The following facts pertain to both Questions 1 and 2

Sarah Sommer has filed suit in Arizona federal district court against Matt Mathews, who is the owner of an apartment building located at 123 Cherry Lane in Phoenix, Arizona, alleging that she was denied the opportunity to rent an apartment in his building in violation of the Federal Fair Housing Act.The relevant paragraphs of her complaint, along with the legal standard for stating a claim under the Fair Housing Act, are excerpted below.

Complaint and Demand for Jury Trial in Sarah Sommer v. Matt Mathews

1.Plaintiff, Sarah Sommer ("Sommer") is an individual residing in Phoenix, Arizona.She is unmarried and is the mother of Tammy Sommer, a five-year-old girl.

2.Defendant Matt Mathews ("Mathews") is an individual residing in New York City, N.Y.He is the owner of the apartment building location at 123 Cherry Lane in Phoenix, Arizona.

3.On or about August 15 of this year, Sommer saw an advertisement in the local newspaper indicating that a one-bedroom apartment was available for rent located at 123 Cherry Lane in Phoenix Arizona.The apartment was listed for $800 per month, exclusive of gas and electricity.There were no other restrictions mentioned.

4.Sommer placed a call to the number listed in the advertisement and reached Ray Walker ("Walker"), who identified himself as the manager of the apartment building and the person who had posted the listing for 123 Cherry Lane, Phoenix, Arizona.Walker's manner for the duration of the telephone call was pleasant and friendly.He assured her that the apartment was available for rent, and confirmed that he was asking $800 per month in rent.An appointment was set for Sommer to view the apartment that afternoon.

5.Sommer's five-year old daughter, Tammy Sommer accompanied her to see the apartment.

6.When Walker answered the door for Sommer, he was initially friendly and smiling.

7.When Walker saw Tammy Sommer, he immediately looked and acted uncomfortable.Walker asked Sommer about her age, her marital status, her sexual history, and about the identity and whereabouts of Tammy Sommer's father.On several instances Walker gave Sommer unpleasant looks.After learning about Tammy, Walker was curt and dismissive of Sommer and tried to finish the apartment viewing as quickly as possible.

8.Sommer submitted an application for the apartment which listed her employment, noted her salary, provided excellent references from past landlords, and established that she was fully qualified to rent the apartment.

9.On or about August 21 of this year, Sommer telephoned Walker to inquire about the status of her application and the apartment.Walker briefly informed Sommer that he would not rent the apartment to her.

10.Mathews has owned the apartment building located at 123 Cherry Lane, Phoenix, Arizona since 2010.

11.At all relevant times, Walker was acting as an agent of Mathews.

12.On information and belief, Walker's motivation for refusing to rent the apartment to Sommer was Sommer's familial status as the single mother of a five-year old daughter.

13.Walker's refusal to rent the apartment to Sommer constitutes discrimination against families with children in violation of the Fair Housing Act for which Mathews is liable.

14.Because she was unable to rent from Mathews, Sommer must continue to search for an apartment and she must currently stay in a hotel.

15.Sommer has not yet found any other suitable and available apartment.

16.Sommer is currently living at the Days Inn and paying $450 per week (approximately $2000 per month).

17.The hotel is more expensive than the apartment she sought to rent and it is further away from her place of employment, and from the University, where she attends classes.

18.Sommer has suffered emotional distress and humiliation caused by Walker's discriminatory conduct.

Legal Standard for a Fair Housing Act Claim

The owner of an apartment complex is subject to the Fair Housing Act and is responsible for the actions of all agents and employees operating within the scope of their employment.

To prevail on a claim under the Fair Housing Act, a plaintiff must prove intentional discrimination on the basis of being a member of a protected class.Single parent status ("familial status") is a protected class.Intentional discrimination exists if Plaintiff shows that:(1) she is a member of a protected class; (2) she applied for the apartment and was qualified to rent it; (3) she was not accepted as a tenant because of her status as a member of a protected class; (4) the apartment remained vacant or was rented to another tenant who was not a member of a protected class.

Soon after Sommer's complaint was filed, Mathews filed a Motion to Dismiss for Failure to State a Claim under FRCP 12(b) (6).Mathews made all the best arguments available to him in an effort to have the case dismissed under FRCP 12 (b) (6).

In addition to the above facts, the following additional facts pertain to Question 2

Assume the judge denies Mathews' Rule 12 (b) (6) motion to dismiss (this decision should not affect your answer to Question 2).The case proceeds to disclosure and discovery, after which the record before the court contains the following evidence:

*Copies of Sommer's last three paychecks.

*A sworn affidavit from Sommer describing her interactions with Walker consistent with the descriptions in her complaint.

*Sworn deposition testimony from Walker, taken by Sommer's attorney, Carol Johnson, including the attached excerpt.(See attached excerpt of Ray Walker's deposition).

*Affidavits from Tammy Sommer's pre-school teacher and her primary baby sitter stating that Tammy is a smart, well-behaved, and obedient child.

Mathews filed a Motion for Summary Judgment under FRCP 56.Mathews made all the best arguments available to him in an effort to persuade the court to grant his motion for summary judgment.

Question 2

You are a legal intern working for the federal district judge assigned to this case.The judge has asked you to draft an order granting or denying Mathew's motion for summary judgment in this case.Do not worry about the admissibility of any of the above evidence at trial - assume it is admissible (or will be in some form).

Excerpt of deposition of Ray Walker

* * * *

Johnson:Now Mr. Walker, I represent Sarah Sommer.Do you understand that my client is bringing a lawsuit against your employer, Matt Mathews, alleging housing discrimination - and that you are an important part of that allegation?

Walker:Well yes . . . but she's white - at least I think she is white - and I rented the apartment to another woman.So you know, I'm not racist and I'm not sexist.

Johnson:Interesting.

Walker:So I don't really understand how this is about discrimination.

Johnson:Well Mr. Walker, my client is alleging that you discriminated against her because she has a child and that is why you didn't rent the apartment to her.That is her claim.

Walker:There's a law about that?

Johnson:Yes, there are laws against that.

Walker:Oh.OK.

Johnson:Mr. Walker, have you ever received any training on what sorts of things are prohibited for apartment managers?

Walker:No.

Johnson:Great.So let's start with you telling me a little bit about yourself and what it is you do for Mr. Mathews.

Walker:I'm the apartment manager.I've done this for a couple years now and I'm a business student at ASU.

Johnson:OK.How did you get this job?

Walker:I saw an ad online for this job, it came with free rent which is a great deal for me.And mostly I just fill vacancies when they arise.Sometimes I do minor repairs and things like that.A lot of it is just bringing people into the building.

Johnson:Right.And what is the procedure that you usually go through?Is it whenever a place becomes empty you put an ad in the paper or something?

Walker:Yeah, when I know someone's planning to move out or every now and then somebody moves unexpectedly.But if there's a vacancy, I'll put an ad in the newspaper.

Johnson:OK.

Walker:And usually I'll take the first qualified applicant.That's my policy.

Johnson:The first qualified applicant.

Walker:Yeah.Absolutely.

Johnson:Other than first qualified applicant, is there any other policy you apply regarding who you prefer to rent to?

Walker:Well, I like to rent to grad students.Because ASU is a huge university and there are a lot of students around in general, and I think grad students are quieter and a little more responsible than the undergrads.And so I'm a grad student, like I said, and most of the other tenants are, too.So that's something that I look for, is people who are gonna kind of keep their head down, and focus on their work, and live a responsible life.

Johnson:So are all the people living in the apartment units in the building grad students then?

Walker:Not all of them.There are a few who are not grad students.The woman who I most recently rented to - the same apartment - she's a barista, she works at a coffee shop.But she seems to kinda have her life together.

Johnson:OK.Let's talk about the facts of this case.Do you remember my client Sarah Sommer?Can you tell me a bit more about your first contact with her?

Walker:Sure, she called me about the apartment.We talked for a while and she set up a time to come in and see the apartment.She said she was interested, she was a graduate student with a job, and so we set it up for her to come in the same day.

Johnson:OK.

Walker:I emailed her the application and she completed it and brought it in with her.

Johnson:OK.Can you describe to me in chronological order what happened when she came to look at the apartment?

Walker:Sure.So she showed up at the door and she brought a kid with her.I didn't realize she had a kid.She didn't mention that on the phone.

Johnson:Ok.

Walker:So she had this daughter who was just out of control.Just loud, whiny, and seemed like she would be really disruptive in the apartment building.And it kind of made me think that maybe Sarah wasn't so responsible because she didn't have her kid under control at all.And the fact that she is a single woman with a kid?I mean -- maybe she made some bad choices there.I don't know.

Johnson:Ok.So it sounds like you kind of have a problem with her lifestyle?

Walker:Well, you know, me personally?I don't really think that's the best way to raise a kid.

Johnson:OK.

Walker:But that's you know, that's not why - I'm not discriminating against people who are, you know, single parents, it's just that made me think twice about her.And also, you know, it would have been a different story if her kid had been quiet and well behaved. But this kid was all over the place.

Johnson:Right.What happened next?

Walker:She looked at the apartment and gave me her application with a check for the application fee.I told her I would be in touch.

Johnson:Can you tell me more about the application fee?

Walker:We collect it so we can do a background check.

Johnson:How much is the fee?What amount was her check written for?

Walker:Thirty-five dollars.

Johnson:OK.

Walker:So she went on her way and then later on that same day I had someone else look at the apartment and she wanted it.She seemed great so I rented it to her.And you know, I just didn't think Sarah was the right fit for the apartment because she had this loud little kid.

Johnson:Right.And did Sarah ever call you back to check about the apartment?

Walker:Yes, she did, and I was really surprised.She called and asked about it and I told her it was rented. But I was surprised she even called.

Johnson:Why?

Walker:Because when I went to deposit her check, it was cancelled.

Johnson:The check she gave you?The thirty-five dollars?

Walker:Yea.The bank told me she canceled it.Not like it bounced - she had the money in her account.But that she canceled it with the bank.So I didn't think she was still interested.Then she called me out of the blue more than a week later to ask about the apartment.

Johnson:Did you ever do a background check on Sarah?

Walker:No - I figured she didn't want the apartment anymore and she didn't pay the money to do it, so that never went through.Then I rented it to the barista and everything she gave me went through fine.She's been a great tenant.

Johnson:Ok.Thank you Mr. Walker.