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Demurrer to fair housing complaint overruled

The commonwealth has pleaded sufficient circumstantial allegations to establish a prima facie case of unfair housing discrimination. Defendant’s demurrer to the complaint is overruled


Gilliard, who is Black, met with Fox, who is White and one of the defendants in this case, to view an efficiency apartment owned by Fountain Hope, the other defendant. Using Zillow, the internet platform on which Gilliard found the apartment, emailed Fox to arrange the viewing.

When the two met, Fox said he forgot the keys to the apartment and said he would need to return home to get them. About two minutes after he left, Fox called Gilliard and said the showing needed to be rescheduled.

Gilliard called Fox and left a voicemail message expressing his interest in the apartment. Later, he sent Fox an email with the same message. Fox never returned the call or responded to the email. The apartment remained unrented for three months. Then, a construction company rented the unit to house some of its workers.

Gilliard filed a complaint with the Virginia Fair Housing Office. The VFHO investigated and determined there was reasonable cause to believe defendants engaged in an unlawful housing discrimination practice. Efforts to settle the unfair housing charge failed.

The attorney general filed a complaint in this court seeking injunctive relief to prevent defendants from interfering with housing rights based on race, and sought more than $55,000 in damages for Gilliard.

Defendants have demurred.


“As framed by the parties, the resolution of the instant Demurrer turns wholly on the question of whether the factual allegations asserted by the Commonwealth in the Complaint are sufficient to establish a prima facie case for discrimination in violation of Code § 36-96.3. …

“Moreover, the parties’ reliance on that question also correctly tracks the rebuttable-presumption scheme set out in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), that courts employ to analyze housing discrimination claims where there is no direct evidence of unlawful discrimination. …

“Under the McDonnell Douglas analysis, the plaintiff must initially establish a prima facie case of unlawful discrimination. … The establishment of a prima facie case creates a ‘rebuttable presumption’ of unlawful discrimination. … The defendant will then have the chance to rebut the claim of unlawful discrimination by showing a legitimate, non-discriminatory purpose for its actions. …

“The plaintiff will then ‘be afforded a fair opportunity to show that [the defendant’s] stated [non-discriminatory] reason for [the defendant’s] rejection was in fact pretext’ for discrimination. …

“It is clear, therefore, that, in order to survive the instant Demurrer, the Complaint need only allege facts sufficient to establish a prima facie case of housing discrimination under Code § 36-96.3(A)(l) against the Defendants. Under the circumstances of this case, a prima facie case comprises the following four elements:

“(1) that Mr. Gilliard belongs to a protected class; (2)that Mr. Gilliard sought to rent the available apartment and was qualified to do so; (3) that Mr. Gilliard was denied the opportunity to rent the apartment; and (4) that the apartment remained available. …

“The Court finds that the factual allegations in the Complaint are sufficient to satisfy these prima facie case elements. …

“Accepting these facts as true, as is the analytical standard applicable to a demurrer, it is difficult to conceive of an innocent explanation for what is inferentially, and circumstantially discriminatory conduct levied against the plaintiff. Thus, the Complaint is facially sufficient to withstand demurrer.

“The Defendants essentially argue in support of their Demurrer that there are insufficient details in the Complaint to conclude that Mr. Fox had the intent to discriminate against Mr. Gilliard because of his race. It is impossible, the Defendants argue, ‘to know [Mr.] Fox’s intent’ or to conclude that his decision not to rent the apartment to Mr. Gilliard was racially motivated.

“Setting aside the fact that this argument is more of a  trial/proof of facts argument, the same argument could be made in all but the rarest cases of racial discrimination where there is direct evidence of racial discrimination, such as a ‘Whites Only’ sign in front of an apartment building.

“However, the vast majority of claims of racial discrimination, like this one, involve situations that are far more subtle and turn on circumstantial evidence at best. After all, discrimination based upon race is often a quiet malignancy that lurks beneath the surface purposefully not revealing its existence in order to conceal a known wrongdoing.

“Intent is thus a concept that is often proven by inferences that arise from a combination of incriminating circumstances. If it can be proven in such a fashion, it certainly may be satisfactorily pied in the same manner for the purposes of stating a claim in the first instance.

“This essentially appears to be the precise reason that the McDonnell Douglas analysis has been adopted by the courts in housing and employment discrimination cases as a fair method of determining intent. …

“It would be patently unfair to prevent this action from proceeding further via a demurrer simply because the Commonwealth has not, in her pleading, pointed to any specific or direct facts that overtly indicate that Mr. Fox’s actions were racially motivated. …

“This court finds that … the circumstantial factual allegations in the Complaint are sufficient to put the Defendants on notice as to the true nature of the claim against them.”

The demurrer is overruled.

Commonwealth ex rel. Fair Housing Board v. Fountain Hope (2004) Ltd., et al., Case No. CL 20-3474, March 1, 2021, Loudoun County Cir. Ct. (Fisher). Clifford L. Harrison for plaintiff, David Weaver for defendant. VLW 021-8-034, 11 pp.