Ayda Bonasera v. City of Norcross , 342 F. App'x 581 ( 2009 )

[DO NOT PUBLISH]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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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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