Theardise Lowman v. Bracston L. Olds

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3711
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Reginald Young, Director, Omaha *
Human Relations Department on *
behalf of Theardise Lowman, *
*
Plaintiff, *
*
Theardise Lowman, * Appeal from the United States
* District Court for the
Appellant, * District of Nebraska.
*
v. * [UNPUBLISHED]
*
Bracston L. Olds; Myrtis E. Olds; *
B.L.’s Homes, *
*
Appellees. *
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Submitted: February 2, 2006
Filed: February 22, 2006
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Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Theardise Lowman appeals the district court’s1 judgment in favor of defendants
following a two-day jury trial in his action for intentional race discrimination in
renting an apartment, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982,
and the Fair Housing Act, 42 U.S.C. § 3601. We affirm.
We will affirm a jury verdict unless, viewing the evidence in the light most
favorable to the prevailing party, we conclude that a reasonable jury could not have
found for that party. See Cross v. Cleaver, 142 F.3d 1059, 1066 (8th Cir. 1998). The
evidence here amply supports the jury’s verdict. Given Lowman’s credit score, which
indicated a good chance he would be in default of a rent payment, the jury was free
to believe Olds’s testimony that his decision not to rent to Lowman was based on
Lowman’s credit history rather than his race. See Morse v. S. Union Co., 174 F.3d
917, 922-23 (8th Cir. 1999) (jury is free to credit testimony as it believes appropriate
and is to decide whose witnesses were telling truth); Cabrera v. Jakabovitz, 24 F.3d
372, 383 (2d Cir.) (framework of burdens fashioned in Title VII cases is fully
applicable to housing-discrimination cases), cert. denied, 513 U.S. 876 (1994).
Contrary to Lowman’s arguments on appeal, he did not allege in his complaint
that defendants’ policies were discriminatory under a disparate-impact theory, see Oti
Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003) (to prove
discrimination under disparate-impact analysis, plaintiff must show facially neutral
policy has adverse impact on members of protected group), and he did not attempt to
submit to the jury the investigation report from the City of Omaha’s Human Relations
Department.
Accordingly, we affirm the judgment. We deny Lowman’s motion to
supplement the record with evidence that was not before the jury. See Dakota Indus.,
1
The Honorable William Jay Riley, United States Circuit Judge for the Eighth
Circuit, sitting by designation in the United States District Court for the District of
Nebraska.
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Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (appellate court
generally will not consider evidence not contained in record below).
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