Dawn Martin v. Johannes Brondum, No. 12-2119 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2119 DAWN V. MARTIN; MIGUEL GALLARDO, Plaintiffs Appellants, v. JOHANNES BRONDUM; LONG AND FOSTER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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Dawn Martin and Miguel Gallardo appeal the district court s orders granting summary judgment on their racial discrimination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. Gallardo allege that their landlord, Johannes Martin and 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 reasonable de novo, inferences non-moving party. in viewing the the light facts most and drawing favorable to all the 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. whether the Fed. R. Civ. P. 56(a). evidence presents 3 a The relevant inquiry is sufficient disagreement to 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, national origin. FHA prohibits color, religion, familial 42 U.S.C. § 3604(a) (2006). representing religion, sex, sex, to any handicap, person familial status, or In addition, the because status, of or race, 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 burden-shifting Corp., 907 F.2d law). statements v. framework. McDonnell-Douglas housing Corp. that 1447, See 1451 employment Direct both Green, (1) 411 Pinchback (4th reflect v. Cir. discrimination evidence U.S. 792 (1973) Armistead 1990) (applying concepts encompasses directly Homes to conduct the fair or alleged discriminatory attitude, and (2) bear directly on the contested 4 [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 facially-neutral statements made direct of animus. evidence racial by the that certain Defendants Generally, provide [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. Inc., 674 Fairview F.3d Ridges 962, 974 Hosp., (8th 625 Guimaraes v. SuperValu, Cir. F.3d 2012) 1076, (quoting 1085 (8th (internal alterations and quotations omitted). Foods, Inc., 546 U.S. 454, 456 (2006). Smith Cir. v. 2010)) See Ash v. Tyson We conclude that the statements Martin and Gallardo provide are not sufficient to show direct evidence of racial animus. Because evidence of and discrimination, McDonnell-Douglas framework, Martin the Gallardo they burden-shifting plaintiff bears establishing a prima facie case. 5 have must not proceed framework. the shown initial direct under Under burden the that of See, e.g., Tex. Dep t of Cmty. 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. of the discrimination alleged was to Because the nature 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, dwelling, (3) (2) they they were sought denied and the were qualified opportunity to dwelling, and (4) the dwelling remained available. Jakabovitz, 24 F.3d 372, 381 (2d Cir. 1994). for the buy the Cabrera v. 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 sale. (1973). and McDonnell representing Douglas that Corp. v. the townhome Green, 411 was U.S. not for 792, 802 If the Defendants produce a legitimate reason for the action, the burden once again shifts to Martin and Gallardo to show that the discrimination. Defendants rationale Id. at 804-05. 6 is pretext for Martin and Gallardo can prove pretext by showing that the defendant s explanation is unworthy of credence evidence or by offering sufficiently other probative forms of . . of . circumstantial 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 non-discriminatory reasons the for Defendant s refusing to legitimate, 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, Cir. 179-80 (4th 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 view[s] accept[s] the plaintiff. as complaint true in all the well-pleaded light Philips, 572 F.3d at 180. 7 most allegations favorable to and the 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. claim We affirm the dismissal of Martin and Gallardo s fraud because the harm that Plaintiffs alleged from the Defendants allegedly fraudulent statements was too speculative to support a plausible claim for relief. Accordingly, We dispense with oral we affirm argument the district because the court s facts orders. and legal contentions are adequately presented in the material before this court and argument will not aid the decisional process. AFFIRMED 8

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