Rehearing and Rehearing En Banc Denied October 13, 1977.
TALBOT SMITH, Senior District Judge.
Plaintiff, a black resident of St. Louis, Missouri, brought this civil action charging racial discrimination in refusing to rent an apartment to him because of his race, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982,
At the time of trial, the plaintiff was 56 years of age and had been an executive of the Monsanto Company in St. Louis for the past eleven years. Living in a two bedroom apartment in University City, he had become dissatisfied with his living conditions partially because of the noise from a nearby highway, and partially because he was in need of larger quarters because of recent changes in his family life. He and his wife had recently been divorced and, because of her decision to leave the country to go with the Peace Corps, he required additional room to house three college-age sons during holidays and vacations from school. What he wanted was "two bedrooms, a study or three bedrooms, one of which I planned to use as a study, preferably with two baths."
Such an apartment seemed readily available. While driving through an area known as the "Moorlands," in Clayton, Missouri, plaintiff noticed a sign in front of 7537 Parkdale reading "For Rent 3-4 Bedrooms 2-Baths 863-6034."
Upon plaintiff's attempt to visit the apartment, he was met by defendant's daughter. She told him that her mother had taken her father to the hospital but had not yet returned, and that she, the daughter, could not show the apartment. Plaintiff gave her his business card with his telephone number. When defendant returned, she was given the card and informed of the plaintiff's race.
Plaintiff telephoned the defendant later that evening to inquire about the apartment. The defendant replied that she "had somebody who was interested in the apartment" that she "would have to check the references though and if it were not rented I could call him, I had his `phone number." She conceded on the stand that this was false. The apartment had not been rented at that time. No one had yet filled out an application, nor had anyone put down a deposit.
The defendant explained her conduct on the ground that when she finds that a prospective tenant would not be suitable, one device employed by her, in order to avoid personalizing the objection, is to say, "[W]e'll have to check the references, or check, call back. I have other people interested in it." When asked "why [she] didn't want to show [her] apartment to Mr. Wharton" she replied "Because I had disastrous experiences in the past with divorced men in renting to them and it had cost me a great deal of money * * *." Specifically, they had "brought in women during the night" and had left the apartment dirty.
On the following morning plaintiff called Ms. Hedy Epstein, a white woman, Executive Director of the Greater St. Louis Committee for Freedom of Residence, told her what had transpired and that he thought he had suffered discrimination. Epstein stated that she would do some testing to determine whether or not discrimination had taken place. Accordingly, giving her name as "Mrs. Stone" she called defendant and asked if the apartment advertised on the sign
On the following day, August 12, 1975, Epstein identified herself on the telephone to defendant, told her of plaintiff's request for assistance, stated that it appeared that discrimination might have taken place, and told her that if there had been discrimination, it was a violation of both federal and state laws. When she asked defendant what she might tell the plaintiff, defendant replied, "put this in writing please," whereupon Epstein urged defendant not to rent the apartment to anyone else until the matter had been resolved. Epstein reduced this conversation to a letter to defendant on the same day. The letter appears in the record as plaintiff's Exhibit 2.
Epstein's letter was received by defendant on August 13, 1975. The following day defendant telephoned a Mrs. Leonard Warren, Jr., who had, in the previous month, expressed an interest in the apartment in question.
Stripped of all controversial testimony and relying solely upon admissions and uncontroverted evidence, what this case boils down to in brief is that the plaintiff, a black man who can not be so identified as black by his voice alone, went to see an apartment. He was there observed to be black. His inquiry to the owner that evening concerning the availability of the apartment was met with the statement that it had been committed to another applicant. It is conceded that this assertion was false. The following day a white "checker" (Epstein) made an appointment to see the apartment. During the appointment she represented herself as being in circumstances reasonably similar to those of the plaintiff, that is, divorced, with three college-age
The trial court totally rejected Epstein's testimony on the ground that it was tailored to prove that the conduct of the defendant had been racially discriminatory. True, she was a "checker," attempting to ascertain whether or not there had been racial discrimination in the rejection of the plaintiff as a tenant. But the fact that she was a "checker" does not in and of itself stamp her as lacking in credibility. The use of checkers in this situation is well established and has been recognized as necessary under similar circumstances.
Specifically, the trial court found that Epstein's written summary of her conversation with defendant "varies from [her] testimony and those portions of the conversation which are of benefit to the defendant are scratched out in [her] written summary so that [her] preconceived ideas as to the conduct of the defendant might be proved."
The total omission from the findings of the corroboration of Epstein's testimony in all essential particulars by her companion, Susan Chapman, is not explained in the opinion. At oral argument it was sought to be justified on the ground that since Epstein was assertedly totally impeached, "Susan Chapman has to fall with her." This reasoning we reject for obvious reasons. In addition the trial court found that plaintiff's written summary of the entire incident (Exhibit 1) and her letter to defendant (Exhibit 2) were mutually impeaching, each of the other. The court has not specified wherein the impeachment lay, but we have reviewed these exhibits with care and we find nothing substantially impeaching, each of the other, therein.
The defendant contends simply that plaintiff was rejected under her objective standards just as a white man would have been upon the grounds that he was single, divorced with teenage children, and that he traveled, leaving them unsupervised. The difficulty with this defense is that it is not sustained on the record. She first asserted in her deposition, though not without equivocation, that she "always rent[ed] to families" and, as a rule, did not rent to single persons.
It is settled law that race is an impermissible factor in housing under both the Civil Rights Act of 1866 and the Civil Rights Act of 1968. It is equally clear that:
United States v. City of Black Jack, Missouri, 508 F.2d 1179, 1184-1185 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2656, 45 L.Ed.2d 694 (1975) (footnotes omitted; citations omitted).
In this case, as we noted, the district court found that no evidence was presented to establish a prima facie case of discrimination.
Our review of this finding is governed by the following considerations:
Movible Offshore, Inc. v. M/V Wilken A. Falgout, 471 F.2d 268, 271 (5th Cir. 1973) (citation omitted).
So tested, the trial court's finding that the plaintiff has failed to carry his burden of proof with regard to a showing of discrimination is clearly erroneous. Our examination of the entire record leaves us with a firm conviction that a mistake has been committed. The chronology of events in the plaintiff's attempt to obtain an apartment from the defendant contains a strong implication that racial discrimination underlay the defendant's actions and statements. The defendant's claim that the plaintiff was rejected on objective, nonracial qualifications cannot be accepted on the record made.
Defendant had no uniformly applied policy with objective standards. As she
Racial discrimination has been established both as a matter of fact and law.
We turn to damages. This court has recently examined the issue of damages in the context of a racial discrimination in housing case in Smith v. Anchor Bldg. Corp., 536 F.2d 231 (8th Cir. 1976).
Plaintiff also requests this Court to award attorney's fees. A hearing and decision on the plaintiff's recovery of attorney's fees were postponed in the district court pending a decision on the merits.
Recent legislation controls the award of attorney's fees to a plaintiff successful in an action founded on § 1982. The Civil Rights Attorney's Fees Awards Act of 1976, Pub.L.No.94-559 (Oct. 19, 1976), 90 Stat. 2641
Although the 1976 Act did not become effective until after the district court's decision, Congress clearly intended, and we have so held, that the 1976 Act should apply retroactively in cases pending on appeal on the 1976 Act's effective date. Gay Lib v. University of Missouri, 558 F.2d 848 at 857 (8th Cir. 1977), Finney v. Hutto, 548 F.2d 740, 742 (8th Cir. 1977).
The 1976 Act tracks the statutory authorization for attorney's fees contained in Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b),
S.Rep.No.94-1011, 94th Cong., 2d Sess. 4 (1976), reprinted in  U.S.Code Cong. & Adm.News pp. 5908, 5912 (footnote omitted).
Reversed and remanded for proceedings consistent with this opinion.
"Dwelling" as used in § 3604 is defined in 42 U.S.C. § 3602(b) as:
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
Neither the trial court nor the parties have discussed the application to this lawsuit of the declaratory judgment remedy, 28 U.S.C. § 2201, and we find it unnecessary to consider it in this decision.
Q Why did you rent to [the Warrens] at that time?
A Well, I felt that since I have all the work of spending a great deal of energy, blood, sweat and tears in the apartment I certainly should have a voice of who I want to have in the apartment, and Mrs. Epstein was very adamant when she called.
Q As to the kind of person or persons you would rent 2E to?
A Yes. I always rent to families.
Q You always rent to families?
A I usually try to rent to families in that building because it's a large apartment.
Q And you have a policy of never renting to single persons?
A As a rule, I don't.
The district court's decision on the merits made reopening of this issue unnecessary.
During the debate in the House of Representatives, Representative Anderson gave this reply to a question concerning retroactive application of the Act:
122 Cong.Rec.H12,155 (daily ed. Oct. 1, 1976) (remarks of Rep. Anderson).
Senator Kennedy also explained the retroactive effect during the Senate debate:
122 Cong.Rec.S17,052 (daily ed. Sept. 29, 1976) (remarks of Senator Kennedy).
H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 8 (1976) (footnote omitted; emphasis in original).
The same report quoted from Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) as the existing judicial standard for an award of fees to a prevailing plaintiff: "[A] prevailing plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" H.R.Rep.No.94-1558, supra, at 6.
Representative Seiberling, the original congressional sponsor of legislation to authorize the awarding of attorneys' fees in civil rights cases, expressed a similar understanding:
122 Cong.Rec.H12,165 (daily ed. Oct. 1, 1976) (remarks of Rep. Seiberling).
See also, Note, The Civil Rights Attorneys' Fees Awards Act of 1976, 34 Wash. & Lee L.Rev. 206, 216-217 (1977).