JOHNSON v. DULUTH HOUSING REDEVELOPMENT AUTHORITY

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendant's Motion for Summary Judgment. A Hearing on the Motion was conducted on September 28, 2000, at which time, the Plaintiff appeared by Bruce C. Bromander, Esq., and the Defendant appeared by Melinda M. Sanders, Esq.

For reasons which follow, we recommend that the Defendant's Motion for Summary Judgment be granted.

II. Factual and Procedural History

The Plaintiff Darrell Johnson ("Johnson"), a Native American, filed this action, claiming that the Defendant Duluth Housing and Redevelopment Authority ("HRA") discriminated against him, on the basis of his race, in violation of the Fair Housing Act, Title 42 U.S.C. § 3601 et seq.; the United States Constitution; Title 42 U.S.C. § 1983; and the Universal Declaration of Human Rights, Articles I, II, III, IV, and V.

Johnson applied for housing with the HRA in late October of 1997. See,Exhibit A to Sanders' Affidavit. At that time, he was seeking public housing or a Section 8 rent subsidy for himself, and for four of his children, one of whom was under the age of seven years. Id. On November 5, 1997, Johnson was informed by the HRA that, although final verification had not been completed, it appeared that he was eligible for Section 8 subsidy, and that his name had been placed on the waiting list — which had an average wait of approximately 24 months. See,Exhibit B to Sanders' Affidavit. Johnson was also informed, by a separate letter dated November 5, 1997, that his application for low rent public housing had been reviewed and, although final verification had not been completed, it appeared as though he was eligible. He was notified that the approximate wait for a three-bedroom unit was two to four months. See, Exhibit C to Sanders' Affidavit.

By letter dated November 6, 1997, Johnson was informed that he was near the top of the waiting list for public housing, and that the final verification would begin immediately. He was instructed to complete an enclosed application, and to call the HRA's Applications Department within five days to schedule an appointment. See, Exhibit D to Sanders' Affidavit. Johnson claims he never received the letter of November 6, 1997. See, Johnson Deposition, Vol. II, at 11, 25, Exhibit E to Sanders' Affidavit. Nonetheless, he believes that he went to the HRA and was given the application, which he completed at their office. The application was dated November 26, 1997. See, Exhibit F to Sanders' Affidavit.

The HRA apparently scheduled Johnson for an appointment on December 5, 1997. Johnson claims, however, that he was never made aware of the appointment until he was advised, by a letter dated December 8, 1997, that he had missed that appointment. See, Complaint, at ¶ 11. When Johnson received this letter, he called the Duluth Tenant's Union, and the HRA. Johnson underscores that, although the HRA normally transmits confirmation letters for upcoming appointments, it has not produced a confirmation letter for the appointment of December 5, 1997. See,Plaintiff's Memorandum in Opposition to Motion for Summary Judgment, at 2 ("Plaintiff's Memorandum").

The HRA has produced a confirmation letter for the Plaintiff's appointment of December 26, 1997. See, Exhibit N to Sanders' Affidavit.

The next correspondence between the HRA and Johnson was on December 16, 1997. At that time, the HRA advised Johnson that there was no one staffing the low rent public housing department at the time and, therefore, the HRA was not able to schedule any appointments. See,Exhibit I to Sanders' Affidavit. On December 19, 1997, Johnson was notified that he had been scheduled for an appointment on December 26, 1997. See, Exhibit N to Sanders' Affidavit. Johnson admits that he failed to appear for this appointment. See, Complaint, at ¶ 18. He claims, however, that he called the HRA the same day to reschedule the appointment. Id. In contrast, the HRA claims that, on January 7, 1998, it notified Johnson, by mail, that he had missed the meeting of December 26, 1997, and that he needed to reschedule the meeting within two days, or he would be removed from the waiting list. See, Exhibit P to Sanders' Affidavit. Johnson claims that he did attempt to contact the HRA after he received the letter of January 7, 1998, and that he left a message. See,Johnson Deposition, Vol. I, at 124-25, Exhibit H to Sanders' Affidavit. As he did not have a phone, though, the HRA had to wait for Johnson to call back. See, Defendant Housing and Redevelopment Authority's Memorandum of Law in Support of its Motion for Summary Judgment, at 8 ("Defendant's Memorandum"). The HRA sent Johnson another letter, dated January 14, 1998, advising him to contact it by January 23, 1998, or his name would be removed from the waiting list. See, Exhibit P to Sanders' Affidavit.

The HRA explains that it had been experiencing staffing issues in mid- to late — 1997, and in early 1998. Therefore, the applications function of the low rent public housing department of the HRA was in a state of flux during that time period, and was not very organized or efficient in processing applications. See, Defendant Housing and Redevelopment Authority's Memorandum of Law in Support of its Motion for Summary Judgment, at 6 ("Defendant's Memorandum").

Johnson claims that this appointment was set up, on December 21, 1997, by a representative at the Duluth Tenant's Union. See, Complaint, at ¶ 16. However, the HRA has produced a confirmation letter regarding this appointment which was sent on December 19, 1997. See,Exhibit N to Sanders' Affidavit. Johnson claims he never received this letter.
Johnson asserts that he was with the representative of the Duluth Tenant's Union when she called the HRA, and that they spoke with Harry Samuelson ("Samuelson"). See, Complaint, at ¶ 16. According to the HRA, however, Samuelson was not employed by the HRA at the time of the alleged telephone call on December 21, 1997. See, Defendant's Memorandum, at 7; Samuelson Deposition, at 57, Exhibit 3 of Bromander Affidavit. During this telephone conversation, Johnson maintains that he inquired about available housing at the Harborview Homes, and was told that there were no openings at that time. However, according to Johnson, he had heard from friends that, in fact, there were openings. See,Complaint, at ¶¶ 17, 21.

Johnson was finally able to schedule an appointment for February 2, 1998, which he attended. At that time, he provided the HRA with two rental references. One of the references, the Leech Lake Housing Authority, advised the HRA, through Ron Hare ("Hare"), that "Darrell Johnson was never a Lease holder in one of our units that I am aware of." See, Exhibit S to Sanders' Affidavit. Based on the lack of a landlord reference, and a failure to provide documentation to verify the Social Security numbers for himself and his family, the HRA withdrew Johnson's application for low rent public housing. Johnson was advised of the decision by a letter dated February 10, 1998. See, Exhibit T to Sanders' Affidavit. Johnson claims that this letter was not postmarked until February 17, 1998, and that the letter gave him ten days from the date of the notice — February 10 — to appeal the decision. See, Complaint, at ¶ 26; Exhibits T and U to Sanders' Affidavit. Johnson argues that the HRA was attempting to deprive him of his right to the full benefit of public housing, which is accorded by the Fair Housing Act, by mailing the letter late — thereby cutting off his method of appeal. See, Complaint, at ¶ 26. Nonetheless, Johnson submitted his notice of intent to appeal the determination on February 23, 1998. See, Exhibit W to Sanders' Affidavit. Even if the time period for appeal had run ten days after the date on the letter — that is, on February 20, 1998 — the HRA accepted his appeal letter and scheduled an informal hearing for March 6, 1998. See, Exhibit X to Sanders' Affidavit. The Hearing became unnecessary, however, because the issues which caused Johnson's application to be withdrawn were resolved. According to the HRA, Johnson was verbally informed, on March 3, 1998, that he was reinstated to the waiting list for low rent public housing. See, Jordan Deposition, at 58, Exhibit M to Sanders' Affidavit. A letter to that effect was sent to Johnson on March 16, 1998. See, Exhibit AA to Sanders' Affidavit. On March 18, 1998, the HRA sent a letter to Johnson, stating that it was prepared to offer him a unit. See, Exhibit CC to Sanders' Affidavit. Johnson was subsequently offered a two-bedroom apartment at the Harborview Homes. By March 26, 1998, Johnson had made an appointment for April 1, 1998, in order to meet with the housing specialist so as to rent a unit at the Harborview Homes. By letter dated March 26, however, Johnson was informed that, while he had already accepted a two-bedroom apartment at Harborview, the three-bedroom waiting list was almost exhausted and that the HRA had more three bedroom apartments than applicants on the waiting list. Therefore, Johnson could chose to accept a three-bedroom apartment with the understanding that, if a family qualified for it in the future, he would be obligated to move to a two-bedroom apartment at his own expense. See,Exhibit FF to Sanders' Affidavit. Thereafter, Johnson cancelled his appointment of April 1, 1998, and spoke with the housing specialist about renting a scattered site unit. Within a couple days of rejecting the Harborview Homes apartment, Johnson was offered a scattered site rental unit, and he signed the lease for that unit on April 2, 1998. See,Exhibit GG to Sanders' Affidavit.

Hare did not fill out the Renter's Verification form but, rather, wrote the note on what appears to be a post-it note. See, Exhibit S to Sanders' Affidavit; Exhibit 2 to Bromander Affidavit.

According to the HRA, the process of disqualifying or withdrawing applications due to various problems, and then reinstating the application after the problems are resolved, is not "untypical." See, Jordan Deposition, at 48, Exhibit M of Sanders' Affidavit.

The Leech Lake Housing Authority, which initially stated, through Hare, that Johnson had not been a tenant, later advised the HRA, by letter dated February 19, 1998, that the Renter's Verification had been handled inappropriately, and that Johnson had been a tenant. See, Exhibit V to Sanders' Affidavit. Apparently, Johnson also brought the requested Social Security cards into the HRA for verification, on or about March 3, 1998. See, Exhibit Z to Sanders' Affidavit.

During the time period between his initial application and March 3, 1998, Johnson had a change of income because two of his children moved in with their mother. Therefore, Johnson was now only eligible for a two-bedroom unit. See, Defendant's Memorandum, at 10.

The HRA has acknowledged its awareness of a disproportionate amount of minorities living in the Harborview Homes, in relation to the Fairmont Homes and scattered sites. According to the HRA, in response to this observation, it voluntarily added the following statement to its "Policies Governing Admission to and Continued Occupancy of Low Rent Public Housing:"

As long as minority families are under represented in scattered site and Fairmont homes, applicants for family housing who are minorities shall be offered a unit in scattered site or Fairmont Homes rather that Harborview Homes. No application from a minority family will be delayed or a housing offer delayed in order to make scattered site and Fairmont Homes available. If no scattered site or Fairmont Homes unit which meets their occupancy standards is available, the family will be offered a unit in Harborview Homes. No minority family wishing to receive an offer of an available unit in Harborview Homes rather than scattered site or Fairmont Homes will be denied access to Harborview Homes based on this paragraph.

Statement of Policies Governing Admission To and Continued Occupancy of Low Rent Public Housing, at 31, Exhibit EE to Sanders' Affidavit.

Johnson brought this action claiming that the HRA's handling of his application shows "malicious intent to deny [him] due process of his application process for final verification and determination in eligibility for admission." Complaint, at ¶ 29. The bases for Johnson's action are the HRA's sending of a "second notice" letter, regarding his failure to appear for the December 5, 1997, appointment, of which he was never advised; the HRA's removal of his name from the waiting list due to "housing references," even though there were irregularities in the housing reference verification form, without discussing it with him first; as well as his failure to receive many of the communications allegedly sent by the HRA. Id. Johnson claims that these actions violated his rights under the United States Constitution, and Title 42 U.S.C. § 1983; the Fair Housing Act; and the Universal Declaration of Human Rights. He further claims to have suffered severe emotional distress, humiliation, and embarrassment, and to have sustained monetary damages. Id. at ¶¶ 31-36. The HRA has moved for Summary Judgment on all counts.

Both at the Hearing, and in his Memorandum of Law, the Plaintiff advised the Court that he is withdrawing his claim under the Universal Declaration of Human Rights. See, Plaintiff's Memorandum, at 10. Moreover, the case law regarding the Court's jurisdiction under the Universal Declaration counsels against that claim. See, Kyler v. Montezuma County, 203 F.3d 835, 835 (10 Cir. 2000) (unpublished) ("[T]he Universal Declaration of Human Rights * * * [does] not, by [its] terms, confer rights upon individual citizens and, thus, petitioner does not have standing to bring these claims."); Haitian Refugee Center v. Gracey, 809 F.2d 794, 816 n. 17 (D.C. Cir. 1987) ("We do not consider whether appellants' interests fall within the zone of interests to be protected or regulated by the Universal Declaration of Human Rights because it is merely a nonbinding resolution, not a treaty * * *.");Hawkins v. Comparet-Cassani, 33 F. Supp.2d 1244, 1257 (C.D.Cal. 1999) ("[The Universal Declaration of Human Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture] are nonbinding resolutions of the United Nations General Assembly" and, "[a]s such, they are only intended to `represent evidence of customary international law,'" "and are not intended to be legally binding or create self-executing rights like other international treaties;" "[t]herefore, the plaintiff cannot state a claim under these resolutions." [citations omitted]). Thus, based on the Plaintiff's withdrawal of his claim, as well as these authorities, we recommend that the Defendant's Motion for Summary Judgment on the Plaintiff's claim under the Universal Declaration of Human Rights be granted.

III. Discussion

A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. See,Celotex Corp. v. Catrett, 477 U.S. 317, 327(1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. See, Krentz v. Robertson, 228 F.3d 897, 901 (8th Cir. 2000); Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000);Carter v. St. Louis Univ., 167 F.3d 398, 400 (8th Cir. 1999). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986); Herring v. Canada Life Assurance, 207 F.3d 1026 (8th Cir. 2000); Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998); Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir. 1997).

As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure; see also, Anderson v. Liberty Lobby, Inc., supra at 256; Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir. 1999);Jauregui v. Carter Manufacturing Co., 173 F.3d 1076, 1085 (8th Cir. 1999). Moreover, the movant is entitled to Summary Judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra at 322; see also, Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir. 2000); Greer v. Schoop, 141 F.3d 824, 826 (8th Cir. 1998). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra at 323; see also, Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir. 1995); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995); Settle v. Ross, 992 F.2d 162, 163 (8th Cir. 1993).

B. Legal Analysis. The HRA has moved for Summary Judgment on both the Fair Housing Act claim, and the Title 42 U.S.C. § 1983 claim. As these issues require slightly different analyses, we will address them separately.

1. The Fair Housing Act, Title 42 U.S.C. § 3604 et seq. Johnson claims that he has been discriminated against, on the basis of his race, in violation of the Fair Housing Act, Title 42 U.S.C. § 3604 et seq. The Fair Housing Act prohibits discrimination, on the basis of race — among other protected statuses — in the sale or rental of housing. See, Title 42 U.S.C. § 3604 . To evaluate a claim of discrimination under the Fair Housing Act, we must look to the familiar three-part test that was first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), and that has been paraphrased as follows:

First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate undiscriminatory [sic] reason for its action. Third, if the defendant satisfies this burden, the plaintiff has the opportunity to prove by a preponderance that the legitimate reasons asserted by the defendant are in fact mere pretext.

United States v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992) (quotingPollitt v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987)). According to our Court of Appeals, there are no hard-and-fast rules as to what constitutes a prima facie case of discrimination. "The elements of a prima facie case of discrimination will vary from case to case, depending on the allegations and the circumstances." Id.

Johnson believes he can establish the following prima facie case of discrimination: 1) he is a member of a protected class; 2) he applied and was qualified for housing assistance; 3) adverse action was taken against him; and 4) the HRA did not take the same or similar adverse action against non-protected class applicants with similar qualifications. See,Plaintiff's Memorandum, at 8; cf. Noland v. Commerce Mortgage Corp., 122 F.3d 551, 553 (8th Cir. 1997) ("A housing-discrimination plaintiff's prima facie case consists of evidence that the plaintiff was a member of a protected class, that he applied for and was qualified for a loan from the defendant, that the loan application was rejected, and that the defendant has approved loans for applicants with similar qualifications."). While the HRA, by every appearance, does not contest the assertion that Johnson is a member of a protected class, or that he applied and was qualified for housing assistance, it does argue that Summary Judgment is appropriate as Johnson has not shown, by a preponderance of the evidence, that adverse action was taken against him, or that the HRA did not take the same or similar adverse action against a non-protected class applicant. Moreover, even if Johnson has made out a prima facie case of discrimination, the HRA argues that the Summary Judgment is still appropriate, as it has shown legitimate, nondiscriminatory reasons for its actions, which have not been rebutted by Johnson.

In response, Johnson claims that Summary Judgment is not appropriate because there is a material factual dispute as to whether the HRA took adverse action against him. Johnson believes that the HRA took adverse action against him which had the effect of slowing down his housing application. Johnson also contends that there is a material factual dispute concerning whether the HRA treated applicants of the non-protected class differently, as he claims he has presented anecdotal evidence regarding the HRA's discriminatory treatment of other minority applicants. He also contends that there is a material factual dispute as to whether the HRA's asserted legitimate, nondiscriminatory reasons for its actions are simply pretextual.

On the Record before us, however, Johnson has not made out a prima facie case of discrimination. Johnson has not shown, by a preponderance of the evidence, that other individuals who were similarly situated, but who were not part of the protected class, were treated differently by the HRA. His evidence on this point consists of a reference to one unnamed Caucasian women who, apparently, applied for housing around the same time that Johnson did, in October of 1997, and moved into an apartment in Harborview Homes in January of 1998, see, Complaint, at ¶¶ 20, 21, as well as some anecdotal evidence, presented by Carolyn Franklin ("Franklin"), a community educator at the Housing Access Center, about HRA's treatment of minorities. See, Franklin Deposition, at 24, 61-63, 65, 69, 78-83, Exhibit 1 to Bromander Affidavit. The Housing Access Center was formerly known as the Duluth Tenant's Union, and Franklin is a housing advocate for low-income people. In that capacity, she assisted individuals having difficulties with their applications for low income housing through the HRA. Franklin testified that, in the course of her advocacy work, she was apprised by the individuals she assists of the HRA's discriminatory practices. Examples of such discriminatory practices included complaints from mainly minority individuals who were not receiving their letters from the HRA, or were receiving their letters too late to act on them; as well as complaints that individuals at the HRA were rude to applicants. See, Franklin Deposition, at 61-63, 69, Exhibit 1 to Bromander Affidavit. Franklin further testified, however, that she has never heard first hand any racially disparaging comments, or was personally belittled on the basis of her race, by anyone at the HRA. Id. at 79, 82-3.

First, as to Franklins' recital of other persons' complaints, her testimony about those alleged discriminatory practices is inadmissible hearsay. In her testimony, she is simply relating out-of-Court statements by third parties, which Johnson offers for the truth of the matter asserted. As such, her testimony cannot be used in opposition to a Summary Judgment Motion. See, Rule 56(e), Federal Rules of Civil Procedures; Rules 801 and 802, Federal Rules of Evidence; Johnson v. Baptist Medical Center, 97 F.3d 1070, 1073 (8th Cir. 1996).

The same holds true for the statement by the unnamed Caucasian woman — her out-of-Court statement, as reiterated by Johnson — is hearsay, and cannot be considered as rebuttal evidence to the HRA's Summary Judgment Motion. Moreover, as to the statement by the Caucasian female, who allegedly applied for public housing at the same time as Johnson, but who was accepted at Harborview Homes on January of 1998, her statement, without more, does not show, by a preponderance of the evidence, that the HRA did not take similar adverse action against a non-protected class member. Johnson does not provide the Court with any information to determine the circumstances surrounding her application — for example, did she appear for all of her appointments, was she eligible for housing that was immediately available, and did she supply all of the requested information accurately, and in a timely manner. Thus, we are left with a bare assertion that her application, like other individuals in the non-protected class, was somehow treated differently. Compare, Noland v. Commerce Mortgage Corp., supra at 553 ("We also conclude, however, that there was no evidence in the record that non-black applicants otherwise similar to Noland had received loans from Commerce Mortgage."). On such evidence, Johnson has failed to make out his prima facie case. Therefore, Summary Judgment should be granted on Johnson's Fair Housing Act claim.

Moreover, while we have serious doubts as to whether Johnson has shown, by a preponderance of the evidence, that adverse action was taken against him, thereby delaying his application, we need not decide that issue because, even if Johnson had made out a prima facie case of discrimination, the HRA has shown legitimate, nondiscriminatory reasons for its action, which Johnson has not rebutted. See, United States v. Badgett, supra at 1178; see also, Soules v. HUD, 967 F.2d 817, 821 (2nd Cir. 1992) ("In examining the defendant's reason, we view skeptically subjective rationales concerning why he denied housing to members of protected groups," but "[t]here is less reason to be wary of subjective explanations, though, where a defendant provides objective evidence indicating that truth lies behind his assertion of nondiscriminatory conduct."). Johnson admitted that he missed one appointment with the HRA — the appointment scheduled for December 26, 1997. See, Complaint, at ¶ 18. Although he realized, on December 26, that he had missed the appointment, and he attempted to reschedule a meeting, by leaving a message with Samuelson, it took about a month to reschedule that appointment, in part because Johnson did not have a phone and, as a result, all correspondence either had to be initiated by him, or by letter. Johnson finally met with a representative of the HRA on February 2, 1998, but he was not able to provide the required renter's verifications, or proof of a Social Security card, for either his children or himself. The problem with the renter's verification was resolved on February 19, 1998, while it was not

According to the letter of November 6, 1997, which was sent by the HRA to Johnson, the average wait for public housing was two to four months. See, Exhibit C to Sanders' Affidavit. Johnson applied for housing on October 29, 1997, and signed a lease for a scattered site on April 2, 1998 — slightly over five months. See, Exhibits A and GG to Sanders' Affidavit. Although this is somewhat longer than the average wait, Johnson's application was not without problems, which would have unavoidably delayed its processing.

As we have noted in the text of this Report, Samuelson was not employed by the HRA on December 26, 1997. He returned to work for the HRA on January 5, 1998. See, Samuelson Deposition, at 57,Exhibit 3 to Bromander Affidavit.

In fact, the HRA sent Johnson letters dated January 7, 1997, and January 14, 1997, regarding a rescheduling of his appointment. See,Exhibit 0 and P to Sanders' Affidavit. Johnson recalled receiving both letters. See, Johnson Deposition, Vol. I, at 123, Exhibit H to Sanders' Affidavit. After receiving the letter dated January 7, Johnson called the HRA and left a message. Id. at 124. However, as admitted to by Johnson, he did not leave a telephone number where he could be reached, as he did not own a telephone. Id. at 125.

Although Johnson takes issue with the fact that the renter's verification from the Leech Lake Housing Authority was not appropriately handled, he has not provided any evidence that the HRA's actions were not normal. First, Johnson claims that although the renter's verification notice was addressed to Marlene Mitchell ("Mitchell"), the notification that Johnson was never a tenant was signed by Hare. As explained by Samuelson, however, when a verification is returned by a person other than the person to whom it was addressed, the HRA would not perform a follow-up because the noted difference could merely be a change of employees, or a change in job assignments. See, Samuelson Deposition, at 79, Exhibit 3 to Bromander Affidavit.

Second, Johnson claims that the fact that Hare's statement, that "Darrell Johnson was never a lease holder in one of our units that I am aware of," was written on a post-it note, and that the actual renter's verification form did not contain a signature, should have tipped the HRA off that something was awry. Johnson does not provide any evidence, however, that the HRA would normally double check such a verification. The only evidence Johnson identifies is a statement by Samuelson that he never recalled seeing a renter's verification form with a post-it note attached, and that such a procedure is not normal. See, Samuelson Deposition, at 75, Exhibit 3 to Bromander Affidavit. Johnson asks us to infer discrimination from this incident because of the abnormal renter's verification. There is no evidence, however, that the HRA would normally follow-up with a renter's verification in such a circumstance. In fact, Mitchell apologized to the HRA, by letter dated February 19, 1998, for the inappropriate handling of Johnson's verification. See, Exhibit V at Sanders' Affidavit. Thus, we do not believe it is plausible, let alone proper, to infer discrimination from this single incident. until March 3, 1998, that Johnson provided verification for the operative Social Security numbers. See, Exhibits V and Z to Sanders' Affidavit. From the time that his application was completed, on March 3, 1998, it took less than one month for Johnson to sign a lease for a scattered site unit. Thus, even if Johnson had made out a prima facie case of discrimination, under the Fair Housing Act, the HRA has provided legitimate, nondiscriminatory reasons for the alleged delay in the processing of Johnson's application. Therefore, we recommend that the Defendant's Motion for Summary Judgment in regard to Johnson's Fair Housing Act claim be granted.

Johnson has not successfully rebutted these reasons by showing that they are pretextual. For this purpose, he again relies, primarily, on the testimony of Franklin to support his argument that the HRA's reasons are pretextual. However, as we have already noted, Franklin's testimony is hearsay, and cannot be considered in this Summary Judgment Motion. See, Rule 56(e), Federal Rules of Civil Procedures; Rules 801 and 802, Federal Rules of Evidence; Johnson v. Baptist Medical Center, 97 F.3d 1070, 1073 (8th Cir. 1996).
Johnson also points to the evidence that people of color are over represented in the Harborview Homes, and under represented elsewhere, as well as the assertion that people of color are "clustered," or segregated, in the Harborview Homes. Although the HRA admits to this circumstance, it claims that there are nondiscriminatory reasons for these patterns. See, Defendant's Memorandum, at 11-12. Regardless, this pattern of alleged segregation does not assist Johnson in showing that the HRA's actions, with respect to his application, were pretextual. Johnson was eventually placed in scattered site housing and, although he was initially placed in the Harborview Homes, there was no delay in his application due to that fact. Originally, he was supposed to sign a lease for the Harborview Homes on April 1, 1998, and did sign a lease for a scattered site apartment on April 2, 1998. Thus, the fact that Harborview Homes may be segregated, either intentionally or not, does not show pretext for the decisions made with respect to Johnson's application.

2. Title 42 U.S.C. § 1983 and the 14th Amendment to the United States Constitution.

Johnson alleges that the HRA violated his Constitutional right to "due process," and to "the privilege and immunities * * * [of] a citizen of the Unites States," and he employs Title 42 U.S.C. § 1983 as the vehicle for raising this claim. In regard to this claim, while he does not specifically say so, Johnson appears to be referring to the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment provides, in pertinent part, that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Title 42 U.S.C. § 1983 provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * *, subjects * * * any * * * person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Thus, to prevail in a Section 1983 action, the Plaintiff must demonstrate:

1. that the conduct complained of was committed by persons acting under color of State law; and

2. that this conduct deprived the Plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.

Id.; Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997); Hamilton v. Schriro, 74 F.3d 1545, 1549 (8th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 193(1996); Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994). In addition, in order to prove a Constitutional violation, as well a violation of Title 42 U.S.C. § 1983, it is not enough that the Plaintiff show that the Defendant's actions had a disproportionate impact on minorities. "`Disproportionate impact is not irrelevant, but it is not the sole touchstone of invidious racial discrimination.'" Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265(1977), quoting Washington v. Davies, 426 U.S. 229(1976). Rather, Johnson must establish a racially discriminatory intent or purpose on behalf of the HRA. Id. see also, Little Earth of United Tribes, Inc. v. HUD, 584 F. Supp. 1292, 1295 (D.Minn. 1983) ("To establish a [ Fifth Amendment] constitutional violation, plaintiffs must prove that HUD officials acted with a discriminatory purpose.").

For his part, Johnson asserts that, while he must show a discriminatory intent on the behalf of the HRA, the discriminatory intent does not have to be the sole motivating factor in the HRA's decision. See, Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) ("Moreover, under both the Fair Housing Act and under Section 1982, plaintiffs need not show that racial animus was the sole motivation for eviction; only that race was a significant factor."). In support of his argument that Summary Judgment is not appropriate because there is a material factual dispute regarding the HRA's discriminatory intent, Johnson relies on the over representation of people of color in the Harborview Homes, as well as their under representation in other locations, a fact which the HRA admits. Johnson also relies on the testimony of Franklin regarding the discriminatory treatment of people of color by the HRA. However, as we have twice noted, Franklin's testimony, which related second-hand accounts of the manner in which the HRA allegedly treats minorities, is hearsay and cannot be considered for this Motion. See, Rule 56(e), Federal Rules of Civil Procedures; Rules 801 and 802, Federal Rules of Evidence; Johnson v. Baptist Medical Center, supra at 1073.

As to the status of the Harborview Homes, as being over-represented with minorities, the alleged state of segregation does not help Johnson prove his case of intentional discrimination. The over-representation of minorities in Harborview, as well as the clustering of minorities in the development, is an issue of discriminatory impact, which, while possibly relevant, does not necessarily equate with discriminatory intent. See,Arlington Heights v. Metropolitan Housing Development Corp., supra at 265. More importantly, however, Johnson was not placed in the Harborview Homes — he received housing in a scattered site. Thus, any possible discriminatory impact, with respect to the Harborview Homes would not translate into proof of a discriminatory intent on the part of the HRA in processing Johnson's housing application.

Moreover, we have not found any other evidence in the Record before us of discriminatory intent on the part of the HRA, for many of the same reasons we addressed with respect to Johnson's Fair Housing Act claim. While there was some delay in the processing of Johnson's application, the delay has been attributed to objective factors, including his failure to verify Social Security numbers, the lack of a renter's verification, and the fact that, because he did not have a phone, all correspondence had to be done by mail or at his initiation. We also cannot overlook the undisputed fact that, for much of the time in question, the HRA was suffering from a poor level of staffing, which could implicate less than effective management practices, but certainly not discriminatory animus toward Johnson. Thus, although Johnson contends that the delay in his application was due to a discriminatory motive on the part of the HRA, he has not provided any evidence, specific to his application, which shows such an unlawful intent. Therefore, we recommend that the Defendant's Motion for Summary Judgment, in regard to Johnson's claim under the Constitution of the United States, and Title 42 U.S.C. § 1983, be denied.

NOW, THEREFORE, It is —

RECOMMENDED:

That the Defendant's Motion for Summary Judgment [Docket No. 25] be GRANTED.

NOTICE

Pursuant to Rule 6(a), Federal Rules of Civil Procedure, D. Minn. LR1.1(f), and D. Minn. LR72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties by no later than January 29, 2001 a writing which specifically identifies those portions of the Report to which objections are made and the bases of those objections. Failure to comply with this procedure shall operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals.

If the consideration of the objections requires a review of a transcript of a Hearing, then the party making the objections shall timely order and file a complete transcript of that Hearing by no later than January 29, 2001, unless all interested parties stipulate that the District Court is not required by Title 28 U.S.C. § 636 to review the transcript in order to resolve all of the objections made.