Dawn Martin v. Johannes Brondum , 535 F. App'x 242 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2119
DAWN V. MARTIN; MIGUEL GALLARDO,
Plaintiffs – Appellants,
v.
JOHANNES BRONDUM; LONG AND FOSTER REAL ESTATE, INC.; LONG
AND FOSTER COMPANIES; PATRICIA KNIGHT, a/k/a Patricia
Knight Lambert; SUSAN HAUGHTON,
Defendants – Appellees,
and
LONG AND FOSTER REALTY; LONG AND FOSTER REALTORS,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:11-cv-01118-AJT-TCB)
Submitted: June 26, 2013 Decided: July 24, 2013
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dawn V. Martin, LAW OFFICE OF DAWN V. MARTIN, Washington, D.C.,
for Appellants. Susan F. Earman, FRIEDLANDER, FRIEDLANDER &
EARMAN, PC, McLean, Virginia; Mikhael D. Charnoff, PERRY
CHARNOFF PLLC, Arlington, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dawn Martin and Miguel Gallardo appeal the district
court’s orders granting summary judgment on their racial
discrimination claim under the Fair Housing Act and dismissing
pendent state claims for fraud, defamation, breach of contract,
and intentional infliction of emotional distress. Martin and
Gallardo allege that their landlord, Johannes Brondum, the
property manager for Long and Foster Real Estate, Inc., Patricia
Knight, and Brondum’s listing agent, Susan Haughton, refused to
negotiate with them over the purchase of the townhome that they
were renting, and that the Defendants misrepresented whether the
townhome was for sale, on the basis of their race and national
origin in violation of 42 U.S.C. § 3604(a), (d) (2006). We
affirm.
1. Fair Housing Act Claim
We review whether a district court erred in granting
summary judgment de novo, viewing the facts and drawing all
reasonable inferences in the light most favorable to the
non-moving party. PBM Prods., LLC v. Mead Johnson & Co., 639
F.3d 111, 119 (4th Cir. 2011). Summary judgment is properly
granted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The relevant inquiry is
“whether the evidence presents a sufficient disagreement to
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require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Title VIII of the Civil Rights Act of 1968, also known
as the Fair Housing Act (FHA), provides that it shall be
unlawful: “To refuse to sell or rent after the making of a bona
fide offer, or to refuse to negotiate for the sale or rental of,
or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or
national origin.” 42 U.S.C. § 3604(a) (2006). In addition, the
FHA prohibits representing “to any person because of race,
color, religion, sex, handicap, familial status, or national
origin that any dwelling is not available for inspection, sale,
or rental when such dwelling is in fact so available.” 42
U.S.C. § 3604(d) (2006).
A plaintiff may establish a violation of the FHA
either through direct evidence of discrimination or through the
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
burden-shifting framework. See Pinchback v. Armistead Homes
Corp., 907 F.2d 1447, 1451 (4th Cir. 1990) (applying
McDonnell-Douglas employment discrimination concepts to fair
housing law). “Direct evidence encompasses conduct or
statements that both (1) reflect directly the alleged
discriminatory attitude, and (2) bear directly on the contested
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[housing] decision.” Laing v. Fed. Express Corp., 703 F.3d 713,
717 (4th Cir. 2013) (quoting Warch v. Ohio Cas. Ins. Co., 435
F.3d 510, 520 (4th Cir. 2006)) (internal quotation marks
omitted).
Martin and Gallardo allege that certain
facially-neutral statements made by the Defendants provide
direct evidence of racial animus. Generally, “[f]acially
race-neutral statements, without more, do not demonstrate racial
animus on the part of the speaker.” Twymon v. Wells Fargo &
Co., 462 F.3d 925, 934 (8th Cir. 2006). However, “[r]acially
charged code words may provide evidence of discriminatory intent
by sending a clear message and carrying the distinct tone of
racial motivations and implications.” Guimaraes v. SuperValu,
Inc., 674 F.3d 962, 974 (8th Cir. 2012) (quoting Smith v.
Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010))
(internal alterations and quotations omitted). See Ash v. Tyson
Foods, Inc., 546 U.S. 454, 456 (2006). We conclude that the
statements Martin and Gallardo provide are not sufficient to
show direct evidence of racial animus.
Because Martin and Gallardo have not shown direct
evidence of discrimination, they must proceed under the
McDonnell-Douglas burden-shifting framework. Under that
framework, the plaintiff bears the initial burden of
establishing a prima facie case. See, e.g., Tex. Dep’t of Cmty.
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Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The district
court required Martin and Gallardo to show, among other facts,
that they had made an offer on the townhome. Because the nature
of the discrimination alleged was to misrepresent that the
townhome was available for sale, we conclude that Martin and
Gallardo were not required to show that they had made an offer
to purchase the townhome to establish a prima facie case. In
order to establish a prima facie case under the circumstances
here, Martin and Gallardo must show that: (1) they belong to a
protected class, (2) they sought and were qualified for the
dwelling, (3) they were denied the opportunity to buy the
dwelling, and (4) the dwelling remained available. Cabrera v.
Jakabovitz, 24 F.3d 372, 381 (2d Cir. 1994). See Williams v.
Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004) (announcing a
similar prima facie case in the public accommodation setting).
If the Plaintiffs establish a prima facie case, the burden
shifts to the Defendants to articulate a legitimate,
nondiscriminatory reason for refusing to negotiate with Martin
and Gallardo and representing that the townhome was not for
sale. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). If the Defendants produce a legitimate reason for the
action, the burden once again shifts to Martin and Gallardo to
show that the Defendants’ rationale is pretext for
discrimination. Id. at 804-05. Martin and Gallardo can prove
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pretext by showing that the defendant’s “explanation is unworthy
of credence or by offering other forms of circumstantial
evidence sufficiently probative of . . . discrimination.”
Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004) (internal
quotation marks omitted).
Assuming without deciding that Martin and Gallardo
established a prima facie case under the FHA, we conclude that
they did not refute the Defendant’s legitimate,
non-discriminatory reasons for refusing to deal with them.
Therefore, we hold that the district court did not err when it
granted summary judgment on the Plaintiffs’ FHA claim.
2. State Law Claims
We review a district court’s grant of a motion to
dismiss for failure to state a claim under Fed. R. Civ. P.
12(b)(6) de novo. Philips v. Pitt County Mem’l Hosp., 572 F.3d
176, 179-80 (4th Cir. 2009). To survive such a motion, a
complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level,” with “enough facts
to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). This
Court “accept[s] as true all well-pleaded allegations and
view[s] the complaint in the light most favorable to the
plaintiff.” Philips, 572 F.3d at 180.
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We affirm the dismissal of Martin and Gallardo’s
defamation, breach of contract, and intentional infliction of
emotional distress claims for the reasons stated by the district
court. We affirm the dismissal of Martin and Gallardo’s fraud
claim because the harm that Plaintiffs’ alleged from the
Defendants’ allegedly fraudulent statements was too speculative
to support a plausible claim for relief.
Accordingly, we affirm the district court’s orders.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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