Adams Stirling PLC


1997 WL 1877201
United States District Court, District of Columbia.
December 18, 1997

URBINA, District J.

I. Introduction

*1 This matter comes before the court upon defendant Association's motion for partial summary judgment, the plaintiff Reeves's motion for partial summary judgment as to the breach of contract claim, oppositions thereto and replies herein. Plaintiffs Deborah E. Reeves, an African American woman, and the Fair Housing Council of Greater Washington, Inc. (FHC) bring this action against defendants Carrollsburg Condominium Unit Owners Association (Association) and Thomas G. Schongalla, a white Carrollsburg resident, to obtain redress for racial and sexual harassment. Plaintiffs allege that the harassment included a threat of lynching and the utterances of revolting racist and sexist epithets as well as written notes of a racist and sexist nature. Plaintiffs contend that this conduct, perpetrated by Mr. Schongalla, and tolerated by the Association, deprived Ms. Reeves, inter alia, of her entitlement to fair housing and caused her great emotional and physical harm. The complaint asserts the following six counts: Count I is a claim under 42 U.S.C. § 1981; Count II is a claim under 42 U.S.C. § 1982; Counts III, IV and V are based on the "Fair Housing Act" (FHA or Title VIII) FN1; and Count VI is a breach of contract claim against the Association.

FN1. 42 U.S.C. § 3604et seq.

Upon consideration of the parties' submissions, the court denies defendant Association's partial summary judgment motion in part, grants in part; and further, the court grants plaintiff Reeves partial motion for summary judgment on the breach of contract claim.

II. Background

Ms. Reeves bought and occupied a unit in the Carrollsburg Building in 1981. She alleges that commencing in 1989, Mr. Schongalla, another resident at the condominium complex, began a course of conduct which subjected her to racial and sexual harassment. She contends that Mr. Schongalla repeatedly yelled racist and sexist epithets at Ms. Reeves, prevented her from using the common areas of the condominium, physically intimidated her and threatened to rape and kill her. In 1995, Ms. Reeves proposed to the Association that it purchase her unit for the remaining mortgage amount. Subsequently, the Board of Directors of the Association voted in accordance with the bylaws to accept Ms. Reeves's offer. On August 1995, Ms. Reeves and the Association entered into a written contract for the sale of her unit. The Association president and vice-president signed the contract on behalf of the Association in their capacities as officers. FN2

FN2. See Real Estate Sales Contract, Pl's Ex. C.

The settlement date was set for September 15, 1995. While Ms. Reeves was ready and willing to execute the contract, the Association canceled the closing. After many requests by plaintiffs which extend to date, the Association has failed to proceed to settlement for over two years since the contract was signed.

In late 1995, Ms. Reeves contacted the Fair Housing Council of Greater Washington, Inc. (FHC) for assistance in her case involving race and sexual harassment in her living environment. The FHC is a private, nonprofit organization dedicated to promoting equal housing opportunity and eliminating discriminatory housing practices based on race, color, religion, sex, national origin, familial status or handicap. Subsequently, the FHC devoted significant staff resources to counseling Ms. Reeves as well as directing efforts at public awareness concerning harassment and bias issues. In 1996, Ms. Reeves and the FHC filed the present action alleging racial and sexual harassment in a housing environment, in addition to Ms. Reeves's breach of contract claim.

III. Summary Judgment Standard

*2 Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment may be granted when the pleadings and evidence demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). All evidence and the inferences drawn from it, however, must be considered in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If divergent inferences can be drawn from the material facts bearing upon an issue critical to the disposition of the case, or if the facts before the court allow a reasonable jury to return a verdict for the nonmoving party, a court shall not grant summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Id. at 249.

By pointing out the absence of evidence to support the nonmoving party's case, the moving party can demonstrate that there is no genuine issue as to any material fact, therefore entitling it to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party may not rest on mere allegations, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal citations omitted). Because proof of discrimination is difficult for a plaintiff to establish, summary judgment motions in such cases should be viewed with special caution by the court. See Johnson v. Digital Equipment Corp., 836 F.Supp. 14, 18 (D.D.C.1993).

IV. Discussion

A. Defendant Association's Motion for Partial Summary Judgment

Defendant Association filed a partial motion for summary judgment on all of the plaintiffs' claims, except for the breach of contract claim (Count VI). First, defendant Association contends that plaintiff FHC does not have standing to join in this suit because it has not suffered an actual injury. Second, the defendant maintains that plaintiffs do not have a viable racial or sex hostile environment claim under the FHA. Finally, the defendant moves this court to strike the plaintiffs' request for punitive damages. The court will address each of these assertions seriatim.

1. Standing

a. Plaintiff FHC's Standing under the FHA

The defendant Association's motion is denied under the FHA claims because the court concludes that the FHC has demonstrated a sufficient injury to establish standing. The D.C. Circuit has held that an organization has standing to sue on its behalf if it meets the same standard that applies to individuals. Spann v. Colonial Village, 899 F.2d 24, 27 (D.C.Cir.1990). The "actual or threatened injury" must be traceable to an alleged illegal action that can be redressed by a favorable court decision. Id. "General grievances" about the defendant's conduct are insufficient as are "abstract concerns with a subject." Id. Accordingly, an organization must identify "concrete and demonstrable injury to its activities" not merely a setback to the organization's abstract social interests in order to have standing to sue. Havens Realty Corp. v. Coleman, 455 U.S. 363, 377, 102 S.Ct. 1114, 1123, 71 L.Ed.2d 214 (1982).

*3 There are two significant factors to consider in deciding whether an organization has alleged a "distinct and palpable" injury sufficient to establish standing. Id. First, an organization must show that the defendant's actions have frustrated the mission of the organization. Havens, 455 U.S. at 377, Span, 899 F.2d at 27. Second, the organization must make a showing that the defendant's actions caused a diversion in its resources to combat the alleged discriminatory conduct. Id. The "injury to the organization's activities-with the consequent drain on the organization's resources-constitutes far more than simply a setback to the organization's abstract social interests." Havens, 455 U.S. at 377. Therefore, the injury an organization alleges must involve the frustration of the organization's purpose or mission as evidenced by an accompanying diversion of resources.

This Circuit has interpreted Havens to mean that an organization has standing when its mission has been frustrated through the illegal practices of the defendants and as a result required the organization to expend additional resources to counter those practices. Spann, 899 F.2d. at 27. Furthermore, an organization establishes Title VIII injury if it alleges that the purportedly illegal action increases the resources the group must devote to programs independent of its suit challenging the action. Id. at 379. Moreover, the alleged harm can be economic or non-economic. Harm to an organization's non-economic interests, such as its interest in promoting equal housing opportunities, does not preclude standing. Spann, 899 F.2d at 27.

In addition, an organization's injury can be demonstrated when the alleged discriminatory practices have "perceptibly impaired" the organization's usual efforts against discrimination. Id. For example, in Havens, the Court found that the housing organization (HOME) had standing to contest racial steering practices by an apartment owner because such practices "perceptibly impaired HOME's ability to provide counseling and referral services for low and moderate income home seekers." Havens 455 U.S. at 377. In Spann, supra, the D.C. Circuit found that the fair housing organization had standing in a lawsuit involving a real estate developer who used only white models in advertisements thus impelling the organization to devote resources to checking or neutralizing the advertisements' adverse impact. Also, in Fair Employment Council of Greater Washington v. BMC, FN3 the D.C. Circuit determined that the plaintiff organization had standing against an employment agency arising out of the agency's denial of referrals to black testers posing as job applicants.

FN3. 23 F.3d 1268 (D.C.Cir.1994).

Moreover, there is support for the proposition that the FHC has standing where its involvement was limited to one particular aggrieved person, rather than requiring an impact on the community at large. In Williams, et al., v. Poretsky Management, Inc. FN4, a single woman had been sexually harassed by her landlord and the FHC brought a claim against the apartment owners. There, the court held that the organization did have standing under the FHA because the organization had devoted significant resources to identifying and counteracting the defendant's discriminatory practices, and those practices had frustrated the organization's efforts against discrimination. Id. at 493. Williams followed the reasoning of both Havens and Spann. These cases informed this court as it examined the facts relevant to standing.

FN4. 955 F.Supp. 490 (D.Md.1996).

*4 In this case, the FHC has standing because (1) it has established that defendants' actions have "perceptibly impaired" the purpose or mission of the organization; and (2) the defendants' actions caused the organization to divert its scarce resources to combat the effects of the alleged conduct. The FHC became involved in the instant suit after the plight of Ms. Reeves necessitated that she leave her home and seek guidance on how to pursue her rights. While the FHC did not have any prior relationship with defendant Association, the FHC expended significant resources to counseling Ms. Reeves and investigating her complaint against the Association. As a result of Ms. Reeves's experience, the FHC increased its efforts to educate the community about harassment issues and the obligations of housing providers-including condominium associations. Consequently, the defendants' alleged discriminatory actions caused the FHC to divert its scarce resources to identifying and counteracting those illegal practices, thereby taking time and money away from the FHC's usual educational counseling activities. In fact, most of its work was directed exclusively towards Ms. Reeves's lawsuit.

As a result of Ms. Reeves's injury, the FHC used this case as an educational tool for outreach into the community. The staff made aggressive efforts through seminars and conferences to bring the issue of racial and sexual harassment in condominium associations to light. In this regard, the organization expended efforts and dedicated resources to educating the public. Specifically, the plaintiff FHC devoted significant resources to (1) reviewing information relevant to Ms. Reeves's claims, such as researching applicable fair housing and contract principles; (2) discussing issues of intimidation, harassment and bias with experts; and (3) providing Ms. Reeves counseling specifically aimed at addressing her claims. Berenbaum Dep. at 12-18, 37-40, 53-56, 66-68.

Because many efforts at eliminating discrimination begin with a single account, the court finds that it is consistent with the Fair Housing Act to allow standing in a case such as this. There is no dispute that the FHC expended valuable and scarce resources in the area of housing discrimination and hostile environment. The facts support a finding of discriminatory conduct on behalf of at least one defendant, Mr. Schongalla. Moreover, the FHC has sufficiently alleged both economic and non-economic injuries as a result of the defendants' actions to have standing. Therefore, taking all the circumstances into account, the court concludes that plaintiff FHC has standing to pursue its claims under the FHA.

b. FHC's Standing under 42 U.S.C. §§ 1981 and 1982 FN5

FN5. §1981 provides in pertinent part,

all persons shall have the same right... to make and enforce contracts ... as enjoyed by white citizens..." 42 U.S.C.1981(a).

The term make and enforce contracts' includes... the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42 U.S.C.1981(b)
§ 1982 provides in pertinent part,

all persons shall have the same is enjoyed by white citizens... to inherit, purchase, lease, sell, hold, and convey real and personal property.

42 U.S.C.1982

With regard to plaintiff FHC's claims under §§ 1981 and 1982, the court concludes that the FHC lacks standing, therefore, the FHC shall not be permitted to proceed under those claims. In FEC v. BMC, supra, the D.C. Circuit held that while the fair housing organization had standing for a Title VII claim, it could not maintain such standing for the § 1981 claim. 23 F.3d at 1278. The BMC court specifically embraced the principle that standing under § 1981 is restricted to "the direct victims of the alleged discriminatory practice," at least as long as there is no impediment to suits by those victims. Id. at 1278.Also, that court concluded that § 1981 does not confer a cause of action on persons whose injuries derive only from the violation of others' rights. Id. Even assuming that the FHC's interests are aligned with those of the direct victim of alleged discrimination, the obstacles to institute a lawsuit by that victim are not serious enough to warrant an inference that § 1981 confers a cause of action upon the FHC. Here, Ms. Reeves did not allege any type of difficulty in pursuing her lawsuit, nor does this court find that Ms. Reeves was limited in any way to pursue her legal claim. Therefore, while the victims of discrimination may share similar interests in eliminating illegal discrimination, the FHC does not also share in a victim's § 1981 rights. In other words, the FHC's rights to make and enforce contracts on an equal basis regardless of race are not at issue here.

*5 The same conclusion applies to plaintiff FHC's § 1982 claim. As plaintiffs correctly note, the scope of § 1981 parallels the scope of § 1982. See Runyon v. McCrary, 427 U.S. 160, 170-71, 96 S.Ct. 2586, 2594-2595, 49 L.Ed.2d 415 (1976). In this case, the FHC has not asserted that the defendants violated the FHC's right to use and convey real property in violation of 42 U.S.C. § 1982. Furthermore, plaintiff FHC has not offered any facts for the court to find support in such a proposition. Accordingly, the court concludes that plaintiff FHC does not have standing to sue the defendants under both §§ 1981 and 1982. Therefore, the plaintiff FHC's Counts I and II are dismissed as to the defendant Association.

2. Plaintiffs' claims under the FHA, §§ 1981 and 1982

a. Plaintiffs' Hostile Housing Environment Theory under the FHA

Defendant Association contends that both plaintiffs fail to state a claim of discrimination under the Fair Housing Act. The burden-shifting framework in McDonnell DouglasFN6 and its progeny, is commonly used to establish discriminatory intent when direct evidence is unavailable in disparate treatment discrimination cases. However, the defendant Association's reliance on this line of cases is misplaced because the present case involves direct evidence of discrimination, namely defendant Schongalla's direct and unequivocal racist and sexist statements and writings. Therefore, the plaintiffs contend that the appropriate standard should be a hostile housing environment test. Under such a model, plaintiffs maintain, there are issues of material fact sufficiently in dispute to preclude summary judgment. The court agrees.

FN6. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

i. Legal Standard

The plaintiffs are asking the court to allow a claim of race and sex hostile environment discrimination under the Fair Housing Act to proceed. FN7 Specifically, plaintiff Reeves alleges that defendant Schongalla sexually and racially harassed her, and that because of the harassment and the Association's failure to take action, she suffered emotional injury. While this Circuit has not addressed the issue to date, at least seven federal courts have accepted the hostile housing environment theory. Honce v. Vigil, 1 F.3d 1085, 1088 (10th Cir.1993) (holding that the sex-based discrimination prohibited in the Fair Housing Act includes sexual harassment); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996) ("Like the Tenth Circuit, we recognize a hostile housing environment cause of action...."); Williams 955 F.Supp. 490 (D.Md.1996) (sexual harassment suffered by tenant was sufficient to support a hostile housing environment sexual harassment claim under FHA); Beliveau v. Caras, 873 F.Supp. 1393, 1396 (C.D.Cal.1995) ("[I]t is beyond question that sexual harassment is a form of discrimination."); New York ex rel. Abrams v. Merlino, 694 F.Supp. 1101, 1104 (S.D.N.Y.1988) ( sexual harassment is a permissible cause of action under Fair Housing Act even where no loss of housing is claimed); Grieger v. Sheets, 689 F.Supp. 835, 840-41 (N.D.Ill.1988) (sexual harassment is actionable under the Fair Housing Act).

FN7. Under the Fair Housing Act, it is illegal to "make unavailable or deny" housing accommodations because of the resident's sex or race. 42 U.S.C. § 3604(a). Moreover, under § 3604(b) of the FHA, it is illegal to discriminate in the provision of housing services or facilities. Under § 3617, it is unlawful "to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed" any of the rights guaranteed by the Act. 42 U.S.C. § 3601et seq.

*6 There are three grounds upon which courts have relied in finding that the FHA supports a sexual harassment hostile environment claim. Williams, 955 F.Supp. at 494. First, it is clear that sexual harassment is actionable under Title VII in the employment context. Second, courts have found sexual harassment to include discrimination that has created a hostile or abusive work environment. See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 575 (10th Cir.1990). In that context, the Supreme Court has noted that:
[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.
Harris v. Forklift Systems, 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993)(internal citations omitted ).

Finally, because Title VII and Title VIII share the same purpose-to end bias and prejudice-sexual harassment should be actionable under Title VIII. See e.g. Beliveau, 873 F.Supp. at 1397;Abrams, 694 F.Supp. at 1104;Huntington Branch, NAACP v. Huntington, 844 F.2d 926, 934 (2d Cir.1988)); Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir.1984); Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir.1990), cert. denied,498 U.S. 983, 111 S.Ct. 515, 112 L.Ed.2d 527 (1990); Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir.1982).

ii. Discussion

These decisions support this court's conclusion that sexual harassment is actionable under Title VIII. In recognition of the similar aims of Title VII and Title VIII, it would be inconsistent to hold otherwise. Plaintiff Reeves has shown a sufficient basis for bringing a sexual harassment suit. To recognize conduct prohibited in the workplace as also constituting an infringement forbidden in one's housing environment is amply justified by the facts and the law. It is noteworthy that at least one court has recognized that sexual harassment in the home may have more severe effects than harassment in the workplace. See Beliveau, 873 F.Supp. at 1397 n. 1. Therefore, the plaintiffs may proceed with their claims under the Fair Housing Act. FN8

FN8. In addition, the court notes that defendant has cited no cases holding that plaintiffs may not recover for sexual harassment under Title VIII, nor has the defendant offered any persuasive reasons for not holding this conduct actionable.

After recognizing a cause of action in this case, the next issue is to determine whether the plaintiffs have satisfied a prima facie case of sexual harassment. For sexual harassment claims in Title VII, courts have recognized two types of sexual harassment claims-quid pro quo and hostile environment. See Katz, 709 F.2d 251, 254 (4th Cir.1983); Henson v. City of Dundee, 682 F.2d 897, 908 n. 18 (11th Cir.1982). Here, the plaintiffs are making a claim of hostile housing environment due to racial and sexual harassment. Many courts have turned to Title VII cases to guide them in deciding claims of sexual harassment under the Fair Housing Act.FN9

FN9. See DiCenso, 96 F.3d 1004, 1008 ("[We] begin our analysis with the more familiar Title VII standard."); Honce, 1 F.3d at 1088 ("[W]e will look to employment discrimination cases for guidance.").See also Williams v. 5300 Columbia Pike Corp., 891 F.Supp. 1169, 1178 (E.D.Va.1995) ("In evaluating Fair Housing Act claims, courts employ the same method of analysis used in Title VII employment discrimination cases."); McCauley v. City of Jacksonville, N.C., 739 F.Supp. 278, 281 n. 2 (E.D.N.C.1989) (standards for deciding claims under §§ 1981, 1982, and Title VII are the same, and thus, "[although this is not a Title VII action, the parallel goals' of Title VII and Title VIII make it appropriate to treat plaintiff's civil rights and Fair Housing act claims together"), aff'd,904 F.2d 700 (4th Cir.1990).

*7 In order to establish a prima facie case of hostile environment sexual harassment in the work place (or living environment, in this case), the plaintiff must make a sufficient showing that: (1) the conduct was unwelcome; (2) it was based on the sex or other protected characteristic of the plaintiff FN10; (3) it was sufficiently severe or pervasive to alter the plaintiff's living conditions and to create an abusive environment; and (4) the defendant "knew or should have known of the harassment, and took no effectual action to correct the situation."Williams, 955 F.Supp. at 496 n. 2 (quoting Katz, 709 F.2d at 256);see also Harris v. Forklift, 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

FN10. While the plaintiff in Williams, only alleged sexual harassment, it is clear that both race and sex are protected categories and that the elements of a prima facie case should be adapted to fit the circumstances. Therefore, Ms. Reeves's claims for both racial and sexual harassment may proceed under the hostile housing environment theory.

Applying the facts of Ms. Reeves's case to the elements outlined above, plaintiffs have clearly satisfied the prima facie case for hostile housing environment due to racial and sexual harassment. Ms. Reeves's claims sufficiently allege facts upon which a jury could reasonably find that the conduct alleged was sufficient to create a hostile environment. First, the conduct at issue was unwelcome. Mr. Schongalla repeatedly subjected Ms. Reeves to threats of rape and lynching, in addition to the racial and sexual character of his verbal abuse and his admitted racism. There is no question that such conduct was unwelcome and was based on sex and/or race, thereby satisfying the first and second elements. Further, there is sufficient evidence on the record to satisfy the third element. Ms. Reeves left her home because of defendant Schongalla's actions. Finally, through the episodes that erupted at the Association's Board meetings and in the common living areas of the Carrollsburg, there is sufficient evidence that the Association was informed of the harassment taking place. Moreover, the frequent complaints to the Association's management company and Board members also places the defendant on notice, sufficient to satisfy the fourth element. The Association was fully aware of Mr. Schongalla's behavior through their own security reports and logs documenting the conduct. Viewing Ms. Reeves's evidence in the light most favorable to her, the court concludes that plaintiff's claims sufficiently allege facts upon which a jury could reasonably find that the conduct alleged was sufficient to create a hostile environment under the FHA. Accordingly, defendant's partial motion for summary judgment on the FHA claims is denied.

b. Potential liability of Association under the FHA

The question remains whether there is a basis for holding the Association liable for its alleged failure to take action reasonably calculated to resolve plaintiff Reeves's complaints. Other courts have held that condominium associations, like landlords, are responsible for maintaining the common areas and enforcing the regulations of the association for the benefit of the residents. Gittleman v. Woodhaven Condo. Ass'n, Inc., 972 F.Supp. 894 (D.N.J.1997) (condo association is duty bound to regulate use of common elements so as to comply with FHA); see also Frances v. Village Green Owners Ass'n, 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573, 576 (Ca.1986) ("The association is, for all practical purposes, the [complex's] landlord" ').

*8 In this case, the Association's Bylaws governed its actions. These Bylaws authorized the Association to address and curtail certain conduct that contravenes the law. In fact, any violation of local or federal law was likewise a violation of the Association rules. Bylaws, art. V. § 8(a)(1). To redress violations of the Bylaws, the Association could have imposed a variety of sanctions, including cease and desist requests, fines, hearings, and suspension or revocation of the right to use common facilities. Administrative Resolution No. 1 at 2; Admin. Res. No. 6 at 2-4; Pol. Res. No. 1, § XI.These remedies are cumulative and may be imposed in addition to legal or equitable remedies. Pol. Res. Nol. 1, § XIII.In addition, according to the bylaws and the D.C.Code, the Association had authority to litigate claims that affect the Condominium, including any breach of the rules or bylaws. Bylaws, art. III, IX and D.C.Code Ann. § 45-1848(4).

Ms. Reeves reported many incidents involving defendant Schongalla to the Association's Board. It is undisputed that defendant Association had several alternative courses of action at its disposal in correcting Mr. Schongalla's misconduct. Thus, the record contains sufficient factual basis for a jury to find that the Association knew or should have known of the incidents and took little, if any, action to correct the situation. However, whether the Association was limited in its enforcement powers or whether it sufficiently carried out its duties is a question for the fact finder to determine. At this stage in the litigation, the factual issues in dispute preclude this court from granting defendant Association's motion for summary judgment under the FHA in its entirety.

c. Potential liability of Association under §§ 1981 and 1982

Similarly, there is sufficient evidence on the record for Ms. Reeves's claims against the defendant Association upon which a jury could reasonably find for Ms. Reeves under § 1981 and § 1982. FN11 Tthe property rights protected by § 1982 are those included in the "bundle of rights for which an individual pays" when she purchases the property. Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 437, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973). Moreover, restrictions on a homeowner's use of her property violate § 1982. See City of Memphis v. Greene, 451 U.S. 100, 120-122, 101 S.Ct. 1584, 67 L.Ed.2d 769 (1981); Concerned Tenants Ass'n v. Indian Trails Apts. ., 496 F.Supp. 522, 547-28 (N.D.Ill.1980) (applying § 1982 to failure to provide same services to white and black tenants).

FN11. As noted above, the scope of § 1981 parallels the scope of § 1982. See Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

Plaintiff Reeves has established a prima facie case as to each of the following elements necessary to survive summary judgment: FN12 (1) plaintiff is a member of a racial minority; (2) plaintiff was denied rights and benefits which are connected with the ownership of property; (3) the same services and rights were enforced when racial allegations were not involved. Plaintiff in this case makes out a sufficient showing for a jury to find that the Association violated § 1981 and 1982 in the following ways: (1) failing to enforce provisions of the bylaws and resolutions against Mr. Schongalla; (2) by failing to act on Ms. Reeves's complaints of racial harassment in the same manner in which it acted on complaints and rules violations not involving racial harassment; and (3) by tolerating and facilitating the harassment. See Bradley v. Carydale Enterprises, 707 F.Supp. 217 (E.D.Va.1989)(stating that a "discrimination claim for failure to resolve racial harassment complaints and not for neighbor's racism, stated claim for which relief could be granted.") Accordingly, plaintiff Reeves's claims pursuant to §§ 1981 and 1982 shall proceed against defendants Schongalla and Association.

FN12. The framework applied to disparate treatment claims under §§ 1981 and 1982, as in this case, is described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

3. Punitive Damages

*9 The defendant Association also contends that the plaintiffs are not entitled to an award of punitive damages as a matter of law. FN13 "Punitive damages are awarded in federal question cases when a defendant has acted with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so." ' Pinchback v. Armistead Homes Corp., 689 F.Supp. 541, 556 (D.Md.1988)(quoting Miller v. Apartments and Homes of N.J., Inc., 646 F.2d 101, 111 (3d Cir.1981), cert. denied,498 U.S. 983, 111 S.Ct. 515, 112 L.Ed.2d 527 (1990); accord Fenwick-Schafer v. Sterling Homes Corp., 774 F.Supp. 361, 366 (D.Md.1991) (permitting question of punitive damages to survive summary judgment stage because a sufficient dispute of fact existed as to the defendants' degree of knowledge). Punitive damages may be awarded only upon proof, by a preponderance of the evidence, that the defendants conduct was willful and outrageous, reckless or aggravated by evil motive, actual malice or deliberate violence or oppression. Nakajima v. General Motors Corp., 857 F.Supp. 100 (D.D.C.1994).

FN13. In the District of Columbia, an award of punitive damage is permissible when there is a valid basis for an award of compensatory damages. Jordan v. Medley, 711 F.2d 211 (D.C.Cir.1983). If plaintiff can prove actual damages, they may obtain punitive damages by showing that the defendants acted with "gross fraud, wantonness, maliciousness, or willful disregard" for the rights of others. Rainbolt v. Johnson, 669 F.2d 767, 769 (D.C.Cir.1981).

In this case, Ms. Reeves alleges that the defendant Association knew about Mr. Schongalla's repulsive behavior and took little action to remedy the harm. The defendant Association claims that the actions were isolated, and while inappropriate, do not warrant an award of punitive damages. It is clear from the record that a question of fact has been generated as to whether the defendants acted with "reckless disregard" of Ms. Reeves's federal rights. Because this is an inquiry for the trier of fact, a punitive damage award will not be precluded at this stage.

B. Plaintiff Reeves's Partial Motion for Summary Judgment on the Breach of Contract claim

1. Principles of Contract Interpretation

The determinations the court must make in this case require the interpretation of the real estate contract between plaintiff Reeves and defendant Association. If a contract is unambiguous, as the contract at issue presently is, its interpretation is a question of law for the court. Rivers & Bryan, Inc. v. HBE Corp., 628 A.2d 631 (D.C.App.1993)."Thus, when the parties' intent is wholly unambiguous' on the face of the agreement, disposition on a motion for summary judgment may be appropriate."NRM Corp. v. Hercules, Inc., 758 F.2d 676, 682 (D.C. Cir.1985) (internal citations omitted). Moreover, "[w]here the language of the contract is clear and unambiguous on its face, a court will assume that meaning ordinarily ascribed to those words reflects intention of parties." NRM Corp., 758 F.2d 676, 681 (D.C.Cir.1985). Contractual language is only ambiguous if it is reasonably susceptible to more than one interpretation. American Building Maintenance Co. v. L'Enfant Plaza Properties, Inc., 655 A.2d 858 (D.C.1995). In performing its task, the court should construe the contract as a whole so as to give meaning to all of the express terms. Washington Metropolitan Area, 626 F.2d 961; Gandal v. Telemundo Group, Inc., 781 F.Supp. 39 (D.D.C.1992). Applying these principles, the court concludes that the contract at issue in this case is unambiguous and clear on its face, thus ripe for review by the court.

*10 For breach of a real estate contract, where land is the subject matter of the agreement, "the legal remedy is deemed inadequate, since each parcel of land is unique and damages would not adequately compensate for a breach of the agreement."Clay v. Faison, 583 A.2d 1388, 1391 (D.C.1990). Specific performance is warranted where the legal remedy is "inadequate or impracticable." Id. In addition, equitable principles govern specific performance, which in turn are committed to the sound discretion of the court.Gatewood v. United States Cellular Corp., 953 F.2d 1393, 1397 (D.C.Cir.1992); Texas v. New Mexico, 482 U.S. 124, 131, 107 S.Ct. 2279, 96 L.Ed.2d 105 (1987). Furthermore, specific performance of a contract is generally ordered when the legal remedy, usually damages, is deemed either to be inadequate or impracticable. See 1010 Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 212 (D.C.1984).

2. Discussion

Defendant Association claims that the liquidated damages clause in the contract precludes specific performance. The contract provides that "if purchaser fails to make full settlement, the deposit herein provided for may be forfeited as liquidated damages, at the option of the Seller, in which event purchaser shall be relieved from further liability hereunder...."Real Estate Sales Contract at 9. In this case, there was no deposit required in the sales contract with the Association, therefore Ms. Reeves did not have the option to accept the deposit as liquidated damages for the Association's failure to complete settlement. Thus, defendant's liquidated damages argument is misplaced.

The defendant Association also argues that Ms. Reeves did not mitigate her damages. This assertion is untimely. "Failure to mitigate is an affirmative defense under Rule 8(c) of the Fed.R.Civ.P. and must be pleaded."Lennon v. U.S. Theater Corp., 920 F.2d 996, 1000 (D.C.Cir.1990). It is undisputed that defendant Association did not plead failure to mitigate in its answer and thus waived this defense. Moreover, the burden to prove failure to mitigate is on the defendant and the court concludes that the defendant has failed to meet this burden. Finally, the defendant argues that the plaintiff's remedies at law are adequate thereby precluding such equitable relief as specific performance. However, the court concludes that the circumstances in this case present an appropriate situation for the court's exercise of its equitable powers through injunctive relief.

It is undisputed that defendant Association entered into a valid real estate contract. It is also uncontested that the Association failed to perform on its promise to purchase Ms. Reeves's condominium. The subject of the sales contract involved real property within a particular condominium complex. The condominium market in Ms. Reeves's neighborhood has declined in recent years. Subsequently, the value of her unit is highly speculative and her injury cannot be satisfactorily addressed in monetary terms. Therefore, the court concludes that because the value of Ms. Reeves's real estate is unique, legal remedies are inadequate in this case. The court further concludes that equitable relief for plaintiff is appropriate given the totality of the circumstances. Accordingly, plaintiff's partial motion for summary judgment is granted on the breach of contract claim.

V. Conclusion

*11 For the foregoing reasons, and in accordance with the court's November 13, 1997 rulings, the court concludes the following:

1) Defendant Association's Partial Motion for Summary Judgment against plaintiff Reeves as to all claims is DENIED;

2) Defendant Association's Partial Motion for Summary Judgment against plaintiff FHC as to Counts I and II is GRANTED;

2) Defendant Association's Motion for Summary Judgment against plaintiff FHC as to Counts III, IV and V is DENIED;

3) Plaintiffs' Motion for Summary Judgment against defendant Association for the Breach of Contract claim, Count VI, is GRANTED.

Adams Stirling PLC