## Facts

- Rosalyn Asbury, a Black woman with sufficient income, sought to rent at Brougham Estates in Kansas City, Kansas.
- Wanda Chauvin, the resident manager/leasing agent, told Asbury there were no vacancies, that no waiting list existed, and that Asbury could not apply or view a model unit.
- Chauvin suggested Asbury look at another complex that “housed mostly black families.”
- The next day, Asbury’s white sister-in-law called and was told units were available and was invited to view apartments.
- Evidence showed units were available and were rented to white tenants shortly after Asbury was turned away.
- Leo Brougham owned/managed the property and set rental policies, including restricting families with children to townhouses, though exceptions occurred.
- Testimony indicated management used visual screening of prospective tenants, which functioned to exclude Black applicants.
- After Asbury filed a housing complaint, Brougham investigated by driving by her home and contacting a neighbor but did not apologize or take corrective action.

## Issues

1. Whether the evidence supported a finding of intentional racial discrimination under 42 U.S.C. § 1982 and the Fair Housing Act for refusing to rent, negotiate, or permit inspection, including by providing false or unequal availability information.
2. Whether Chauvin’s discriminatory conduct could be attributed to Brougham and whether the evidence supported punitive damages against Brougham.
3. Whether the district court abused its discretion in denying defendants’ motion for a new trial as against the weight of the evidence.

## Decision

- The court affirmed the judgment for Asbury on liability and compensatory damages under § 1982 and the Fair Housing Act.
- The court held substantial evidence supported the jury’s finding that race was a factor in denying Asbury the opportunity to rent, inspect, or negotiate.
- The court affirmed punitive damages against Brougham, concluding the jury could find he ratified or acquiesced in discriminatory practices he controlled.
- The court held the district court did not abuse its discretion in denying a new trial.
- The case was remanded for assessment of attorney’s fees and costs on appeal.

## Legal Principles

- A plaintiff under § 1982 and the Fair Housing Act must prove discriminatory intent; liability exists when race is a factor in denying a rental opportunity, even if not the sole factor.
- Fair Housing Act § 3604(d) prohibits providing false or unequal information about housing availability because of race; differential information given to minority and white applicants supports an inference of discrimination.
- The McDonnell Douglas burden-shifting framework applies to § 1982 and Fair Housing Act intentional discrimination claims: prima facie case, defendant’s legitimate reason, and proof of pretext.
- Evidence of steering, denial of the chance to apply or inspect, and prompt availability offered to white prospects may establish both a prima facie case and pretext.
- Punitive damages may be imposed where an owner with policymaking authority ratifies or tolerates discriminatory conduct by an agent.

## Conclusion

The Tenth Circuit upheld a jury verdict finding intentional racial discrimination in rental housing where a Black applicant was denied access and given false unavailability information while a white prospect was offered available units, and it sustained punitive damages against the owner based on control over policies and ratification of discriminatory conduct.


Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989)