Neiufi et al v. Snow Garden Apartments et al

Filing 77

MEMORANDUM DECISION AND ORDER denying 40 Motion for Summary Judgment; denying 45 Motion for Partial Summary Judgment. Parties shall contact the court within 10 days of this Order to set a final scheduling conference. Signed by Judge Robert J. Shelby on 12/30/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

AMONI NEUIFI; SIOSAIA NAETA; TRÉ
JAMES; LEE COSBY; MONDARIOUS
BENSON,

MEMORANDUM
DECISION & ORDER

Plaintiff,
v.

Case No. 2:12-CV-00774

SNOW GARDEN APARTMENTS;
ANTHONY WILLIAM DAVIS,

Judge Robert J. Shelby

Defendant.

This case arises out of allegations of discriminatory housing practices in a small college
town. While attending Snow College in Ephraim, Utah, Plaintiffs inquired about the possibility
of housing at Snow Garden Apartments. Although the parties describe the events that followed
in different ways, Plaintiffs never obtained housing at the apartment complex. Believing that its
employees and manager discriminated against them based on race, Plaintiffs sued Snow Garden
Apartments and its owner, Anthony William Davis, alleging violations of federal housing laws.
Plaintiffs and Defendants filed cross-motions for summary judgment on liability. After
careful consideration and for the reasons stated below, the court denies both motions.

BACKGROUND
I.

THE SNOW GARDEN APARTMENTS
Snow Garden 1 operates an apartment complex in Ephraim, Utah. The complex contains

six-bed shared apartments. Although the exact number varies from year to year, Snow Garden
rents space to up to 294 students attending Snow College in the fall and spring semesters. Snow
Garden rents to both groups and individuals. Availability varies widely throughout any given
school year. There may be times when individual housing is available at Snow Garden, even
though group housing is unavailable because open beds are located in different apartments. In
the summer, Snow Garden may use some of its apartments for short-term events, such as family
reunions, sport camps, or youth events. 2
A.

Polynesian Plaintiffs
Plaintiffs Amoni Neuifi and Siosaia Naeta are Polynesian. In April 2010, Mr. Neuifi

visited the Snow Garden Apartments (the Apartments) to ask whether there was any space
available for himself, and if possible, either three or five of his friends for Fall Semester 2010. 3
Mr. Neuifi testified that he was told the apartment complex was full, but that he could complete
an online application, pay a fee, and wait for Snow Garden to contact him if a space became
available. 4 Mr. Neuifi did not go online to review or complete the application. 5 He could not
state whether the online application required payment of the fee prior to submission of the

1

The court will refer to Snow Garden Apartments and Anthony William Davis collectively as “Snow Garden.”

2

Dkt. No. 51-1.

3

Compare Dkt. No. 52-2, at 8, 11, with Dkt. No. 46-8, at 1.

4

Id. at 9.

5

Id. at 9.

2

application. 6 When he visited again later that year, he learned that Snow Garden had vacancies,
which caused him to believe that Snow Garden lied to him. 7
In April 2011, Mr. Neuifi returned to the Apartments to inquire about housing with his
cousin, Mr. Naeta. 8 Mr. Neuifi and Mr. Naeta expressed an interest in renting housing at the
Apartments. 9 During his deposition, Mr. Neuifi testified that he sought an entire six-bed
apartment for the summer and 2011-2012 Academic Year. 10 But in affidavits prepared shortly
after the encounter with Snow Garden, Mr. Neuifi and Mr. Naeta testified that they sought
housing for three individuals for Fall Semester 2011. 11 Mr. Neuifi testified that Snow Garden’s
employee instructed them to complete an online application, pay the fee, and that Snow Garden
would then “let you know.” 12 Mr. Naeta testified this employee provided a packet, instructed the
students to complete an online application, and wait for an opening. 13 Both Mr. Neuifi and Mr.
Naeta testified that Snow Garden indicated its apartments were full. 14 Neither Mr. Neuifi nor
Mr. Naeta went online to review or complete the online application. 15

6

Later that year, Mr. Neiufi’s friend, who lived at Snow Garden, informed him that there was space available for
rent. Dkt. No. 46-1, at 21; Dkt. No. 44-8, at 1. Mr. Neuifi did not apply because he had already found a place to
live and had been told that Snow Garden was full. Dkt. No. 46-1, at 22; Dkt. No. 44-8, at 1.
7

Dkt. No. 46-8, at 1.

8

Dkt. No. 46-1, at 28.

9

Id. at 28-29.

10

Dkt. No. 46-1, at 28-29.

11

Dkt. No. 47-8, at 1, 3.

12

Id. at 33-34.

13

Dkt. No. 40-2, at 20.

14

Dkt. No. 46-1, at 33-34; Dkt. No. 40-2, at 20.

15

Id.

3

Suspecting that Snow Garden was discriminating against Polynesian students, Mr. Neuifi
and Mr. Naeta asked one of their friends to visit the Apartments to inquire about housing. 16
Three friends—John Snyder, Reese Knutson, and Aaron Zimmerman—who describe themselves
as “Caucasian or white” visited Snow Garden approximately fifteen minutes after Mr. Neuifi and
Mr. Naeta left the apartment complex. 17 Mr. Snyder asked the manager whether there was an
apartment available during the fall semester for the three of them and possibly two other
individuals. 18 The manager purportedly responded that Snow Garden could place the three
friends in the same apartment but that she may need to place the other two in a nearby complex.
The following Monday, the manager contacted Mr. Snyder to inform him that she could place all
five applicants in the same apartment. According to the Caucasian students, the manager did not
require a deposit or completion of an online application. 19
B.

African American Plaintiffs
In spring 2012, Tre James, Lee Crosby, Mondarious Benson, and Brian Cobbs visited the

Apartments to inquire about the possibility of housing during the 2012-13 Academic Year. Each
of the students self-identifies as African American. 20 They spoke with a Snow Garden manager,
who said she was 99-percent certain that the apartment complex was full. 21 The manager
instructed the students to go online to complete an application. Mr. James did not inquire about
Snow Garden’s specific application process. Mr. James and Mr. Crosby took an application
packet. Mr. Crosby testified the group was told to submit their deposit with the application.

16

Dkt. No. 46-8.

17

Dkt. No. 46-9, at 1.

18

Id.

19

Id.

20

Dkt. No. 40-3, at 8; Dkt. No. 40-4, at 4.

21

Dkt. No. 40-3, at 10; Dkt. No. 44-4, at 8.

4

The students never went online to view the online application. Mr. James, Mr. Cosby, and Mr.
Benson did not fill out the online application because the application packet indicated that a $250
security deposit was required as part of the application and because the Snow Garden manager
was almost certain that the Apartment was full. 22
In April 2012, Mr. James returned to the Apartments with Damond Powell. 23 Mr. James
and Mr. Powell approached a Snow Garden employee and asked about the possibility of applying
for housing at the Apartments. 24 According to Mr. James, the employee responded that she was
99-percent certain that the apartment complex was full but that she informed the students that
they could complete an application. 25 Although he accepted an application from the complex,
Mr. James testified that his application was never formally submitted to Snow Garden because it
required a security deposit and the employee was 99-percent certain that the apartment complex
was full. 26 Mr. James testified that he was devastated and hurt because he felt that his group of
friends had been judged because of “the color of our skin, our race.” 27
C.

Disputed Factual Issues
The parties dispute Snow Garden’s application process. Ashley Jensen, the manager of

Snow Garden, submitted a declaration denying that a fee or deposit was required prior to the
submission of an initial application. 28 She testified that spring semester is difficult because she
attempts to give current tenants the option of remaining in their apartments but many tenants

22

Dkt. No. 40-3, at 11.

23

Id. at 14.

24

Id. at 15.

25

Id. at 15.

26

Id. at 16.

27

Dkt. No. 41-3, at 16.

28

Dkt. No. 51-1, at 1.

5

delay making a decision. 29 She also testified Snow Garden rents to groups and individuals, and
she believes that she truthfully informs applicants about housing availability, including when
individual housing may be available but a group arrangement is not possible. 30 Ms. Jensen
testified she follows the same application process with all potential tenants, 31 and that she never
commits to a rental until she receives an application, deposit, and signed lease agreement. 32
Plaintiffs, however, describe personal experiences that differ starkly from Ms. Jensen’s
description of the application process. 33 According to Plaintiffs, incomplete internal documents
obtained during discovery reveal that housing remained available at the Apartments, at least for
some of the time periods about which Plaintiff inquired. 34 Plaintiffs also submit Snow Garden
documents that suggest a $250 deposit, some of which may have been nonrefundable, was due at
the time of the application. 35 Snow Garden’s internal documents and deposition testimony
suggest that every applicant is required to submit a personal photograph as part of the application
process. 36 Finally, although the exact number of students seeking housing may have differed,
Plaintiffs maintain that Snow Garden offered a group of Caucasian students housing shortly after
the Polynesian Plaintiffs visited Snow Garden in 2011, without first requiring the Caucasian
students to complete the online application or make a deposit.

29

Id. at 3.

30

Id. at 3.

31

Dkt. No. 58-4, at 9-18.

32

Dkt. No. 51-1, at 4.

33

See supra Background, Parts A, B.

34

Dkt. No. 44-5, at 27-29.

35

See, e.g., Dkt. No. 44-5, at 21-30.

36

See, e.g., id. at 6, 9, 22.

6

The parties dispute the availability of summer student housing. Snow Garden contends it
does not rent to students during the summer months and this has been its policy for the past five
years. 37 For this reason, Snow Garden maintains it did not provide inaccurate information when
Mr. Neuifi inquired about renting an apartment for the summer and 2010-2011 Academic Year.
In contrast, citing Snow Garden’s website, Plaintiffs argue that Snow Garden made apartments
available to students during the summer months. 38
The parties dispute whether Ms. Jensen made discriminatory statements to a former Snow
Garden employee, Janessa Christensen. Plaintiffs submit a transcript of a surreptitious recording,
in which Ms. Christensen purportedly informs a competitor that Ms. Jensen would not rent to
Polynesian or African American students. Ms. Christensen apparently also divulged that Ms.
Jensen believed that Polynesian students would not pay their rent. 39 Ms. Jensen testified that she
never made the statements relating to African American or Polynesian students, and that it has
never been Snow Garden’s policy to consider race in the context of rental applications. 40 Ms.
Jensen also testified that she has never knowingly given false information about housing
availability. 41
The parties also dispute the availability of housing during the time periods about which
Plaintiffs inquired. According to Ms. Jensen, housing availability changes from year to year, but
empty spots remained minimal. Ms. Jensen testified that all of the housing opportunities were
filled during the 2010-2011 and 2011-2012 Academic Years, and that there were only six empty

37

Dkt. No. 51-1, at 1. Ms. Jensen testified the information on the website was out of date and inaccurate.

38

Dkt No. 44-7, at 2 (containing a screenshot from September 27, 2013). An undated housing application lists
summer as a rental option. See Dkt. No. 46-5, at 21.
39

Dkt. No. 44-6, at 8-9.

40

Dkt. No. 51-1, at 1.

41

Id. at 2-3.

7

spots during the 2012-2013 Academic Year. 42 In contrast, Plaintiffs point to internal Snow
Garden documents obtained in discovery, the experience of the Caucasian applicants, and the
statements of a resident, all of which suggests that housing may have been available at the time
when the African American or Polynesian Plaintiffs approached Snow Garden to rent housing.
ANALYSIS
II.

Applicable Standard
Summary judgment is appropriate only when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” 43 “A material fact is one
that might affect the outcome of the suit under the governing law, and a genuine issue is one for
which the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” 44 When evaluating a motion for summary judgment, the court must “view the evidence
and make all reasonable inferences in the light most favorable to the nonmoving party.” 45
“When the moving party does not have the ultimate burden of persuasion at trial, it has
both the initial burden of production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter of law.” 46 This initial burden may
be satisfied “either by producing affirmative evidence negating an essential element of the
nonmoving party's claim, or by showing that the nonmoving party does not have enough
evidence to carry its burden of persuasion at trial.” 47

42

Id. at 3.

43

Fed. R. Civ. P. 56(a).

44

Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (internal quotation marks and citation omitted).

45

N. Natural Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir. 2008).

46

Pelt, 539 F.3d at 1280 (internal quotation marks and citation omitted).

47

Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).

8

III.

Standing
Snow Garden asserts that summary judgment should be entered in its favor because

Plaintiffs did not submit formal applications for housing at the Apartments. Snow Garden
believes this alone deprives Plaintiffs of standing to assert claims under the Fair Housing Act.
In the Tenth Circuit, standing for Fair Housing Act claims extends to the “full limits” of
Article III. 48 Accordingly, to satisfy standing requirements, a plaintiff must show “(1) actual or
threatened injury; (2) a causal connection to the conduct complained of; and (3) redressability of
the injury by the requested relief.” 49
The Tenth Circuit specifically addressed standing under the Fair Housing Act in Wilson v.
Glenwood Intermountain Properties, Inc. 50 In that case, two individuals—Mark Wilson and
Anne Walker—brought suit against a group of landlords for owning, operating, and advertising
gender-segregated housing for Brigham Young University students. 51 Mr. Wilson was denied
housing in an apartment reserved for women, while Ms. Walker was denied housing in an
apartment reserved for men. Neither Mr. Wilson nor Ms. Walker was married or enrolled as a
student at BYU. 52 The district court entered summary judgment in favor of the landlords,
concluding Mr. Wilson and Ms. Walker “failed to establish a prima facie case . . . because, as
non-students, they were not otherwise qualified for apartments reserved for students.” 53

48

Bangerter v. Orem City Corp., 46 F.3d 1491, 1497 (10th Cir. 1995); Wilson v. Glenwood Intermountain
Properties, Inc., 98 F.3d 590, 593 (10th Cir. 1996) (describing elements at length).

49

Bangerter, 46 F.3d at 1497.

50

98 F.3d 590 (10th Cir. 1996).

51

Id. at 592.

52

Id.

53

Id.

9

On appeal, the Tenth Circuit vacated the judgment and remanded with instructions to
dismiss for lack of standing because Mr. Wilson and Ms. Walker “have not shown the required
causal relationship or the likelihood that a favorable decision would redress the injury.” 54 The
Tenth Circuit recognized that a person “claiming discrimination in the denial of a benefit need
not show they would have obtained the benefit in the absence of the discrimination to establish
standing; it is enough to show the discrimination deprived them of the ability to compete for the
benefit on an equal footing.” 55 At the same time, the court concluded that a person’s failure to
satisfy “lawful, nondiscriminatory requirements or qualification for the benefit” may deprive that
individual of standing, because (a) causation could not be proved where the discrimination itself
did not cause the deprivation of the benefit, and (b) redressability was absent where the person
would still be disqualified from competing even after receiving a favorable decision. 56
Applying these principles to the facts there presented, the court held Mr. Wilson and Ms.
Walker lacked standing because they would not have been eligible for student housing. Noting
that the Fair Housing Act “does not make it unlawful for landlords to give preference to colleges
students over non-students,” 57 the court concluded that non-students seeking relief from gendersegregated housing lacked standing “because even in the absence of the challenged gender
discrimination they would not have qualified to rent the student apartments.” 58

54

Id. at 593, 597.

55

Id. at 593.

56

Id. at 593.

57

Id. at 593.

58

Id.; see also Day v. Bond, 500 F.3d 1127 (10th Cir. 2007) (discussing holding of Wilson).

10

In this case, Defendants argue Plaintiffs lack standing because they failed to submit an
application required for all potential renters. 59 The court, however, concludes that Defendants
are not entitled to summary judgment on this basis for four reasons.
First, two of the claims in this case are not dependent on the submission of any formal
application. 60 Defendants only cursorily and unpersuasively address this issue. 61 But the various
sections of the Fair Housing Act are directed at different types of injury. 62 As discussed below,
Plaintiffs provide evidence of cognizable and redressable injuries arising out of Snow Garden’s
application process and misrepresentations about the availability of housing. Accordingly, a
mere absence of a formal application is not dispositive of standing on these claims.
Second, the decision relied on by Defendants is distinguishable. In Wilson, the applicants
could not establish causation or redressability because the applicants were not students and never
would have qualified for the housing sought. As a result, the alleged discrimination could not
deprive the applicants “of the ability to compete for the benefit on an equal footing.” 63 In
contrast, Plaintiffs’ theory in this case is that Defendants discriminated against Polynesian and
African American students by using inaccurate information to discourage students from
submitting a formal application in the first instance. Unlike in Wilson, Defendants here do not
dispute that Plaintiffs were qualified to submit a formal application and obtain housing. Instead,
Plaintiffs allege they could have obtained housing but for Snow Garden’s discriminatory

59

Dkt. No. 40, at 7.

60

42 U.S.C. § 3604(b), (d).

61

Defendants briefly argue that the application issue is intertwined with each of the claims. The issue was not
adequately briefed. But even if it were, this approach appears to have been foreclosed by the Tenth Circuit. See
Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 595 (10th Cir. 1996) (distinguishing between
claims arising under different sections of the Fair Housing Act).
62

Infra Part VI.

63

Wilson, 98 F.3d at 593.

11

conduct, which erected barriers to participating in the application process. In this respect,
Plaintiffs suffered an injury fairly traceable to Snow Garden’s discriminatory conduct that would
likely be redressed by a favorable decision. As a result, Plaintiffs have standing under Article III.
Third, even if Wilson should be extended to the facts of this case, the court finds that
genuine issues of material fact preclude summary judgment. In this case, Plaintiffs believed that
their inquiries constituted the first step in Snow Garden’s application process. And although Ms.
Jensen testified that she provided accurate information to all applicants, followed the exact same
application procedure, and did not commit to a rental until after receiving an application, deposit,
and a signed lease, the experience of Mr. Snyder and his friends suggests otherwise. Because of
these inconsistencies, a reasonable juror could conclude that it was Snow Garden’s
discriminatory application process—rather than the online application itself—that caused an
injury that could be redressed only through a suit under the Fair Housing Act.
For all of these reasons, the court concludes that Plaintiffs present sufficient evidence to
demonstrate standing under Article III.
IV.

Direct Discrimination
Citing an Eleventh Circuit decision, Plaintiffs maintain that summary judgment should be

granted in their favor, arguing that a recorded conversation between a former employee of Snow
Garden and a competitor provides direct evidence of discriminatory housing practices.
The court disagrees. Even assuming that the transcript of the recorded conversation is
competent evidence, Snow Garden’s manager submitted an affidavit denying the statements. 64

64

Plaintiffs argue that Ms. Jensen’s affidavit is a sham. Dkt. No. 59, at 2 (citing Ralston v. Smith & Nephew
Richards, Inc., 275 F.3d 965, 973 (10th Cir. 2001)). After careful review of the exhibits and affidavit, the court
declines to apply the “sham-affidavit” rule. Ms. Jensen does not appear to have been cross-examined, and her
deposition left open several questions, which the affidavit does not clearly contradict. For example, Ms. Jensen’s
deposition did not address the possibility that Snow Garden reserved space for current tenants. And in fact, the

12

At this stage of the proceeding, this court is instructed to look at the record in its entirety when
determining whether an issue of fact precludes summary judgment. 65 Here, Ms. Jensen’s
statements, as well as the question of whether Snow Garden had adopted a policy of refusing to
rent to African American or Polynesian students, present material and disputed factual issues that
fall squarely within the province of a jury. This is a subject suitable for cross-examination, not
summary judgment. For this reason, the court cannot grant summary judgment based upon the
purported direct evidence proffered by Plaintiffs. 66
To the extent Plaintiffs’ direct evidence theory invites the court to draw an inference from
the experiences of minority applicants, 67 the court concludes that its analysis should be guided
by the traditional McDonnell Douglas burden-shifting framework, as outlined below.
V.

MCDONNELL DOUGLAS FRAMEWORK
Courts in the Tenth Circuit apply the three-part test developed in McDonnell Douglas

Corp. v. Green 68 to claims arising under the Fair Housing Act and § 1982. 69 Under this burdenshifting framework, the plaintiff initially must present sufficient evidence of a prima facie case of

deposition exhibit was neither used by Ms. Jensen nor contained all of Snow Garden’s data, some of which appears
to have been lost. Similarly, it is not clearly contradictory for Ms. Jensen to struggle to remember interactions with
every prospective tenant, while at the same time testify that she would not knowingly provide false information
about availability or the application process. In sum, while there may be tension between the documents and
affidavit, an overly technical reading of Ms. Jensen’s deposition is not an appropriate mechanism for resolving the
affidavit’s veracity or her credibility. The proper place to resolve such ambiguity is before a jury. Cf. Franks v.
Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).
65

Plaintiffs also argue that Ms. Jensen’s affidavit was impermissibly attached to Snow Garden’s reply memorandum
and should be disregarded. Dkt. No. 55, at 2-3. The court rejects this argument in light of the fact that Snow Garden
should be permitted to respond to arguments raised in opposition to its motion. Furthermore, this court has an
obligation to evaluate the record in its entirety—here, an identical affidavit was submitted with Snow Garden’s
opposition to Plaintiffs’ Motion for Partial Summary Judgment. See Dkt. Nos. 56, 58-5.
66

Fed. R. Civ. P. 56(a).

67

See, e.g., Dkt. No. 45, at 16-17; see also Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917,
919 (10th Cir. 2012).
68

411 U.S. 792 (1973).

69

Reynolds v. Quarter Circle Ranch, Inc., 280 F. Supp. 2d 1235, 1241 (D. Colo. 2003) (citing Asbury v. Brougham,
866 F.2d 1276, 1279 (10th Cir. 1989)).

13

discrimination. 70 Once the plaintiff has done so, the burden shifts to the defendant to produce
evidence that the alleged discriminatory housing activities were “motivated by legitimate, nonracial considerations.” 71 If the defendant proffers evidence of nondiscriminatory reasons, “the
burden shifts back to plaintiff to show that the proffered reasons were pretextual.” 72
VI.

PRIMA FACIE SHOWING OF DISCRIMINATION
“Under the McDonnell Douglas analysis, plaintiff first must come forward with proof of

a prima facie case of discrimination.” 73 Although the ultimate burden of persuasion always rests
with the plaintiff, courts characterize this initial prima facie burden as one of production. 74 In
this case, the parties dispute whether Plaintiffs made a prima facie showing of discrimination for
the four claims asserted. The court will consider each claim in turn.
A.

42 U.S.C. §§ 1982, 3604(a)
Under the Federal Housing Act, it is “unlawful . . . [t]o 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.” 75 In the Tenth Circuit, the prima facie elements of a claim arising under §
3604(a) and a claim under 42 U.S.C. § 1982 are the same. 76

70

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

71

Asbury, 866 F.2d at 1279.

72

Id.

73

Id.

74

See, e.g., Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir. 2010); Elsatel v. Maverik, Inc., No.
2:10-CV-989-DS, 2012 WL 399253, at *1 (D. Utah Feb. 7, 2012); cf. Reeves v. Sanderson Plumbing Products, Inc.,
120 S. Ct. 2097, 2106 (2000) (observing credibility determinations are inappropriate).
75

42 U.S.C. § 3604(a).

76

Caddy v. J.P. Morgan Chase Bank, 237 F. App'x 343, 346 n.3 (10th Cir. 2007); see also Asbury, 866 F.2d at 1279.

14

To meet their prima facie burden, Plaintiffs must show the following: (1) they belong to a
protected class; (2) they applied and were qualified for the apartment in question; (3) Snow
Garden either refused to rent to Plaintiffs or denied them the opportunity to rent, inspect, or
negotiate the rental; and (4) the housing opportunity remained available. 77
At this stage of the case, the first or fourth elements are not in dispute. Instead, Snow
Garden maintains that Plaintiffs cannot satisfy the second and third elements. 78 For the reasons
below, the court concludes that Plaintiffs satisfied their prima facie burden.
The Tenth Circuit’s decision in Asbury v. Brougham helpfully illustrates a plaintiff’s
prima facie burden. In that case, the plaintiff satisfied her prima facie burden by presenting
evidence that she informed an apartment manager of her need for housing, but the manager
responded that the apartment had no vacancies, invited the plaintiff to call back at a later date,
and refused to give the plaintiff an application. 79 The court contrasted plaintiff’s experience to
that of her sister-in-law, who did not fall within a protected group but was invited to inspect the
apartments, informed that housing was available, and given an opportunity to reserve housing
until the following week. 80 Notably, even though the plaintiff never completed a formal
application, the Tenth Circuit held that a reasonable jury could conclude that the defendant failed
or refused to provide the plaintiff “the opportunity to rent or inspect or negotiate for the rental of
a townhouse or apartment [which in turn] constituted a rejection because of her race.” 81

77

Asbury, 866 F.2d at 1279; see also Khalil v. Farash Corp., 260 F. Supp. 2d 582, 588 (W.D.N.Y. 2003) (“[To
demonstrate a prima facie case,] plaintiffs must show that (1) they are members of a class protected by the FHA; (2)
they sought, and were qualified, to rent . . . the dwellings in question; (3) defendants refused to rent to plaintiffs; and
(4) the housing was put on the market or was rented to other tenants.”).
78

Dkt. No. 58, at 4-7.

79

Asbury, 866 F.2d at 1280.

80

Id. at 1280-81.

81

Id. at 1280.

15

Similar considerations drive this case on the record presented. Here, a reasonable jury
could conclude Plaintiffs applied for housing but were denied the opportunity to rent, inspect, or
negotiate for a rental. For example, Plaintiffs provided evidence that they approached Snow
Garden and expressed their intent to secure housing at the Apartments during a specific time
period. Each group of Plaintiffs testified they either applied or intended to apply; in fact, at least
two of the students visited Snow Garden on several occasions in an effort to secure housing
there. Similar to Asbury, when non-minority students approached Snow Garden with a similar
inquiry, Snow Garden responded by providing a soft offer for the same time period. This
suggests that the application process at Snow Garden was more flexible than Snow Garden
would be willing to admit in its papers. For all of these reasons, a reasonable juror could find
that Plaintiffs’ initial and renewed inquiries, at least under the facts of this case, satisfy the prima
facie element of applying for housing insofar as the term was broadly construed by the Tenth
Circuit in Asbury.
Despite this evidence, Snow Garden insists that judgment should be entered in its favor
because neither group of Plaintiffs completed a formal, online application. The court disagrees
for two reasons. First, as mentioned above, Snow Garden’s disparate treatment of Mr. Snyder
and his friends suggests that, when it wanted to do so for non-minority students, Snow Garden
offered or negotiated housing before an application had been submitted. In this respect, a
reasonable jury could find that Snow Garden intended to use discriminatory hurdles to deny
protected groups housing or the opportunity to negotiate for a rental within the meaning of the
plain language of § 3604(a). 82

82

This is especially true where, as here, Plaintiffs produced at least some evidence that housing opportunities
remained available. See supra Background, Part C.

16

Second, the court concludes Snow Garden’s formulaic construction of the second prima
facie element is not only too restrictive but also inconsistent with the principles underlying the
McDonnell Douglas burden-shifting framework and the Fair Housing Act. Specifically, this
court has been instructed that the burden of production for a prima facie case is not an onerous
one. More importantly, the Supreme Court has cautioned that prima facie elements provide a
flexible standard that can vary depending on the facts of each individual case.
Applying these principles to this case, the court concludes that imposing on protected
minorities heightened application requirements, like those shown here, constitutes one manner of
“refus[ing] to negotiate for the sale or rental of, or otherwise make unavailable or deny” housing
in a way that falls within the language of the Fair Housing Act. Indeed, courts have held the
absence of a formal application may not be fatal in similar circumstances because the broad
language of the Fair Housing Act suggests that Congress intended it to reach a range of racially
motivated conduct. 83 Finally, while not dispositive, it is worth noting that the conduct alleged
here would also appear to constitute a violation under federal regulations. 84
For all of these reasons, the court declines to adopt Snow Garden’s restrictive reading of
§ 3604(a), and finds that Plaintiffs produced sufficient evidence to establish a prima facie case.
B.

42 U.S.C. § 3604(b) – Discrimination in the Terms and Conditions of Rental
Under the Federal Housing Act, it is “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

83

Dkt. No. 74, at 6-7; cf. Fair Hous. Justice Ctr., Inc. v. Silver Beach Gardens Corp., No. 10-CIV-912, 2010 WL
3341907, at *6 (S.D.N.Y. Aug. 13, 2010); Steptoe v. Sav. of Am., 800 F. Supp. 1542, 1546 (N.D. Ohio 1992); United
States v. Bankert, 186 F. Supp. 2d 623, 628 (E.D.N.C. 2000); S. California Hous. Rights Ctr. v. Krug, 564 F. Supp.
2d 1138, 1151 (C.D. Cal. 2007).
84

See 24 C.F.R. § 100.60(b).

17

national origin.” 85 Courts have adopted different approaches to articulating the elements of a
claim under § 3604(b). 86 After reviewing the cases cited in the parties’ papers, the court
concludes that a plaintiff asserting such a claim must show:
(1) he is a member of a statutorily protected class; and (2) he was
not offered the same terms, conditions or privileges of rental of a
dwelling or was not provided the same services or facilities in
connection therewith made available to others under circumstances
giving rise to a reasonable inference of prohibited discrimination. 87
In this case, Plaintiffs satisfied their prima facie burden for both elements. Plaintiffs fall
within a statutorily protected class. They have also proffered evidence that minority applicants
encountered a more burdensome application process when seeking housing at Snow Garden in
comparison to Caucasian applicants. Taken in its entirety, the evidence submitted by Plaintiffs
suggests Snow Garden did not require the Caucasian applicants to submit an application and
deposit before providing accurate information about housing availability or offering a specific
apartment for rent. In this respect, evidence of Snow Garden’s disparate treatment of minority
applications gives rise to a reasonable inference of prohibited discrimination. 88 Moreover, a
reasonable juror could find that the surreptitious recording supports a reasonable inference that
Snow Garden offered preferential treatment or services to non-protected groups.

85

42 U.S.C. § 3604(b).

86

The parties do not cite to binding precedent for the prima facie elements of § 3604(b). In a similar context, the
Supreme Court has instructed lower courts to be flexible, stating “the precise requirements of a prima facie case can
vary depending on the context and were never intended to be rigid, mechanized, or ritualistic.” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 512 (2002) (internal quotation marks omitted).
87

Delkhah v. Moore, 2006 WL 1320255 (D. Kan. May 15, 2006), aff'd, 240 F. App'x 768 (10th Cir. 2007).

88

See 24 C.F.R. § 100.65 (including within list of prohibited actions the failure to process an offer for rental and the
use of different provisions in a lease).

18

In response, Defendants maintain that all potential renters were required to submit an
application before receiving a firm offer from Snow Garden. 89 Defendants argue any disparate
treatment should be attributed to differences in housing configuration requested by each group of
students. But both of these theories appear to go the second prong of the McDonnell Douglas
framework. More importantly, these arguments fail to address the fact that Plaintiffs have come
forward with evidence that non-minority students were given more preferential “services . . .
made available to others under circumstances giving rise to a reasonable inference of prohibited
discrimination.” In sum, the court must conclude, at least on the parties’ briefing and the record
presented, that Plaintiffs satisfied their prima facie burden for a claim arising under § 3604(b).
C.

42 U.S.C. § 3604(d) – Misrepresentations of Availability of Apartments
The Federal Housing Act makes it “unlawful . . . [t]o represent to any person because of

race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not
available for inspection, sale, or rental when such dwelling is in fact so available.” 90 A prima
facie claim under § 3604(d) requires a showing that: “(1) plaintiffs are members of a protected
class; (2) plaintiffs requested information on the availability of a particular type of apartment; (3)
defendants failed or refused to provide truthful information about the availability of such
apartments; and (4) white applicants were provided with truthful information.” 91
Snow Garden concedes for the purposes of the pending motions the first, second, and
fourth elements have been met, but argues that Plaintiffs cannot meet their prima facie burden

89

See, e.g., Dkt. No. 53, at 8.

90

42 U.S.C. § 3604(d).

91

Open Hous. Ctr., Inc. v. Kessler Realty, Inc., No. 96-CV-6234, 2001 WL 1776163, at *6 (E.D.N.Y. Dec. 21, 2001)
(applying identical prima facie elements to cases arising under § 3604(b)).

19

because the students requested different types of housing at different times. 92 Because each
group of students asked about a different time period or number of students, Snow Garden
theorizes that it must not have provided the minority students with any inaccurate information.
The court rejects this interpretation of the contested evidence and concludes Plaintiffs
submitted sufficient evidence for a reasonable jury to conclude that Snow Garden provided
inaccurate rental information to African American and/or Polynesian students. Even in the
absence of Ms. Christensen’s statements, Snow Garden’s internal documents suggest that
housing may have remained available in April 2010 and 2012. 93 And evidence of Snow
Garden’s disparate treatment of Caucasian students raises serious questions about the veracity of
its statements concerning the availability of housing in 2011. On the facts of this case, the court
cannot conclude that factual disputes over the exact number of students seeking housing or the
specific rental periods at issue conclusively demonstrates Snow Garden provided accurate
information for the purposes of Plaintiffs’ prima facie case.
A reasonable juror could conclude that Snow Garden either failed or intentionally refused
to provide truthful information to minority applicants when its manager stated she was 99percent certain housing was unavailable but then reached out and offered housing to Caucasian
students. 94 In sum, Plaintiffs presented sufficient evidence to satisfy their prima facie burden for
the § 3604(d) claim.
VII.

LEGITIMATE, NONDISCRIMINATORY JUSTIFICATION
Under the McDonnell Douglas burden-shifting framework, once a plaintiff presents

prima facie evidence of discrimination, the burden shifts to the defendant to present evidence

92

Dkt. No. 58, at 9-11.

93

Dkt. No. 46-5, at 27-29.

94

Notably, Snow Garden admits the Caucasian students received truthful information. Dkt. No. 50, at 34.

20

that the challenged conduct was supported by “a legitimate, nondiscriminatory reason.” 95 The
Supreme Court characterizes this burden as “one of production, not persuasion; it can involve no
credibility assessment.” 96
Snow Garden believes it articulated two facially nondiscriminatory rationales for the
purported discriminatory activity. 97 First, Snow Garden maintains that it provided truthful and
accurate information to Plaintiffs. Under this view, Plaintiffs simply requested housing for too
many students or during unavailable time periods. Second, Snow Garden asserts that the denial
of housing was caused by the fact that neither the African American Plaintiffs nor Polynesian
Plaintiffs ever submitted a formal application for housing.
The court concludes that Snow Garden’s explanations for its conduct satisfy its burden
under the second prong of McDonnell Douglas. Here, Ms. Jensen testified that each renter was
required to fill out an online application, the apartment complex rarely has group housing
available at all times, and accurate information was given to all applicants, who in turn were all
required to complete an online application. Ms. Jensen also testified that spring was the most
difficult time to predict the amount of available housing, and that at times, group housing was
unavailable. Finally, Ms. Jensen insisted that housing was unavailable for students during the
summer months. Setting aside credibility determinations, as this court is instructed to do at this
stage of the proceeding, Snow Garden’s evidence supplies a legitimate, nondiscriminatory
explanation why Snow Garden’s manager asked the minority students to complete an application
or stated housing was unavailable. In this respect, Snow Garden has carried its burden of

95

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000).

96

Reeves, 530 U.S. at 142 (internal quotation marks and citation omitted).

97

Dkt. No. 73, at 2-5.

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showing that it may not have discriminated based on race, imposed different term and conditions
on protected groups, or failed to provide truthful information on the availability of housing.
Because Snow Garden satisfied its burden of production, the only remaining question is
whether Plaintiffs presented sufficient evidence of pretext. 98
VIII.

PRETEXT
In the Tenth Circuit, plaintiffs satisfy the pretext hurdle by showing “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the [defendant’s] proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy
of credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” 99 In doing so, it is not enough for plaintiffs to rely on mere conjecture. 100
The court concludes that Plaintiffs proffered sufficient evidence for a reasonable jury to
find that Snow Garden’s explanation was unworthy of belief. Specifically, Plaintiffs submitted
internal documents, which Snow Garden’s representative testified reflect the number of spots
available at any given point in time. These documents suggest that Snow Garden had housing
available when students visited in the spring of 2010 and 2012. Moreover, there is evidence and
testimony that Snow Garden never completely filled its apartment complex during 2012. 101 And
the experience of Mr. Snyder and his friends provides an additional basis on which a reasonable
jury might disbelieve Snow Garden’s claim of providing truthful information to all applicants.
Finally, although not dispositive of the pretext issue, the court will note that if a reasonable jury
finds that Ms. Jensen once made derogatory comments to a former employee about Polynesian

98

Reeves, 530 U.S. at 142.

99

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation omitted).

100

Id.

101

See Dkt. No. 74, at 4-5 (citing evidence and quoting testimony).

22

tenants, it could support both a finding of pretext and strong inferences of discriminatory rental
practices. 102
In response, Snow Garden argues that spreadsheets containing references to the number
of available apartments do not demonstrate pretext for a number of reasons. First, Snow Garden
avers that the spreadsheets do not show that group housing was available because the
spreadsheets only indicate the total number of spots filled. Second, Snow Garden maintains that
there are factual disputes over the time period and housing arrangements requested by Plaintiffs.
Third, Snow Garden argues that spring is the most difficult time to determine availability, and
that the spreadsheets do not reflect the number of current tenants who would be permitted to stay
the following year. Finally, citing cases from the employment context, 103 Snow Garden argues
that a mistaken belief about the availability of apartments would absolve it of liability.
These arguments are unpersuasive. As a threshold matter, Plaintiffs need not demonstrate
that the spreadsheets conclusively prove that housing was available in a particular configuration
to satisfy their pretext burden, as Snow Garden appears to suggest. Instead, the case law requires
only that the students point to evidence from which a reasonable jury could conclude that the
explanation provided by Snow Garden is unworthy of belief. Here, Snow Garden’s corporate
representative testified that the spreadsheet indicated the number of spaces available. Finally,
while it may have been difficult to ascertain available housing during the spring semester, it does
not explain why Mr. Snyder and his friends received more information and services, instead of
encountering administrative hurdles, when they inquired about housing at Snow Garden.

102

There was also testimony that Ms. Jensen considered photographs of each applicant. Dkt. No. 46-5, at 9.

103

Dkt. No. 73, at 5-6 (citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1223-25 (10th Cir. 2000)).

23

Snow Garden also argues that the experience of the Caucasian students does not show
pretext because Mr. Snyder and his friends requested housing for a different number of students
and time period. 104 In Morgan v. Hilti, Inc., the Tenth Circuit observed that disparate treatment
of similarly situated employees could weigh in favor of pretext. 105 Although the issue is hotly
contested in this case, a reasonable jury could find substantial similarity between the housing
requests described in the affidavits of Mr. Neufi, Mr. Naeta, and Mr. Snyder. And even assuming
there were minor variations in the number of students or particular semester sought, the fact that
Snow Garden offered to split up the non-minority students and then called them back a few days
later to offer the students their requested housing arrangement raises genuine issues about
whether Snow Garden discriminated against minority students. 106 In sum, the varied treatment
of three groups exposes weaknesses, implausibilities, and inconsistencies in Snow Garden’s
purported explanation for its conduct such that a reasonable jury could find it unworthy of belief.
Finally, Snow Garden argues that its treatment of Plaintiffs can be explained by the
absence of a formal application. In some cases, the complete absence of an application may
supply a legitimate, nondiscriminatory explanation which results in summary judgment. But not
in this case. Here, two claims asserted by Plaintiffs do not depend on or require an application—
a party could impose discriminatory hurdles or provide untruth information in a manner that
gives rise to liability under § 3064(b) or § 3604(d) before an application is required. 107 In this
respect, the absence of an application does not absolve Snow Garden of liability. But more
importantly, for the reasons already discussed, a reasonable jury could conclude that Snow

104

Dkt. No. 73, at 6-7.

105

Morgan, 108 F.3d at 1324.

106

See Dkt. No. 74, at 3-4.

107

42 U.S.C. § 3604(b), (d); see also Part VI.

24

Garden imposed discriminatory hurdles in its application process in an effort to deny housing to
minority applicants, because (a) Polynesian and African American students were told that
housing was unlikely but that they must pay a fee before submitting their application, (b) rental
information provided to minority students referenced a security deposit, while similarly situated
non-minority students were not instructed to pay a deposit, and (c) non-minority students were
told that housing was available and received a follow-up phone call to encourage their
application. Stated differently, disparate treatment of non-minority students exposes serious
weaknesses in Snow Garden’s application defense. Also, while not dispositive of the pretext
analysis, the plausibility, consistency, and coherency of Snow Garden’s application process is
undermined if Ms. Jensen told a former employee that she did not like to rent to Polynesian
students.
While Plaintiffs presented sufficient evidence of pretext to survive summary judgment,
the court concludes that genuine issues of material fact preclude summary judgment in their
favor. As Snow Garden appropriately argues, numerous issues are disputed. For example, in
part because of inconsistencies between the depositions and affidavits, the specific rental period
requested by each group of students remains unclear. 108 The parties continue to dispute whether
Snow Garden offered housing to students during the summer months. Ms. Jensen’s declaration
also raises genuine issues of material fact concerning housing availability and the application
process. Finally, the parties contest whether Ms. Jensen informed Ms. Christensen that she
would not rent to African American or Polynesian students.
In sum, while both parties satisfied their burdens on the McDonnell Douglas framework,
the resolution of this dispute will hinge largely on a jury’s evaluation of the evidence and the

108

Dkt. No. 58, at 16.

25

credibility of the witnesses. A jury should be permitted to test the veracity of statements relating
to the availability of housing and consider whether Snow Garden erected discriminatory hurdles
in its application process to make unavailable or deny housing to protected groups. Accordingly,
summary judgment is an inappropriate procedural mechanism for resolving this case.
CONCLUSION
For the reasons stated above, the court DENIES Defendants’ Motion for Summary
Judgment 109 and DENIES Plaintiffs’ Motion for Partial Summary Judgment. 110 The parties shall
contact the court within ten (10) days of this Order to set a final scheduling conference.
SO ORDERED this 30th day of December, 2014.
BY THE COURT:

________________________________________
ROBERT J. SHELBY
United States District Judge

109

Dkt. No. 40.

110

Dkt. No. 45.

26