The opinion of the court was delivered by: MUNSON
MEMORANDUM -- DECISION AND ORDER (April 27, 1981)
The plaintiff's claims are founded on the statutory assurances of Title VII of the Consumer Credit Protection Act, 15 U.S.C. § 1691(a)(1). This statute as amended in 1976 includes protections against discrimination on the basis of race, color, religion, national origin, and age in creditor-lender transactions. The defendant First Federal Savings and Loan Association (First Federal), has moved for summary judgment, and in the alternative has moved to strike the note of issue, on the grounds that there are no genuine issues as to any material facts. They further claim that this Court should grant summary judgment as a matter of law.
The plaintiff, Jane Williams, was involved in plans to purchase real estate, which she hoped to partially finance through a mortgage with First Federal. Her deadline to secure adequate funding was September 21, 1979. She apprised First Federal of this fact when she made her initial mortgage application with them on September 18, 1979.
The completed mortgage application reveals that Ms. Williams was already carrying mortgage liability with West End Savings and Loan Association. This prior liability, together with information relating to only Ms. Williams' personal income, led First Federal to the conclusion that any further indebtedness would be unacceptable.
Although Ms. Williams had provided First Federal with personal income information, she had not submitted her partnership income information as per First Federal's policy. This additional information was sought by the bank pursuant to their ordinary procedures of garnering data from self-employed individuals.
First Federal's Assistant Vice President, Richard Wooster, informed Ms. Williams of the resulting adverse determination by letter dated September 20, 1979. He further explained that Ms. Williams might yet successfully pursue her request if she would comply with the bank's requirements and submit partnership information.
The plaintiff never proceeded any further in seeking a mortgage with First Federal. She did request and obtain a mortgage from Union National Bank dated October 23, 1979. Ms. Williams asserts that this second application was supported by the same information that had been provided to First Federal. Therefore, Ms. Williams asserts that the denial was discriminatory, and was entirely based on her sex and marital status.
The Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 et seq. is relatively recent, hence courts have not had extensive opportunity to review and interpret its strictures. However, the legislative history is very clear that the protections afforded by the ECOA should be applied in the same manner as those created by Title VII Equal Employment Opportunity Commission (EEOC) provisions. The Senate Report reveals that:
The prohibitions against discrimination on the basis of race, color, religion or national origin are unqualified. In the Committee's view, these characteristics are totally unrelated to creditworthiness and cannot be considered by any creditor. In determining the existence of discrimination on these grounds, as well as on the other grounds discussed below, courts or agencies are free to look at the effects of a creditor's practices as well as the creditor's motives or conduct in individual transactions. Thus judicial constructions of anti-discrimination legislation in the employment field, in cases such as Griggs v. Duke Power Company, 401 U.S. 424 [91 S. Ct. 849, 28 L. Ed. 2d 158] (1971) (footnote omitted), and Albemarle Paper Company v. Moody [422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280] (U.S. Supreme Court, June 25, 1975), are intended to serve as guides in the application of this Act, especially with respect to the allocations of burdens of proof.
S.Rep. No. 94-589, 94th Cong. 2nd Sess., reprinted in  U.S.Code Cong. & Ad. News 403, 406.
Plaintiff may then establish her case on either a disproportionate impact theory under Griggs, or a disparate treatment analysis under the widely held test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Here the plaintiff may not rely upon any statistical disparity between the protected class in the applicant pool, and the group actually accepted from the pool, Cherry v. Amoco Oil Co., 490 F. Supp. 1026, 1030 (N.D.Ga.1980). First Federal has disclosed the data to illustrate that although the total number of women applicants comprises only 4 percent of their mortgage applications, 63 percent of the females' applications are ...