Asbury v. Brougham

United States Court of Appeals for the Tenth Circuit · 1989 · Property

866 F.2d 1276 (10th Cir. 1989)

Updated July 23, 2026

PropertyFair HousingRacial DiscriminationPunitive Damages42 U.S.C. § 1982Fair Housing Act42 U.S.C. § 3604(d)intentional discrimination

Facts

Asbury, a black woman being transferred to Kansas City, went to Brougham Estates seeking rental housing and told manager Wanda Chauvin she needed housing by mid-March or early April. Chauvin told her there were no vacancies, refused to let her apply, would not provide floor plans or show a model, and suggested another apartment complex, while not asking about her qualifications; defendants later conceded Asbury likely was qualified based on her salary. The next day, Asbury's white sister-in-law was told by Chauvin that apartments were available, was shown floor plans and units, and was told an apartment was immediately available and could be held. Asbury also introduced evidence that apartments and townhouses were in fact available and that Brougham's stated family-with-children policies had been subject to exceptions.

Issue

Was there sufficient evidence to support the jury's finding of intentional racial discrimination under 42 U.S.C. § 1982 and the Fair Housing Act, and sufficient evidence to support punitive damages against Brougham? More specifically, could the jury find discriminatory intent from the disparate treatment and availability evidence, and could it find that Brougham's own policies or ratification of Chauvin's conduct justified punitive damages?

Rule

To prevail under § 1982 and the FHA, a plaintiff must prove discriminatory intent, but race need only be a factor in the refusal to rent or negotiate. FHA and § 1982 claims may be analyzed under McDonnell Douglas burden shifting: the plaintiff must show she is a racial minority, applied for and was qualified to rent, was denied the opportunity to rent or inspect or negotiate, and the housing remained available; the burden then shifts to the defendant to produce legitimate, nonracial reasons, after which the plaintiff may show pretext. Under FHA § 3604(d), giving a minority applicant false information about availability or materially different information from that given to white testers is actionable. Punitive damages may be awarded when the defendant's conduct is motivated by evil motive or intent, or involves reckless or callous indifference to federally protected rights.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tulsa, Maya Ellison, a Black engineer relocating for work, visited Red Cedar Homes to ask about leasing a two-bedroom unit beginning in six weeks. The leasing agent told her nothing was available, refused to let her submit an application or see floor plans, and suggested she try another complex; the next day, a white friend was shown available two-bedroom layouts and told one could be held until the following week.

If Maya sues under 42 U.S.C. § 1982 and the Fair Housing Act, which is the strongest argument that she has established a prima facie case?

Explanation. The majority applied the McDonnell Douglas framework to FHA and § 1982 rental claims. A prima facie case requires proof that the plaintiff is a member of a racial minority, applied for and was qualified to rent, was denied the opportunity to rent or inspect or negotiate, and the housing opportunity remained available. The comparative treatment of the white friend strongly supports the fourth and third elements.