United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2006 Decided April 14, 2006
No. 04-7126
2922 SHERMAN AVENUE TENANTS’ ASSOCIATION, ET AL.,
APPELLEES/CROSS-APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLANT/CROSS-APPELLEE
Consolidated with
04-7127, 04-7174, 04-7185, 04-7196
Appeals from the United States District Court
for the District of Columbia
(No. 00cv00862)
James C. McKay, Jr., Senior Assistant Attorney General,
Office of Attorney General for the District of Columbia, argued
the cause for appellant/cross-appellee. With him on the briefs
were Robert J. Spagnoletti, Attorney General, and Edward E.
Schwab, Deputy Attorney General.
Philip M. Musolino was on the brief for cross-appellant
Andrew J. Serafin.
2
Reed N. Colfax argued the cause for appellees/cross-
appellants. With him on the briefs were John P. Relman, Eliza
T. Platts-Mills, Bruce V. Spiva, and Hassan A. Zavareei. David
W. DeBruin and Denise L. Gilman entered appearances.
Jeffrey T. Green and Joseph R. Palmore were on the brief
for amici curiae National Fair Housing Alliance, et al. in support
of appellees/cross-appellants. Virginia A. Seitz entered an
appearance.
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Charging that the District of
Columbia targeted Hispanic neighborhoods when it decided to
close certain apartment buildings for housing code violations,
several tenants’ groups brought both disparate treatment and
disparate impact discrimination claims against the city under the
Fair Housing Act (FHA) and D.C. Human Rights Act
(DCHRA). The district court allowed only the FHA disparate
impact claim to go to the jury, which then returned a verdict
favoring the tenants with regard to one building. The city now
appeals that verdict, while the tenants cross-appeal the district
court’s (1) order granting judgment as a matter of law to the city
on their FHA disparate treatment claim, and (2) refusal to
instruct the jury on their DCHRA claim. Because we agree with
the city that the tenants failed to demonstrate that its actions had
a disproportionate impact on Hispanics, we reverse and remand
with instructions to set aside the jury verdict and grant judgment
to the District on the FHA disparate impact claim. But because
the tenants offered sufficient evidence of intentional
discrimination to support their FHA disparate treatment claim,
and because the district court should have instructed the jury on
their DCHRA claim, we remand those claims for a new trial.
3
I.
Located just west of the border between northwest and
northeast Washington, D.C., Columbia Heights is, by all
accounts, a neighborhood in transition. A low-income and
disproportionately Hispanic community for many years,
Columbia Heights became the focus of multimillion dollar
redevelopment efforts after a metro station opened there in
September 1999. In April 2000, the tenants of several Columbia
Heights apartment buildings sued the District of Columbia in
U.S. District Court alleging that in attempting to gentrify the
neighborhood—an effort that culminated in the closing or
attempted closing of their buildings—the city violated federal
and local fair housing laws. Both the tenants and the District
filed cross-claims against the landlords. In April 2004, the
tenants’ claims regarding three buildings—1512 Park Road,
1458 Columbia Road, and 2922 Sherman Avenue—went to trial.
The following evidence was presented:
In early 2000, District officials launched a program, known
as the “Hot Properties Initiative,” to enforce the housing code
aggressively in the city’s “worst” multi-family apartment
buildings. Supp. App. 24, 32-33. Administered by the District’s
Neighborhood Stabilization Program (NSP), the Initiative,
according to District witnesses, was intended to protect the
health and safety of building tenants. NSP officials began the
Initiative by directing District housing inspectors to identify
apartment buildings with the most dangerous and persistent
housing code violations. This effort produced a list of
approximately 75 buildings distributed evenly throughout the
city (with the exception of its wealthiest neighborhoods, Dupont
Circle, Georgetown, and upper Northwest). After “paring the
list down,” id. at 21, the NSP director passed it along to officials
at NSP’s overseeing agency, the Department of Consumer and
Regulatory Affairs (DCRA). DCRA officials then made
4
additional alterations to the list, removing many buildings and
adding others. Soon after, NSP released a final “Hot Properties
List” identifying what it said were the city’s 27 worst buildings.
On average, these buildings were located in neighborhoods
where the percentage of Hispanic residents was 4.1 times the
percentage of Hispanics in the city as a whole. Not one city
witness was able to explain why the List concentrated so heavily
on Hispanic neighborhoods.
After DCRA’s director informed NSP officials that he
wanted the Hot Properties buildings closed, NSP posted closure
notices at five buildings in and around Columbia Heights, where
the percentage of Hispanic residents was 4.4 times the
percentage of Hispanics in the city as whole. The tenants of
several buildings, including 2922 Sherman Avenue and 1458
Columbia Road, filed a motion for a temporary restraining
order. The District then postponed the closure dates and
eventually abandoned its efforts to close the buildings.
Several months later, however, the District targeted another
Hot Properties building, 1512 Park Road, for closure. Although
almost a year earlier an inspector had reported electrical
problems and a missing fire escape at the Park Road building,
the District not only failed to make any effort to remedy these
code violations, but also gave the tenants just “a few minutes”
notice before evacuating the building. J.A. 159. The city
declined to provide any relocation assistance, leaving the tenants
homeless.
The tenants also presented evidence that in closing 1512
Park Road and attempting to close 2922 Sherman Avenue and
1458 Columbia Road, the District strayed from its general
practice of considering alternatives to closure, such as (1) using
a specially designated fund, the “5-513 fund,” to abate the
5
violations and (2) seeking civil penalties against or criminal
prosecution of the landlords.
In their lawsuit, the tenants argued that the District’s
actions violated the Fair Housing Act, 42 U.S.C. §§ 3601-3631,
which prohibits discrimination in housing on the basis of
(among other things) race or national origin. See id. § 3604.
Although the tenants articulated two theories of discrimination,
disparate impact and disparate treatment—we shall say more
about the difference later—the district court concluded at the
close of the tenants’ case-in-chief that they had failed to provide
sufficient evidence to establish disparate treatment.
Accordingly, the district court granted judgment to the city on
that claim. The tenants also claimed that the city’s actions
amounted to “place of residence” discrimination in violation of
the D.C. Human Rights Act, D.C. Code § 2-1402.21(a). But the
district court, finding the DCHRA inapplicable to the form of
discrimination the tenants alleged, refused to instruct the jury
with respect to that claim.
Thus allowed to consider only the tenants’ FHA disparate
impact claim, the jury found the District liable for closing 1512
Park Road, but not for posting closure notices at either 2922
Sherman Avenue or 1458 Columbia Road. After hearing
additional testimony regarding damages, the jury awarded a total
of $181,500 to twelve former Park Road occupants, only two of
whom were Hispanic.
The District now appeals the 1512 Park Road verdict, while
the tenants cross-appeal the district court’s refusal to instruct the
jury on their DCHRA claim and its order granting judgment as
a matter of law to the city on their FHA disparate treatment
claim. The landlord of 1458 Columbia Road, Andrew Serafin,
also appeals, arguing that the district court erred in denying his
motion to dismiss the District’s cross-claim against him.
6
II.
We begin with the tenants’ FHA claims. As relevant here,
the FHA makes it unlawful
(a) To . . . make unavailable or deny, a dwelling
to any person because of race, color, religion,
sex, familial status, or national origin.
(b) To discriminate against any person in the
terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services or
facilities in connection therewith, because of
race, color, religion, sex, familial status or
national origin.
42 U.S.C. § 3604(a)-(b). As noted above, the tenants rest their
FHA claim on two distinct theories. First, they argue that the
record reveals evidence of disparate treatment, i.e., that in
adopting the Hot Properties Initiative and selecting their
buildings for closure, the District intentionally discriminated
against Hispanics. Second, they argue that even if unable to
prove intentional discrimination, they can nonetheless prevail
because the Hot Properties Initiative had a disparate impact on
Hispanics. See Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir.
1987) (describing the difference between disparate treatment
and disparate impact).
Although the Supreme Court has barred constitutional
disparate impact claims, see Washington v. Davis, 426 U.S. 229
(1976), it has permitted such claims when brought pursuant to
federal law. In the seminal case on this issue, Griggs v. Duke
Power Co., 401 U.S. 424 (1971), the Supreme Court considered
whether, absent evidence of discriminatory intent, an
employment test that had a disproportionate impact on black
7
workers could violate Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2, which bars employment discrimination
“because of . . . race . . . or national origin.” Answering yes, the
Court explained that Congress intended Title VII to prohibit, in
addition to intentional discrimination, certain practices having
an unintended discriminatory impact:
The Act proscribes not only overt discrimination
but also practices that are fair in form, but
discriminatory in operation. The touchstone is
business necessity. If an employment practice
which operates to exclude Negroes cannot be
shown to be related to job performance, the
practice is prohibited.
Griggs, 401 U.S. at 431. In other words, to prove a disparate
impact claim in the employment context, a plaintiff must first
demonstrate that the challenged policy or practice has a
disproportionate effect on a protected class. If the plaintiff
makes this showing, the employer can prevail only by
demonstrating that its practice was consistent with business
necessity. See, e.g., Arnold v. U.S. Postal Serv., 863 F.2d 994,
996 (D.C. Cir. 1988); see also 42 U.S.C. § 2000e-2(k)(1)(A)-(C)
(expressly extending Title VII to disparate impact claims).
The Supreme Court has yet to consider the availability of
disparate impact claims under the FHA. Significantly, however,
the FHA’s language prohibiting discrimination—“because of
. . . race . . . or national origin”—is identical to Title VII’s, and
since Griggs, every one of the eleven circuits to have considered
the issue has held that the FHA similarly prohibits not only
intentional housing discrimination, but also housing actions
having a disparate impact. See John F. Stanton, The Fair
Housing Act and Insurance: An Update and the Question of
Disability Discrimination, 31 Hofstra L. Rev. 141, 174 n.180
8
(2002) (listing cases). The tenants urge us to take the same
approach here. Expressing no view on the issue, the District
“assume[s] arguendo that a violation of the FHA may be found
based on evidence of disparate effect alone.” District’s Br. 33
n.5. Given that only one side of the issue has been briefed,
however, instead of simply adopting the approach of our
respected sister circuits, we think it more appropriate to assume
without deciding that the tenants may bring a disparate impact
claim under the FHA.
Disparate Impact
Recall that the district court allowed the jury to hear the
tenants’ FHA disparate impact claim, and that the tenants
prevailed with respect to one building, 1512 Park Road. On
appeal, the District argues that the record contains insufficient
evidence of disparate impact and that the district court therefore
erred in denying its motion for judgment as a matter of law. As
always, we review de novo a trial court’s denial of judgment as
a matter of law, setting aside the jury’s verdict only if “the
evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not disagree” that the verdict is in error. Duncan v. Wash.
Metro. Area Transit Auth., 240 F.3d 1110, 1113 (D.C. Cir.
2001) (internal quotation marks omitted).
In one of the first cases to permit an FHA disparate impact
claim, Metropolitan Housing Development Corp. v. Village of
Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), the Seventh
Circuit emphasized that not “every action which produces
discriminatory effects is illegal,” id. at 1290. The court
identified four factors for determining whether conduct that
produces a disparate impact violates the FHA: (1) the strength
of the plaintiff’s showing of discriminatory effect; (2) whether
any evidence indicates discriminatory intent; (3) the defendant’s
interest in taking the challenged action; and (4) whether the
9
plaintiff seeks to compel the defendant to affirmatively provide
housing to a protected class or merely to restrain the defendant
from interfering with individual property owners who wish to
provide such housing. Id.
Believing it would place “too onerous a burden” on
plaintiffs to treat these four factors “as steps necessary to make
out a prima facie case” of discriminatory effect, the Second
Circuit developed a burden-shifting framework: once the
plaintiff demonstrates the challenged practice has a
disproportionate impact, the burden shifts to the defendant to
“prove that its actions furthered, in theory and in practice, a
legitimate, bona fide governmental interest and that no
alternative would serve that interest with less discriminatory
effect.” Huntington Branch, NAACP v. Town of Huntington,
844 F.2d 926, 935-36 (2d Cir. 1988), aff’d on other grounds,
488 U.S. 15, 18 (1988). Several circuits have adopted this
burden-shifting framework. See, e.g., Darst-Webbe Tenant
Ass’n Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 901-02 (8th
Cir. 2005); Langlois v. Abington Hous. Auth., 207 F.3d 43, 51
(1st Cir. 2000).
In this case, the tenants emphasize the Second Circuit’s
framework, while the city relies primarily on the Seventh
Circuit’s four-factor inquiry. We need not adopt one approach
over the other, however, for under either approach the tenants’
claim fails. Both approaches require proof of disproportionate
impact, and as we explain below, the tenants produced no such
evidence.
Pointing out that only two of the twelve tenants awarded
damages were Hispanic, the District argues that the tenants lose
as a matter of law because they failed to satisfy their burden of
establishing that the closing of 1512 Park Road had a
disproportionate impact on Hispanics. This argument misstates
10
the tenants’ claim. As the district court explained, the policy the
tenants’ disparate impact claim challenges is not the closing of
1512 Park Road—hardly a policy, in any event—but the Hot
Properties Initiative, specifically the use of the Hot Properties
List to determine which buildings to close. See J.A. 106-07.
Under the tenants’ theory of the case, the closing of 1512 Park
Road is significant because it constitutes the injury they suffered
as a result of the Hot Properties Initiative. To analogize again
to the employment context, the city’s closing of 1512 Park Road
pursuant to the Hot Properties Initiative is similar to an
employer’s refusal to hire a single individual based on the
results of an allegedly discriminatory test. To prevail, such an
individual would need to show not that her failure to obtain the
job disproportionately affected her protected class (such an
inquiry would make little sense where the employer’s action
affected only one person), but rather that the test itself had a
disproportionate effect on the protected class. Here, then, the
question is whether the tenants satisfied their burden of
establishing that the 27 buildings listed as Hot Properties had a
disproportionate number of Hispanic residents.
In finding sufficient evidence of disparate impact, the
district court relied on the testimony of the tenants’ statistical
expert, who explained that the buildings on the Hot Properties
List were located, on average, in census block groups whose
percentage of Hispanic residents was 4.1 times the percentage
of Hispanics in the District as a whole. See id. at 104-06, 217-
27. Seeing “no bright line rule to guide courts (or juries, or
experts) in deciding whether plaintiffs’ evidence has shown a
significantly adverse or disproportionate impact,” the district
court held that the tenants had presented “enough analytical
information tending to show that the District’s policies had a
disproportionate impact on Hispanics” to allow the jury to
consider the question. Id. at 105-06 (internal quotation marks
and citation omitted). We disagree.
11
To prevail on a disparate impact claim, a plaintiff must offer
sufficient evidence to support a finding that the challenged
policy actually disproportionately affected a protected class.
For example, in Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989),
a post-Griggs employment discrimination case, the Seventh
Circuit held that plaintiffs satisfied this burden by demonstrating
that 84 percent of white candidates passed the challenged
employment test as compared to only 39 percent of black
candidates, see id. at 378-80. Likewise, in Huntington Branch,
where the Second Circuit allowed an FHA disparate impact
challenge to a town’s public housing policy to proceed to trial,
plaintiffs presented evidence that although only 5 percent of the
town’s population was minority, each of the town’s three
housing projects had between 30 and 95 percent minority
residents. See 844 F.2d at 929.
In this case, by contrast, the tenants provided no evidence
that the specific buildings on the Hot Properties List were
disproportionately Hispanic. Instead, their statistical expert
merely described the ethnic composition of all District
neighborhoods, leaving it to the jury to infer the ethnic
composition of the buildings from the ethnic composition of
their respective neighborhoods. To be sure, under some
circumstances a reasonable jury could infer a building’s ethnic
composition from the ethnic composition of its neighborhood.
For example, if the city’s population was 5 percent Hispanic and
the neighborhood 95 percent Hispanic, one could reasonably
assume that each individual building in the neighborhood was
also disproportionately Hispanic. In this case, however, a
reasonable jury could make no such assumption because the
percentage of Hispanics in the relevant neighborhoods, while
disproportionate to the 7.9 percent found in the city as a whole,
averaged only 32.4 percent. See J.A. 224-27. Without evidence
that the Hispanic population was evenly distributed throughout
12
the buildings in the tenants’ neighborhoods, a jury could not
reasonably assume that any particular building was
disproportionately Hispanic. Indeed, absent such evidence, it
seems just as likely that the neighborhood averages were high
because some buildings were heavily Hispanic while many
others were not.
Given this conclusion, we need not consider the District’s
argument that the tenants’ disparate impact claim fails for lack
of “evidence of a relevant comparison group—i.e., persons
unaffected by the policy who were not in the protected group
and who were similarly [situated].” District’s Br. 45. As we
have explained, absent evidence of the actual ethnic composition
of the buildings on the Hot Properties List, no jury could
reasonably conclude that the Initiative had a disproportionate
impact on Hispanics. Accordingly, the district court should
have granted the District’s motion for judgment as a matter of
law on the tenants’ disparate impact claim.
Disparate Treatment
The next issue before us is whether the district court erred
in granting judgment to the city on the tenants’ FHA disparate
treatment claim. Reviewing the district court’s order de novo,
we affirm only if no reasonable jury could find in the tenants’
favor. See Sparshott v. Feld Entm’t, Inc., 311 F.3d 425, 429
(D.C. Cir. 2002).
In contrast to disparate impact plaintiffs, plaintiffs alleging
disparate treatment must establish not that a facially neutral
policy disproportionately affected a protected class, but that the
defendant intentionally discriminated against them on the basis
of race or ethnicity. Accordingly, the specific question we face
here is whether the tenants offered sufficient evidence for a
reasonable jury to conclude that the District intentionally
targeted their buildings for closure because the buildings were
13
located in disproportionately Hispanic neighborhoods.
Although we have no Circuit precedent addressing intentional
housing discrimination under the FHA, plaintiffs urge us to
follow the approach taken by many circuits and apply the
burden-shifting framework adopted by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973), for use in employment discrimination cases. See, e.g.,
Sanghvi v. City of Claremont, 328 F.3d 532, 536-38 (9th Cir.
2003); Reg’l Econ. Cmty. Action Program, Inc. v. City of
Middletown, 294 F.3d 35, 48-52 (2d Cir. 2002); Kormoczy v.
HUD, 53 F.3d 821, 823-24 (7th Cir. 1995) (all applying
McDonnell Douglas to FHA claims). Under that framework,
plaintiffs must first present sufficient evidence to permit an
inference of discrimination. If they succeed, the burden then
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. If the defendant meets
that burden, plaintiffs may prevail by showing that the
defendant’s proffered reason was pretext for discrimination. See
McDonnell Douglas, 411 U.S. at 802-04. Because this approach
makes sense, and because the District does not urge otherwise,
we too shall apply the McDonnell Douglas framework.
According to the tenants, the evidence presented at trial
suffices to (1) permit an inference that the District intentionally
discriminated against Hispanics in deciding which buildings to
close and (2) allow the jury to conclude that the District’s
asserted justification—protecting the health and safety of tenants
living in buildings with the worst housing code violations—was
pretext for discrimination. We agree.
With regard to the initial inference of discrimination, record
evidence demonstrates that although the 75 buildings first
recommended for inclusion on the Hot Properties List were
evenly distributed throughout most of the city, the 27 buildings
ultimately placed on the List were located in neighborhoods
14
with an average percentage of Hispanic residents 4.1 times as
great as the percentage of Hispanics in the city as a whole. The
five buildings posted for closure were located in even more
heavily Hispanic neighborhoods—neighborhoods having an
average Hispanic population 4.4 times the percentage of
Hispanics in the city.
The District insists that nothing in the record demonstrates
that most of the buildings initially listed but then excluded from
the final Hot Properties List were in non-Hispanic
neighborhoods. This is untrue. The tenants introduced maps
illustrating the percentage of Hispanic residents by census block
group for the entire city, the location of the 27 listed buildings,
and the location of the five properties placarded for closure. A
reasonable jury could rely on these maps, together with the
evidence that the 75 buildings were evenly distributed
throughout most of the city, see supra p. 3, to conclude that
although the initial list had not targeted Hispanic neighborhoods,
the final list did.
At trial, moreover, the District offered little explanation for
how or why city officials decided to (1) eliminate from the
initial list over fifty buildings recommended by the housing
inspectors, or (2) add several buildings which the inspectors
never identified as problem properties. As the tenants observe:
Not a single District official could explain the
sudden transformation of the list from one
including buildings from every quadrant in the
city, to a list almost exclusively comprised of
buildings in disproportionately Hispanic
neighborhoods. . . . The absence of objective
justification for the District’s subjective choices
. . . is strongly suggestive of an intent to
discriminate.
15
Tenants’ Reply Br. 10.
At trial, District officials asserted that in listing the tenants’
buildings as Hot Properties and then targeting them for closure,
their intention was to protect the tenants’ health and safety. The
tenants, however, presented evidence that could lead a
reasonable jury to disbelieve this claim. To begin with, they
demonstrated that in deciding to close their buildings, the
District deviated from its usual practice of considering
alternative measures that would have protected the tenants while
causing less disruption, such as using 5-513 funds to abate the
violations or seeking civil penalties against the landlords.
According to record evidence, at the time the District targeted
the tenants’ buildings for closure, it was spending 5-513 funds
at an annual rate of between 1.3 and 1.5 million dollars.
Although housing inspectors testified that they repeatedly
recommended the use of such funds to abate violations at the
tenants’ buildings, record evidence indicates that city officials
refused to consider this option. When asked why, one official
explained that if the city had allocated 5-513 money to repairing
code violations at the tenants’ buildings, it would have
“jeopardize[d]” the availability of such funds for “other areas of
the city.” Supp. App. 59-60. In closing 1512 Park Road,
moreover, the District departed from its usual procedure of
providing relocation assistance when closing buildings, leaving
the tenants homeless with only a few minutes notice.
Indeed, record evidence reveals instances in which city
officials treated buildings with serious code violations in non-
Hispanic neighborhoods differently than it treated the tenants’
buildings. One housing inspector testified about a set of
apartment buildings on Ayers Place, Southeast, where she
observed code violations involving smoke detectors, a defective
hot water system, and mold contamination. Rather than closing
16
the entire complex, the District used roughly $40,000 of 5-513
funds to abate the violations. Another inspector described a
building on Ames Street, Southeast, which was not among the
buildings targeted for immediate closure even though it had
been included on the Hot Properties List and was, according to
the inspector, in “equally bad condition” when compared to
1458 Columbia Road. Id. at 57. The District asserts that the
tenants failed to demonstrate that the Ayers Place and Ames
Street buildings were located in non-Hispanic neighborhoods,
but the maps the tenants introduced at trial illustrate that every
census block in the city’s Southeast quadrant has a lower
percentage of Hispanic residents than the city as a whole. The
District also asserts that the violations at the Ayers Place and
Ames Street buildings were less serious than those at the
tenants’ buildings, particularly 1512 Park Road, which had
electrical problems and lacked an adequate fire escape. But
making such judgments is the jury’s responsibility, and
especially given the inspector’s testimony that the Ames Street
building was in “equally bad condition,” we think a reasonable
jury could find the violations at the Ayers Place and Ames Street
buildings sufficiently comparable to those at the tenants’
buildings to undermine the District’s claim of non-
discriminatory intent. See Gunning v. Cooley, 281 U.S. 90, 94
(1930) (explaining that it is for the jury to decide the “effect or
weight of evidence”).
Taken together, the tenants’ evidence is more than enough
under McDonnell Douglas to have allowed the jury to hear the
disparate treatment claim. The relatively even distribution of
the 75 buildings initially recommended for inclusion on the Hot
Properties List, the District’s failure to explain how NSP and
DCRA officials selected the 27 buildings ultimately listed, and
the fact that those buildings were located in disproportionally
Hispanic neighborhoods all suffice to support an inference that
the District intentionally targeted Hispanic neighborhoods when
17
it implemented the Hot Properties Initiative. See Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
267 (1977) (noting that “[t]he historical background of the
decision” and “[t]he specific sequence of events leading up to
the challenged decision” may evidence intentional
discrimination). Moreover, based on the evidence that city
officials dealt with serious code violations differently in
Hispanic and non-Hispanic neighborhoods, a jury could
reasonably conclude that the District’s purported justification for
targeting the tenants’ buildings for closure—to protect the
tenants’ health and safety—was pretext for discrimination. See,
e.g., Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000)
(explaining that a showing of differential treatment can “serve
as evidence that the [defendant’s] proffered legitimate, non-
discriminatory reason for the adverse . . . action was a pretext
for racial discrimination”). In reaching this conclusion, we
emphasize that we are not saying that the District actually
discriminated against Hispanic tenants, but only that the record
contains sufficient evidence to allow a jury to make that
determination.
Our earlier finding that the tenants produced insufficient
evidence to support their disparate impact claim, see supra pp.
8-12, in no way undermines our conclusion that the disparate
treatment claim should go to a jury. As noted above, the two
theories are distinct. Because a disparate impact claim requires
no evidence of discriminatory intent, we require plaintiffs to
establish that the challenged policy actually had a disparate
impact. In disparate treatment cases, by contrast, we focus on
the defendant’s motivation, not the effects of its actions. This
case nicely illustrates the difference. The fact that the tenants’
buildings are located in disproportionately Hispanic
neighborhoods could certainly motivate someone bent on
discriminating against Hispanics to close the buildings. Their
location alone could therefore give rise to an inference of
18
discriminatory intent, even though it cannot support a
conclusion that the Hot Properties Initiative in fact had a
disparate impact on Hispanics.
The District makes several additional arguments, only one
of which requires further comment. Explaining that in contrast
to 1512 Park Road, it never actually closed the buildings at 2922
Sherman Avenue and 1458 Columbia Road, but merely
“placarded” them, the District argues that no discrimination
could have occurred with regard to those two buildings. This is
incorrect. The FHA prohibits making housing “unavailable” on
the basis of national origin. Although the District never forcibly
removed the tenants of 2922 Sherman Avenue and 1458
Columbia Road from their apartments, it did post closure notices
on both buildings for the purpose of, according to one city
witness, “get[ting] the tenants to leave.” Trial Tr. 221, Apr. 13,
2005. The notice posted at 1458 Columbia Road stated that “by
order of the housing regulation administration this structure is
declared unfit for human habitation and its occupancy and/or use
is hereby prohibited.” J.A. 417. The Sherman Avenue tenants
received a similar notice warning that their building was “unfit
for human habitation” and advising them “to seek alternative
housing accommodations.” Id. at 409. Telling the tenants either
that their “occupancy . . . is . . . prohibited” or that they must
“seek alternative housing” certainly qualifies as making the
buildings “unavailable” under the FHA.
For all these reasons, we shall reverse the district court’s
grant of judgment as a matter of law to the city on the tenants’
disparate treatment claim and remand for trial.
III.
In addition to their FHA claims, the tenants charge the
District with “place of residence” discrimination in violation of
the D.C. Human Rights Act. See D.C. Code § 2-1402.21(a).
19
The DCHRA makes it unlawful “to refuse or restrict facilities,
services, repairs or improvements for a tenant or lessee” “wholly
or partially for a discriminatory reason based on . . . race, color,
. . . or place of residence.” Id. A separate provision states that
“[a]ny practice which has the effect or consequence of violating
any of the provisions of this chapter shall be deemed to be an
unlawful discriminatory practice.” § 2-1402.68. The D.C.
Court of Appeals has held that this “effects clause” imports into
the Act “the concept of disparate impact discrimination
developed by the Supreme Court in Griggs v. Duke Power Co.”
Gay Rights Coal. v. Georgetown Univ., 536 A.2d 1, 29 (D.C.
1987).
The district court refused to instruct the jury on the tenants’
DCHRA claim, explaining that: (1) the Act does not apply to the
form of housing discrimination challenged by the tenants, (2) an
exception to the Act bars the tenants’ claims, and (3) even if the
Act applies, it is “functionally indistinguishable” from the FHA,
making a separate instruction unnecessary. See J.A. 384-85.
The tenants challenge all three rulings. We review de novo a
district court’s refusal to instruct the jury. See Joy v. Bell
Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993)
(“An alleged failure to submit a proper jury instruction is a
question of law subject to de novo review . . . .”).
We start with the tenants’ challenge to the district court’s
ruling that the DCHRA does not “apply by its terms” to the form
of housing discrimination they allege. Explaining that the Act
prohibits “refus[ing] or restrict[ing] facilities, services, repairs
or improvements for a tenant or lessee” based on her place of
residence, see D.C. Code § 2-1402.21(a)(4), the tenants assert
that enforcing the housing code is a “service” provided by the
District, and that “[t]he District’s differential provision of those
services to tenants in the Columbia Heights/Mount Pleasant area
. . . falls within the ambit of acts that refuse or restrict services
20
contemplated by the [DCHRA],” Tenants’ Br. 47. The District
responds that the tenants’ argument “is based on a reading of an
isolated provision of the statute taken out of context.” District’s
Reply Br. 47. Pointing to several DCHRA provisions that focus
on “real property” transactions, the District asserts that the D.C.
Council intended the phrase “to refuse or restrict . . . services”
to apply not to the District of Columbia government, but only to
actions of property owners, landlords, and lenders.
The tenants have the better argument. The relevant
provision, subsection 2-1402.21(a)(4), makes no reference to
“property owners, landlords, and lenders,” and we see no reason
to think that the presence of the phrase “real property” elsewhere
in section 2-1402.21 has any bearing on subsection 2-
1402.21(a)(4)’s application in this case. To the contrary, the
D.C. Court of Appeals has squarely held that subsection 2-
1402.21(a)(4) applies to actions by District agencies, including
actions not specifically mentioned in the Act’s definition of
“real estate transactions.” See George Washington Univ. v. D.C.
Bd. of Zoning Adjustment, 831 A.2d 921, 939-40 (D.C. 2003).
The District relies on Hessey v. Burden, 615 A.2d 562 (D.C.
1992), which found the DCHRA inapplicable to an initiative
involving tax assessment procedures, id. at 579-80. As the
tenants point out, however, in sharp contrast to the housing code
enforcement decisions at issue here, the tax procedures
challenged in Hessey bore no relationship at all to housing
discrimination.
The tenants next challenge the district court’s ruling that
their claim is precluded by one of the DCHRA’s exceptions,
which states that “[n]othing contained in the provisions of this
chapter shall be deemed to permit any rental or occupancy
otherwise prohibited by any statute, or by any regulation
previously enacted and not repealed herein.” D.C. Code § 2-
1402.24(b). The district court presumably found this exception
21
applicable because the housing and fire codes are regulations
that allegedly prohibit “occupancy” of the tenants’ apartment
buildings. But none of the relief the tenants requested involved
continued occupancy in buildings deemed uninhabitable by the
District. The complaint and trial record make clear that the
tenants never sought to live in buildings with code violations;
instead, they wanted the District to remedy the violations either
by using 5-513 funds or by pursuing the buildings’ owners.
Finally, the tenants challenge the district court’s conclusion
that a separate DCHRA instruction was unnecessary because
their DCHRA claim was “indistinguishable” from their Fair
Housing Act claim. As the tenants point out, the DCHRA
prohibits “place of residence” discrimination, see D.C. Code §
2-1402.21(a), which, in contrast to national origin
discrimination, requires no evidence regarding the Hispanic
population of the tenants’ buildings. Defending the district
court’s conclusion, the city argues that because “the thrust of
[the tenants’] complaint is that the District’s enforcement
actions were concentrated [in disproportionately Hispanic
neighborhoods],” their place of residence claims are “completely
dependent” on their national origin claims. District’s Reply Br.
50. Again, the tenants have the better argument. A reasonable
jury could conclude that even if the tenants provided insufficient
evidence of national origin discrimination, they demonstrated
that the District targeted buildings in Columbia Heights, thus
discriminating against the tenants based on their place of
residence. The tenants’ DCHRA and FHA claims are thus
sufficiently distinct to require separate instructions.
IV.
This brings us finally to the cross-appeal of Andrew Serafin,
owner of 1458 Columbia Road at the time of the challenged
actions. Although the tenants initially named Serafin as a
defendant, they later voluntarily dismissed their claims against
22
him. The District cross-claimed against Serafin and the other
building owners, asserting that if the tenants prevailed against
the District, the city was “entitled to judgment and/or
contribution” from the building owners because “their failure to
abate the housing code violations caused the District to take
enforcement action that may have led to Plaintiffs’ alleged
damages.” District’s Answer to Second Am. Compl. 11. The
district court denied Serafin’s motion to dismiss the District’s
cross-claim, but agreed to sever it from the rest of the case.
Although Serafin’s brief is far from clear, he seems to argue
that in ruling on his “Motion to Strike or Dismiss Crossclaim of
District of Columbia,” Serafin’s Br. 1, the district court erred in
declining to dismiss not only the District’s claim against him,
but also the claims of the 1458 Columbia Road tenants against
the District. Serafin explains that in 2002 he entered into an
agreement of sale with the Tenants Association of 1458
Columbia Road which required the Association to “cause to be
dismissed with prejudice all civil actions and all regulatory
proceedings against . . . Serafin.” Id. at 3-4. Accordingly, he
asserts, “the Columbia Road Association was obligated to
release its claims against the District . . . in order to effect the
release or the dismissal of the District[’s] . . . crossclaim against
Serafin.” Id. at 4. From this, Serafin concludes that the district
court should have dismissed the 1458 Columbia Road tenants’
claims against the District, thereby mooting the District’s claims
against him.
Though Serafin’s claim suffers from defects too numerous
to recount here, we think it appropriate to give him precisely
what he wants: de novo review of the district court’s
“construction of [the] contract provision.” Id. at 5; see LTV
Corp. v. Gulf States Steel, Inc., 969 F.3d 1050, 1055 (D.C. Cir.
1992) (“Interpretation of the plain language of a contract is a
question of law subject to de novo review by this court.”).
23
Contrary to Serafin’s assertions, we see not a word in the
contract that precludes either the tenants’ claims against the
District or the District’s cross-claim against Serafin. The
contract requires nothing more than that the Columbia Road
tenants dismiss their claims against Serafin, which they did.
V.
To sum up, although the tenants have failed to demonstrate
that the Hot Properties Initiative had a disparate impact on
Hispanics, they have presented sufficient evidence for a
reasonable jury to conclude that the District (1) intentionally
discriminated against them on the basis of national origin in
violation of the FHA, and (2) discriminated against them on the
basis of place of residence in violation of the DCHRA. We thus
reverse and remand with instructions to the district court to grant
judgment to the District on the tenants’ FHA disparate impact
claim and to conduct a new trial limited to the tenants’ FHA
disparate treatment and DCHRA “place of residence”
discrimination claims. We affirm the district court’s denial of
Serafin’s motion to dismiss.
So ordered.