Does sufficient evidence support a jury's finding of racial discrimination in refusing to rent or negotiate for housing in violation of 42 U.S.C. Sec. 1982 and the Fair Housing Act, and does it support a punitive damages award against the owner and managing partner for his own discriminatory policies or ratification of his rental agent's conduct?

Rosalyn Asbury, who is black, went to Brougham Estates in Kansas City on February 23, 1984, to rent housing for herself and her daughter because she was being transferred to Kansas City. She told Wanda Chauvin, the rental manager, that she needed housing by mid-March or early April. Chauvin said there were no vacancies, refused to give Asbury an application, floor plans, or a view of a model unit, said no waiting list was kept, and suggested the Westminister Apartments, a complex housing mostly black families. Asbury earned $37,599 at the Federal Aviation Authority and would likely qualify to rent. The next day, Asbury's white sister-in-law, Linda Robinson, called and was invited to view apartments; on February 25 Chauvin gave her floor plans, showed her a model and available two-bedroom apartments, and offered to hold one. Townhouses were rented to white males in March and April 1984, and another white male paid a deposit on February 22, 1984. Leo Brougham, the managing partner, set all rental policies, including unwritten rules limiting families with children to townhouses, yet exceptions had been made. Asbury filed a HUD complaint; Brougham investigated her personally but never apologized or remedied the situation.

Asbury sued Leo Brougham, individually and doing business as Brougham Estates and Brougham Management Company, and Wanda Chauvin in federal district court under 42 U.S.C. Sec. 1982 and the Fair Housing Act. A jury awarded Asbury $7,500 in compensatory damages against all defendants for discrimination on the basis of race and/or sex, and $50,000 in punitive damages solely against Brougham. The district court denied the defendants' motion for a new trial. The defendants appealed to the United States Court of Appeals for the Tenth Circuit.

(Parker, J.)

Yes. Substantial evidence supports the jury's finding of intentional racial discrimination and the punitive damages award against Brougham, and denial of a new trial was not an abuse of discretion.

Sec. 1982 and the FHA prohibit race discrimination, and a plaintiff must prove discriminatory intent, though race need not be the only factor. Denny v. Hutchinson Sales Corp., 649 F.2d 816 (10th Cir.1981); Steele v. Title Realty Co., 478 F.2d 380 (10th Cir.1973). The McDonnell Douglas burden-shifting framework applies. A prima facie case requires proof that plaintiff is a minority member, applied and was qualified, was denied the opportunity to rent, inspect, or negotiate, and the housing remained available. Asbury met each element: defendants stipulated she is black, she likely qualified, she was refused an application and information, and the jury could find housing available based on evidence that Chauvin showed apartments to Asbury's white sister-in-law, Robinson, two days later and townhouses were rented to white males shortly after.

Defendants' stated reason, a policy confining families with children to townhouses with no exceptions, failed because evidence showed exceptions had been made and Asbury was never told of any exception terms. Statistics showing 20-25% black occupancy are relevant but not dispositive of intentional discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567 (1977).

Punitive damages are available for evil motive or reckless or callous indifference to federally protected rights. Smith v. Wade, 461 U.S. 30 (1983). The jury could find Brougham liable on two theories. First, his own policies, including untruthful phone statements of no vacancies, visual screening of applicants despite prior administrative complaints by black women, and unwritten, individually granted exceptions, fostered discrimination with callous indifference. Second, he ratified Chauvin's conduct: after personally investigating Asbury's complaint, he never apologized or remedied the situation, and the jury could disbelieve his testimony. The punitive award required a Sec. 1982 racial finding because the FHA caps punitive damages at $1,000. Denial of the new trial motion is reviewed for abuse of discretion, and none occurred.

Asbury is entitled to attorney's fees on appeal under 42 U.S.C. Sec. 1988, with remand for assessment. The appeal was not frivolous, so damages and double costs are denied.