Dr. Mumbi Mwangi v. Dale Braegelman, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Steven M. Colloton (UNPUBLISHED) [4033547] [12-1043, 12-1317, 12-1934]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1043
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Dr. Mumbi Mwangi
lllllllllllllllllllll Plaintiff - Appellant
v.
Dale Braegelmann; Susan Pladson,
doing business as Prudential Pladson Realty
lllllllllllllllllllll Defendants - Appellees
___________________________
No. 12-1317
___________________________
Dr. Mumbi Mwangi
lllllllllllllllllllll Plaintiff - Appellee
v.
Dale Braegelmann
lllllllllllllllllllll Defendant - Appellant
Susan Pladson, doing business as
Prudential Pladson Realty
lllllllllllllllllllll Defendant

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___________________________
No. 12-1934
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Dr. Mumbi Mwangi
lllllllllllllllllllll Plaintiff - Appellant
v.
Dale Braegelmann; Susan Pladson, doing business as Prudential Pladson Realty
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 13, 2013
Filed: May 8, 2013
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Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Dr. Mumbi Mwangi brought suit against real estate agents Dale Braegelmann
and Susan Pladson, alleging race discrimination in violation of 42 U.S.C. §§ 1981 and
1982. Following a jury trial resulting in a hung jury, the district court1 granted
Braegelmann’s motion for judgment as a matter of law, denied each party’s motion
1

The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas, sitting as visiting judge in the District of Minnesota.
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for sanctions against the other, and granted Braegelmann’s request for an extension
of time in which to file a cross-appeal. We affirm.
I
Dr. Mumbi Mwangi is an African-American female from Kenya with United
States permanent resident status. Mwangi lives in St. Cloud, Minnesota, and is a
professor in the Department of Women's Studies at St. Cloud State University. On or
about September 9, 2006, Mwangi called Dale Braegelmann, an independent real
estate agent for Prudential Pladson Realty (“Prudential”), to view a house. Mwangi
speaks with a heavy accent and has a non-European name. Over the phone,
Braegelmann repeatedly asked Mwangi to say and spell her name, asked for the name
of her banker and the types of accounts she maintained, and whether she had been
pre-approved by a lender. When Mwangi told Braegelmann that she had not, he
refused to show her the house, saying that to do so would be a waste of his time.
Ultimately, Mwangi found another realtor who agreed to show her the house without
pre-approval for financing.
Believing Braegelmann had refused to show her the house because of her race,
Mwangi filed a complaint with the City of St. Cloud Human Rights Office. The
Human Rights Office had Silvia Ferraretto, an American-born employee who spoke
without an accent, call Braegelmann and request to see the same house on behalf of
her daughter. Without asking about pre-approval or bank account information,
Braegelmann informed Ferraretto that an associate would call her back. The
following day, Braegelmann's associate, Linda McCarney, called Ferraretto and
invited her to visit Prudential's website to identify homes she would be interested in
touring. She also recommended that Ferraretto’s daughter contact a lending institution
to ensure the homes they visited would be in her price range. Based on these
circumstances, the Minnesota Department of Human Rights determined that probable

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cause existed to believe Braegelmann had engaged in an unfair discriminatory
practice.
On November 30, 2009, Mwangi filed suit against Braegelmann and
Prudential's owner, Susan Pladson, in the District of Minnesota, alleging violations
of 42 U.S.C. §§ 1981 and 1982. Braegelmann and Pladson's motion for summary
judgment was denied, and the case proceeded to trial before a jury on August 29 and
30, 2011. At the close of Mwangi's case-in-chief, the district court dismissed Pladson
from the case, finding the imposition of vicarious liability for Braegelmann’s
allegedly discriminatory actions would be improper. Ultimately, the jury was unable
to reach a unanimous verdict and, on September 6, 2011, the district court declared
a mistrial. On September 27, 2011, Braegelmann filed a renewed motion for judgment
as a matter of law. The district court granted Braegelmann's motion on December 16,
2011, over Mwangi's objection. Mwangi and Braegelmann also filed cross-motions
for sanctions against one another's attorneys, which the district court denied. Finally,
the district court granted Braegelmann an extension of time in which to file his
cross-appeal, which Mwangi also opposed. These appeals and cross-appeal followed.
II
On appeal, Mwangi challenges the district court's grant of judgment as a matter
of law in favor of Braegelmann and dismissal of defendant Susan Pladson from the
case. Both Mwangi and Braegelmann challenge the district court's refusal to impose
sanctions against the other. Finally, Mwangi challenges the district court's decision
to grant Braegelmann additional time in which to file his appeal.
A.

Mwangi's § 1981 and § 1982 Claims

This court reviews a grant of judgment as a matter of law de novo, applying the
same standard as the district court. Douglas Cnty. Bank & Trust Co. v. United Fin.
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Inc., 207 F.3d 473, 477 (8th Cir. 2000). Judgment as a matter of law should not be
granted unless "a party has been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally sufficient evidentiary basis
to find for the party on that issue." Fed. R. Civ. P. 50(a)(1). "In applying this
standard, we must draw all reasonable inferences in favor of the nonmoving party
without making credibility assessments or weighing the evidence." Arabian Agric.
Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 482 (8th Cir. 2002) (internal quotation
marks and citation omitted).
Before addressing the merits of Mwangi's claims, some threshold issues
regarding the propriety of those claims bear discussion. Section 1981 prohibits
discrimination in the making and enforcement of private contracts, and § 1982
prohibits racial discrimination in the sale or rental of real or personal property. See
42 U.S.C. §§ 1981, 1982. As a resident alien, Mwangi has standing to sue under 42
U.S.C. § 1981, which protects the rights of "all persons within the jurisdiction of the
United States." Section 1982, however, protects the rights of all "citizens of the
United States" in their pursuits "to inherit, purchase, lease, sell, hold, and convey real
and personal property." 42 U.S.C. § 1982 (emphasis added). Because Mwangi is not
a U.S. citizen, she has no standing to sue under § 1982.
Turning to Mwangi's § 1981 claim, "[o]ur court has identified several elements
to a claim under § 1981, which we divide into four parts for analysis: (1) membership
in a protected class, (2) discriminatory intent on the part of the defendant, (3)
engagement in a protected activity, and (4) interference with that activity by the
defendant." Gregory v. Dillard's, Inc., 565 F.3d 464, 469 (8th Cir. 2009). Having
carefully reviewed the record, we conclude the district court was correct to grant
Braegelmann's motion for judgment as a matter of law. Although Mwangi was clearly
a member of a protected class, she cannot demonstrate discriminatory intent on
Braegelmann's part or that she was engaged in a protected activity.

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With respect to Braegelmann's refusal to show Mwangi the home, Braegelmann
testified it is his standard practice to ask potential buyers up front about their
pre-approval status before offering to show them a home. Moreover, the sellers of the
home at issue testified they had explicitly instructed Braegelmann to show the
property only to pre-approved potential buyers. Although Mwangi offers Ferraretto's
experience as evidence of pretext, the district court correctly found that neither
Braegelmann nor McCarney actually offered to show Ferraretto a home. Indeed,
McCarney even inquired as to Ferraretto's financing status and suggested she
determine her daughter's budget before viewing any homes. Thus, Mwangi has failed
to present evidence of discriminatory intent on the part of Braegelmann sufficient to
create a prima facie case under § 1981.
With respect to Mwangi's engagement in a protected activity, "a plaintiff
alleging interference with the creation of a contractual relationship in the retail context
must demonstrate that he or she 'actively sought to enter into a contract with the
retailer,' and made a 'tangible attempt to contract.'" Id. (quoting Green v. Dillard's,
Inc., 483 F.3d 533, 538 (8th Cir. 2007)). Mwangi argues this element is met because
she "set out to buy a home . . . in St. Cloud" and Braegelmann "refused to show her
a home . . . offered for sell [sic] to the general public." Braegelmann argues, in turn,
that because Mwangi was not qualified to enter into the contract, she cannot claim she
was illegally prevented from doing so. We agree.2 See, e.g., Mencer v. Princeton
2

Mwangi urges us to construe this case as a "refusal to negotiate" rather than a
"refusal to rent/sell," in which case she contends a prospective buyer need not
demonstrate she was qualified to enter into a contract. In support, she cites Joplin v.
Missouri Comm'n on Human Rights, 642 S.W.2d 370, 373 (Mo. App. 1982) ("The
refusal to rent requires both a bona fide offer and that the offer be made by a qualified
person but neither is required for a refusal to negotiate."). However, even Joplin goes
on to hold that a landlord "ha[s] a duty to at least discuss the rental with [plaintiff] to
see if she was qualified." Id. Here, Braegelmann did exactly that and determined
Mwangi was not qualified. Accordingly, even accepting Mwangi's argument that we
should construe this case as a refusal to negotiate, her failure to qualify for purchase
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Square Apartments, 228 F.3d 631, 635 (6th Cir. 2000) (holding prima facie case of
discrimination under § 1981 requires proof that plaintiff "applied for and was
qualified to rent or purchase certain property or housing"); cf. Smith v. Anchor Bldg.
Corp., 536 F.2d 231, 233 (8th Cir. 1976) ("[W]here a black rental applicant meets the
objective requirements of a landlord, and the rental would likely have been
consummated were he or she a white applicant, a prima facie inference of
discrimination arises as a matter of law."). The district court was, thus, correct to
grant Braegelmann's motion for judgment as a matter of law on Mwangi's §§ 1981 and
1982 claims.
B.

Dismissal of Pladson

Mwangi next argues the district court erred in dismissing Prudential's owner
Susan Pladson from the case. At trial, Mwangi admitted Pladson had done nothing
to her personally and, in fact, she had never met or dealt with Pladson. She named
Pladson as a defendant merely because "[s]he owns the agency in which Dale
Braegelmann functions." Trial Tr. 57. When asked by the court what evidence he
could produce to suggest Pladson approved of Braegelmann's conduct, Mwangi's
attorney Chinedu Nwaneri answered, "Well, they are in the same company and this
is what they have been doing joint together." Id. at 128. Finding insufficient evidence
to justify the imposition of vicarious liability on a claim of intentional discrimination,
the district court dismissed Pladson from the case. We find no error in this
determination. See Daniels v. Dillard's, Inc., 373 F.3d 885, 888 n.4 (8th Cir. 2004)
("Liability under §§ 1981 . . . requires a showing of intentional discrimination, which
is seemingly incompatible with respondeat superior principles." (internal citation
omitted)); cf. Green, 483 F.3d at 540-41 (permitting application of respondeat superior
principles where principal's own negligence contributed to agent's violation of

of the home bars recovery under § 1981.
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§ 1981). Moreover, Mwangi's failure to establish a discrimination claim against
Braegelmann necessarily terminates any liability on the part of Pladson.
C.

Imposition of Sanctions

After the district court declared a mistrial, each party sought sanctions against
the other's attorney(s). The district court denied their motions, and both parties now
appeal. We review a district court's decision regarding imposition of sanctions for an
abuse of discretion. See Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694 (8th Cir.
2001). Finding none, we uphold the district court's refusal to impose sanctions.
D.

Timeliness of Braegelmann's Cross-Appeal

Finally, Mwangi argues the district court erred in granting Braegelmann's
motion for an extension of time in which to file his cross-appeal. We review this
decision for an abuse of discretion. See Gibbons v. United States, 317 F.3d 852,
853–54 (8th Cir. 2003). Having carefully reviewed the record, we find no abuse of
discretion in the district court's decision to grant Braegelmann additional time in
which to file his cross-appeal.
III
For the foregoing reasons, the judgment of the district court is affirmed.
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