Rosalyn Asbury, a Black woman, sought rental housing at Brougham Estates after learning that she would be transferred to Kansas City. She told Wanda Chauvin, Brougham Estates' rental manager, that she needed housing by mid-March or early April. Chauvin said there were no vacancies, refused to provide an application, floor plans, or a chance to view a model, and referred Asbury to another complex that housed mostly Black families.
The next day, however, Asbury's white sister-in-law called Brougham Estates and was invited to inspect available units. Chauvin later gave her floor plans, showed her a model and available two-bedroom apartments, said the units were immediately available, and offered to hold one. Asbury also introduced evidence that townhouses were available or would become available in time for her planned move-in date and that defendants sometimes made exceptions to their stated child-occupancy restrictions.
Asbury sued Leo Brougham and Chauvin under 42 U.S.C. § 1982 and the Fair Housing Act. A jury found discrimination based on race and/or sex and awarded $7,500 in compensatory damages against both defendants and $50,000 in punitive damages against Brougham alone. The district court denied defendants' motion for a new trial. Defendants appealed the sufficiency of the evidence, particularly as to discriminatory intent and Brougham's punitive-damages liability.
Issue #1
Whether the evidence was sufficient to support the jury's finding that defendants intentionally discriminated against Asbury on the basis of race in violation of § 1982 and the Fair Housing Act.
Holding
Yes. Substantial evidence supported the jury's finding that race was a motivating factor in defendants' refusal to let Asbury inspect, negotiate for, or rent housing at Brougham Estates.
Reasoning
The court applied the familiar McDonnell Douglas burden-shifting framework to both the Fair Housing Act and § 1982 claims. Asbury established a prima facie case: she was Black; her income made her likely qualified; defendants denied her meaningful opportunities to apply, inspect, or negotiate; and evidence permitted the jury to find that housing remained available. Race need only be a factor in the decision, not its sole cause.
Chauvin's statement that Asbury could call back did not require a finding that Asbury was not rejected. The jury could view Chauvin's refusal to provide an application, floor plans, availability information, or a viewing opportunity as a denial of the chance to negotiate for housing. Providing a minority applicant less favorable or false availability information than white testers can itself violate the Fair Housing Act.
The record supported a finding that units were available despite defendants' contrary account. The day after Asbury's visit, Chauvin invited Asbury's white sister-in-law to view apartments, showed her available units, and offered to hold one. Evidence also indicated that townhouses were vacant, scheduled to become available, or later rented to white men during the period relevant to Asbury's inquiry.
Defendants asserted that Asbury could not rent because she had a child and Brougham Estates restricted families with children to townhouses. But Asbury introduced evidence that defendants had made exceptions: families with children had rented apartments, and families with more than one child had been allowed to live at the complex. The jury could therefore find that the asserted policies were not legitimate, consistently applied nondiscriminatory reasons for refusing to deal with Asbury.
Evidence that 20 to 25 percent of Brougham Estates' occupants were Black was relevant but not conclusive. Statistical evidence of minority occupancy does not eliminate the possibility that defendants intentionally discriminated against a particular applicant. The other evidence supported the jury's finding of race discrimination, which also supplied the necessary basis for the punitive award under § 1982.
Issue #2
Whether the evidence was sufficient to support $50,000 in punitive damages against Leo Brougham, even though he did not personally meet with Asbury.
Holding
Yes. The jury could find that Brougham himself recklessly or callously disregarded Asbury's federally protected rights through his policies and his ratification of Chauvin's conduct.
Reasoning
Punitive damages are available when conduct reflects evil intent or reckless or callous indifference to federally protected rights. Brougham was the managing partner, set the complex's rental policies and procedures, and instructed Chauvin on how to implement them. Thus, the evidence allowed the jury to assess his own conduct rather than merely impose vicarious punishment for an employee's acts.
Brougham required staff to tell telephone callers that no vacancies existed, whether or not that was true, while encouraging them to come in for an in-person inspection and discussion. Although visual observation of an applicant is not automatically unlawful, the jury could infer that this practice was used to screen applicants by race. Brougham also knew that single Black women had previously filed administrative complaints concerning discriminatory practices at the complex.
The jury could also view Brougham's unwritten occupancy policies as facilitating discrimination. He maintained that families with children could occupy only townhouses and that no exceptions existed, but Asbury showed that exceptions had in fact been authorized on an individual basis. The lack of written standards for those exceptions permitted the inference that Brougham's policies directly fostered discriminatory treatment or, at minimum, reflected callous indifference to that risk.
The evidence also supported ratification. After HUD notified Brougham of Asbury's complaint, he personally investigated her living arrangements and appears to have learned that she had only one child, making her consistent even with the stated policy. Yet he neither apologized nor took corrective action. The jury was also entitled to disbelieve his denial that he investigated Asbury at her workplace. From these facts, it could infer that he accepted Chauvin's treatment of Asbury.
Issue #3
Whether Asbury could recover attorney's fees for successfully defending her civil-rights judgment on appeal.
Holding
Yes. The case was remanded for the district court to determine reasonable additional appellate attorney's fees.
Reasoning
Under 42 U.S.C. § 1988, a civil-rights plaintiff who successfully defends a favorable judgment on appeal may recover reasonable attorney's fees incurred in the appeal. Because Asbury successfully defended the judgment, the court remanded for an assessment of those fees and allowed appellate costs subject to the ordinary bill-of-costs process.
Issue #4
Whether defendants' appeal was frivolous so as to justify damages and double costs under Federal Rule of Appellate Procedure 38.
Holding
No. Although defendants did not prevail, their appeal was not utterly meritless.
Reasoning
Rule 38 permits sanctions for an appeal whose result is obvious or whose arguments are utterly meritless; subjective bad faith is unnecessary. But the court concluded that the challenge to compensatory damages was not wholly without foundation, and the punitive-damages evidence presented a significant question about Brougham's personal intent, recklessness, and ratification. The court therefore declined to award damages or double costs.