Metropolitan St. Louis Equal Housing & Opportunity Council v. Jezewak et al

Filing 68

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment, [Doc. No. 46] is granted in part and denied in part.IT IS FURTHER ORDERED that the First and Second matched pair claims in the Amended Complaint based on alleged violations of the federal Fair Housing Act, are dismissed, with prejudice.A separate Judgment will be entered upon the resolution of the remaining claim. 46 Signed by District Judge Henry Edward Autrey on 5/5/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
METROPOLITAN ST. LOUIS EQUAL
)
HOUSING &OPPORTUNITY COUNCIL, )
)
Plaintiff,
)
)
v.
)
)
NORMAN L. JEZEWAK, and
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SIGNATURE PROPERTY, L.L.C.
)
)
Defendants,
)

Case No. 4:13CV481 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary
Judgment, [Doc. No. 46]. Plaintiff opposes the motion. For the reasons set forth
below, the Motion is granted in part and denied in part.
Facts and Background
Plaintiff filed this action alleging the following facts:
Plaintiff’s mission is to ensure equal opportunity for all persons in housing
and places of public accommodation through education, counseling, investigation
and enforcement. Plaintiff executes this mission by: a. Conducting training
presentations throughout the region on fair housing, landlord-tenant law, and
mortgage assistance; b. counseling and assisting individual clients with
discrimination complaints, eviction defenses, and mortgage issues; c. working with

local communities, state and municipal governments, and other organizations to
encourage equal opportunity and affirmatively further fair housing; d. investigating
housing providers and other entities covered by the Fair Housing Act and similar
laws to ensure their compliance; and e. taking other actions consistent with its
mission of ending discrimination and places of public accommodation.
Testing is a tool used by fair housing agencies to measure the quality,
quantity, and content of information and customer service given to potential renters
and/or home buyers by housing providers based on protected class. A matched pair
test is an investigation using testers to compare the treatment afforded by housing
providers to different types of prospective renters. Testers are persons who,
without the intent to rent an apartment or buy a house, pose as prospective buyers
or renters of real estate for the purpose of gathering information. In matched pair
tests, two similarly-situated testers – one of whom is a member of a protected class
and the other of whom is not – test the same property. The information gathered by
the tester is then assessed to determine whether there is any indication that a
housing provider may be in violation of fair housing laws.
Plaintiff conducted a matched pair test for familial status discrimination at
5847 Sunshine Drive on June 6-8, 2011. EHOC’s testing coordinator determined
that the results of the June 6-8, 2011 matched pair test indicated that Defendants
may be discriminating on the basis of familial status, as well as race and/or color.
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Based on the results of this test, EHOC’s testing coordinator conducted a
second matched pair test for familial status discrimination on September 20, 2011,
and a separate matched pair test for race discrimination on July 7-12, 2011. The
two tests for familial status discrimination revealed evidence that Defendants
engaged in discriminatory practices including, but not limited to, the following: a.
refusing to make one-bedroom units available for inspection by two-person
households with children while indicating a willingness to make the same units
available for inspection by two-person households without children; b. informing
testers who indicated that they had children that he would not rent to them because
of the underwriting policy of the Defendants’ insurance provider; and c. informing
testers who indicated that they had children that each resident needed to have his or
her own room because of the underwriting policy of the Defendants’ insurance
provider.
The matched pair test for racial discrimination revealed evidence that
Defendants engaged in discriminatory practices including, but not limited to, the
following: a. questioning the African-American tester extensively about his credit
score while not similarly questioning the white tester; b. questioning the AfricanAmerican tester more extensively about his current neighborhood than he did the
white tester; and stating that less-desirable kinds of people tend to live in the
African-American tester’s current neighborhood.
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Plaintiff contends that as a result of the conduct of the Defendants, persons
were injured in their person and property. Specifically, families with children and
persons of minority races and color were not provided equal housing opportunity
in violation of the Fair Housing Act. Further, Plaintiff claims it is now forced to
divert funds to counteract the discriminatory message and acts of Defendants and
has had its purpose frustrated by Defendants’ discriminatory conduct.
Based on these factual allegations, Plaintiff claims Defendant violated the
Fair Housing Act, 42 U.S.C. § 3601, et seq. Defendants now move for summary
judgment.
The uncontroverted material facts establish the following:
EHOC’s mission is to ensure equal access to housing for all people through
education, counseling, investigation, and enforcement. EHOC investigates
housing providers and other entities covered by the Fair Housing Act and similar
laws to ensure their compliance. One of the ways that EHOC investigates entities
covered by the Fair Housing Act is by using testing. Testing is a tool used by fair
housing agencies to measure the quality, quantity, and content of information and
customer service given to potential renters and/or home buyers by housing
providers based on protected class.
A matched pair test is an investigation using testers to compare the treatment
afforded by housing providers to different types of prospective renters. Testers are
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persons who, without the intent to rent an apartment or buy a house, pose as
prospective buyers or renters of real estate for the purpose of gathering
information. In matched pair tests, two similarly-situated testers – one of whom is
a member of a protected class and the other of whom is not – test the same
property. The information gathered by the tester is then assessed to determine
whether there is any indication that a housing provider may be in violation of fair
housing laws.
Between 2008 and 2015, EHOC received more than $1,978,473.00 from the
U.S. Department of Housing and Urban Development’s (“HUD”) Fair Housing
Initiatives Program (“FHIP”). FHIP provides funding to fair housing organizations
and other non-profits that assist individuals who believe that they have been
victims of housing discrimination. FHIP provides funds to eligible organizations
through competitive grants under three initiatives to carry out enforcement
activities to prevent or eliminate discriminatory housing practices and inform
individuals of their rights and responsibilities under the Fair Housing Act. The
Initiatives are: the Fair Housing Organization Initiative, Private Enforcement
Initiative and the Education and Outreach Initiative.
The Private Enforcement Initiative (“PEI”) provides funding to private, nonprofit fair housing enforcement organizations for the investigation and enforcement
of alleged violations of the Fair Housing Act.
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Payments under FHIP are contingent on the satisfactory and timely
completion of project activities as reflected in the grant or cooperative agreement.
Requests for funds from HUD must be accompanied by financial and progress
reports.
Pursuant to its agreement with HUD, EHOC indicated that it would
investigate at least 20 complaints per year using matched pair testing, including
site tests. In addition to complaint-based testing, EHOC would conduct at least 60
additional site rental, sales, lending and accessible design enforcement audits to
ensure that the housing market remained open to people of all protected classes.
EHOC stated that the program tasks to be performed during 2011 included,
among other things, conducting 110 tests per year – which included 60 site tests,
20 matched pair tests, 25 telephone tests, and 10 internet tests. Exhibit 5, Program
Tasks, pg. 2 of #EHOC000476-78.
In 2011, Katina Combs’ was a Fair Housing Specialist with EHOC. EHOC
stated that Ms. Combs’ duties as a Fair Housing Specialist were to ensure that all
enforcement activities were conducted properly. EHOC stated that Ms. Combs’
spends 40 hours per week or 2080 hours per year on the FHIP, Private
Enforcement Initiative enforcement grant. Ms. Combs was in charge of overseeing
the testing done on Defendants at issue in this case.

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EHOC bases its Complaint on the conduction of three matched pair tests of
Defendants during 2011. “EHOC conducted a matched pair test for familial status
discrimination at 5847 Sunshine Drive on June 6-8, 2011.” The test performed on
June 6, 2011 was performed by Shirley Jackson, an African American female who,
in her role as a tester, indicated to Defendants that she was married, and was
looking for a one bedroom apartment for herself and her husband. Shirley Jackson
only spoke with Norman Jezewak on the phone, not in person. Shirley Jackson did
not tell Defendants her race.
The test performed on June 8, 2011 was performed by Tiaa Harris, an
African American female named, who, in her role as a tester, indicated to
Defendants that she was single, and was looking for a one bedroom apartment for
herself and her three year old daughter. Tiaa Harris only spoke with Norman
Jezewak on the phone, not in person. Tiaa Harris did not tell Defendants her race.
On June 12, 2011, EHOC determined that the first matched pair tests
revealed evidence of familial status (“FS”) discrimination.
A second matched pair test of Defendants for evaluating potential racial
discrimination took place on July 7-13, 2011. The racial discrimination test
involved two male testers, one African American, and one white. The African
American tester’s name was Don Cartier. Don Cartier was not paid for testing
Defendants. Don Cartier was involved in testing as part of an internship or
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volunteer commitment to EHOC. The white tester’s name was Justin Atkins.
Justin Atkins was not paid for testing Defendants. Justin Atkins was involved in
testing as part of an internship or volunteer commitment to EHOC.
On EHOC’s rental test summary for the matched pair test for racial
discrimination, the difference between the conversations with Don Cartier and
Defendants and Justin Atkins and Defendants was that Defendants allegedly asked
Don Cartier about his credit history, but did not ask Justin Atkins about his credit
history.
A third matched pair test of Defendants for evaluating potential familial
status discrimination took place on September 20, 2011. The second familial
status discrimination test involved two female testers, one who purportedly was
single and had a 4 year old child, and the second who purported was living with an
adult boyfriend. The tester with the child was named Laura Bradarich. Laura
Bradarich purportedly told Defendants that she had a four year old child, and was
interested in a 1 bedroom apartment, but “would be willing to look at a 2bedroom.” Laura Bradarich was not paid for testing Defendants. Laura Bradarich
was involved in testing as part of an internship or volunteer commitment to EHOC.
The tester without a child was named Brittany Voth. Brittany Voth was not
paid for testing Defendants. Brittany Voth was involved in testing as part of an
internship or volunteer commitment to EHOC.
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During the first quarter of the 2011 FHIP grant year, EHOC conducted 12
tests. During the second quarter of the 2011 FHIP grant year, EHOC conducted 33
tests. During the third quarter of the 2011 FHIP grant year, EHOC conducted 17
tests. During the fourth quarter of the 2011 FHIP grant year, EHOC conducted 21
tests. During the 2011 FHIP grant year, EHOC only conducted 83 tests out of the
110 tests that it stated it would complete during the 2011 FHIP grant year.
Plaintiff’s Amended Complaint alleges that “as a result of the conduct of the
Defendants, persons were injured in their person and property. Specifically,
families with children and persons of minority races and color were not provided
equal housing opportunity in violation of the Fair Housing Act. Further, EHOC is
now forced to divert funds to counteract the discriminatory message and acts of
Defendants and has had its purpose frustrated by Defendants’ discriminatory
conduct.” EHOC has failed to identify the families with children and persons of
minority races and color were not provided equal housing opportunity in violation
of the Fair Housing Act. EHOC has failed to identify any funds that were diverted
to counteract the alleged discriminatory message and acts of Defendants.
However, Plaintiff has devoted over 100 hours of its employee’s time to
investigating Defendant
In its third quarter progress report to the U.S. Department of Housing and
Urban Development for 2011 due October 5, 2011, EHOC did not note any
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problems encountered that impede, or threaten to impede, the performance of
services under the terms of its grant agreement with the U.S. Department of
Housing and Urban Development’s Fair Housing Initiatives Program.
Standard of Review
Summary judgment is proper if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th
Cir.2006) (quoting Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th
Cir.2005)). The proponent of a motion for summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent
need not, however, negate the opponent's claims or defenses. Id. at 324–25.
In response to the proponent's showing, the opponent's burden is to “come forward
with ‘specific facts showing that there is a genuine issue for trial.’ “ Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting

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Fed.R.Civ.P. 56(e)). A “genuine” dispute of material fact is more than “some
metaphysical doubt as to the material facts.” Id. at 586.
“[T]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable ... or is
not significantly probative ... summary judgment may be granted.” Id. at 249–50
(citations omitted).
Discussion
The Fair Housing Act provides that it is unlawful “[t]o discriminate against
any person in the terms, conditions, or privileges of ... rental of a dwelling, or in
the provision of services or facilities in connection therewith, because of race,
color ... or national origin.” 42 U.S.C. § 3604(b). An “aggrieved person” may bring
a civil action “to obtain appropriate relief with respect to such discriminatory
housing practice or breach.” 42 U.S.C. § 3613(a)(1)(A). An “ ‘[a]ggrieved person’
“ includes any person who—(1) claims to have been injured by a discriminatory
housing practice; or (2) believes that such person will be injured by a
discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(I).
Defendants challenge Plaintiff’s standing to bring this action as an “aggrieved
person.”

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In Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982), the Supreme
Court essentially dispensed with prudential limitations on standing in the context
of an action under the Fair Housing Act, and required only “Art. III minima of
injury in fact: that the plaintiff allege that as a result of the defendant's actions he
has suffered a ‘distinct and palpable injury [.]’” Id., quoting Warth v. Seldin, 422
U.S. 490, 501 (1975). The injuries must be “fairly traceable” to Defendant's
actions. Id. at 376.
The Supreme Court also recognized that an organization may have standing
to pursue an action under the Fair Housing Act. “In determining whether [an
organization] has standing under the Fair Housing Act, we conduct the same
inquiry as in the case of an individual: Has the plaintiff “‘alleged such a personal
stake in the outcome of the controversy’ as to warrant his invocation of federalcourt jurisdiction”?” Havens Realty, 455 U.S. at 378–79, quoting Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977). If a
defendant's actions in violation of the Fair Housing Act “perceptibly impaired” the
plaintiff organization's ability to provide counseling and referral services for its
clients, “there can be no question that the organization has suffered injury in fact.”
Id. at 379. “Such concrete and demonstrable injury to the organization's activities
—with the consequent drain on the organization's resources—constitutes far more
than simply a setback to the organization's abstract social interests.” Id. “Of course,
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[the organization] will have to demonstrate at trial that it has indeed suffered
impairment in its role of facilitating open housing before it will be entitled to
judicial relief.” Id., n. 21.
The Eighth Circuit addressed the issue of an organization's standing to sue
under the Fair Housing Act in Arkansas Acorn Fair Housing, Inc. v. Greystone
Development, Ltd. Co., 160 F.3d 433 (1998). “[T]he sole requirement for an
organization ... to have standing to sue in its own right under the FHA is injury in
fact.” Id. at 434, citing Havens Realty, 455 U.S. at 372. A fair housing organization
satisfies the requirement of showing injury in fact if it “‘devote[s] significant
resources to identify and counteract’ a defendant's unlawful practices.” Id., quoting
Havens Realty, 455 U.S. at 379. “At the summary judgment stage, ‘[t]he party
invoking federal jurisdiction bears the burden of establishing’ injury in fact by
alleging specific facts that taken as true demonstrate the plaintiff suffered ‘distinct
and palpable injuries that are ‘fairly traceable” to the defendant's actions.” Id.,
citing Havens Realty, 455 U.S. at 376, quoting Village of Arlington Heights, 429
U.S. at 261.
In Arkansas Acorn Fair Housing, as here, the plaintiff claimed that its
efforts to promote fair housing were impaired because its staff devoted time to the
monitoring and investigation of the defendant's conduct, which the plaintiff alleged
was in violation of the Fair Housing Act. The plaintiff claimed that such time and
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resources should have been devoted to educational activities and other programs
that were “thwarted” by the defendant's conduct. At the summary judgment stage,
however, the plaintiff presented “no facts to quantify the resources, if any, that
were expended to counteract the effects of a single, allegedly discriminatory [act].”
Id. at 434. “While the deflection of an organization's monetary and human
resources from counseling or educational programs to legal efforts aimed at
combating discrimination, such as monitoring and investigation, is itself sufficient
to constitute an actual injury, ... the injury must also be traceable to some act of the
defendant.” Id. at 434–35. “Absent specific facts establishing distinct and palpable
injuries fairly traceable to [defendant's actions, plaintiff] cannot satisfy its burden
at the summary judgment stage to establish the injury in fact requirement for
standing under the FHA.” Id. at 435 (emphasis in original).
Plaintiff has not demonstrated any damages fairly traceable to Defendants’
actions with respect to the first familial status test nor the racial discrimination test.
Plaintiffs initiated the first test; Defendant took no action with regard to any
alleged divergence of funds for investigations of Defendants’ practices. In other
words, Plaintiff initiated the contact with Defendants for the first matched pair test;
there is no evidence that Plaintiff was acting in response to complaints,
advertisements or any other actions by Defendant indicative of familial status
discrimination. The resulting alleged discrimination and any damages arising
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therefrom are not “fairly traceable” to any acts of Defendants. Moreover, there is
no evidence whatsoever Defendants denied any persons housing based on familial
status discrimination. As such, Plaintiff cannot establish it has Article III standing
to pursue this claim. Defendants are entitled to judgment as a matter of law on this
claim.
With respect to the second matched pair test, Plaintiff likewise has produced
no evidence of damages “fairly traceable” to Defendants’ actions. Plaintiff claims
that the initial familial status test revealed evidence of racial discrimination,
however, Plaintiff’s position is without merit. Initially, it is pure speculation that
the testers’ race could be ascertained because both testers telephoned Defendant
Jezewak. Assuming Defendant Jezewak could ascertain the testers’ race from the
telephone conversation is pure speculation. Actual knowledge of the testers’ race
cannot be assumed or surmised based on the telephone conversation. Secondly,
because both testers are African American, this test cannot support further testing
for a racial discrimination claim. Indeed, Plaintiff argues that only one of the
African American women experienced discrimination, not both. The test could
just as easily have established the lack of racial discrimination by Defendants.
Because there was no evidence of discrimination leading to the subsequent
matched pair test, Plaintiff cannot establish any damages that are fairly traceable to

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Defendants’ actions. Defendants are entitled to judgment as a matter of law on the
second matched pair test of July 7-13, 2011.
The third matched pair test, however, can give rise to a claim against
Defendants. While Defendants argue that Katina Combs’ specifically detailed time
does not give rise to evidence of damages because she was, in essence, doing her
job under the grant Plaintiff received, Defendants overlook the salient fact that
Ms. Combs could have been doing something else with her time but for the alleged
discrimination by Defendants. Whether and to what extent Defendants’ actions
rise to the level of discrimination remains to be determined. The issue of standing
as to the third match pair test has been established through the specifically detailed
time records of Ms. Combs and evidence of the amount she is paid. Defendants
are not entitled to judgment as a matter of law with respect to the claim of familial
status discrimination based on the matched pair test conducted on September 20,
2011.
CONCLUSION
Plaintiff lacks standing to bring this action under the Fair Housing Act
with respect to its first and second claims of discrimination, but has sufficiently
established it has standing with regard to the third matched pair testing of
Defendant. The claims presented in the Amended Complaint will be dismissed on
those two claims, with prejudice.
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Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment, [Doc. No. 46] is granted in part and denied in part.
IT IS FURTHER ORDERED that the First and Second matched pair
claims in the Amended Complaint based on alleged violations of the federal Fair
Housing Act, are dismissed, with prejudice.
A separate Judgment will be entered upon the resolution of the remaining
claim.
Dated this 5th day of May, 2016.

______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTICT JUDGE

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