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U.S. v Hurt

Case No. 11-1925 (C.A. 8, Apr. 12, 2012)

The United States sued Bobby and Sue Hurt, alleging they engaged in a pattern or practice of sex discrimination in the rental of housing, in violation of the Fair Housing Act (FHA), 42 U.S.C. § 3601, et seq. After a jury found for the Hurts, the district court granted in part the Hurts’ motion for costs and attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The government appeals the award of attorney fees. We reverse and vacate the district court’s award of attorney fees.

I. BACKGROUND



The United States sued the Hurts under the FHA, alleging (1) Bobby engaged in a pattern or practice of sexual harassment of female tenants at trailer parks he managed and Sue and he owned, in violation of 42 U.S.C. §§ 3604(a)-(c) and 3617; and (2) Sue was liable as the trailer parks’ owner for the discriminatory conduct of her agent, Bobby, because Sue knew or should have known about Bobby’s conduct and failed to prevent or correct it.

The case was tried to a jury. During the trial, eight women testified about Bobby’s actions toward them while they were living in the Hurts’ trailer parks. Several of the women claimed Bobby entered their homes and exposed his genitalia, touched the women’s breasts and inner thighs, and made lewd comments. Others testified Bobby solicited sexual favors in exchange for housing or utilities. One woman said she told Sue about Bobby’s behavior. The women also described the emotional harm they suffered as a result of Bobby’s alleged misconduct. Jimmy Alexander, a manager of other trailer parks, corroborated some of the women’s testimony, claiming Bobby gave him advice on collecting rent and obtaining sexual favors from tenants.
 

 

Judge(s): William Riley
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Civil Procedure , Civil Remedies , Government / Politics
 
Circuit Court Judge(s)
Michael Melloy
William Riley
Bobby Shepherd

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Rebecca Bond U.S. Department of Justice
Thomas Chandler U.S. Department of Justice
Nicole De Sario U.S. Department of Justice
Dennis Dimsey U.S. Department of Justice
Robin Dull U.S. Department of Justice
Sean Keveney U.S. Department of Justice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Raney Coleman Wilcox & Lacy PLC
Brandon Lacy Wilcox & Lacy PLC
Tony Wilcox Wilcox & Lacy PLC

 

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Click the maroon box above for a formatted PDF of the decision.
filed: april 12, 2012 managed and sue and he owned, in violation of 42 u.s.c. §§ 3604(a)-(c) and 3617; sexual favors in exchange for housing or utilities, which, if believed, would constitute in all other respects. the district court found, even though several victims’ claims b. substantially justified the united states sued the hurts under the fha, alleging (1) bobby engaged the eaja requires awarding attorney fees to defendants who prevail in suits dist., 314 f.3d 920, 926 (8th cir. 2002) (concluding the government’s position was district court granted in part the hurts’ motion for costs and attorney fees under the the hurts’ jury’s verdict turned on the credibility of the government’s -5- f.2d 359, 368 (7th cir. 1993). the district court plainly treated the lawsuit as a series of separate claims, rather than position. see bale chevrolet co., 620 f.3d at 871-73. the hurts only challenge the occurred within the limitations period. this brings the entire pattern or practice claim ___________ harassment caused them emotional distress was sufficient. see id.; see also eeoc v. the hurts assert the government’s position was not substantially justified insufficient evidence of a pattern or practice of sexual harassment; and (5) the 1 50(a). the eaja “favors treating a case as an inclusive whole, rather than as atomized government’s position was not substantially justified.” wilfong v. united states, 991 quintessential factual question. see johnson v. carroll, 658 f.3d 819, 827 (8th cir. submitted: january 10, 2012 plaintiff’s case was not frivolous, unreasonable, or groundless.” eeoc v. great riley, chief judge. harassment. although it is conceivable the government may bring a lawsuit with no district court reduced that amount by 40%, “the percentage of the claims for which the case was tried to a jury. during the trial, eight women testified about practice.” or so few credible witnesses that its position is not substantially justified, this is not at the close of the government’s case, and at the end of the evidence, the hurts v. united states, 620 f.3d 868, 873 (8th cir. 2010); cf. eeoc v. liberal r-ii sch. regard to most of the alleged victims; (2) sue could not be liable for bobby’s actions; novel legal issue and a knowledge issue, and the hurts’ case does not involve a novel harassment “occurs when housing benefits are explicitly or implicitly conditioned on the united states sued bobby and sue hurt, alleging they engaged in a pattern court had already found the lawsuit as a whole was not substantially justified, and argued the government should reimburse all of their attorney fees and did not the harassment was sufficiently severe or pervasive so as to interfere with or deprive court first determined the government was substantially justified only in bringing v. winter, 598 f.3d 938, 946-47 (8th cir. 2010). a defendant creates a hostile moved for judgment as a matter of law1 whole was substantially justified. as we did in bah, “we conclude that the record were not recoverable, those victims could still be part of a pattern or practice of sexual convergys customer mgmt. grp., 491 f.3d 790, 797 (8th cir. 2007) (basing damages -7- bhd. of teamsters v. united states, 431 u.s. 324, 360 (1977) (recognizing that “[t]he in a pattern or practice of sexual harassment of female tenants at trailer parks he the hurts’ arguments to the contrary are without merit. first, the hurts argue today. rochester, 643 f.3d 1031, 1043, 1059 (8th cir. 2011).3 660 f.2d 1267,1272-73 (8th cir. 1981) (involving an employment discrimination touched the women’s breasts and inner thighs, and made lewd comments. others only considered the alleged victims individually when calculating the amount of fees judgment for the hurts on november 29, 2010. the hurts then moved for $16,008.51 u.s.c. § 2000e-5(k), declared, “generally . . . the denial of a motion for judgment as there was a reasonable basis of law and fact.” although the parties refer to motions for a “directed verdict” in their briefs, we witnesses. the district court acknowledged as much, saying, “[a]lthough these fha pattern or practice suit and deciding the government (rather than individual “victims provided sufficient testimony to create a material factual dispute, it was clear plaintiff in a pattern-or-practice action is the government”); united states v. big d award of attorney fees. we reverse and vacate the district court’s award of attorney quotation marks omitted)). the eaja also allows for a discretionary award of other victim’s “own testimony may be solely sufficient to establish humiliation or mental ii. discussion sexual harassment is actionable under the fha when it creates “a hostile [the victim] of her right to use or enjoy her home.” id. quid pro quo sexual that they were not credible.” in calculating the fee award, the district court first -6- the district court did not consider whether the government’s position as a the government waived this issue by not raising it when opposing the hurts’ motion v. * district court for the bobby l. hurt; sue r. hurt, * incidents.” havens realty corp. v. coleman, 455 u.s. 363, 381 (1982). such a claim distress”). the victims’ own testimony that bobby’s alleged pattern of sexual inner thighs, and made lewd comments. several witnesses testified bobby solicited plaintiff’s testimony). individual victims’ claims for separate assessment, rather than as a single pattern or the government’s position is “substantially justified,” the district court should make * stateswassubstantiallyjustifiedorthatspecialcircumstancesmakeanawardunjust.” findings of fact for clear error. see u.s. dep’t of labor v. rapid robert’s inc., 130 appellees. * the matter of law made at the close of all evidence strongly indicates that the during the course of the litigation. the district court explained, although the six other in costs and $271,550 in attorney fees pursuant to the eaja. the district court fees. because the taxpayer challenged both the legal and factual basis of the government’s iii. conclusion -8- as one pattern or practice claim. for the eighth circuit pocket losses or medical testimony, although relevant, is not necessary” and the quid pro quo sexual harassment. there also was evidence sue knew of the alleged next, the hurts maintain the district court actually did not separately consider is timely as long as at least one of the incidents occurred during the limitations period. cir. 2008) (quoting pierce v. underwood, 487 u.s. 552, 566 n.2 (1988) (internal ___________ substantially justified where the government presented sufficient direct evidence to government’s position in the hurts’ case is not novel, the government’s position is enters., inc., 184 f.3d 924, 930 (8th cir. 1999) (citing int’l bhd. of teamsters in an “only one threshold determination for the entire civil action.” id. at 159. position was substantially justified. bah, 548 f.3d at 684. will use the term “judgment as a matter of law” from federal rule of civil procedure government had not proved an award of punitive damages was applicable. the declaring “you can go back almost indefinitely if it’s part of the same pattern or same failed to prevent or correct it. “evidence of the actual dollar value of the injury.” williams v. trans world airlines, awarding the hurts attorney fees, and does not contest the award of costs. the hurts contend bale chevrolet co. is distinguishable because it involved a -4- no. 11-1925 isolated incidents . . . , but a continuing violation manifested in a number of more reasonable, not less. identified and investigated * in this case, the government brought a single pattern or practice claim. see int’l -3- credibility is the justified. the district court improperly considered the case as consisting of ten entered tenants’ homes and exposed his genitalia, touched female tenants’ breasts and stated “in determining what is reasonable, it must first be determined whether the before riley, chief judge, melloy and shepherd, circuit judges. alternatively argue the government should reimburse a proportional award based on the merit of the individual victims’ claims. determination about whether the government’s suit, as a whole, was substantially 3 reduced the amount of attorney fees requested by 15% to account for “duplicative * appeal from the united states united states of america, * -2- harassment in violation of the fha. the district court applied the statute of after the jury found the hurts were not liable, the district court entered final favors from tenants. i. background housing environment by subjecting a victim “to unwelcome sexual harassment, and whether each victim’s claim was substantially justified. the hurts contend the district found that the government’s position was substantially justified.” bale chevrolet co. awarded the hurts $16,008.51 in costs and $142,905 in attorney fees. the district a. single claim equal access to justice act (eaja), 28 u.s.c. § 2412. the government appeals the for emotional distress under the americans with disabilities act solely on the limitations standard the court had used in title vii, 42 u.s.c. § 2000e, et seq., cases, the fourth circuit, interpreting the fee-shifting provision under title vii, 42 shows the government’s theory of a pattern or practice of sexual discrimination was supports a finding that the [government’s] conduct was substantially justified.” bah, testified bobby solicited sexual favors in exchange for housing or utilities. one substantially justified. which the district court introduced in its order. in addition, before the order, the hurts housingenvironment”orconstitutes“‘quidproquo’sexualharassment.” seequigley for attorney fees in the district court. the government could not anticipate this error, within the statute of limitations. see id. agent, bobby, because sue knew or should have known about bobby’s conduct and arguing (1) the claim was time-barred with bobby’s actions toward them while they were living in the hurts’ trailer parks. alleged victim and the claim for punitive damages against sue, but denied the motion owed. we disagree. the district court, in determining whether to award attorney fees, timely claim, because of the statute of limitations, or (2) damages. we first reject the housing act (fha), 42 u.s.c. § 3601, et seq. after a jury found for the hurts, the second, for proof of damages, the government need not have presented costs. see 28 u.s.c. § 2412(a)(1). we review a district court’s award of attorney fees see id. at 380-81. the hurts concede bobby’s most recent alleged misconduct steaks, inc., 667 f.3d 510, 518 (4th cir. 2012). we need not confront this position such a case. the district court recognized four of the ten victims as credible, which we reverse and vacate the district court’s award of attorney fees. claim under 42 u.s.c. § 1981, determining for mental distress, “proof of out-of- “has a reasonable basis in law and fact.” bah v. cangemi, 548 f.3d 680, 683-84 (8th being substantially justified. a pattern or practice claim is “based not solely on 548 f.3d at 684. “[w]here a case involves primarily factual questions, this court has factual basis of the government’s position. because the legal basis of the testimony, claiming bobby gave him advice on collecting rent and obtaining sexual * eastern district of arkansas. ___________ f.3d 345, 347 (8th cir. 1997). the government carries the burden of proving its legal issue. the novelty of the legal issue in bale chevrolet co. was significant standard operating procedure”). the district court here should have made a single or practice of sex discrimination in the rental of housing, in violation of the fair practice claim. this error requires reversal. several of the women claimed bobby entered their homes and exposed his genitalia, avoid summary judgment), abrogated on other grounds by torgerson v. city of on appeal, the government contends the district court abused its discretion in brought by the united states “unless the court finds that the position of the united 2011) (observing credibility is a question for the jury). for this reason, the seventh victims provided sufficient testimony to create a material factual dispute, it was clear line-items.” comm’r v. jean, 496 u.s. 154, 161-62 (1990). in determining whether victims) must prove “the defendant engaged in discriminatory activity as a matter of emotional harm they suffered as a result of bobby’s alleged misconduct. jimmy and (2) sue was liable as the trailer parks’ owner for the discriminatory conduct of her ___________ appellant, * “claims” on behalf of four of the ten alleged victims2 ___________ brought.” the district court then concluded only four of the “claims” were credible. united states court of appeals because the government did not present sufficient evidence at trial of either (1) a district court granted judgment as a matter of law on the damages claim for one under the eaja for abuse of discretion, reviewing conclusions of law de novo and government had ‘a reasonable basis in law and fact’ to bring any of the claims that it contention that the statute of limitations prevents the government’s position from circuit concluded, “when resolution of a case hinges to [a significant] extent on sexual favors.” id. at 947. the government presented evidence bobby repeatedly determinations of witness credibility, it is an abuse of discretion to find that the alexander, a manager of other trailer parks, corroborated some of the women’s 28u.s.c.§2412(d)(1)(a). “substantiallyjustified”meansthegovernment’sposition two of the ten women did not testify at trial. (3) some of bobby’s alleged misconduct did not violate the fha; (4) there was 2 services and . . . defending motions on which the government was successful.” the woman said she told sue about bobby’s behavior. the women also described the that they were not credible.” ______________________________


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