UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JONATHAN E. PUMPHREY; CLAY
KEITH; BALTIMORE NEIGHBORHOODS,
INCORPORATED,
Plaintiffs-Appellants,

v.
                                  No. 95-1998
STEPHEN HOMES, INCORPORATED;
SHEILA ORT,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Amicus Curiae.

JONATHAN E. PUMPHREY; CLAY
KEITH; BALTIMORE NEIGHBORHOODS,
INCORPORATED,
Plaintiffs-Appellees,

v.
                                  No. 95-3032
STEPHEN HOMES, INCORPORATED;
SHEILA ORT,
Defendants-Appellants.

UNITED STATES OF AMERICA,
Amicus Curiae.
JONATHAN E. PUMPHREY,
Plaintiff-Appellant,

and

CLAY KEITH; BALTIMORE
NEIGHBORHOODS, INCORPORATED,
Plaintiffs,
                                                                      No. 96-1157
v.

STEPHEN HOMES, INCORPORATED;
SHEILA ORT,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Amicus Curiae.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-93-1329-HAR)

Argued: October 31, 1996

Decided: March 25, 1997

Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew David Freeman, BROWN, GOLDSTEIN &
LEVY, Baltimore, Maryland, for Appellants. Francis Raymond Laws,

                   2
KOHLMAN & SHEEHAN, P.A., Baltimore, Maryland, for Appel-
lees. ON BRIEF: Lauren E. Willis, BROWN, GOLDSTEIN &
LEVY, Baltimore, Maryland, for Appellants. Deval L. Patrick, Assis-
tant Attorney General, David K. Flynn, Lisa J. Stark, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs Jonathan E. Pumphrey, Clay Keith, and Baltimore Neigh-
borhoods, Inc. (BNI) appeal various rulings of the district court con-
cerning their action alleging that Stephen Homes, Inc. and Sheila Ort,
a sales agent for Stephen Homes, engaged in discriminatory housing
practices in violation of 42 U.S.C.A. § 3604(a), (d) (West 1994).1 Ste-
phen Homes and Ort cross-appeal, challenging the denial of their
motion for attorney's fees and the award of attorney's fees to Pum-
phrey. We affirm in part, reverse in part, and remand.

I.

Pumphrey is an African-American who lived in a neighborhood
known as Greenridge II in Harford County, Maryland. Stephen
_________________________________________________________________
1 Subsection (a) provides that it is unlawful "[t]o 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.A. § 3604(a). Subsection (d) makes it unlawful "[t]o
represent 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.A. § 3604(d).

                    3
Homes was building houses on several lots in Greenridge II and
employed Ort as a sales representative for the community. Pumphrey
became interested in moving to another location in the neighborhood,
and he approached Ort about the possibility of purchasing a lot and
building one of the houses offered by Stephen Homes. Ort indicated
that the only lot in Greenridge II that could accommodate the type of
house that Pumphrey desired to build was Lot No. 698. After viewing
the lot, Pumphrey expressed an interest in it and asked Ort how he
should proceed. According to Pumphrey, Ort did not instruct him to
place a deposit on the lot, but instead advised him not to take any
action until Ort verified that the lot would accommodate the house
Pumphrey was interested in building.

Pumphrey testified that Ort telephoned him the following day and
informed him that the lot was unavailable because it had been sold.
Ort agreed that she indicated the lot was unavailable, but claimed that
it was because she accepted a "verbal hold" on the lot--without
requiring any money from the prospective purchasers--after Pum-
phrey decided not to place a deposit on it. One week later, however,
the Crimis--friends of Pumphrey who were Caucasian--visited Ort
and inquired about the availability of Lot No. 698. Ort informed them
that the lot was for sale. Pumphrey claimed that upon learning of
Ort's conversation with the Crimis, he called Ort to reaffirm his inter-
est in Lot No. 698, but that she again stated that it was unavailable.
Further, Pumphrey alleged that Ort did not respond to a letter that he
slipped under her office door expressing his continuing interest in the
lot.

Pumphrey subsequently contacted BNI and requested that it inves-
tigate Stephen Homes' housing practices.2 BNI sent two "testers"--
one African-American and one Caucasian--to visit Ort in her office
and inquire about the availability of lots. Ort allegedly informed the
Caucasian tester that five lots were available in a new section of
Greenridge II. Also, Ort asked him whether he was a contingent or
non-contingent buyer, explaining that two additional lots could be
made available for non-contingent buyers. The African-American tes-
_________________________________________________________________
2 BNI is an organization that is concerned generally with community
housing issues, including the enforcement of federal and state fair hous-
ing laws.

                    4
ter, Clay Keith, testified that Ort told him no lots were available in
Greenridge II and that he might consider looking elsewhere. Keith
further contended that Ort did not inquire whether he was a contin-
gent or non-contingent buyer. Keith admitted, however, that Ort
answered all of his questions, provided him with a price list and
advised him that, although no property was currently available, Ste-
phen Homes planned to open a new section in thirty days.

Pumphrey, Keith, and BNI then filed this action against Ort and
Stephen Homes, asserting that they had unlawfully misrepresented the
availability of lots in Greenridge II and refused to negotiate for the
sale of a dwelling because of Pumphrey's and Keith's race in viola-
tion of 42 U.S.C.A. § 3604(a), (d).3 At the close of the presentation
of evidence, the district court granted judgment as a matter of law to
Stephen Homes and Ort on Plaintiffs' claims brought pursuant to
§ 3604(a) and on Plaintiffs' request for punitive damages. The jury
then returned a verdict in favor of Pumphrey, but against Keith and
BNI, on their claim that Stephen Homes and Ort misrepresented the
availability of the Greenridge II property in violation of § 3604(d).
Following trial, the district court granted Pumphrey's motion for
attorney's fees and costs, awarding him $37,796.82, and denied a
cross-motion by Stephen Homes and Ort for attorney's fees. Pum-
phrey appeals the decision of the district court granting judgment as
a matter of law on his claim for punitive damages and challenges the
adequacy of the award of attorney's fees.4 Keith and BNI appeal the
dismissal of their claims under § 3604(a). Stephen Homes and Ort
cross-appeal the award of attorney's fees to Pumphrey and the refusal
of the district court to award attorney's fees to them.
_________________________________________________________________

3 Plaintiffs also asserted a cause of action pursuant to 42 U.S.C.A.
§§ 1981, 1982 (West 1994). That claim is not at issue on appeal.

4 Keith and BNI also appeal the dismissal of punitive damages.
Because we affirm the grant of judgment as a matter of law on their
claims under § 3604(a), and since the jury returned a verdict against
Keith and BNI on their § 3604(d) claims, we decline to address their
argument with respect to punitive damages.

                    5
II.

Pumphrey contends that the district court erred in ruling that under
Maryland law, he had not produced sufficient evidence of malice or
ill will to warrant submitting the issue of punitive damages to the
jury. We conclude that the district court erred in determining that
Maryland law governed the recovery of punitive damages. Moreover,
we find that the record contains sufficient evidence to merit submis-
sion of punitive damages to the jury as to Ort.

Although Congress has provided for the recovery of punitive dam-
ages by victims of discriminatory housing practices, it established no
guidance with respect to the evidentiary standard that justifies an
award of punitive damages. See 42 U.S.C.A.§ 3613(c)(1) (West
1994). The parties agree that the standard for recovery of punitive
damages in fair housing cases is a question of federal law. And, fed-
eral courts have consistently held that punitive damages are recover-
able in actions under § 3604 "`when the defendant's conduct is shown
to be motivated by evil motive or intent, or when it involves reckless
or callous indifference to the federally protected rights of others.'"
Asbury v. Brougham, 866 F.2d 1276, 1282 (10th Cir. 1989) (quoting
Smith v. Wade, 461 U.S. 30, 56 (1983)); United States v. Balistrieri,
981 F.2d 916, 936 (7th Cir. 1992) (citing Smith , 461 U.S. at 51); see
also Fountila v. Carter, 571 F.2d 487, 491 (9th Cir. 1978) (explaining
that actual malice is not a prerequisite to the recovery of punitive
damages for discriminatory housing practices). Thus, contrary to the
ruling of the district court, Pumphrey was not required to prove mal-
ice or ill will.

Applying this standard, we conclude that the district court erred in
refusing to submit the issue of punitive damages to the jury with
respect to Ort. One view of the evidence presented was sufficient to
demonstrate that Ort intentionally discriminated against Pumphrey.
Indeed, the district court instructed the jury that it could find in favor
of Pumphrey on the issue of compensatory damages only if "the
defendant intentionally and purposely discriminated against [Pum-
phrey] because of [his] race." J.A. 715. The jury therefore necessarily
found that Ort acted intentionally in misrepresenting the availability
of housing to Pumphrey in violation of § 3604(d)--a finding that is
not challenged on appeal. Additionally, Ort testified at trial that she

                     6
was required to attend seminars that included instruction concerning
legal requirements relating to equal housing and that the model home
--where she spent six to eight hours each day--displayed posters
stating that racially discriminatory housing practices were illegal
under federal law. The fact that Ort knew discriminatory treatment
with respect to housing was unlawful, coupled with evidence that she
intentionally misrepresented the availability of lots being sold by Ste-
phen Homes, could lead a reasonable juror to conclude that Ort acted
with a reckless or callous indifference to Pumphrey's rights under
§ 3604(d). See Tyus v. Urban Search Management, 102 F.3d 256, 266
(7th Cir. 1996) (reversing judgment as a matter of law in favor of
defendant on punitive damages in a Fair Housing Act case because
plaintiffs presented evidence that defendants had knowledge of the
law and engaged in intentional acts of housing discrimination).
Because there was evidence in the record, viewed in the light most
favorable to Pumphrey, from which the jury reasonably could have
concluded that an award of punitive damages was justified, we find
that the district court improperly granted judgment as a matter of law.
See Fed. R. Civ. P. 50(a)(1); Benesh v. Amphenol Corp. (In Re Wilde-
wood Litig.), 52 F.3d 499, 503 (4th Cir. 1995). Accordingly, we
reverse the grant of judgment as a matter of law on Pumphrey's
request for punitive damages against Ort and remand for the issue of
punitive damages to be submitted to a jury.

However, we find no evidence in the record that Stephen Homes
ratified or facilitated the discriminatory acts of Ort. See City of Chi-
cago v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1100
(7th Cir. 1992) (noting that in fair housing actions "`[a] principal is
liable for punitive damages for the discriminatory acts of [its] agent
only if [the principal] knew of or ratified the acts'" (quoting Hamilton
v. Svatik, 779 F.2d 383, 389 (7th Cir. 1985) (first alteration in origi-
nal))). We therefore affirm the judgment as a matter of law on Pum-
phrey's request for punitive damages against Stephen Homes.

III.

In addition to the punitive damages issue, the parties raise various
other challenges to the district court's rulings. Keith and BNI contend
that the district court erred in granting judgment as a matter of law
to Stephen Homes and Ort on their claims pursuant to§ 3604(a);

                    7
Pumphrey challenges the amount of the award of attorney's fees as
calculated by the district court; and, Stephen Homes and Ort appeal
the award of attorney's fees to Pumphrey and the denial of their
motion for attorney's fees. After carefully considering the arguments
and briefs of counsel and reviewing the record, we conclude that the
district court committed no reversible error with respect to these rulings.5

IV.

For the foregoing reasons, we affirm the dismissal of the claims of
Keith and BNI under § 3604(a), the rulings with respect to attorney's
fees, and the evidentiary and pretrial determinations of the district
court. We reverse the decision of the district court granting judgment
as a matter of law to Ort on Pumphrey's claim for punitive damages
and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
_________________________________________________________________
5 Plaintiffs also raise various evidentiary and pretrial issues. We con-
clude that these claims are without merit.

                    8
