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August 6, 1997


The opinion of the court was delivered by: BROTMAN


 This case arises under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq. (the "Fair Housing Act"), as amended by the Fair Housing Amendments Act of 1988, Pub.L. No. 100-430, 1988 U.S.C.C.A.N. (102 Stat. 1619) ("the FHAA"). The United States has brought this action on behalf of Ann Jackson, pursuant to 42 U.S.C. § 3612(o). Broadly stated, the United States alleges that the Defendants violated federal fair housing laws by discriminating against Ms. Jackson, a prospective tenant, on the basis of familial status. Defendants deny the allegations. Presently before the Court is Defendants' Motion for Summary Judgment.


 On February 4, 1994, Ann Jackson met with defendant Joan Branella (hereinafter "Mrs. Branella) to view a one-bedroom apartment at 3209 Juniper Court in Mays Landing, New Jersey. The apartment, a unit within the Woodlands Condominium complex, is owned by Frank and Joan Branella, who sought to offer it for rent in February 1994. At the time of Jackson's appointment with Mrs. Branella, Jackson was five months pregnant. After viewing the apartment, Mrs. Branella gave Jackson a lease application and advised her that the Woodlands Condominium Association ("the Association" or "the Woodlands") charged $ 30.00 to conduct a credit and criminal record investigation. Mrs. Branella also expressed concern regarding occupancy restrictions the Association imposed on the Woodlands units in light of Jackson's status; that is, since the prospective occupants of the one-bedroom condominium were two persons--a single adult and a child--Mrs. Branella advised Jackson that the Association's rules and regulations might prohibit the Branellas from renting the apartment to Jackson and her child. *fn1" On the next business day, Jackson called the Association's rental office to inquire about occupancy restrictions, if any, for the apartment at 3209 Juniper Court, and learned that the Association's rules permitted two people to occupy that unit. *fn2"

 In late March 1994, Jackson filed a complaint with the United States Department of Housing and Urban Development pursuant to 42 U.S.C. § 3610(a). *fn3" The complaint alleged that the Branellas had discriminated unlawfully against Jackson and her son on the basis of familial status by refusing to rent to them the apartment at 3209 Juniper Court. After conducting an investigation and taking preliminary action pursuant to 42 U.S.C. § 3610, the Secretary of Housing and Urban Development ("HUD") charged the defendants with engaging in discriminatory housing practices in violation of the Fair Housing Act aned the FHAA. Thereafter, the defendants elected to have the claims asserted in the HUD charge decided in a federal civil action pursuant to 42 U.S.C. §§ 3612(a) and (o). The summary judgment motion presently before the court relates to that action.


 A. The Summary Judgment Standard

 The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Serbin v. Bora Corp., 96 F.3d 66, 69 n.2 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact, the court must grant all reasonable inferences from the evidence to the non-moving party. Serbin, 96 F.3d at 69 n.2. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Supreme Court decisions mandate that a summary judgment motion must be granted unless the party opposing the motion "provides evidence 'such that a reasonable jury could return a verdict for the nonmoving party.'" Lawrence v. National Westminster Bank, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n.2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)) (emphasis added); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (declaring that non-movant may not "rest upon mere allegations, general denials, or . . . vague statements"). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.

 B. Fair Housing Laws

 In 1968, Congress enacted the Fair Housing Act to prohibit housing discrimination based on race, color, religion, or national origin. Also known as Title VIII of the Civil Rights Act of 1968, the Fair Housing Act was amended in 1974 to prohibit discrimination based on gender. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1, 115 S. Ct. 1776, 1779 n.1, 131 L. Ed. 2d 801 (1995). Nearly a decade and a half later, Congress passed the Fair Housing Amendments Act of 1988, extending fair housing coverage to prohibit "familial status" discrimination--that is, discrimination against parents and other custodians living with children under the age of eighteen. 42 U.S.C.A. § 3602(k) (West 1994). *fn4"

 Congress expanded the Fair Housing Act to protect against familial status discrimination in light of an express concern for the plight of single-parent families, young families with children, and poor families. United States v. Lepore, 816 F. Supp. 1011, 1017 (M.D. Pa. 1991) (quoting 134 Cong. Rec. H4611 (daily ed. June 22, 1988) (statement of Rep. Miller)); see also Doe v. City of Butler, 892 F.2d 315, 326 (3d Cir. 1989) (Roth, J., dissenting) (citing H.R. Rep. No. 100-711, at 32 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2184). The 1988 amendment accorded families broad protection--essentially as much as racial minorities and other groups protected by Title VII. Lepore, 816 F. Supp. at 1016. Specifically, the FHAA provides that it is unlawful to make a dwelling unavailable to any prospective buyer or renter because of the presence of minor children in the prospective household. 42 U.S.C.A. § 3604(a) (West 1994) ("Section 3604(a)"); *fn5" see also id. § 3602(k) (defining "familial status"). The protection expressly extends, inter alia, to pregnant persons. Id. Similarly, the statute prohibits discrimination against such persons in the terms, conditions, privileges of housing sale or rental, or in the provision of services or facilities. Id. § 3602(b) ("Section 3602(b)"). It also renders unlawful the making of any statement with respect to the sale or rental of a dwelling that indicates a discriminatory preference or limitation. Id. § 3604(c) ("Section 3604(c)"). *fn6" Finally, the statute renders it illegal to represent to a prospective tenant because of that person's familial status that a dwelling is unavailable for rental when such dwelling is in fact so available. Id. § 3604(d) ("Section 3604(d)").

 A plaintiff states a prima facie case under Title VIII, as amended by the FHAA, by showing either (1) intentional disparate treatment with regard to housing, or (2) disparate impact alone, without proof of discriminatory intent. Arc of New Jersey, 950 F. Supp. at 643 (citing Doe, 892 F.2d at 323). The government here argues that the Defendants, through willful actions in disregard for the rights of Jackson and her son, intentionally discriminated against a prospective tenant based on familial status, in contravention of Sections 3604(a), (b), (c), and (d). (Pl.'s Br. in Opp'n to Defs.' Mot. for Summ. J. [hereinafter "Opp'n"] at 6.) In the absence of any representation that Plaintiff seeks recovery based on the disparate impact theory, the court must conclude that only an intentional discrimination claim could lie in this case.

 While the failure to show intent does not defeat an attempt to state a prima facie case of housing discrimination, Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146-48 & n.31 (3d Cir. 1977), where, as here, the plaintiff alleges discrimination as a result of disparate treatment--as opposed to disparate impact--a showing of impermissible intent is pivotal. Mountain Side Mobile Estates Partnership v. Secretary of Hous. & Urban Dev., 56 F.3d 1243, 1250 & n.6, 1252 (10th Cir. 1995). To that end, a case of intentional discrimination requires the plaintiff to show, inter alia, that familial status was a motivating factor (though not necessarily the sole motivating factor) in the allegedly violative action. See Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042 (2d Cir. 1979) (analogous race discrimination claim), cited approvingly in Doe, 892 F.2d at 323.

 The plaintiff can show discriminatory intent by way of either direct or indirect evidence. Kormoczy v. Secretary, United States Dep't of Hous. & Urban Dev., 53 F.3d 821, 823 (7th Cir. 1995). In the absence of direct evidence of discriminatory intent, the court must apply burden-shifting standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) ("Burdine "). *fn7" See NAACP v. Medical Center, Inc., 657 F.2d 1322, 1333 (3d Cir. 1981); see also Chauhan, 897 F.2d 123, 126-27 (noting evidentiary difficulties in proving discriminatory intent; recognizing McDonnell Douglas-Burdine applies to Fair Housing Act claims). Conversely, where there exists direct evidence of intentional discrimination, a plaintiff need not establish a prima facie case pursuant to McDonnell Douglas-Burdine. Lepore, 816 F. Supp. at 1017. The evidence in the instant motion includes direct evidence of intentional discrimination. See infra section II.C. Thus, the court need not apply the McDonnell Douglas-Burdine factors.

 Determining the existence of discriminatory intent, where the record reflects conflicting evidence, is within the province of the fact finder. See Lepore, 816 F. Supp. at 1017 (citing Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977) and Washington v. Davis, 426 U.S. 229, 242, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976)). However, on a motion for summary judgment, if the non-moving party does not provide sufficient evidence to support each element of the prima facie case, the case does not withstand summary judgment and the fact finder need never address the factual question of intent. See Serbin, 96 F.3d at 69 n.2 (quoting Celotex, 477 U.S. at 248). The converse, of course, also holds true. That is, where the non-moving party provides sufficient evidence to preclude summary judgment, the fact finder ...

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