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December 12, 1995

Up the Judicial Ladder

by Edmund Tsang

Attorneys for the plaintiffs alleging housing discrimination by the Mitchell Brothers, Inc. (MBI) filed papers on November 27 in U.S. District Court in Mobile in response to defendant's motion to dismiss the lawsuit. Attorneys representing the defendant said in court papers filed in October that the complaints should be dismissed because the statutes of limitations have expired and because the plaintiffs have failed to state claims upon which relief can be granted. [See The Harbinger, Vol. XIV, #2]

The original complaint, filed by 17 persons in August, 1995, on behalf of a class, alleged that in 1991 and 1992 when they applied to lease property managed by the defendants, they were directed by MBI leasing agents to fill out cards signifying their desire to lease property and providing information concerning their employment. The plaintiffs claimed that these cards were coded to indicate the applicants are African-Americans, and that they were denied rental because of their race even though apartments were available for leasing. The plaintiffs charged that MBI's discriminatory practices are in violations of the Fair Housing Act, the Civil Rights Act, and the Alabama Deceptive Trade Practices Act.

The defendant's attorneys argued that defending these accusations places "a tremendous burden on MBI as it will be forced to justify actions and circumstances existing three or four years ago when memories are stale and documentation discarded." Furthermore, the defendant's attorneys claimed that economic factors such as rental costs and income levels of the applicants must be taken into consideration in analyzing why the plaintiffs are not renting from MBI properties. "Qualification would obviously involve some correlation between rental rates and income, and perhaps other factors, which must be shown as part of plaintiffs' case, but are conspicuously omitted from their complaint."

Legalese

According to court papers filed on November 27, attorneys for the plaintiffs said the defendant's statutes-of-limitations argument that the plaintiffs' claims accrued at the exact moment each visited the defendant's apartment complexes and were not offered housing -- the "moment of injury" standard -- cannot be applied in this case, because it forecloses "legitimate claims, which, through no fault of the plaintiff, are not discovered until after the statute of limitations has expired." Furthermore, "the defendant at no time communicated a rejection of the plaintiffs' applications for housing, and this is one reason that the plaintiffs could not have discovered with due diligence that they have been discriminated against based on their race, until 1994 or 1995. Nor did the defendant, at any time, communicate to the plaintiffs that they had been 'coded' as unacceptable applicants for housing due to the color of their skin. This certainly was not communicated to plaintiffs, and is an additional reason that plaintiffs could not have discovered with due diligence that they had been discriminated against based on their race, until 1994 or 1995."

Citing other precedents, attorneys for the plaintiffs argued in court papers that "the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with reasonably prudent regard for his rights," and that "the court also noted that for those witnesses who may not have been aware of any discrimination at the time, they may yet have a cause of action."

Concerning defendant's attorneys' claim that the lawsuit should be dismissed because the plaintiffs cannot prove a violation of the Alabama Deceptive Trade Practices Act and because they also cannot prove a set of facts to support the claims, attorneys representing the plaintiffs said they can.

Paper Trail

In September, 1994 the Mobile daily reported that Diane Hall, a former MBI employee, had filed sexual harassment and housing discrimination complaints against the company. Subsequently, a set of the coded cards that the plaintiffs are alleging the defendant used in 1991 and 1992 to identify them as African- Americans in order to discriminate against them was submitted to plaintiffs' attorneys by former MBI leasing agent Miriam L. Steiner. In an affidavit filed in November, 1994, Steiner said the manager of one of MBI's apartment complexes told her to "mark the top left-hand corner of the index card if the applicant was black. This meant not to call them."

Steiner's description of the practice to mark the information cards of rental applicants who are African-American was corroborated by three other former MBI leasing agents in affidavits and housing discrimination complaints filed with the U.S. Department of Housing and Urban Development (HUD).

Steiner added in her affidavit that about two weeks before she was fired, the same manager "told me to pull the marked cards out of the file and to throw them away. I pulled the cards out and did put them in the garbage. I then decided to keep the cards. I have attached true and correct copies of these cards to this affidavit as Exhibit 1." [See The Harbinger, Vol. XIII, #19]

-- December 12, 1995


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