                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11514                ELEVENTH CIRCUIT
                                                             AUGUST 21, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                   D. C. Docket No. 07-01003-CV-MHS-1

AYDA BONASERA,


                                                            Plaintiff-Appellant,

                                   versus

CITY OF NORCROSS,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (August 21, 2009)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Ayda Bonasera, an Hispanic woman living in a predominantly white
neighborhood in the City of Norcross (the “City”), installed a second kitchen in her

house and, in 1999, began renting rooms in her house to boarders. In 2006,

following complaints from a neighbor, the City investigated Bonasera’s house and

cited her for violating City ordinances prohibiting junkyards and restricting the use

of her property to “one-family residences and related uses.” Bonasera was found

guilty and assessed a fine for both violations.

       Rather than appeal her conviction in state court, Bonasera sued the City and

several City employees (hereinafter, referred to collectively as “the City”) in

federal court under the Fair Housing Act (“FHA”) and under the Equal Protection

Clause of the United States Constitution.1 She alleged that her prosecution and

conviction for violating the single-family zoning ordinance was motivated by

racial animus and that the City selectively enforced its zoning ordinances in a way

that created a disparate impact on Hispanics. Upon cross-motions for summary

judgment, the district court found, inter alia, that Bonasera did not present any

direct evidence of discriminatory intent and presented insufficient circumstantial

evidence of discriminatory intent to create a genuine issue of material fact. The

district court also found that Bonasera presented insufficient evidence of disparate



       1
         Bonasera also asserted claims under the Fourth Amendment and under Georgia state
law. Because Bonasera does not challenge the dismissal of these claims on appeal, we do not
address them.

                                              2
impact to support her claims under the FHA and the Equal Protection Clause.

Accordingly, the district court granted summary judgment in favor of the

Defendants. Bonasera appeals.

      We review a district court’s grant of summary judgment de novo. Thomas

v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary

judgment is appropriate when the evidence, viewed in the light most favorable to

the nonmoving party, presents no genuine issue of material fact and compels

judgment as a matter of law. Id. “There is no genuine issue of material fact if the

nonmoving party fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which the party will bear the burden of

proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989).

      In order to prevail on a claim under the FHA, a plaintiff must demonstrate

“unequal treatment on the basis of race that affects the availability of housing.”

Jackson v. Okaloosa County Fla., 21 F.3d 1531, 1542 (11th Cir.1994). A plaintiff

can establish a violation under the FHA by proving (1) intentional discrimination,

(2) discriminatory impact, or (3) a refusal to make a reasonable accommodation.

See e.g., Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008);

Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276, 1283 (11th Cir.

2006). On appeal, Bonasera argues that she presented both direct and



                                           3
circumstantial evidence of intentional discrimination and evidence suggesting that

the City’s enforcement of its ordinances had a disparate impact on Hispanics. She

asserts, therefore, that the district court erred in granting summary judgment on her

discrimination claims under the FHA and under the Equal Protection Clause. For

the reasons stated herein, we affirm the thorough and well-reasoned order of the

district court.

       To prove intentional discrimination, “a plaintiff has the burden of showing

that the defendants actually intended or were improperly motivated in their

decision to discriminate against persons protected by the FHA.” Reese v. Miami-

Dade County, 242 F. Supp. 2d 1292, 1301 (S.D. Fla. 2002). We have held that a

plaintiff may meet this burden by presenting evidence that the “decision-making

body acted for the sole purpose of effectuating the desires of private citizens, that

racial considerations were a motivating factor behind those desires, and that

members of the decision-making body were aware of the motivations of the private

citizens.” Hallmark Dev., Inc., 466 F.3d at 1284 (citing United States v. Yonkers,

837 F.2d 1181, 1225 (2d Cir. 1987)). Here, Bonasera contends that she produced

evidence that racism motivated her neighbor Bill Barks to file a complaint against

her and that the City knowingly implemented the racist attitudes of her neighbor by

acting upon the complaint. Bonasera argues that the deposition testimony of Bill



                                           4
Barks and of City Marshal Holly Smith, considered in the light most favorable to

Bonasera, is direct evidence that Barks’ complaints were motivated by animus

toward Hispanics and that Marshal Smith was aware of this animus. Specifically,

Bonasera points to the portion of the deposition in which Marshal Smith testified

that he heard Barks express his concerns at a meeting “about the neighborhood

going down” and that Barks reported“like seven vehicles in [Bonasera’s] driveway,

numerous male Mexicans living there, gang types, looked like gang types, and

said, we are zoned R-100.” Bonasera also points to several of Marshal Smith’s

statements, which she asserts evidence his animosity toward Hispanics.

      Upon consideration of the record as a whole, we agree with the district court

that the statements to which Bonasera refers do not create a genuine issue of

material fact as to whether the City and its employees acted with discriminatory

intent in their citation and prosecution of Bonasera. A full reading of Barks’s

deposition makes clear that Barks was motivated by his desire for the even-handed

enforcement of the zoning code rather than by animus toward the growing

Hispanic population in his community. Indeed, the evidence establishes that

Barks, as president of his neighborhood homeowners’ association, had previously

filed complaints against individuals of various racial backgrounds whom he

believed to be in violation of the City’s ordinances. The evidence further



                                          5
establishes that Barks had a good faith belief that Bonasera was violating City

zoning ordinances and that he supported his complaint to the City with specific

evidence. Accordingly, because Barks’s prior complaints had not been targeted

against Hispanics and because his complaint against Bonasera was asserted in good

faith and supported by evidence, we conclude that Bonasera has not presented

sufficient evidence whereby a factfinder could conclude that the City was

improperly motivated in its decision to prosecute Bonasera.

       Bonasera also takes issue with the district court’s conclusion that because

the City rarely issued citations for violations of this specific zoning ordinance,

Bonasera had not shown that the City’s enforcement of the ordinance disparately

impacted Hispanics. As the district court fully explains in its order, whether there

is evidence of “disparate impact” is one of the four factors which the Eleventh

Circuit has recognized as circumstantial evidence of discriminatory intent. See

Hallmark Dev., Inc., 466 F.3d at 1285 (adopting the multi-factor test set forth in

United States v. Hous. Auth. of Chickasaw, 504 F. Supp. 716 (S.D. Ala. 1980)).

For the reasons set forth in the section below, we agree with the district court that

Bonasera’s evidence that the City has only issued citations for this type of violation

two times, both against Hispanics,2 is insufficient to withstand a motion for


       2
        The evidence indicates that the City has issued a total of seven citations, excluding the
one against Bonasera, for violations of the R-100 zoning district, all of which were issued

                                                 6
summary judgment. Accordingly, we conclude that Bonasera has failed to

demonstrate through direct or circumstantial evidence that the City intentionally

discriminated on the basis of race in investigating and prosecuting Bonasera for

violating the single-family zoning ordinance.

       Bonasera also argues that the district court erred in entering judgment on her

claim that the City’s selective enforcement of the zoning ordinances has a disparate

impact on Hispanics. “[A] showing of significant discriminatory effect suffices to

demonstrate a [prima facie] violation of the Fair Housing Act.” Jackson v.

Okaloosa County, Fla., 21 F.3d 1531, 1543 (11th Cir. 1994). A plaintiff can

demonstrate a discriminatory effect in two ways: it can demonstrate that the

decision has a segregative effect or that “it makes housing options significantly

more restrictive for members of a protected group than for persons outside that

group.” Hous. Investors, Inc. v. City of Clanton, Ala., 68 F. Supp. 2d 1287, 1298

(M.D. Ala. 1999). On appeal, Bonasera advances both theories – that the City’s

selective enforcement of this zoning ordinance had a harsher impact on Hispanics

than Caucasians and had a segregative effect.

       Typically, a disparate impact is demonstrated by statistics. Hallmark Dev.,



against Hispanic persons. Only one of those citations, however, was for a violation of the
requirement that the property be limited to “one-family residences and related uses.” The other
citations pertained to different rental issues.

                                                7
Inc., 466 F.3d at 1286. Although no “single test controls in measuring disparate

impact,” certain guidelines have developed. Id. We have held that (1) it may be

inappropriate to rely on “absolute numbers rather than on proportional statistics;”

(2) “statistics based on the general population [should] bear a proven relationship

to the actual applicant flow;” and (3) “the appropriate inquiry is into the impact on

the total group to which a policy or decision applies.” Id. (citations omitted).

      In this case, Bonasera presented evidence showing that of the thousands of

citations issued by the City in its history, eight citations have been issued against

residents of Norcross for violating the R-100 zoning ordinance. All eight of these

citations were issued against Hispanics. The evidence further establishes,

however, that only two of these citations – including the one against Bonasera –

related to a violation of the single-family use requirement. Citing a case from the

Second Circuit, Bonasera asserts that the fact that the City rarely took enforcement

actions such as the one taken in this case should be considered evidence that the

City was discriminating against Bonasera and other Hispanics. See Tsombanidis v.

City of West Haven, Conn., 129 F. Supp. 2d 136, 150 (D. Conn. 2001).

      We agree with the district court that Tsombanidis is distinguishable from

this case. In Tsombanidis, the district court found that a paucity of statistical

evidence regarding a city’s enforcement actions was not fatal to a finding of



                                           8
disparate impact where the evidence indicated that other non-minority-owned

facilities in violation of the city’s zoning code had not been targeted for

enforcement actions. In this case, in contrast, there is no evidence that the City

was aware of any violations of the single-family zoning ordinance by white

homeowners and chose to ignore them. Although Bonasera asserts that “second

kitchens are a feature found in 10% of white homes,” she presents no evidence that

any of these homeowners were impermissibly using their homes as multi-family

dwellings. “With selective-enforcement claims like this, evenhanded application

of the law is the end of the matter.” Schwarz, 544 F.3d 1201, 1217 (11th Cir.

2008) (granting judgment on disparate treatment claim where plaintiff presented no

evidence that handicapped persons were treated differently from non-handicapped

persons); see United States v. Armstrong, 517 U.S. 456, 465 (1996) (explaining

that a plaintiff bringing a selective-enforcement claim based on race “must show

that similarly situated individuals of a different race were not prosecuted”); Ah Sin

v. Wittman, 198 U.S. 500, 507-08 (1905) (rejecting a claim of selective

enforcement based on Chinese nationality because the plaintiff failed to allege

“that there were other offenders against the ordinance than the Chinese, as to

whom it was not enforced”). Furthermore, Bonasera presents no evidence that the

City’s enforcement of the single-family zoning ordinance has had a significant



                                           9
impact on the City’s Hispanic population. For these reasons, we conclude that

there is no genuine issue of material fact as to Bonasera’s disparate impact claim.

      Because we conclude that Bonasera presented no direct or circumstantial

evidence of discriminatory intent or of disparate impact to support her claims

under the FHA, we also conclude that Bonasera has failed to support her claim

under the Equal Protection Clause. See Strickland v. Alderman, 74 F.3d 260, 264

(11th Cir. 1996) (noting that an equal protection claim based upon the application

of a neutral statute requires evidence that the defendant unequally applied the

statute for the purpose of discriminating against the plaintiff). Accordingly, we

affirm the order of the district court.

      AFFIRMED.




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