space for a sundry store. Defendant further contends that Del Guercio's decision to negotiate with plaintiff in April, 1986, was motivated by a sound business judgment to create an option for Alfieri in case the contemplated lease with Landau fell through. Considering that Alfieri had negotiated with Landau for three months, defendant argues it was only proper to enter the lease agreement with Landau once he was ready to sign, rather than with Chauhan.
A. Plaintiff's § 1981 Claim
Plaintiff brings his federal claim of discrimination against Alfieri based on the Civil Rights Act of 1866, 42 U.S.C. § 1981.
In order to establish a violation of § 1981, a plaintiff must demonstrate purposeful discrimination based upon race. Crocker v. Boeing Co., 662 F.2d 975, 988 (3d Cir. 1981). However, to compensate for the often difficult task of a plaintiff to prove intentional discrimination by direct evidence in civil rights cases, the Supreme Court has articulated a method whereby plaintiff needs only to prove a prima facie case, shifting the burden to the defendant to articulate some legitimate, nondiscriminatory reason for the rejection of plaintiff's application. Should the defendant carry this burden, "plaintiff must then have the opportunity to prove that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).
In a case involving the sale or lease of property, a plaintiff can establish a prima facie case under either 42 U.S.C. §§ 1981, 1982 or Title VIII of the Fair Housing Act, 42 U.S.C. § 3601 et seq. by proving:
(1) That he or she is a member of a racial minority;
(2) That he or she applied for and was qualified to rent or purchase certain property or housing;
(3) That he or she was rejected; and
(4) That the housing or rental property remained available thereafter.
See, e.g., Selden Apartments v. U.S. Dept. of Housing & Urban Development, 785 F.2d 152, 159 (6th Cir. 1986) (applying elements in actions under Fair Housing Act, 42 U.S.C. § 3601 et seq. and Civil Rights Acts, §§ 1981 and 1982); Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 551 (9th Cir. 1980) (applying elements in § 1982 action); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036 (2d Cir. 1979) (applying elements in Title VIII, Fair Housing Action); Jiminez v. Southridge Co-op, Section I, Inc., 626 F. Supp. 732, 734 (E.D.N.Y. 1985) (applying same elements to claims under Civil Rights Acts, §§ 1981 and 1982 and Fair Housing Act, 42 U.S.C. § 3601 et seq.).
In the action at bar, the Court finds that plaintiff has established a prima facie case. Plaintiff is a member of a racial minority, he applied for and was qualified to lease the retail space at Metro Park, plaintiff was rejected in his endeavor, and the retail space remained open, and later was leased to a white person.
Because the Court finds that plaintiff has established a prima facie case, the Court must next ascertain if defendant has articulated a legitimate, non-discriminatory reason for its rejection of plaintiff's application. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). In this regard, defendant contends that at the time of plaintiff's initial contact with Alfieri, through Schultz, in November, 1985, Alfieri was not interested in immediately committing any space to retail leasing given the occupancy figure of the building. Moreover, defendant contends that Mr. Schultz, as an executive vice-president, did not have the responsibility or inclination to negotiate and finalize leasing arrangements for retail space in Metro Park. Finally, defendant argues that by the time plaintiff contacted Alfieri again concerning rental of the retail space in April, 1986, leasing representative Del Guercio was close to finalizing a lease with Landau, and only chose to negotiate with plaintiff to create an option in case the contemplated lease with Landau fell through.
The Court finds Alfieri's proffered explanation to be a legitimate, non-discriminatory reason for its decision not to lease the retail space to plaintiff. Plaintiff does not dispute that Schultz was not the person who ultimately took responsibility for finding tenants for retail space in Metro Park. Nor does plaintiff present any evidence contradicting Alfieri's contention that, at the time of plaintiff's April, 1986, meetings with Del Guercio, Landau was close to entering into a lease for the sundry shop space after some three months of negotiations. Del Guercio's decision to then negotiate with Chauhan in order to create an additional option for Alfieri is well within the realm of reasonable business tactics.
Although the Court finds that Alfieri has articulated a legitimate, non-discriminatory reason for not leasing space to plaintiff, plaintiff still has an opportunity to prove that the legitimate reasons articulated by Alfieri were merely a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. at 1094. Chauhan attempts to meet this task by pointing to certain inconsistencies in the accounts of Schultz and Del Guercio, particularly as to the intentions of Alfieri to lease retail space in Metro Park, and as to the occupancy rates in the building at relevant times in defendants' course of conduct with plaintiff. Plaintiff also points out that Del Guercio entered into negotiations with Landau for rental of sundry shop space barely six weeks after Schultz informed plaintiff that Alfieri could not commit to the leasing of such space at that time.
The Court finds that the inconsistencies pointed out by Chauhan, while perhaps demonstrating some business inefficiency and miscommunication in the operation of Alfieri, do not lend any support to plaintiff's contention that defendants' given reasons for not leasing to plaintiff were merely a pretext for discrimination.
The key period of time is November, 1985, when plaintiff had his initial contact with defendant. Plaintiff walked in off the street and spoke with Schultz, Alfieri's vice-president. The record indicates that Schultz, although without the intention or responsibility for leasing retail space in Metro Park, showed every courtesy to plaintiff with the intention of perhaps doing business with plaintiff in the near future. Soon after Schultz's meeting with plaintiff, Del Guercio was hired as leasing representative for Metro Park. There is no evidence that Schultz spoke with Del Guercio about plaintiff. Indeed, plaintiff can point to no evidence that Del Guercio was ever made aware of plaintiff's expressed interest in leasing retail space.
Because plaintiff cannot show that Schultz's given reason for not leasing space to plaintiff in November, 1985 was merely a pretext for discrimination, it follows that Del Guercio was justified in finally leasing the sundry shop space to Landau in April, 1986, after three months of negotiations with Landau, despite engaging in negotiations with plaintiff.
Therefore, the Court finds, after viewing the record as a whole, that plaintiff could not convince any reasonable jury that defendants' tendered reasons for not leasing space to plaintiff were merely a pretext for discrimination. See Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987) (summary judgment may be granted "if, as a matter of law, viewing all the evidence which has been tendered and should have been admitted in the light most favorable to the party opposing the motion, no jury could decide in that party's favor.").
In Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987), the Third Circuit cast some doubt on the appropriateness of rendering summary judgment in a discrimination case once an employee makes out a prima facie case and then seeks to attack as pretextual an employer's articulated non-discriminatory reason for discharge. The Court reversed the District Court's grant of summary judgment, explaining:
The proffered reason for discharge is a subjective one. The plaintiff challenges the defendant's post-litigation articulation of its intent and the documentary evidence can be viewed as supporting the plaintiff's challenge. Consequently, the issue of pretext turns on [the employer's] credibility and is not appropriate for resolution on a summary judgment motion.