 26-197 (stating dwelling units with six or more must
contain a living room of at least 150 square feet, a dining room of 100 square feet, and 50 square feet per
person in bedroom space). Based on these guidelines, the absolute minimum amount of space required for
a six person dwelling is 550 square feet (150 + 100 + (50 x 6) = 550). This is far less restrictive than the
Perrier Condominium’s 250 and 400 square foot rules.
206
207

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are no disputes of material fact with respect to this issue, and the Court cannot decide the
issue as a matter of law.
Protecting the value of a property, by reducing wear and tear, may be a valid, nondiscriminatory justification for an occupancy rule. As the Ninth Circuit has put it, it “is
certainly reasonable to seek to preserve the value of one’s property . . . and a numerical
limitation on occupancy clearly advances this legitimate business purpose.” 210 In
Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban
Development, the Tenth Circuit held that, even though the plaintiffs made a prima facie
case a mobile home park’s occupancy limit of three persons per home had a disparate
impact on families with children, the limit was permissible under the FHA because
of sewer system limitations.211 The defendants put forth evidence showing the sewer pipes
in the mobile home park were adequate to support an absolute maximum of 916 persons,
or 4 persons per home.212 Because this was an absolute maximum, however, the park
lawfully decided to limit occupancy to three residents per home to allow for guests to use
the sewer system without overloading it. 213 In contrast, in Rhode Island Commission for
Human Rights v. Graul, the District Court for the District of Rhode Island rejected a
defendant’s wear and tear concerns as justifications for an occupancy rule because the
defendant did not demonstrate the actual negative impact of plaintiffs violating the rule
by housing an additional child residing in a one-bedroom apartment.214

Pfaff v. United States HUD, 88 F.3d 739, 7 49 (9th Cir. 1 996).
56 F.3d 1243 (10th Cir. 1995).
212 Id. at 1256.
213 Id. at 1257.
214 1 20 F. Supp. 3d 110, 129 n.29 (D.R.I. 2015).
210
211

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Furthermore, quality of life concerns also may justify an occupancy limit.215 In
Mountain Side, the Tenth Circuit held an occupancy limit was permissible under the FHA
based on concern over the quality of life in a mobile home park.216 The court stated,
“[b]ecause of the parking problems, density of the homes, and overall size of the Park,
[the defendant] decided that the quality of life at the Park would be severely diminished
if the Park had a maximum of 916 residents.” Similarly, in United States v. Weiss, the
District Court for the District of Nevada found the defendants showed “a compelling
business necessity to limit the number of persons who may occupy” the apartments in an
apartment complex because the complex lacked hot water. 217 The Court credited the “selfserving” testimony of the complex owner regarding the hot water supply problem and
credited the testimony of a plumbing expert despite the fact that the expert was not hired
until three years after the occupancy limit was put in place.218 The court found the
“defendants . . . submitted under penalty of perjury an analysis of the hot water system in
place at the housing complex, made by a duly qualified professional engineer who opined
(and gave his reasons) that the housing limitations imposed upon occupancy by
defendants had a direct correlation to hot water capacity.” 219 Accordingly, the court did
not dismiss the expert’s opinion as a merely post hoc rationale.220
In this case, disputed issues of fact remain regarding Defendants’ contention that
the Perrier Condominium’s occupancy limit is necessary to protect the building’s
infrastructure, particularly its plumbing, and to preserve the quality of life at the Perrier

Mountain Side, 56 F.3d at 1255.
Id. at 1253.
217 United States v. Weiss, 847 F. Supp. 819, 831 (D. Nev. 1 994).
218 Id. at 830–31.
219 Id. at 831.
220 Id.
215

216

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Condominium. According to Defendants, the Perrier Condominium has fragile terra cotta
waste piping that is beyond its useful life and subject to failure 221 and is serviced by a
single, undersized water supply line made of low quality, galvanized steel, which is beyond
its useful life and has corroded from within. 222 Plaintiffs, however, contend the Perrier
Condominium’s piping has not been fully inspected, 223 exactly how much of the building’s
systems remain made of galvanized steel or terra cotta is unknown, 224 and the PCOA has
not conducted a study to quantify the risk to the building’s infrastructure that would be
caused by additional occupants above what current rules allow. 225
Likewise, according to Defendants, the number of occupants in each Perrier
Condominium unit bears directly on the quality of life in the Perrier Condominium 226
because more occupants would negatively affect the water supply, increase noise levels,227
and increase competition for the use of the Perrier Condominium’s common areas such
as the laundry room, shed, backyard, garbage facilities, 228 and off street parking.229
Plaintiffs dispute these assertions230 by pointing out: the PCOA was unable to identify
how an additional child, who cannot drive, would impact street parking; 231 the PCOA was
unable to quantify how many additional garbage cans it might need to acquire if the total

R. Doc. 204-1, at 9 (citing Ehlinger Rep. 2–3; Jablonowski Dep. 253:6–13; PCOA Dep. 295:5–302:12,
329:8–11; R. Doc. 204-2, at 78–86; R. Doc. 204-2, at 96).
222 Id. (citing PCOA Dep. 252:11–259:7; Ehlinger Rep. 3; Ehlinger Dep. 103:23–25; Jablonowski Dep.
254:3–9).
223 R. Doc. 262-1, at 3; R. Doc. 212-2 ¶ 1 5 (citing Ehlinger Dep. 108:17–15, 41:14–43:16; 109:19–110:21;
1 23:12–21; 97:25–98; 96:10–97:18).
224 R. Doc. 262-1, at 3; R. Doc. 212-2 ¶ 17 (citing PCOA Dep. 292:6–13; 300:15–303:3; Ehlinger Dep. 44:17–
44:25, 41:14–43:16, 41:14–43:16, 41:14–43:16, 109:19–110:21).
225 R. Doc. 262-1, at 3; R. Doc. 212-2 ¶ 18 (citing PCOA Dep. 297:13–20).
226 R. Doc. 204-1, at 10.
227 Id. (citing PCOA Dep. 264:9–275:5; Favalora Dep. 97).
228 Id. (citing PCOA Dep. 264:9–275:5; Favalora Dep. 97).
229 R. Doc. 204-1, at 10 (citing PCOA Dep. 264:9–275:5).
230 R. Doc. 262-1, at 3–4.
231 R. Doc. 212-2 ¶ 32 (citing PCOA Dep. 271:8–271:17).
221

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occupancy of the building increased; 232 two of the four units, including the one in which
the Treeces resided, had their own, in-unit washing machines; 233 and there have been no
issues coordinating back yard usage to date, even when unit owners had parties and
houseguests increasing the number of people in the backyard.234
The disputed issues of fact concerning whether the Perrier Condominium’s
occupancy rules are necessary to protect a valid, nondiscriminatory interest prevent the
Court from granting summary judgment to either party regarding the Defendants’
proffered justifications for the Perrier Condominium’s occupancy rules.
V.

Disputed Issues of Material Fact Preclude Summary Judgment on
Whether Defendants Interests May Be Served by a Non-discriminatory
Alternative.
Even if Defendants had met their burden of showing a housing policy serves a

legitimate interest, disputed issues of fact exist with respect to whether Defendants’
interests “could be served by another practice that has a less discriminatory effect.”235 As
a result, summary judgment is not in order. In United States v. Weiss, the court found the
defendant showed “a compelling business necessity to limit the number of persons who
may occupy” the apartments in a certain apartment complex because the complex lacked
hot water. The court also determined the only alternative solution for the problem was
spending 1.63 million dollars to upgrade the complex’s hot water capacity, which was not
feasible.236 Accordingly, the court found the defendant’s interest in preserving the hot

R. Doc. 212-2 ¶ 36 (citing PCOA Dep. 273:25–274:6).
R. Doc. 212-2 ¶ 37 (citing P. Treece Dep. 350:18–24 Acuff Dep. 113:13–114:9).
234 R. Doc. 212-2 ¶ 39 (citing PCOA Dep. 264:12–266:12).
235 ICP, 1 35 S. Ct. at 2514 (citing 24 C.F.R. § 1 00.500(c)(3)).
236 United States v. Weiss, 847 F. Supp. 819, 831 (D. Nev. 1 994).
232
233

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water supply justified an occupancy limit and the interest could not be served by a feasible
alternative practice.237
Even if the Court had found Defendants’ actions justified by their interests in
protecting the value of the Perrier Condominium and preserving the quality of life there,
disputed issues of material fact prevent the Court from determining whether Defendants’
proposed interests “could be served by another practice that has a less discriminatory
effect.”238 For example, assuming the Perrier Condominium’s fragile plumbing justifies
its occupancy limits, Defendants have asserted the plumbing cannot be feasibly replaced
because it would cost $63,685 to do so. 239 Plaintiffs have called the replacement cost into
dispute.240 Accordingly, there are disputed issues of material fact regarding whether
Defendants alleged interests in protecting the Perrier Condominium may be served by a
feasible, nondiscriminatory alternative policy, and the Court will not grant summary
judgment to either party on this issue.
VI.

Defendants Are Not Entitled to Summary Judgment on Plaintiffs Claim
Under § 3617.

42 U.S.C. § 3617 provides:
It shall be unlawful to coerce, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his having exercised or enjoyed,
or on account of having aided or encouraged any other person in the
exercise or enjoyment of, any right granted or protected by section 3603,
3604, 3605, or 3606 of this title.

Id.
Id.
239 R. Doc. 204-1, at 9 (citing Ehlinger Rep. 1).
240 R. Doc. 262-1, at 3.
237

238

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Defendants argue a § 3617 claim requires an underlying FHA violation.241 Even
assuming Defendants are correct, the Court has not granted summary judgment for
Defendants on Plaintiffs’ disparate impact claim, and accordingly, the Court does not
grant summary judgment to Defendants on Plaintiffs’ § 3617 claim.
VII. A Stay Is Warranted in this Case to Allow the Supreme Court to
Consider Disputes Regarding the Robust Causality Requirement.
A district court has wide discretion to stay a pending matter in order to control its
docket and promote the interests of justice. 242 A court may stay an action pending the
conclusion of an alternative proceeding, “whether the separate proceedings are judicial,
administrative, or arbitral in character.”243 In considering whether to grant a stay, the
Court weighs several “‘competing interests which will be affected by the granting or
refusal to grant a stay.’”244 These competing interests include the following: (1) “the
orderly course of justice measured in terms of the simplifying or complicating of issues,
proof, and questions of law which could be expected to result from a stay”; (2) “the
possible damage which may result from the granting of a stay”; and (3) “the hardship or
inequity which a party may suffer in being required to go forward.” 245 The decision to
grant or deny a stay is a matter of judgment and is reviewed by the Court of Appeals for
abuse of discretion.246

In Hood v. Pope, 627 F. App’x 295, 300 (5th Cir. 2015), the Fifth Circuit held a plaintiff had failed to
state a claim under Section 3604, and therefore, “[a]ny subsequent harassment by any of the defendants
did not v iolate §3617.”
242 In re Ramu Corp., 903 F.2d 312, 318 (5th Cir. 1 990); see, e.g., Landis v. N. Am. Co., 299 U.S. 248, 254
(1 936).
243 Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir.1979).
244 Fishman Jackson PLLC v. Israely, 180 F.Supp.3d 476, 482 (N.D. Tex. 2016) (quoting CMAX, Inc. v.
Hall, 300 F.2d 265, 268 (9th Cir. 1 962)).
245 Id.
246 Exxon Corp. v. St. Paul Fire & Marine Ins. Co., 129 F.3d 781, 784 (5th Cir. 1997).
241

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The Court finds a stay is warranted in this case to allow the Supreme Court to
determine whether it will grant a writ of certiorari in Inclusive Communities,247 and, if so,
whether it will clearly resolve the meaning of the “robust causality” requirement of a
prima facie disparate impact claim under the FHA. Were the Court to rule on this issue
now, the parties in this case may not receive the benefit of a clarifying ruling from the
Supreme Court. Further, the parties in this case will not suffer any hardship as a result of
a stay because Plaintiffs no longer reside at the Perrier Condominium , and Plaintiffs do
not face the risk of eviction. Accordingly, the Court finds it is in the interests of justice to
stay this matter pending the Supreme Court’s potential review of the Fifth Circuit’s
decision in Inclusive Communities.248
CONCLUSION
IT IS ORDERED that Defendants’ motion for partial summary judgment is
DENIED.249
IT IS FURTHER ORDERED that Plaintiffs’ motion for partial summary
judgment is GRANTED IN PART.250 Plaintiffs are entitled to summary judgment that
there is a substantial statistical disparity between the effect of Perrier Condominium’s 250
square foot and 400 square foot occupancy limits on families with children and
households without children.
IT IS FURTHER ORDERED that Plaintiffs’ motion for partial summary
judgment is DEFERRED IN PART. The Court has made no finding regarding whether
the “robust causality” requirement of Plaintiffs’ prima facie case has been met.

920 F.3d 890 (5th Cir. 2019).
Id.
249 R. Doc. 204.
250 R. Doc. 212.
247

248

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IT IS FURTHER ORDERED that Plaintiffs’ motion for partial summary
judgment is DENIED IN PART as there are disputed issues of material fact regarding
the Defendants’ justifications for enforcing an occupancy limit and whether there are
nondiscriminatory alternatives to serve those interests.
IT IS FURTHER ORDERED that Defendants’ motion in limine to exclude the
testimony of Dr. Bradford is GRANTED.251
IT IS FURTHER ORDERED that Plaintiffs’ motion in limine to exclude the
testimony of Dr. Robins is GRANTED.252
IT IS FURTHER ORDERED that this action be ADMINISTRATIVELY
CLOSED and STAYED. The Clerk of Court shall mark this action as “CLOSED” for
statistical purposes. This Court shall retain jurisdiction, and these cases shall be restored
to the trial docket upon motion of a party either upon the U.S. Supreme Court’s denial of
the petition for a writ of certiorari or, if the petition is granted, issuance of an opinion in
Inclusive Communities.253
New Orleans, Louisiana, this 14th day of February, 2020.
____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 207.
R. Doc. 206.
253 Id.
251

252

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