Fort v. White

• Decision Date: 09 February 1976
• Docket Number: D,No. 388,388
• Citation: 530 F.2d 1113
• Parties: Luddie FORT and James Bookwalter, Plaintiffs-Appellants, v. Robert C. WHITE d/b/a Robert C. White Co. Realtors, Defendant-Appellee. ocket 75--7407.
• Court: U.S. Court of Appeals — Second Circuit

Page 1113

530 F.2d 1113

Luddie FORT and James Bookwalter, Plaintiffs-Appellants, v. Robert C. WHITE d/b/a Robert C. White Co. Realtors,

Defendant-Appellee.

No. 388, Docket 75--7407.

United States Court of Appeals, Second Circuit.

Argued Jan. 8, 1976.

Decided Feb. 9, 1976.

Frank Cochran, Hartford, Conn. (Schweitzer & Mayor, Bruce C. Mayor, Hartford, Conn., on the brief), for plaintiffs-appellants.

Arnold E. Buchman, Hartford, Conn., for defendant-appellee.

J. Stanley Pottinger, Asst. Atty. Gen., Washington, D.C., Peter C. Dorsey, U.S. Atty., New Haven, Conn., Brian K. Landsberg, Walter W. Barnett, Neal J. Tonken, Attys., Dept. of Justice, Washington, D.C., for amicus curiae U.S.

Before FEINBERG, MULLIGAN and ANDERSON, Circuit Judges.

MULLIGAN, Circuit Judge:

This action was initially brought as a class action in June 1974 in the United States District Court for the District of Connecticut by plaintiffs Luddie Fort, a black woman, and James Bookwalter, a white male, against Robert C. White, doing business as Robert C. White Co. (White) under Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), and the Civil Rights Act of 1871 (42 U.S.C. § 1982). The plaintiffs complained that White, a realtor who managed some 1500 apartment units in the greater Hartford, Connecticut area, had racially discriminated in the rental of apartment units against Fort, a black, and others similarly situated. Bookwalter, a white tenant in a building managed by White and in which Fort sought to lease an apartment, complained on behalf of himself and others similarly situated of the loss of the benefits of interracial housing by reason of White's alleged discrimination, see Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). The plaintiffs sought a declaratory judgment that the conduct of White was illegal, a permanent injunction against such conduct and in favor of a plan of affirmative action, actual and punitive damages, and reasonable costs and attorneys' fees. The defendants filed a motion to dismiss on June 25, 1974 which was denied by Judge M. Joseph Blumenfeld after a hearing in which he also denied the plaintiffs' application for a preliminary injunction. This opinion of October 25, 1974 is reported in 383 F.Supp. 949.

On December 17, 1974, the date set for trial, the United States filed its own suit against White pursuant to 42 U.S.C. § 3613. In settlement of that suit White entered into a consent decree which enjoined him and his agents from such illegal conduct and which mandated an affirmative action plan. (United States v. White, Civ.No. H--74--392 (D.Conn. Dec. 18, 1974). The plaintiffs Fort and Bookwalter joined in the decree and agreed not to press their claim for injunctive relief. The court below found that the request for declaratory relief, although not explicitly disclaimed, was to be considered abandoned. No claim in that respect is made here. In view of the court decree as well as the judgment below, the question of declaratory relief is now academic. Moreover, counsel for plaintiffs also represented that they were no longer seeking certification of their suit as a class action. The case went to trial and on March 13, 1975 Judge Blumenfeld entered a Memorandum of Decision (unreported) in which he determined that the defendant's agents had indeed engaged in racially discriminatory rental practices in violation of 42 U.S.C. § 3604. However, the court awarded no actual damages, no punitive damages, and no attorneys' fees but did award the plaintiffs costs and nominal damages in the sum of $1.00 to each plaintiff. On March 27, 1975 the plaintiffs filed a motion to reconsider denial of counsel fees and punitive damages. That motion was denied on April 2, 1975, judgment was entered on June 30, 1975, and this appeal by the plaintiffs followed.

I. Damages

On appeal, the plaintiffs claim error in the refusal of the court below to award compensatory damages. The issue is somewhat confused since plaintiffs' counsel at the commencement of this trial represented in open court that compensatory damages were not being sought. Moreover, the plaintiffs' motion for reconsideration below was limited to the denial of the award of counsel fees and punitive damages. In its statement of the issues presented on this appeal, the appellants made no reference to compensatory damages. It may well be that plaintiffs' counsel consider that damages awarded for humiliation or embarrassment are punitive and not compensatory. If so they misunderstand basic damages principles. If the action of the defendant created mental suffering to the plaintiffs, that is actual damage which can be recovered without establishing the reckless conduct prerequisite for an award of punitive damages. See Gostkowski v. R. C. Church of the Sacred Hearts, 262 N.Y. 320, 324, 186 N.E. 798 (1933); C. McCormick, Damages § 88, at 315--16 & n.5 (1935); see Note, Exemplary Damages in the Law of Torts, 70 Harv.L.Rev. 516, 520--21 (1957) (recognizing that 'the unbroken line of judicial authority in all but three states would seem to preclude any argument that exemplary damages 'in theory' retain any major compensatory character.'). In any event, the record is clear that plaintiffs offered no proof whatsoever that they had suffered any actual damages. The court below so held and the appellants do not claim otherwise. On appeal however it is argued that in order to recover for a 'dignitary tort' ¹ no proof of damages need be established. Appellant cites no authority for this proposition in its brief and on oral argument relied solely on Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir. 1974). While the court in that case did state that compensatory damages for humiliation suffered by the plaintiffs may be inferred from the circumstances as well as established by testimony, if also noted that the district court found that testimony was introduced 'that the plaintiff Jerome Seaton suffered great embarrassment because of the action of the defendants during his attempt with his wife to visit the property . . ..' Id. at 636. Here there was not only no proof of humiliation but the complaint, while seeking actual damages, makes no mention of humiliation or embarrassment. In view of the plaintiffs' waiver and the absence of any evidentiary basis which would allow the trier of fact to estimate or assess such damages, we find no error in the denial of compensatory damages.

Neither can we find any error in the denial of punitive damages.42 U.S.C. § 3612(c) permits the court, 'as it deems appropriate . . . (to) award to the plaintiff . . . not more than $1,000 punitive damages . . ..' The appellants' claim here rests on the proposition that since White's employees, two superintendents of buildings managed by him, were active participants in discriminatory acts, White on the principle of respondeat superior is liable for punitive damages; otherwise, in the words of appellants' brief, 'it will be a near impossibility to hold the principles (sic) of any large company liable in punitive damages for the actions of their subordinates.' No authority for this position is cited and none has been discovered. In fact, the law is well established to the contrary. Marr v. Rife, 503 F.2d 735, 744--45 (6th Cir. 1974). It is generally recognized that punitive damages are assessed against an employer for the torts of his employee only where the former 'in some way authorized, ratified or fostered the acts complained of.' Williams v. City of New York, 508 F.2d 356, 360--61 (2d Cir. 1974). The court below properly observed that '(t)he employer himself must be shown to have acted or failed to act to prevent known or wilfully disregarded actions of his employee to be liable in punitive damages.' The findings of fact here established that two building superintendents showed and rented apartments in a racially discriminatory manner. However there was no evidence that anyone else in the White organization was aware of this behavior, and there was no evidence that anyone else in White's company had similar policies. White testified at the trial on the merits (without any cross-examination at all) that prior to the institution of this lawsuit he had no knowledge or policy of racial discrimination in buildings his company managed. At the hearing on the plaintiffs' application for a preliminary injunction, White testified that several months before the actions complained of in this case, he had sent all of his superintendents a letter explaining and mandating compliance with his policy of nondiscrimination. After this lawsuit was commenced he sent another letter to each superintendent repeating this policy and enclosing a copy of the relevant statute (42 U.S.C. § 3601 et seq.). Each superintendent was requested to sign a pledge to comply with the law and a fair housing poster (also distributed by White) was to be prominently displayed in each building. As noted by the court below, each of the offending superintendents was over 70, both were relieved of all responsibility for showing or renting apartments after this suit was filed and one was thereafter terminated. In view of the evidence and the findings of fact below, we find no abuse of discretion here in denying the plaintiffs an award of punitive damages. Stolberg v. Members of Bd. of Trustees, 474 F.2d 485, 489 (2d Cir. 1973). See also Steele v. Title Realty Co., 478 F.2d 380, 384 (10th Cir. 1973).

II. Attorneys' Fees

The question of whether the court below properly refused to award the plaintiffs attorneys' fees is more difficult. Plaintiffs' claim under 42 U.S.C. § 1982 for counsel fees is foreclosed by the holding of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), which adhered to the traditional American rule which stipulates that attorneys' fees are not usually recoverable by the prevailing litigant in federal litigation unless C...