Treece et al v. Harlan

Filing 460

ORDER AND REASONS: IT IS ORDERED that Defendants' 424 motion for summary judgment is GRANTED IN PART, insofar as it seeks summary judgment on Harlan's claims under 42 U.S.C. §§ 3604(a) and (b) for discrimination against his pro spective buyers and Harlan's 42 U.S.C. § 3617 claim for interference with his rights under §§ 3604(a) and (b) to sell his unit to families. In all other respects, Defendants' motion for summary judgment is DENIED. Signed by Judge Susie Morgan on 3/23/2022. (pp)

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” (3)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendants the Perrier
Condominium Association (“PCOA”), Katherine Acuff, Chris Jablonowski, and Hanna
Haile.1 Plaintiffs Dwayne Treece, Phallon Treece, and Clifford Harlan have filed an
opposition.2 Defendants have filed a reply.3 Having considered the briefs, the facts, and
the applicable law, the Court now issues its ruling.
BACKGROUND4
Plaintiffs Dwayne and Phallon Treece allege that in 2017 they sought to rent a unit
in the Perrier Condominium for themselves and their four young children.5 The Treeces
first contacted Defendant Hanna Haile about renting her unit at the Perrier
Condominium.6 They allege she did not rent to them because they have young children.7
In August 2017, Plaintiffs Dwayne and Phallon Treece, along with their four
children, rented a different unit at the Perrier Condominium owned by Plaintiff Clifford
Harlan.8 Defendants Katherine Acuff, Christopher Jablonowski, and Haile individually
R. Doc. 424.
R. Doc. 435.
3 R. Doc. 443.
4 The Background facts come from the First Amended Complaint.
5 R. Doc. 16 at ¶¶ 20-26.
6 Id. at ¶¶ 21-24.
7 Id.
8 R. Doc. 16 at ¶¶ 1, 13; R. Doc. 49 at ¶¶ 1, 13.
1

2

1

own the other three units.9 The four unit owners are the sole members of the Perrier
Condominium

Owner’s

Association

(PCOA),

which

administers

the

Perrier

Condominium regime.10 The Treeces allege that, after they moved into their unit, the
Defendants took various actions to harass and attempt to evict them based on their having
four children living in the unit.11
This case has a long and complex history.12 In its October 29, 2021, Order and
Reasons, the Court clarified which of Plaintiffs’ claims remained pending at that time:
Claim 1. All Plaintiffs’ claims against all Defendants for intentional disparate
treatment discrimination under 42 U.S.C. § 3604(a) and implementing
regulations, 24 C.F.R. § 100.500, for “adopting occupancy limitations
that have the intent . . . of making unavailable or denying housing to
families with children.”
Claim 2. Harlan’s claims against all Defendants under 42 U.S.C. § 3604(a) and
(b) for “discriminat[ing] against Harlan by refusing to allow him to sell
his Unit by discriminating against prospective buyers of Harlan’s Unit.”
Claim 3. All Plaintiffs’ claims against all Defendants under 42 U.S.C. § 3617 and
implementing regulations, 24. C.F.R. § 100.400, for “unlawfully
coerc[ing], intimidat[ing], threaten[ing], or interfere[ing] with Harlan,
Dwayne, and Phallon in the exercise of, or an [sic] account of their
having exercised or enjoyed, their rights granted or protected by the Fair
Housing Act, 42 U.S.C. § 3604 on the basis of familial status.”
Claim 4. Dwayne and Phallon Treece’s claims against Haile under 42 U.S.C.
§ 3604(a) for intentionally “discriminat[ing] against Dwayne and
Phallon Treece by refusing to rent her Unit to them or by otherwise
making unavailable or denying that Unit because of their familial
status.”
Claim 5. Dwayne and Phallon Treece’s claims against Haile under 42 U.S.C.
§ 3604(d) for “discriminat[ing] against Dwayne and Phallon Treece by
representing to them that Haile’s Unit was not available for rental when
such dwelling was in fact so available because of their familial status.”13
R. Doc. 16 at ¶¶ 14–17; R. Doc. 49 at ¶¶ 14–17.
R. Doc. 16 at ¶¶ 14–17; R. Doc. 49 at ¶¶ 14–17.
11 R. Doc. 16 at ¶¶ 34-57.
12 The Court previously granted summary judgment on Plaintiffs’ 42 U.S.C. § 3604(c) claims, R. Doc. 174,
and Plaintiffs’ disparate impact claims under 42 U.S.C. § 3604(a), R. Doc. 377.
13 R. Doc. 420 (quoting R. Doc. 16 at ¶¶ 74-75, 77, 78-79).
9

10

2

The time for dispositive motions on Claims 4 and 5 passed without motions being
filed.14 Defendants now move for summary judgment on Claims 1-3 listed above.15
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.”16 “An issue is material if its resolution could affect the outcome of the action.”17
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.”18 All reasonable inferences are drawn in favor of the nonmoving party.19
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.20
“[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.”21 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)
submitting affirmative evidence that negates an essential element of the nonmovant’s

See R. Doc. 400.
R. Doc. 424; see R. Doc. 421 (giving time for dispositive motions on Claims 1-3).
16 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
17 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
18 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).
19 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
20 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
21 Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014) (quoting Celotex, 477 U.S.
at 323).
14
15

3

claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim.22
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.23 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.”24 The burden
then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon
by the nonmovant.25 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).”26 “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 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE § 2727.1 (2016) (“Although the Court issued a five-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)).
23 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).
24 Celotex, 477 U.S. at 332–33.
25 Id.
26 Id. at 332–33 & n.3.
22

4

moving party has met its ultimate burden of persuading the court that there is no genuine
issue of material fact for trial.”27
“[U]nsubstantiated assertions are not competent summary judgment evidence.”28
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.’”29
FACTS
I.

Undisputed Facts
The Perrier Condominium contains four units.30 Plaintiff Harlan and Defendants

Acuff, Jablonowski, and Haile each own one of the units.31 The four unit owners are the
sole members of the Perrier Condominium Owners Association (PCOA), which governs
the Perrier Condominium regime.32 The Perrier Condominium is subject to a facially
neutral use and occupancy rule included in the Condominium Declaration, which requires
250 square feet per occupant of each unit.33 According to the Condominium Declaration,
the occupancy limit is “to provide for congenial occupation of the Buildings and for the
protection of the values of each Unit.”34

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).
29 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. 1992)).
30 R. Doc. 424-1, at ¶ 1; R. Doc. 451, at ¶ 1.
31 R. Doc. 424-1, at ¶ 2; R. Doc. 451, at ¶ 2.
32 Id.
33 R. Doc. 424-1, at ¶ 4; R. Doc. 451, at ¶ 4.
34 R. Doc. 424-1, at ¶ 7; R. Doc. 451, at ¶ 7.
27

28

5

The Perrier Condominium contains galvanized pipe.35 This pipe is subject to
corrosion which constricts flow, thereby reducing water pressure.36 The water pressure at
the Perrier Condominium is low.37 A four-unit building like the Perrier Condominium
should be serviced by pipes at least seven-eighths of an inch in diameter.38 The Perrier
Condominium’s walls contain no soundproofing.39 Walls without soundproofing act like
a drum and amplify any noise from any unit.40 Dawn Laufenburg heard voices and
running back and forth in the unit occupied by the Treeces during the day and sometimes
during the night.41
On August 16, 2017, Harlan informed Acuff, Jablonowski, and Haile by email that
he had rented his unit to the Treeces.42 Acuff, whose unit abuts Harlan’s unit, responded
by email asking, “When will they be moving in,” and later, “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.”43 Haile responded, “this
renter, Dwayne, had actually contact [sic] 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.”44 Acuff responded by stating
“this could be a serious issue. Reasonable limitations on occupancy are 2 people per

R. Doc. 424-1, at ¶ 40; R. Doc. 451, at ¶ 40.
Id.
37 R. Doc. 424-1, at ¶ 45; R. Doc. 451, at ¶ 45.
38 R. Doc. 424-1, at ¶ 36; R. Doc. 451, at ¶ 36.
39 R. Doc. 424-1, at ¶ 42; R. Doc. 451, at ¶ 42.
40 Id.
41 R. Doc. 424-1, at ¶ 44; R. Doc. 451, at ¶ 44.
42 R. Doc. 424-1, at ¶ 10; R. Doc. 451, at ¶ 10.
43 Id.
44 Id.
35

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6

bedroom. I don’t even know that the systems in this building can handle that many people
in one unit.”45 Jablonowski then asked, “How long is their lease for?”46
The next day, Harlan responded to Acuff, Haile, and Jablonowski stating, “Chris,
The lease is 9 months, but like I said it’s still for sale. Katie, To the best of my knowledge
there aren’t 3 children, when I asked he said two and only put down 2 on the lease. So I
don’t think it’s over occupancy.”47 Acuff emailed the unit owners and stated she had
conducted a social media search confirming the Treeces had three children, maybe four.48
Harlan responded to Acuff stating, “You’re correct. He told me two kids and listed none
of them on the lease but he does have four. I told him if I had known then I would have
said that was too many for the size of the condo.”49 That morning, Acuff texted Haile and
Jablonowski photos of the Treeces’ social media and said “there might be 4.”50 Haile
responded that Harlan needed to get this “sorted out” and that he should be able to break
the lease.”51 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.52 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.53
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.54 Five days later, on
August 21, 2017, Acuff emailed the other three owners to say she would like to have a
R. Doc. 424-1, at ¶ 10; R. Doc. 451, at ¶ 10.
Id.
47 R. Doc. 424-1, at ¶ 11; R. Doc. 451, at ¶ 11.
48 Id.
49 R. Doc. 424-1, at ¶ 12; R. Doc. 451, at ¶ 12.
50 R. Doc. 424-1, at ¶ 14; R. Doc. 451, at ¶ 14.
51 Id.
52 R. Doc. 424-1, at ¶ 15; R. Doc. 451, at ¶ 15.
53 Id..
54 R. Doc. 424-1, at ¶ 16; R. Doc. 451, at ¶ 16.
45

46

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condominium association meeting “to discuss possible amendments to our bylaws in light
of recent events. In that same vein, I think we need to have our bylaws reviewed and
updated by an attorney.”55
On August 22, 2017, Harlan delivered to Dwayne and Phallon Treece a “Five (5)
Day Notice to Vacate Premises,” which 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.”56
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” and to consult an attorney about the proposal.57 A final vote to adopt the
proposal depended on the advice of an attorney, and the intent of each member was to
have an attorney provide advice about the change.58 The PCOA and its members have not
voted to rescind the 400 square foot occupancy standard.59 The amendment was never
recorded on the public record and has thus never gone into effect.60
Despite the notice to vacate, Harlan never evicted the Treeces.61 On September 18,
2017, Haile emailed the other PCOA members, “I believe we need to move on with an

R. Doc. 424-1, at ¶ 17; R. Doc. 451, at ¶ 17.
R. Doc. 424-1, at ¶ 20; R. Doc. 454, at ¶ 20; R. Doc. 332 at 8.
57 R. Doc. 424-1, at ¶ 21; R. Doc. 451, at ¶ 21.
58 R. Doc. 424-1, at ¶ 22; R. Doc. 451, at ¶ 22.
59 R. Doc. 451, at ¶ 23; R. Doc. 545 at ¶ 23. Defendants do not deny they have not voted to rescind their
previous vote.
60 R. Doc. 424-1, at ¶ 24; R. Doc. 451, at ¶ 24.
61 R. Doc. 424-1, at ¶ 25; R. Doc. 451, at ¶ 25.
55

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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.”62 On September 19, 2021, Acuff emailed Harlan
stating, “This Thursday marks 5 weeks that this has been going on. What course of action
have you agreed upon with your attorney? If you are not willing to go through with an
eviction, I think we (as an HOA) should do it ourselves.”63 The PCOA members held a
special meeting on September 29, 2017.64 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 attorney to represent the Association; and (5) install a camera
in the Perrier Condominium’s common stairwell.65
II.

Disputed Facts
Defendants assert these additional facts are undisputed: that the Perrier

Condominium building is over a hundred years old and has a mixture of galvanized steel
and terra cotta piping, which is beyond its useful life and subject to failure;66 the size of
the sole water supply pipe at the Perrier Condominium is only three-quarters of an inch
in diameter;67 the water supply line provided one-quarter to one-half of the proper flow
for the number of units and expected occupants;68 the building’s galvanized piping is

R. Doc. 424-1, at ¶ 27; R. Doc. 451, at ¶ 27.
R. Doc. 424-1, at ¶ 28; R. Doc. 451, at ¶ 28
64 R. Doc. 424-1, at ¶ 30; R. Doc. 451, at ¶ 30.
65 Id.
66 R. Doc. 424-1 at ¶¶ 33-35 (citing Ehlinger Deposition; Favalora Deposition; Harlan Deposition); R. Doc.
454 at ¶¶ 33-35.
67 R. Doc. 424-1 at ¶ 37 (citing McIntyre Deposition; Favalora Deposition); R. Doc. 454 at ¶ 37.
68 R. Doc. 424-1 at ¶ 39 (citing McIntyre Deposition); R. Doc. 454 at ¶ 39.
62
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corroded and clogged;69 the occupancy rule ensures the owners do not overburden the
water and sewerage system;70 and it will cost approximately $63,685.00 to correct the
Perrier Condominium’s existing terra cotta piping and $15,000 to $20,000 to replace the
galvanized piping.71
Plaintiffs argue these factual assertions are in dispute. They offer evidence the
piping has not been fully inspected, so exactly how much of the building’s piping and
water line are made of galvanized steel or terra cotta is unknown.72 Moreover, they assert
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.73 Plaintiffs
also dispute the amount it will cost to repair the plumbing in Perrier Condominium.74
Defendants also assert it is an undisputed fact the occupancy rule is based on
quality of life concerns, such as street parking, backyard space, garbage can management,
laundry use, water pressure, and noise.75 They assert it is undisputed that the number of
occupants increases demand for these limited resources.76
Plaintiffs argue these facts are in dispute by pointing to evidence that (1) the PCOA
was unable to identify how an additional child, who cannot drive, would impact street
parking; (2) a rule restricting the number of cars, rather than the number of occupants, is
a possible alternative to reducing congestion; (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; (4) two of the four units, including the one in which the Treeces
R. Doc. 424-1 at ¶ 41 (citing Jablonowski 1/17/2020 Deposition); R. Doc. 454 at ¶ 41.
R. Doc. 424-1 at ¶ 47 (citing PCOA Deposition); R. Doc. 454 at ¶ 47.
71 R. Doc. 424-1 at ¶ 35 (citing Ehlinger Deposition; PCOA Deposition).
72 R. Doc. 424-1 at ¶ 47 (citing PCOA Deposition).
73 R. Doc. 451, at ¶¶ 33-35, 39, 41, 47 (citing PCOA Deposition; Ehlinger Deposition; McIntyre Deposition).
74 R. Doc. 451 at ¶¶ 35, 46 (citing Ehlinger Deposition; PCOA Deposition).
75 R. Doc. 424-1 at ¶ 9 (citing PCOA Deposition); R. Doc. 454 at ¶ 9.
76 Id.
69
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resided, had their own, in-unit washing machines; (5) a rule restricting usage, rather than
occupancy, would ameliorate wear and tear concerns with the laundry facilities; (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; (7) the Treeces’
additional one-year-old child did not cause measurable wear and tear in the six days
before the PCOA adopted its resolution to amend the occupancy limit; and (8) there are
structural modifications to Harlan’s unit that could be made to ameliorate noise
concerns.77
Finally, Plaintiffs assert it is undisputed that the Defendants locked the Treeces out
of a common storage unit, which contained their children’s bicycles;78 the Treeces were
unable to store their stroller in the shed and were not allowed to store it in the laundry
room;79 as decided at the September 29, 2017, PCOA meeting, Acuff installed a camera in
the common stairwell to monitor the Treeces;80 and Acuff also installed an acoustic
monitoring device and began to record the Treeces from her unit.81 Plaintiffs assert it is
an undisputed fact that, for the entirety of their tenancy, the Treeces feared Harlan would
capitulate to the PCOA’s pressure and evict them,82 and as a result they moved out in May
2018 before their lease was up in June 2018.83
Defendants respond that these facts are in dispute by pointing to evidence that,
once the lock was changed on the shed, the new code was given to Harlan, and no one told

R. Doc. 451 at ¶¶ 9, 25 (citing PCOA Deposition; Phallon Treece Deposition; Acuff Deposition; Haile
Deposition; Jablonowski Deposition; PCOA Meeting Minutes).
78 R. Doc. 451 at ¶ 13 (citing Exhibit 14, PCOA Email; Exhibit 15, Dwayne Treece Email).
79 Id. (citing Exhibit 15, Dwayne Treece Email).
80 Id. (citing Exhibit 12, PCOA Meeting Minutes; R. Doc. 117-3, Acuff Declaration; R. Doc. 117-3, Acuff
Interrogatory Responses; R. Doc. 117-3, Haile Interrogatory Responses).
81 Id. (citing R. Doc. 117-3, Acuff Interrogatory Responses).
82 Id. at ¶ 18 (citing R. Doc. 128-2, Dwayne Treece Declaration).
83 R. Doc. 435 at 8 (citing R. Doc. 128-2, Dwayne Treece Declaration; Exhibit 20, PCOA Email).
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him he could not give it to the Treeces;84 the Treeces did not ask for the new code and
were in fact given the code close to the time they moved out;85 the camera was installed
for security purposes seven months after the Treeces moved in;86 and Acuff began
recording noise from the Treece’s unit at Harlan’s request.87 Defendants dispute the
Treeces were afraid Harlan would capitulate to the PCOA’s pressure during the entire
term of their lease because Phallon Treece testified she feared eviction only until the end
of November 2017.88 The Defendants also state the Treeces moved out early so that
Dwayne Treece could study for the bar, not because they feared eviction.89
LAW AND ANALYSIS
The Fair Housing Act (FHA),90 “prohibits discrimination in the rental or sale of a
dwelling based on certain protected characteristics.”91 The statute “reflects ‘the policy of
the United States to provide within constitutional limitations, for fair housing
throughout the United States.’”92 “The FHA, as originally enacted in 1968, prohibited
discrimination based on race, color, religion, or national origin.”93 “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.”94

R. Doc. 454 at ¶ 13 (citing PCOA Email; Harlan Deposition, Haile Deposition).
Id. (citing Dwayne Treece Deposition, Phallon Treece Deposition).
86 Id. (citing Acuff Deposition).
87 Id. (citing Acuff Deposition; Haile Deposition, PCOA Email).
88 Id. at ¶ 18 (citing Phallon Treece Deposition).
89 R. Doc. 447-1 at 10-11 (citing Dwayne Treece Deposition; Phallon Treece Deposition).
90 42 U.S.C. §§ 3601–3631.
91 Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
92 Id. at 900–01 (citing 42 U.S.C. § 3604).
93 City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1 (1995).
94 Id. (citing 42 U.S.C. § 3602(k)).
84
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Claim 1.

Defendants Are Not Entitled to Summary Judgment on
Plaintiffs’ 42 U.S.C § 3604(a) Claim for Discrimination Against
the Treeces and Harlan in Adopting the 250 and 400 Square
Feet Occupancy Limits.

In Claim 1, the Treeces, joined by Harlan, claim they are entitled to relief under the
FHA based on Defendants’ disparate treatment of them by adopting the 250 and 400
square feet occupancy limits. 42 U.S.C. § 3604(a) 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.
Disparate treatment is intentional discrimination.95 “With discriminatory treatment
claims, there can be no liability without a finding that the protected trait (e.g., race)
motivated the challenged action.”96 A plaintiff may prove disparate treatment by direct
evidence or circumstantial evidence.97 Whether a plaintiff presents direct or
circumstantial evidence of discrimination determines the framework in which the court
must analyze the claim.98
Direct evidence is “is evidence which, if believed, would prove the existence of a
fact (i.e., unlawful discrimination) without any inferences or presumptions.”99 For
example, in Texas v. Crest Asset Management, Inc., the court found “comments by [the
defendants] that they did not want Arabs in the complex and that management had been
instructed to make his life miserable because he is an Arab . . . constitute direct evidence
of discriminatory animus.”100

Inclusive Cmtys., 920 F.3d at 909.
Id. at 910 (first citing Greater New Orleans Fair Hous. Action Ctr., Inc. v. Hotard, 275 F.Supp.3d 776,
786 (E.D. La. 2017); and then citing Woods–Drake v. Lundy, 667 F.2d 1198, 1202 (5th Cir. 1982)).
97 Id. at 909-10; see also Texas v. Crest Asset Mgmt., Inc., 85 F. Supp. 2d 722, 728 (S.D. Tex. 2000).
98 Crest Asset Mgmt., 85 F. Supp. 2d at 728-30.
99 Bodenheimer v. PPG Indus, Inc., 5 F.3d 955, 958 (5th Cir. 1993).
100 Crest Asset Mgmt., 85 F. Supp. 2d at 731.
95

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Plaintiffs first argue the wording of the occupancy limit itself constitutes direct
evidence of intentional discrimination,101 even though the parties agree the occupancy
limit is neutral on its face.102 Plaintiffs argue the stated purpose of the occupancy limit, to
“provide . . . for the protection of the values of each Unit,” is coded language used to hide
intentional discrimination.103 Plaintiffs point to Greater New Orleans Fair Housing
Action Center v. St. Bernard Parish, which found that references to “ghetto,” “blight,”
and “shared values” in comments preceding the parish’s enactment of a moratorium on
multi-family housing were “racially-loaded” and “nothing more than ‘camouflaged racial
expressions.’”104 However, viewed in context, the analysis in Greater New Orleans Fair
Housing Action Center was part of the court’s examination of “circumstantial evidence
factors” to determine the intent behind a facially neutral regulation.105 There was no
finding that the use of these words was direct evidence.
To determine whether there is direct or circumstantial evidence in this case, the
relevant question is whether the language of the occupancy limit would prove the
existence of a fact (i.e., unlawful intentional discrimination) without any inferences or
presumptions.106 The Plaintiffs point to the “coded” language of protecting the values of
each unit, but coded language is by definition coded or hidden. Any intent to discriminate
from such language would have to be implied. Even analogizing to the analysis in Greater
New Orleans Fair Housing Action Center, the reference to “values” in the familial context
does not carry with it the same connotation it does in the racial context. Furthermore, it
R. Doc. 435 at 16.
R. Doc. 174 at 5.
103 R. Doc. 435 at 16.
104 Greater New Orleans Fair Hous. Action Ctr. v. St. Bernard Parish, 641 F. Supp. 2d 563, 571-72 (E.D.
La. 2009) (quoting Smith v. Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982)).
105 See Greater New Orleans Fair Hous. Action Ctr., 641 F. Supp. 2d at 568-69 (citing Overton v. City of
Austin, 871 F.2d 529, 540 (5th Cir. 1989)).
106 Bodenheimer, 5 F.3d at 958.
101

102

14

appears likely the reference to protecting values in this case refers to property values
rather than racial or familial attitudes.
Plaintiffs next argue the Defendants’ communications leading up to the adoption
of the occupancy limit are direct evidence of discrimination.107 Specifically, they cite
Acuff’s statement after Harlan informed Defendants he had rented to the Treeces, “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.”108 Asking how many children someone has and stating those children are making
excessive noise does not provide direct evidence that Acuff intentionally discriminated
against families in the Perrier Condominium.109 Instead, any intent to discriminate must
be implied. Plaintiffs also point to Haile’s response to Acuff as being direct evidence.
Haile’s response was, “This renter, Dwayne, had actually contact [sic] 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.”110 Stating her condo is not the “best fit” for a family does not provide direct
evidence Haile intentionally discriminated against families in the Perrier Condominium,
especially since a different condo, Harlan’s, is involved in Claim 1. Similarly, the other
actions Plaintiffs point to—confirming the number of the Treece’s children through social
media; complaining about the placement of the Treeces’ stroller and the noise from their
unit; and suggesting Harlan break the Treeces’ lease because they exceed the occupancy

R. Doc. 435 at 16-17.
Id. at 17.
109 See Crest Asset Mgmt., 667 F. Supp. 2d at 731 (“[C]omments by [the defendants] that they did not want
Arabs in the complex and that management had been instructed to make his life miserable because he is an
Arab . . . constitute direct evidence of discriminatory animus.”).
110 Id.
107

108

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limit—do not facially show familial discrimination. Because a finding of discrimination by
the adoption of the occupancy limit’s wording, or through the Defendant’s emails and
actions after the Treeces moved in, would have to be done by inference, there is no direct
evidence of discrimination.111
In the absence of direct evidence, claims of disparate treatment based on
circumstantial evidence are evaluated using the burden-shifting evidentiary standard
established for discrimination cases in McDonnell Douglas v. Green.112 Under this
framework, the plaintiff must first establish a prima facie case of disparate treatment.113
If the plaintiff does so, the burden then shifts to the defendant to articulate a “legitimate,
non-discriminatory reason for the” action.114 Then, the burden shifts back to the plaintiff
to rebut the reason offered by the defendant by showing it was a “pretext for
discrimination.”115
Section 3604(a) makes it 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” a protected characteristic.116
Because the Defendants did not refuse to rent to the Treeces or refuse to negotiate with
them about renting, the Plaintiffs’ only basis for liability under § 3604(a) is that

Although Plaintiffs argue there is direct evidence of discrimination, they do not go through the applicable
mixed-motive analysis laid out in Price Waterhouse v. Hopkins that governs cases of direct evidence. See
Crest Asset Mgmt., 667 F. Supp. 2d at 729-30 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 246
(1989)); R. Doc. 435 at 15-27. Instead, they mention this supposedly direct evidence to show the reasons
given for the occupancy limit were pretextual, which is an element of the McDonnel Douglas analysis
applicable in cases of circumstantial evidence. R. Doc. 435 at 16.
112 Crain v. City of Selma, 952 F.3d 634, 641 (5th Cir. 2020) (citing McDonnell Douglas v. Green, 411 U.S.
792 (1973)); Inclusive Cmtys., 920 F.3d at 910. The parties in fact analyze the case using the McDonnell
Douglas analysis. R. Doc. 424-1 at 25-26 (analyzing Plaintiffs’ “prima facie” case); see R. Doc. 435 at 16
(referring to the occupancy rule as a “pretext” for discrimination).
113 Crain, 952 F.3d at 640-41.
114 Id. (quoting Inclusive Cmtys., 920 F.3d at 911).
115 Id. (quoting Inclusive Cmtys., 920 F.3d at 911).
116 42 U.S.C. § 3604(a).
111

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Defendants “otherwise made [housing] unavailable” to the Treeces.117 Defendants first
argue that, because availability under § 3604(a) refers only to acts that prevent the
acquisition of housing, and because the acts Plaintiffs complain of occurred after
Plaintiffs acquired housing, § 3604(a) is inapplicable.118
Defendants cite to Cox v City of Dallas for the proposition that the protections
under § 3604(a) do not extend to post-acquisition conduct. However, their reading of Cox
is incorrect. Indeed, as other circuit courts have noted, “nothing in section 3604 limits its
scope to discriminatory conduct occurring before or at the time of signing a lease.”119
Rather, in Cox the Fifth Circuit clarified that when proceeding under § 3604(a)’s
“otherwise make unavailable” language, there is a distinction between availability and
mere habitability, the latter of which § 3604(a) generally does not protect. “[T]he simple
language of § 3604(a),” the court reasoned, “does not apply to current homeowners whose
complaint is that the value or ‘habitability’ of their houses has decreased because such a
complaint is not about ‘availability.’”120 While many of the examples of claims regarding
availability the Fifth Circuit cited occurred before the plaintiff acquired housing, the court
noted availability under § 3604(a) does apply to some post-acquisition conduct. For
instance, § 3604(a) protects against barring access to “owners of one race but not
another.”121 Because access was denied to an owner, the action obviously occurred after
the acquisition of the property. The Fifth Circuit in Cox cited Evans v. Tubbe as an
example.122 In Evans, the Fifth Circuit held there were sufficient allegations of racial

See id.
R. Doc. 424-1 at 22-25.
119 Webb v. U.S. Veterans Initiative, 993 F.3d 970, 973 (D.C. Cir. 2021) (analyzing a claim for availability
under § 3604(a) and collecting cases from other circuits holding the same).
120 Cox v. City of Dallas, 430 F.3d 734, 741 (5th Cir. 2005).
121 Id. at 741-742 (citing Evans v. Tubbe, 657 F.2d 661, 663 n. 3 (5th Cir. 1981)) (emphasis added).
122 Id. at 741-42 & n.18 (citing Evans, 657 F.2d at 663 n. 3).
117

118

17

discrimination under § 3604(a) when, after a Black buyer purchased land, a neighbor,
whose land contained the only access road to the buyer’s land, placed a locked gate over
the access road and only provided the key to White residents.123 Similarly, in Petty v.
Portofino Council of Coowners, Inc., the court held there were sufficient allegations of
familial status discrimination under § 3604(a) when, after the plaintiff purchased a
condo, the defendant condo association “prohibit[ed] Plaintiffs' children from the
condominium's common areas, disable[ed] Plaintiffs' phone, disable[ed] the electric gate
used by Plaintiffs' children to enter the complex, and direct[ed] the condominium
manager to not let the children inside the complex.”124
The Fifth Circuit in Cox also noted § 3604(a) may extend to eviction and
constructive eviction.125 Constructive eviction occurs when “the ‘habitability’ has so
decreased that continued residency is not objectively reasonable.”126 For example, in
Clifton Terrace Associates., Ltd. v. United Technologies Corp. the D.C. Circuit noted “the
denial of certain essential services relating to a dwelling, such as mortgage financing,
sewer hookups, zoning approval, or basic utilities, might result in the denial of housing”
under § 3604(a).127 Similarly, in Bloch v. Frischolz, the Seventh Circuit held that
Ҥ 3604(a) may reach post-acquisition discriminatory conduct that makes a dwelling
unavailable to the owner or tenant, somewhat like a constructive eviction.”128
Courts have extended this rationale to threats of eviction that, for various reasons,
are not carried through. In Whyte v. Alston Management, Inc., the court held that a
Evans, 657 F.2d at 663 & n.3.
Petty v. Portofino Council of Coowners, Inc., 702 F. Supp. 2d 721, 729-30 & n.4 (S.D. Tex. 2010).
125 Cox, 430 F.3d at 742 (first citing then citing Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d
180, 192 (4th Cir. 1999); and then citing Clifton Terrace Assocs., Ltd. v. United Techs. Corp., 929 F.2d 714,
719-20 (D.C. Cir. 1991)).
126 Id. at 742 n.21.
127 Clifton Terrace Assocs., 929 F.2d at 719-20.
128 Bloch v. Frischolz, 587 F.3d 771, 776 (7th Cir. 2009) (en banc).
123

124

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landlord’s demands that various tenants “must move because of their children” were
actionable under § 3604(a) as “threat[s] of eviction” that made housing unavailable.129
Similarly, in Carlson v. Sunshine Villas HOA, Inc., an analogous case under 42 U.S.C.
§ 3604(f)(1), which contains identical “otherwise make unavailable” language to
§ 3604(a), the court held the defendant landlord’s attempts to evict a disabled tenant
halfway through her monthly lease due to her request for a service dog “attempted to
make housing unavailable.”130 The landlord served the tenant with multiple notices to
vacate, harassed her, and attempted to evict her, but, ultimately, the day before she was
to vacate, the landlord allowed the tenant to remain.131 The court held the threat of eviction
sufficed, and “the fact that [the tenant] was allowed to stay in the apartment [was] not
dispositive of her claim.”132 Thus, Plaintiffs’ claims that the Defendants attempted to evict
the Treeces using the occupancy limits and subsequent harassment fall within the
protections of § 3604(a).
Defendants next argue, even if § 3604(a) applies, Plaintiffs cannot make out a
prima facie case. “The burden of establishing a prima facie case of disparate treatment is
not onerous.”133 In order to establish a prima facie case, a plaintiff “must prove by a
preponderance of the evidence that she applied for a [benefit] for which she was qualified,
but was rejected under circumstances which give rise to an inference of unlawful

Whyte v. Alston Management, Inc., No. 10–81041–CIV, 2011 WL 12450320, at *3 (S.D. Fla. Nov. 1,
2011).
130 Carlson v. Sunshine Villas HOA, Inc., No: 2:18–cv–1–FtM–99MRM, 2018 WL 2317820, at *3-4 (M.D.
Fla. May 22, 2018). Defendants argue this case concerned refusal to renew a lease. However, the landlord
informed the tenant he was “terminating the lease” and wanted her to vacate by November 1, when her lease
would have ended on November 15. Id. at *2.
131 Id. at *2, 4.
132 Id. at *4 (citing Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1223 (11th Cir. 2016).
133 L & F Homes & Dev., L.L.C. v. City of Gulfport, 538 F. App’x 395, 402 (5th Cir. 2013) (quoting Tex. Dep't
of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)).
129

19

discrimination.”134 Establishing a prima facie case “creates a presumption” of unlawful
discrimination, such that “if the [defendant] is silent in the face of the presumption, the
court must enter judgment for the plaintiff because no issue of fact remains in the case.”135
The elements of a prima facie case vary depending on the facts and claims of the
case.136 The general elements are 1) the plaintiff is a member of a protected class under
the Fair Housing Act (e.g., race, gender, family); 2) the plaintiff was eligible for favorable
treatment (e.g., the plaintiff was qualified to rent); 3) the defendant acted adversely
toward the plaintiff (e.g., denying a rental application or making housing unavailable);
and 4) favorable treatment remained open to non-members of the protected group (e.g.,
the housing opportunity remained available to similarly situated applicants).137 Applying
those elements to the facts and claims of this case, Plaintiffs must make a prima facie case
that 1) the Treeces were members of a protected class; 2) the Treeces were qualified to
rent Harlan’s unit; 3) Defendants made housing unavailable through threats or acts to
evict the Treeces; and 4) housing at the Perrier Condominium and its amenities remained
open to other similarly situated individuals. In this case, Plaintiffs have pointed to
sufficient facts that a reasonable jury could find they have presented a prima facie case of
familial status discrimination.
The first element is that the Treeces are members of a protected class. It is
undisputed that the Treeces are members of the protected familial class.

Burdine, 450 U.S. at 253.
Id. at 254.
136 McDonnell Douglas, 411 U.S. at 802 n.13; Ring v. First Interstate Mortg., Inc., 984 F.2d 924, 927 (8th
Cir. 1993); Gamble v. City of Escondido, 104 F.3d 300, 305 (9th Cir. 1997) (“adapt[ing] the elements “to
this situation”).
137 See R.I. Comm’n for Hum. Rts. v. Graul, 120 F. Supp. 3d 110, 123 (D.R.I. 2015); Inclusive Cmtys., 920
F.3d at 910.
134
135

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The second element is that the Treeces were qualified to rent Harlan’s unit. To be
“qualified,” the Fifth Circuit has stated a proposed tenant must “meet the terms of the
[landlord].”138 This generally refers to the price and “listing terms.”139 Elsewhere, the Fifth
Circuit has explained qualification includes compliance with “stated condition[s]” of
housing.140 It is undisputed Harlan found the Treeces qualified and rented to them. The
only disqualifying factors Defendants point to are the occupancy limits and the City’s
ordinance against overcrowding. Plaintiffs directly challenge the legality of the occupancy
limits, and the challenged activity cannot defeat Plaintiffs’ prima facie case. Moreover, the
City’s ordinance does not seem to be the sort of “listing term[]” or “stated condition”
contemplated by the issue of housing qualification.141 In any event, beyond summarily
stating in one sentence that the City’s overcrowding ordinance disqualified the Treeces
from renting Harlan’s unit, Defendants do not quote the City’s ordinance, provide a
citation, or explain how the ordinance was violated.142 “[A] party seeking summary
judgment always bears the initial responsibility of informing the district court of the basis
for its motion,” and as to the City’s ordinance, Defendants have failed to do so.143 The
Treeces have made a prima facie case as to the second element.
The third element is that Defendants made housing unavailable through threats or
acts to evict the Treeces. Plaintiffs have pointed to facts showing the Defendants

138 Petrello v. Prucka, 484 F. App’x 939, 942 (5th Cir. 2013) (quoting McDonald v. Coldwell Banker, 543
F.3d 498, 504 (9th Cir. 2008)).
139 See id.; see also McDonald, 543 F.3d at 504.
140 Miles v. Hous. Auth. of Texarkana, 667 F. App’x 450, 452 (5th Cir. 2016).
141 See Petrello, 484 F. App’x at 942; Miles, 667 F. App’x at 452.
142 R. Doc. 424-1 at 26.
143 Celtic Marine Corp, 760 F.3d at 481; see Morton v. Social Sec. Admin., No. 15-4435, 2016 WL 5724810,
at *4 (E.D. La. Sept. 15, 2016) (first citing Perez v. Barnhart, 415 F.3d 457, 462 n. 4 (5th Cir. 2005); and
then citing Foster v. Townsley, 243 F.3d 210, 212 n. 1 (5th Cir. 2001)) (holding arguments without support
were waived due to inadequate briefing), report and recommendation adopted, No. 15-4435, 2016 WL
5678548 (E.D. La. Oct. 3, 2016).

21

attempted to evict the Treeces through adoption and enforcement of the occupancy limit
and subsequent harassment. When Harlan did not evict the Treeces, Defendants resolved
to do so themselves, and they enacted a stricter occupancy limit. Afterward, Acuff
installed a camera outside their apartment and recorded any sounds from the Treeces’
unit. The Treeces were locked out of the storage shed, which contained their children’s
bikes, and were denied the ability to store their stroller there or in common areas of the
Perrier Condominium. The Treeces have stated they feared they would be evicted
throughout the duration of their lease and ultimately moved out early. The Treeces have
made a prima facie case as to the third element.
The fourth element is that housing at the Perrier Condominium and its amenities
remained open to other similarly situated individuals. Plaintiffs have stated they were
treated differently. Defendants voted to evict only the Treeces.144 Plaintiffs state Acuff
installed a camera only outside their apartment and recorded any sounds only from the
Treeces’ unit. The Treeces also state they were the only residents of the Perrier
Condominium locked out of the storage shed. The Treeces have made a prima facie case
as to the fourth element.
At this stage, drawing all reasonable inferences in the nonmoving party’s favor,145
the Court is satisfied a reasonable jury could find Plaintiffs have made a prima facie case
of disparate treatment.

144 Facts in the record may show Haile violated the 250 and 400 square feet occupancy limits in 2018. Haile’s

unit contains approximately 859 square feet, although the exact measurements are disputed. R. Doc. 4242 at ¶¶ 3, 5; R. Doc. 451 at ¶¶ 3, 5; R. Doc. 454 at ¶ 5. In their opposition, Plaintiffs cite to Haile’s response
to interrogatories that she allowed a smaller family consisting of her brother, his fiancé, and their two
children to stay at her condo in February 2018. R. Doc. 435 at 8 (citing R. Doc. 117-3 at 84-85 (Haile Second
Amended Response to Interrogatory 10)). Four people in Haile’s unit seemingly would exceed either
occupancy limit.
145 Little, 37 F.3d at 1075.

22

As part of the next step in the McDonnell Douglas burden-shifting analysis,
Defendants state their legitimate nondiscriminatory reason for attempting to evict the
Treeces was concerns over the impact of more residents on the Perrier Condominium’s
aging infrastructure and quality of life.146 Defendants have met their burden, and the
burden next shifts to the Plaintiff to prove Defendants’ non-discriminatory reason was
pretextual. Defendants argue the Plaintiffs cannot show that Defendants intended to
discriminate and cannot show that Defendants’ non-discriminatory reasons for the
occupancy limit are pretextual.147
Plaintiffs have presented sufficient evidence to show there is a genuine issue of
material fact as to Defendants’ intent. Many of the Defendants’ words and actions are not
in dispute; however, some of their actions—and especially the intentions behind them—
are disputed.148 Beginning the day the Treeces moved in, the Defendants focused on the
size of the Treeces’ family. In particular, Haile stated she “decided [her] condo was not
the best fit as they have 3 small children.”149 Defendants quickly began to plan a way to
evict the Treeces. When Harlan did not evict the Treeces, Defendants resolved to do so
themselves, and they enacted a stricter occupancy limit. The Court has already held this
stricter occupancy limit has a substantial discriminatory effect on families with
children,150 and although “[d]isproportionate impact of facially neutral legislation is not
the ‘sole touchstone’ of racially discriminatory purpose,” it “‘is not irrelevant’ and ‘may
provide an important starting point.’”151 Plaintiffs allege Acuff installed a camera outside

R. Doc. 454 at ¶¶ 8-9.
R. Doc. 447-1 at 13-15.
148 See supra text accompanying notes 78-89.
149 R. Doc. 424-1, at ¶ 10; R. Doc. 451, at ¶ 10.
150 R. Doc. 332 at 16-30.
151 Inclusive Cmtys., 920 F.3d at 910 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265 (1977)).
146
147

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their apartment, Acuff recorded any sounds from the Treeces’ unit, the Defendants locked
the Treeces out of the storage shed, and the Defedants denied the Treeces the ability to
store their stroller in the shed or in the common areas of the Perrier Condominium. As
explained above, many of these acts and their underlying motives have legitimately been
placed in dispute. It will be up to the jury to decide these questions of fact and to decide
whether Plaintiffs have shown intent to discriminate.
Generally, “[i]ssues of credibility, including questions of intent, should be left to
the jury.”152 Moreover, “[o]nce a plaintiff has presented prima facie evidence of housing
discrimination, either through direct or circumstantial evidence, ‘summary judgment for
the defendant will ordinarily not be appropriate on any ground relating to the merits
because the crux of a [discrimination claim] is the elusive factual question of intentional
discrimination.’”153 Accordingly, the Defendants are not entitled to summary judgment
on Claim 1, Plaintiffs’ § 3604(a) claim for discrimination against the Treeces and Harlan
for adoption of the occupancy limits.
Claim 2. Defendants Are Entitled to Summary Judgment on Harlan’s 42
U.S.C. § 3604(a) and (b) Claims for Barriers to Selling His Unit.
In Claim 2, Harlan sues Defendants under §§ 3604(a) and (b) for disparate
treatment discrimination against his prospective buyers by enacting and enforcing an
occupancy restriction that prevents him from selling his condo.154 Section 3604(a), quoted
above, “allow[s] current homeowners to sue . . . [when] specific sales and purchases [a]re

152 Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (citing Lowe v. City of Monrovia, 775 F.2d 998,
1008 (9th Cir. 1985)).
153 Crest Asset Mgmt., 85 F. Supp. 2d at 729 (alteration in original) (internal quotations omitted) (quoting
Harris, 183 F.3d at 1051).
154 See R. Doc. 16 at ¶ 79; R. Doc. 435 at 27-28.

24

being blocked” due to the prospective buyer’s inclusion in a protected class.155 Moreover,
42 U.S.C. § 3604(b) makes it unlawful “[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color, religion, sex, familial status, or
national origin.”156 As with claims under § 3604(a), a plaintiff bringing a claim under
§ 3604(b) can provide direct or circumstantial evidence of discrimination, and, if the
plaintiff provides the latter, the same McDonnell Douglas burden-shifting analysis
explained above applies.157 Because, as explained above, there is no direct evidence of
discrimination, Harlan must utilize the burden-shifting framework for circumstantial
evidence.
Defendants argue Harlan cannot make a prima facie case of discrimination under
§§ 3604(a) or (b) because he has provided no evidence of a prospective buyer who was a
member of the protected familial class.158 To establish a prima facie case under the facts
of this case, Harlan must show 1) a member of a protected class attempted to buy Harlan’s
unit; 2) this prospective buyer was qualified to purchase Harlan’s unit; 3) the prospective
buyer was prohibited from purchasing Harlan’s unit due to the occupancy limits enacted
and enforced by Defendants; and 4) Harlan’s unit remained available to other similarly
situated individuals.159
Harlan has not met his burden of making a prima facie case. The only evidence
Harlan has provided of prospective buyers is, when asked at his deposition, “Has anyone

Cox, 430 F.3d at 743 (citing Hanson v. Veterans Administration, 800 F.2d 1381 (5th Cir. 1986); see also
Petty, 702 F. Supp. 2d at 729.
156 42 U.S.C. § 3604(b).
157 Crain, 952 F.3d at 640-41.
158 R. Doc. 424-1 at 26-29.
159 See Graul, 120 F. Supp. 3d at 123; Inclusive Cmtys., 920 F.3d at 910.
155

25

refused to buy because there’s a [sic] litigation going on,” Harlan responded, “Yes. To the
best of my knowledge, they have refused to buy due to the liens and the litigation.”160
Harlan’s response does not show that any members of a protected class, families, have
attempted to purchase his unit but have been prevented from doing so due to the
occupancy limit. In fact, the only reason given is not the occupancy limit, but the liens and
this litigation. Even if members of a protected class did attempt to buy his unit, Harlan
has not shown they were otherwise qualified to do so. In addition, Harlan’s response “[t]o
the best of [his] knowledge” is unsubstantiated and is thus insufficient on summary
judgment.161 Accordingly, Harlan has not made a prima facie case that families were
prevented from buying his unit, and Defendants are entitled to summary judgment as a
matter of law on Claim 2, Harlan’s § 3604(a) and (b) claims for preventing him from
selling his unit.
Claim 3. Defendants Are Entitled to Partial Summary Judgment on All
Plaintiffs’ 42 U.S.C. § 3617 Claim for Coercing, Intimidating,
Threating, and Interfering with Plaintiffs.
In Claim 3, Plaintiffs sue Defendants 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.
As this Court has held in previous Orders, under Hood v. Pope,162 claims under § 3617
require an underlying violation of §§ 3603, 3604, 3605, or 3606.163

R. Doc. 435 at 27-28 (quoting Harlan Deposition, R. Doc. 435-38 at 2).
See Smith v. Sw. Bell. Tel. Co., 456 F. App’x 489, 492 (5th Cir. 2012).
162 Hood v. Pope, 627 F. App’x 295, 300 (5th Cir. 2015).
163 R. Doc. 337 at 31-34; Treece v. Perrier Condo. Ass’n, Inc., 519 F. Supp. 3d 342, 364-65 (E.D. La 2021);
R. Doc. 174 at 15-17; Treece v. Perrier Condo. Ass’n, Inc., No. 17-10153, 2019 WL 6464984, at *7-8 (E.D.
La. Dec. 2, 2019).
160
161

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Defendants move for summary judgment on Plaintiffs’ § 3617 claims because, they
argue, Plaintiffs have no underlying claims under § 3604.164 However, as explained above,
for Claim 1 the material facts are in dispute as to whether Plaintiffs have a claim under §
3604(a) for discrimination against the Treeces and Harlan in adopting the occupancy
limit. For Claim 2, the Court has concluded the undisputed material facts show Harlan
does not have a claim under §§ 3604(a) and (b) for discrimination against his prospective
buyers. Accordingly, Defendants are entitled to partial judgment as a matter of law on
Claim 3, Plaintiffs’ § 3617 claims, to the extent they are based on Harlan’s §§ 3604(a) and
(b) claims for discrimination against his prospective buyers in Claim 2. The Plaintiffs have
raised issues of fact that preclude summary judgment on their remaining § 3617 claims.165
CONCLUSION
IT IS ORDERED that Defendants’ motion for summary judgment166 is
GRANTED IN PART, insofar as it seeks summary judgment on Harlan’s claims under
42 U.S.C. §§ 3604(a) and (b) for discrimination against his prospective buyers167 and
Harlan’s 42 U.S.C. § 3617 claim for interference with his rights under §§ 3604(a) and (b)
to sell his unit to families. In all other respects, Defendants’ motion for summary
judgment is DENIED.
In summary, the claims set for trial on April 18, 2022 are:
Claim 1. All Plaintiffs’ claims against all Defendants for intentional disparate
treatment discrimination under 42 U.S.C. § 3604(a) and implementing
regulations, 24 C.F.R. § 100.500, for “adopting occupancy limitations

R. Doc. 424-1 at 29-31.
R. Doc. 174 at 17-21 (finding Plaintiffs have raised issues of fact on their § 3617 claims). Plaintiffs spend
part of their opposition discussing retaliation claims under § 3617. The Court has already determined
Plaintiffs did not bring a retaliation claim. R. Doc. 377 at 33.
166 R. Doc. 424.
167 R. Doc. 16 at ¶ 79.
164
165

27

that have the intent . . . of making unavailable or denying housing to
families with children.”168
Claim 2. [Summary judgment granted by this Order.]
Claim 3. All Plaintiffs’ claims against all Defendants under 42 U.S.C. § 3617 and
implementing regulations, 24. C.F.R. § 100.400, for “unlawfully
coerc[ing], intimidat[ing], threaten[ing], or interfere[ing] with Harlan,
Dwayne, and Phallon in the exercise of, or an [sic] account of their
having exercised or enjoyed, their rights granted or protected by the Fair
Housing Act, 42 U.S.C. § 3604 on the basis of familial status.”169
Claim 4. Dwayne and Phallon Treece’s claims against Haile under 42 U.S.C.
§ 3604(a) for intentionally “discriminat[ing] against Dwayne and
Phallon Treece by refusing to rent her Unit to them or by otherwise
making unavailable or denying that Unit because of their familial
status.”170
Claim 5. Dwayne and Phallon Treece’s claims against Haile under 42 U.S.C.
§ 3604(d) for “discriminat[ing] against Dwayne and Phallon Treece by
representing to them that Haile’s Unit was not available for rental when
such dwelling was in fact so available because of their familial status.”171
New Orleans, Louisiana, this 23rd day of March, 2022.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Id. at ¶ 77.
Id. at ¶ 78. This claim does not include Harlan’s claim under § 3617 for interference with his rights under
§§ 3604(a) and (b) to sell his unit to families. Summary judgment was granted on Harlan’s §§ 3604(a) and
(b) claims for discrimination against his prospective buyers.
170 Id. at ¶ 74.
171 Id. at ¶ 75.
168
169

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