Denny v. Hutchinson Sales Corp.

• Decision Date: 28 May 1981
• Docket Number: No. 79-1494,79-1494
• Citation: 649 F.2d 816
• Parties: 8 Fed. R. Evid. Serv. 541 Phyllis A. DENNY, Plaintiff-Appellant, v. HUTCHINSON SALES CORPORATION, a Colorado Corporation, Defendant-Appellee. Homer and Carrie Young, Richard and Trudie Hoard, and Harold and Thelma Brown, Intervenors-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 816

649 F.2d 816

8 Fed. R. Evid. Serv. 541

Phyllis A. DENNY, Plaintiff-Appellant, v. HUTCHINSON SALES CORPORATION, a Colorado Corporation Defendant-Appellee Homer and Carrie Young, Richard and Trudie Hoard, and Harold and Thelma Brown, Intervenors-Appellants.

No. 79-1494.

United States Court of Appeals Tenth Circuit.

Argued Sept. 15, 1980.

Decided May 28, 1981.

Gary M. Jackson, Denver, Colo., (Anne M. McCarthy of DiManna, Eklund, Ciancio & Jackson, Denver, Colo., with him on briefs), for plaintiff-appellant.

David M. Berrett, Denver, Colo., (Richard L. Harring of Calkins, Kramer, Grimshaw & Harring, Denver, Colo., with him on briefs), for defendant-appellee.

Before SETH, Chief Judge, LOGAN, Circuit Judge, and BOHANON, District Judge ^*.

LOGAN, Circuit Judge.

Phyllis Denny and intervenors appeal the district court's judgment pursuant to a jury verdict that defendant Hutchinson Sales Corporation (Hutchinson) did not discriminate against them in the sale of housing under 42 U.S.C. §§ 1982 and 3604.

Hutchinson asserts that the district court had no jurisdiction over either the section 1982 or section 3604 claims because substantially equal state remedies were available. Alternatively, it argues the section 3604 claim was not timely filed. Because we find the court had jurisdiction over the section 1982 claim, we consider Denny's arguments that (1) the district court improperly excluded the probable cause determination of the Colorado Civil Rights Commission (CCRC) as evidence, (2) the court erred in refusing to allow the Director of Housing of the CCRC to give an opinion concerning whether discrimination existed, and (3) the jury verdict was not supported by the evidence.

On December 21, 1975, Denny, a black, entered into a receipt and option contract for the purchase of a home on a cul-de-sac of the Hutchinson Hills development in Denver, Colorado. Hutchinson Hills is in a predominately white neighborhood. Denny was among the first to buy on the cul-de-sac, and construction of other homes in that area had not begun. During the next year four other black families purchased and occupied homes on the cul-de-sac, and for a time only blacks actually lived there. Home sales were made both directly by Hutchinson and indirectly through independent realtors. Although white families had purchased homes on the cul-de-sac, Hutchinson allowed two of the initial buyers to cancel their contracts. While there is some conflict in the evidence, it establishes that, by the time of trial, either ten or eleven homes existed on the cul-de-sac, five being owned by black residents, three or four by white residents, one house rented to blacks, and the final house was vacant.

Denny filed a complaint with the United States Department of Housing and Urban Development (HUD) on December 23, 1976, and with the Colorado authorities on January 3, 1977. She charged that Hutchinson had steered her and other blacks into the cul-de-sac because of their race. In late August 1977, both HUD and CCRC determined there was probable cause to believe that housing discrimination in the form of racial steering had occurred, and sought to resolve the complaint by conference and conciliation. These efforts came to naught, and on October 17, 1977, HUD issued Denny a right to sue letter, indicating that she should file suit within thirty days if she wished to pursue the matter.

On November 17, 1977, Denny filed suit in federal district court against Hutchinson alleging violations of 42 U.S.C. §§ 1982 and 3604. In March 1978, she was joined by three other black families who sued under 42 U.S.C. § 1982. The jury found Hutchinson had not discriminated; Denny and intervenors appeal the court's denial of their motion for judgment n.o.v. or for a new trial.

I

Hutchinson contends that the district court had no jurisdiction because the Fair Housing Act complaint was untimely filed and because substantially equal state remedies were available under Colorado law. We hold Colorado law provides a comparable remedy, the existence of which precludes federal court jurisdiction over the Fair Housing Act claim. ¹ For reasons hereafter stated we hold the court properly accepted jurisdiction over the section 1982 claim.

42 U.S.C. § 3610(d) provides in pertinent part that:

"no such civil action may be brought in any United States district court if the person aggrieved has a judicial remedy under a State or local fair housing law which provides rights and remedies for alleged discriminatory housing practices which are substantially equivalent to the rights and remedies provided in this subchapter."

HUD has determined that the Colorado Fair Housing Act of 1959, Colo.Rev.Stat. § 24-34-401 et seq. (1973), provides substantially equivalent rights and remedies. 24 C.F.R. § 115.11 (1980). The administrative agency's interpretation of a statute which it is charged with administering is accorded great deference and controls unless it is plainly erroneous. Board of Directors and Officers, Forbes Fed. Credit Union v. National Credit Union Adm., 477 F.2d 777, 784 (10th Cir. 1973). Denny claims HUD's interpretation is erroneous because the Colorado statute, unlike the Fair Housing Act, provides for neither attorney fees nor punitive damages; without these additional remedies, it argues, some persons will be denied access to the courts.

"Substantially equivalent" in the statute is a relatively open-ended term. The Colorado housing law is designed to remedy the same acts of discrimination in housing that are proscribed by the Fair Housing Act, and the absence of provisions for attorney fees and punitive damages does not make HUD's interpretation plainly erroneous. Therefore, we hold that by operation of 42 U.S.C. § 3610(d) the district court lacked subject matter jurisdiction over any claim premised upon the Fair Housing Act.

Blacks who believe they are aggrieved by housing discrimination have the alternative of bringing their cause of action under 42 U.S.C. § 1982, which provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."

Hutchinson points out that Congress granted exclusive jurisdiction over housing discrimination claims to state courts when applicable state rights and remedies are substantially equivalent to those of the Fair Housing Act. It argues that the exercise of federal court jurisdiction over such a claim under section 1982 would subvert the intent of Congress to entrust such cases to state courts.

When the Fair Housing Act was passed, it was uncertain whether 42 U.S.C. § 1982 applied to private discrimination. See Jones v. Alfred H. Mayer Co., 379 F.2d 33 (8th Cir. 1967), rev'd, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). In Jones, the Court noted that Congress passed the Fair Housing Act to insure against private discrimination and to provide the "federal machinery for enforcement of the rights guaranteed under Section 1982 of Title 42." 392 U.S. at 416, 88 S.Ct. at 2190. The Court expressly declared that the Fair Housing Act in no way limited the application of § 1982: "The Civil Rights Act of 1968 does not mention 42 U.S.C. § 1982, and we cannot assume that Congress intended to effect any change, either substantive or procedural, in the prior statute." 392 U.S. at 416 n.20, 88 S.Ct. at 2191 n.20. See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969). Additionally, many rights and remedies provided under the Fair Housing Act are unavailable to litigants suing under section 1982. See Jones, 392 U.S. at 413-14, 88 S.Ct. at 2189. Thus, the preemptive requirement of the Fair Housing Act cannot always be circumvented by resort to section 1982. Consequently, we hold that federal court jurisdiction grounded upon 42 U.S.C. § 1982 is not preempted by the existence of state or local housing laws that are substantially similar to those found in the Fair Housing Act.

In accord with other courts which have considered the issue, we hold that section 1982 does not incorporate the time limitations of 42 U.S.C. § 3610. Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 899 (3d Cir. 1977); Warren v. Norman Realty Co., 513 F.2d 730, 733 (8th Cir. 1975); Hickman v. Fincher, 483 F.2d 855 (4th Cir. 1973). Since section 1982 contains no time limitations for suit, we look to state law for the relevant statute of limitations. See Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d at 900. Under no circumstances is the applicable statute of limitations less than two years. See Colo.Rev.Stat. § 13-80-106 (1973); Salazar v. Dowd, 256 F.Supp. 220, 223 (D.Colo.1966). In the instant case, plaintiffs filed suit within two years of the date the action accrued. Thus, jurisdiction over plaintiffs' claims was properly exercised under 42 U.S.C. § 1982.

II

Denny contends that the district court committed reversible error in refusing to admit the CCRC probable cause determination in favor of plaintiffs and in refusing to allow Eleanor Crow, the Director of Preventive Programs for the CCRC, to testify whether she believed discrimination had occurred. The record indicates that the district court refused to admit the CCRC report and findings because they were based in part on second and third level hearsay; the court thought it fundamentally unfair to place upon Hutchinson the onus of disproving such hearsay when the burden of establishing a prima facie case was upon plaintiffs. The court indicated that Crow, offered as an expert witness, could testify as to matters within her personal knowledge and as to what the defendant and its agents told her and that she could testify for impeachment purposes. At trial Crow was allowed to testify that there were...