Asbury v. Brougham, 86-1877

• Decision Date: 30 January 1989
• Docket Number: No. 86-1877,86-1877
• Citation: 866 F.2d 1276
• Parties: Rosalyn ASBURY, Plaintiff-Appellee, v. Leo BROUGHAM, an individual and d/b/a Brougham Estates and Brougham Management Company, and Wanda Chauvin, an individual, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1276

866 F.2d 1276

Rosalyn ASBURY, Plaintiff-Appellee, v. Leo BROUGHAM, an individual and d/b/a Brougham Estates and Brougham Management Company, and Wanda Chauvin, an

individual, Defendants-Appellants.

No. 86-1877.

United States Court of Appeals, Tenth Circuit.

Jan. 30, 1989.

Gregory Bernard King, Kansas City, Kan., for plaintiff-appellee.

George Maier, Kansas City, Kan. (Edward H. Powers, Sr., Kansas City, Kan., with him on brief), for defendants-appellants.

Before ANDERSON, BALDOCK, Circuit Judges and PARKER, District Judge ^*.

PARKER, District Judge.

Plaintiff Rosalyn Asbury brought suit under 42 U.S.C. Sec. 1982 ¹ and the Fair Housing Act, 42 U.S.C. Sec. 3601 et seq (FHA), ² claiming that the defendants refused to rent or to allow her to inspect or negotiate for the rental of an apartment or townhouse at Brougham Estates in Kansas City. Defendants Leo Brougham, individually and doing business as Brougham Estates and Brougham Management Company, and Wanda Chauvin, his employee, appeal a jury verdict awarding Asbury compensatory damages of $7,500 against them upon a finding that the defendants discriminated against her on the basis of race and/or sex. ³ Leo Brougham appeals from the jury verdict awarding punitive damages in the amount of $50,000 solely against him. Defendants contend that the jury verdict awarding compensatory damages is unsupported by the evidence because it failed to establish an intent to discriminate. Defendant Leo Brougham appeals the award of punitive damages on the additional ground that any discriminatory motivation that the jury may have found on the part of Wanda Chauvin could not be attributed to Brougham, on whose behalf she managed leasing of apartments and townhouses at Brougham Estates. The defendants argue, therefore, that the district court erred by denying their motion for a new trial.

I. Sufficiency of Evidence Supporting a Finding of Racial Discrimination in Violation of Sec. 1982 and FHA.

42 U.S.C. Sec. 1982 and the FHA both prohibit discrimination on the basis of race. In order to prevail on a claim made under these statutes, plaintiff must prove a discriminatory intent. Denny v. Hutchinson Sales Corp., 649 F.2d 816, 822 (10th Cir.1981). A violation occurs when race is a factor in a decision to deny a minority applicant the opportunity to rent or negotiate for a rental, but race need not be the only factor in the decision. Steele v. Title Realty Co., 478 F.2d 380, 383 (10th Cir.1973). In addition, Sec. 3604(d) of the FHA specifically prohibits dissemination of false information about the availability of housing because of a person's race. Accordingly, failure to provide a minority applicant with the same information about availability of a rental unit or the terms and conditions for rental as is provided to white "testers," results in false information being provided and is cognizable as an injury under the FHA. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).

A. Asbury's Prima Facie Case under Sec. 1982 and FHA.

The three-part burden of proof analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII employment discrimination case, has been widely applied to FHA and Sec. 1982 claims. E.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.1979); Phiffer v. Proud Parrot Motor Hotel, 648 F.2d 548, 551 (9th Cir.1980); see also, Denny v. Hutchinson Sales Corp., 649 F.2d 816, 822-23 (10th Cir.1981) (Sec. 1982). Under the McDonnell Douglas analysis, plaintiff first must come forward with proof of a prima facie case of discrimination. Second, if plaintiff proves a prima facie case, the burden shifts to defendants to produce evidence that the refusal to rent or negotiate for a rental was motivated by legitimate, non-racial considerations. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Third, once defendants by evidence articulate non-discriminatory reasons, the burden shifts back to plaintiff to show that the proffered reasons were pretextual. Id. at 256, 101 S.Ct. at 1095.

The proof necessary to establish a prima facie case under the FHA also establishes a prima facie case of racial discrimination under Sec. 1982. Selden Apartments v. U.S. Dept. of Housing & Urban Development, 785 F.2d 152, 159 (6th Cir.1986); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.1979). In order to establish her prima facie case, plaintiff had to prove that:

(1) she is a member of a racial minority;

(2) she applied for and was qualified to rent an apartment or townhouse in Brougham Estates;

(3) she was denied the opportunity to rent or to inspect or negotiate for the rental of a townhouse or apartment; and

(4) the housing opportunity remained available. Selden Apartments, 785 F.2d at 159; Robinson, 610 F.2d at 1038.

A review of the evidence in this case shows that plaintiff established her prima facie case. Defendants stipulated that Asbury is black. Plaintiff testified that on February 23, 1984, she went to Brougham Estates with her daughter to obtain rental housing. R. Vol. II at 29. At the rental office at Brougham Estates, Asbury encountered Wanda Chauvin, the manager, ⁴ and explained to Chauvin that she was being transferred to Kansas City and needed to rent housing. R. Vol. II at 29-30. Asbury told Chauvin that she needed to secure housing by the middle of March or the beginning of April. R. Vol. II at 30. In response, Chauvin said there were no vacancies, R. Vol. II at 30, but told Asbury she could call back at a later time to check on availability. R. Vol. II at 33. Chauvin provided no information concerning availability of rental units that would assist Asbury in her efforts to rent an apartment or townhouse at Brougham Estates. R. Vol. II at 32. Asbury asked for the opportunity to fill out an application, but Chauvin did not give her an application, again stating that there were no vacancies and that she kept no waiting list. R. Vol. II at 33. Asbury also requested floor plans or the opportunity to view a model unit, and Chauvin refused. R. Vol. II at 31. Instead, Chauvin suggested Asbury inquire at the Westminister Apartments, R. Vol. II at 33, an apartment complex housing mostly black families. R. Vol. III at 3-4. Although Chauvin did not ask Asbury about her qualifications, plaintiff was employed with the Federal Aviation Authority at a salary of $37,599. R. Vol. II at 25. Based on her salary, defendants concede that Asbury would likely be qualified to rent an apartment or townhouse at Brougham Estates. Brief of Appellants at 8.

Defendants argue that Asbury was not rejected because Chauvin courteously invited her to call back. However, there is ample evidence in the record to support the jury's finding that defendants' failure or refusal to provide Asbury the opportunity to rent or inspect or negotiate for the rental of a townhouse or apartment constituted a rejection because of her race cognizable under Sec. 1982 and the FHA.

Although there was a conflict in the evidence as to the availability of housing at the time Asbury attempted to inspect and negotiate for rental, there was abundant evidence from which the jury could find that housing was available. Defendants testified that families with a child are housed exclusively in the townhouses at Brougham Estates, and that there were no townhouses available on the date Asbury inquired. Asbury introduced evidence suggesting that both apartments and townhouses were available and, in addition, that exceptions previously had been created to allow children to reside in the apartments.

On February 24, 1984, the day after Asbury inquired about renting, Asbury's sister-in-law, Linda Robinson, who is white, called to inquire about the availability of two-bedroom apartments. R. Vol. II at 76. The woman who answered the telephone identified herself as "Wanda" and invited Robinson to come to Brougham Estates to view the apartments. R. Vol. II at 76-77. The following day, February 25, 1984, Robinson went to the rental office at Brougham Estates and met with Wanda Chauvin. R. Vol. II at 77-78. Chauvin provided Robinson with floor plans of available one- and two-bedroom apartments at Brougham Estates. R. Vol. II at 78-79. Robinson specifically asked Chauvin about rental to families with children, and Chauvin did not tell Robinson that children were restricted to the townhouse units. R. Vol. II at 80-81. Robinson accompanied Chauvin to inspect a model unit and several available two-bedroom apartments. R.Vol. II at 83-85. Upon inquiry by Robinson, Chauvin indicated that the apartments were available immediately and offered to hold an apartment for her until the next week. R. Vol. II at 84.

Asbury also provided evidence indicating that townhouses were available for rent. On February 1, 1984, Daniel McMenay, a white male, notified Brougham Estates that he intended to vacate his townhouse. On April 4, 1984, Brougham Estates rented the townhouse vacated by McMenay to John Shuminski, a white male. R. Vol. III at 9-10. On March 10, 1984, Randall Hockett, a white male, also rented a townhouse at Brougham Estates. In addition, Asbury provided computer data sheets generated by Brougham Estates which indicated that a third townhouse was unoccupied at the time of her inquiry on February 23, 1984 and remained vacant as of April 10, 1984. There was also evidence that a building which included townhouse units had been closed for the winter but would be available for rent beginning in the spring. On February 22, 1984, one day prior to Asbury's inquiry into vacancies, James Vance, a white male, paid a deposit for a townhouse which he occupied when the building opened on April 10, 1984. R. Vol. II at 131, 134. Since Asbury testified that she told Chauvin she did not need to occupy a rental unit until the beginning of April, the jury could have...