people. Apparently, plaintiffs believe they have satisfied this burden.
The Court takes issue, however, with plaintiffs' contention that Ms. Venturi's statements are so unambiguous that summary judgment is warranted here. Based on a close reading of her deposition, the Court holds that a reasonable jury could find each of her controversial statements completely consistent with an occupancy limitation of five people, instead of merely an arguably impermissible limitation of three children.
Ms. Venturi's stated essentially that the "crucial factor" for her in not renting to plaintiffs was that they had three children. However, in addition to the interpretation offered by plaintiffs, this statement could reasonably be interpreted to mean that the number of plaintiffs' children was "crucial" because it put their family size in conflict with the alleged occupancy limitation of five people. The same rationale applies to Ms. Venturi's admission that the distinction between two and three children was significant; three children would entail five or more people in plaintiffs' case, and two children would not. Although it could be implied, Ms. Venturi did not explicitly state that the distinction between two and three children always was significant to her, but only that it was significant in regard to plaintiffs.
Finally, while Ms. Venturi stated that she always asks prospective tenants "How many children do you have," she also stated in the same breath that she asks "How big is the family?" (See also T. Venturi Dep. at 29 ("I always ask how big is the family because the house is small.").) Admittedly, the former question might represent a policy not to rent to families with a certain number of children and indicia of unlawful discrimination based on familial status. The latter question, however, might represent a policy not to rent to groups with a certain number of people and a potentially reasonable occupancy limitation. With two possible and conflicting meanings, this statement consequently is not so unambiguous that it is unnecessary to have a jury determine which interpretation is more appropriate.
The Court is not, of course, taking a position at this time on the issue of whether defendants' occupancy policy was facially neutral. On the contrary, plaintiffs' simply have failed to demonstrate that no genuine issue of material fact exists in regard to whether the policy was facially neutral. As a result, the Court cannot grant summary judgment for plaintiffs based on that rationale.
Plaintiffs also contend that even if the occupancy limitation articulated by defendants refers to people, instead of children, the policy is unreasonable because it is has no objective basis. Defendants' policy is not, according to plaintiffs, "based on a local or state occupancy limitation, or a limitation premised on a specific and demonstrated lack of sufficient space for more than a specified number of persons." (Pls' Reply Mem. Supp. Summ J. at 5.) Plaintiffs allege that "all defendants offer is their wholly subjective, self-serving, and conclusory assertion that the home is too small for more than four occupants." (Id.) Because defendants have failed to provide the Court more detailed information concerning the size of the Latham house, plaintiffs submit that defendants' assertions should not be accorded any weight.
The Court believes that plaintiffs have misinterpreted defendants' burden under Soules, 967 F.2d at 822. Defendants previously have stated, and argue for purposes of these motions, that the Latham house -- and more particularly the bedrooms -- is "too small." (E.g., T. Venturi Dep. at 33.) Although limited in probative value, such statements do constitute evidence. Moreover, "by producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons, defendants sustained their burden of production" pursuant to Soules. See St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2748 (1993) (emphasis in original). If defendants' statements "[were] taken as true, [they] would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Id. (emphasis in original). Defendants' have satisfied their very light burden under Hicks.
From a perspective based purely on the standards of Rule 56, the Court finds that plaintiffs have not even demonstrated, as initially they must, that no genuine issue of material fact exists that would require a trial. See Celotex Corp., 477 U.S. at 323. Again, in determining whether summary judgment is appropriate, the Court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. Matsushita, 475 U.S. at 586. While defendants here have not produced, arguendo, specific dimensions of the bedrooms and house, neither have plaintiffs. In essence, plaintiffs only have offered, in contrast to defendants, that the house is "big enough" for five people, without additional evidence.
Resolving all ambiguities against plaintiffs, such production is insufficient -- even without substantial rebuttal by defendants -- to convince the Court that no reasonable jury could find that the house was not in fact big enough.
Plaintiffs finally argue that because defendants failed to comply to the letter of Local Rule 7(f),
they must be deemed to have admitted the nine statements of material fact described by plaintiffs in their own Rule 7(f) papers. It seems that the reply papers defendants served on plaintiffs did not contain any statement pursuant to the rule; only three weeks later did defendants serve such a statement. On a perfunctory analysis the Court is inclined to deny plaintiffs' request, because they appear to seek lenience in regard to their own tardiness and stringency in regard to defendants' failings. However, plaintiffs are correct; defendants' Rule 7(f) statement was untimely, just as plaintiffs' motion to amend was untimely. Thus while the motion to amend was denied, plaintiffs' request that defendants be deemed to have admitted the nine relevant statements of material fact is GRANTED. Unfortunately for plaintiffs, this ruling does not affect the Court's disposition of plaintiffs' summary judgment motions. None of the nine statements of material fact contradict the Court's prior analysis.
The Court does not rule on the issue of whether defendants' house could accommodate five or more people. Rather, plaintiffs' simply have failed once more to demonstrate that no genuine issue of material fact exists in regard to whether the occupancy limitation proffered by defendants was reasonable. As a result, the Court cannot grant summary judgment for plaintiffs on their 42 U.S.C. § 3604(a) claims.
3. Section 3604(c)
Plaintiffs also have moved for summary judgment on their claim that defendants' statements that plaintiffs' family was too large to live in the Latham house violated 42 U.S.C. § 3604(c). Section 3604(c) makes it unlawful "to make, print, or publish . . . any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin." 42 U.S.C. § 3604(c) (emphasis added). In determining whether a statement "indicates" impermissible discrimination, the Court must ask whether it suggests to an ordinary listener that people with a particular familial status are preferred or dispreferred for the housing in question. See Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir.), cert. denied, 502 U.S. 821, 116 L. Ed. 2d 54, 112 S. Ct. 81 (1991). The ordinary listener "is neither the most suspicious nor the most insensitive of our citizenry." 923 F.2d at 1002.
Thus the Court analyzes whether the ordinary listener, in light of all the circumstances, would have interpreted Ms. Venturi's statements to suggest an impermissible preference based on familial status. Soules, 967 F.2d at 824. Where a court is charged, as here, with ascertaining the message sent "by isolated words rather than a series of ads or an extended pattern of conduct," evidence of the defendant's intent may be relevant to a factual determination of the message conveyed. Id. at 825. Consequently, for many of the reasons elucidated in its discussion of plaintiffs' Section 3604(a) claims, the Court finds that a genuine issue of material fact exists on this question. Reasonable minds could differ on whether Ms. Venturi's statements would lead the ordinary listener to believe that defendants would not rent to families with more than two children or that defendants would not rent to families with more than five members.
More analysis is necessary in regard to defendants' intent in making the relevant statements to plaintiffs and the ultimate issue of how the ordinary listener would interpret the statements. As a result, the Court must deny summary judgment for plaintiffs on their Section 3604(c) claim.
For all the foregoing reasons defendants' motion for discovery sanctions is GRANTED IN PART. Plaintiff is hereby precluded from offering any testimony in regard to the conversation between the white "tester" and defendant Telda Venturi. Moreover, plaintiffs and their counsel are jointly and severally liable for reasonable attorneys' fees and costs incurred by defendants in pursuit of their relevant discovery requests and present motions. Plaintiffs' motion to amend the Amended Complaint is DENIED as untimely. Finally, summary judgment in favor of plaintiff and against defendants is DENIED because genuine issues of material fact still exist for trial.
IT IS SO ORDERED
October 16, 1995
Binghamton, New York
HON. THOMAS J. McAVOY
Chief U.S. District Judge