Miami Valley Fair Housing Center , Inc . v. the Connor Group

*The Honorable John T. Fowlkes, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M IAMI VALLEY FAIR HOUSING CENTER , I NC .,
Plaintiff-Appellant/Cross-Appellee,
v.
THE CONNOR GROUP ,
Defendant-Appellee/Cross-Appellant.
X---->
,--
N
Nos. 12-3284/3314
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:10-CV-83—Walter H. Rice, District Judge.
Argued: March 5, 2013
Decided and Filed: August 5, 2013
Before: MARTIN and GILMAN, Circuit Judges; FOWLKES, District Judge*
_________________
COUNSEL
ARGUED: Diane E. Citrino, THACKER MARTINSEK LPA, Cleveland, Ohio, for
Appellant/Cross-Appellee. Stephen A. Watring, DUNLEVEY, MAHAN & FURRY,
Dayton, Ohio, for Appellee/Cross-Appellant. Teresa Kwong, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. ON BRIEF:
Diane E. Citrino, Brian D. Heskamp, THACKER MARTINSEK LPA, Cleveland, Ohio,
for Appellant/Cross-Appellee. Stephen A. Watring, Amy C. Mitchell, David M. Rickert,
DUNLEVEY, MAHAN & FURRY, Dayton, Ohio, for Appellee/Cross-Appellant.
Teresa Kwong, Dennis J. Dimsey, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Stephen M. Dane, RELMAN, DANE & COLFAX PLLC,
Washington, D.C., Rachel K. Robinson, Columbus, Ohio, for Amici Curiae.
1

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_________________
OPINION
_________________
BOYCE F. MARTIN, JR. This case is about the application of the Fair Housing
Act’s section 3604(c) and Ohio Revised Code section 4112.02(H)(7) to a Craigslist
advertisement for a one-bedroom apartment. The Connor Group placed an ad on
Craigslist for an apartment in Dayton, Ohio, advertising a “great bachelor pad for any
single man looking to hook up.” The Miami Valley Fair Housing Center brought suit
against the Connor Group for violating the Fair Housing Act and Ohio’s housing statute.
The case went to trial and a jury found that the ad did not violate either statute. Miami
Valley now appeals the district court’s denial of their Rule 50 motion for a directed
verdict and their Rule 59 motion for a new trial. The Connor Group cross-appeals the
district court’s decision denying its motion for an award of attorney’s fees. We
AFFIRM the district court’s denial of Miami Valley’s Rule 50 motion and the Connor
Group’s motion for attorney’s fees, but REVERSE the district court’s denial of Miami
Valley’s Rule 59 motion for a new trial.
I.
Miami Valley is a fair-housing organization “whose mission is to promote fair
housing and eliminate housing discrimination in Montgomery County and surrounding
counties in Ohio.” The Connor Group owns and manages around 15,000 rental units
throughout the United States, including around 1,900 in the Dayton, Ohio area. In May
2009, Rachel Underwood, a listing agent with the Connor Group, posted the following
ad on Craigslist:

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1Miami Valley later voluntarily dismissed its claims regarding the other Connor Group ads on
the eve of trial.
599/1br – Great Bachelor Pad! (Centerville)
* * *
Our one bedroom apartments are a great bachelor pad for any single man
looking to hook up.
This apartment includes a large bedroom, walk in closet, patio, gourmet
kitchen, washer dryer hook up and so much more. . . .
On March 5, 2010, Miami Valley filed a complaint in the Southern District of
Ohio alleging that this ad, and thirteen additional Connor Group ads, violated the Fair
Housing Act’s section 3604(c) and Ohio’s Revised Code section 4112.02(H)(7).1 Miami
Valley argued that the bachelor pad ad was facially discriminatory to families and
women. The case advanced to a three-day jury trial. After Miami Valley presented its
case, Miami Valley and the Connor Group both made Rule 50 Motions for a directed
verdict. The district court denied both motions, and the case went to the jury. The court
provided the following jury instruction, which explained the standard to be used in
determining whether the ad was discriminatory:
In deciding whether Defendant’s advertisement indicates a
preference, limitation, specification, or discrimination based on sex or
familial status, you must determine how an “ordinary reader” would
interpret the advertisement. The “ordinary reader” is one that is neither
the most suspicious nor the most insensitive person in our society.
The relevant question is whether the advertisement would suggest
to an “ordinary reader” that a person of a particular sex or with a
particular familial status is preferred or disfavored for the housing in
question. Keep in mind that most advertisements will tempt some and
discourage others. The question is not whether the particular
advertisement discourages some potential renters from applying. The
appropriate question is whether such discouragement is the product of
any discriminatory statement or indication in the advertisement.
If an ordinary reader who is a member of a protected class would
be discouraged from answering the advertisement because of some
discriminatory statement or indication contained therein, then the fair
housing laws have been violated.
Focus on the message being conveyed by the advertisement at
issue in this matter. Ask yourselves whether the message focuses on the

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suitability of the property to the renter, which is permissible, or whether
it impermissibly focuses on the suitability of the renter to the owner.
The Connor Group emphasized these jury instructions during closing arguments by
enlarging the jury-instruction language as an exhibit. The Connor Group went on to
make the following argument:
Suitability. Ideal is a form of suitability. Shoes might be suitable for you
or they may be ideal for you. It’s quality. Okay? In this ad what relates
to suitability? It’s the ideal. Right? It’s ideal. Okay. So it’s ideal. Is it an
ideal man or an ideal apartment? So it focuses on the suitability of the
property. Up there, suitability of the apartment, an ideal apartment for the
renter which in this case is a single man. So the ad focuses upon the
suitability of the apartment or the property for the renter who is a single
man. The judge is going to instruct you which is permissible. Which is
permissible. . . . Does it say: I prefer a single man. We want a single
man? Obviously not. There’s no preference here. It just says it’s ideal.
It’s focusing upon the suitability of the property for somebody.
The jury deliberated for two hours and ultimately found in favor of the Connor Group.
Miami Valley renewed its motion for judgment as a matter of law under Rule
50 and further moved for a judgment notwithstanding the verdict or for a new trial under
Rule 59(e) because of alleged deficiencies in the jury instructions. The Connor Group
filed a bill of costs and motion for attorney’s fees. The district court denied both parties’
motions. Responding to Miami Valley’s Rule 50 motion, the district court held that the
Connor Group ad was not facially discriminatory and thus that a directed verdict was not
warranted. In holding that the ad was not facially discriminatory, the district court relied
on a Wisconsin Court of Appeals case from 1992, Metropolitan Milwaukee Fair
Housing Council v. Labor and Industry Review Commission, 496 N.W.2d 159, 162 (Wis.
Ct. App. 1992). The district court further held that the jury instructions were not
deficient as a whole and also denied the Connor Group’s motion for attorney’s fees.
Both parties appealed.

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II.
“We have an independent obligation to ensure jurisdiction over a case,” In re
Cannon, 277 F.3d 838, 852 (6th Cir. 2002), and so, before we consider the parties’
arguments, we consider whether Miami Valley, a fair housing organization, has standing
to sue.
Standing under the private-right-of-action provision of the FHA “extend[s] to the
full limits of Article III.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).
To prove Article III standing, Miami Valley must allege: (1) an injury in fact; (2) a
causal connection between the injury and the challenged conduct that is fairly traceable
to the defendant’s actions; and (3) that the requested relief will redress the injury. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
Miami Valley’s mission is to “promote fair housing and eliminate housing
discrimination,” and it alleges that it “had to divert its resources, its staff time and energy
to identify the ad and then to bring the ad to the attention of the appropriate authorities,”
thereby suffering a harm of $5,292.15 in costs. The Supreme Court and this Circuit have
found that a drain on an organization’s resources, as alleged by Miami Valley,
constitutes a concrete and demonstrable injury for standing purposes. Havens, 455 U.S.
at 379; Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., a Div. of
Gannett Co., Inc., 943 F.2d 644, 646 (6th Cir. 1991) (holding that HOME had alleged
a concrete injury because it had to “devote resources to investigate and negate the impact
of [advertisements]” allegedly violating the FHA); accord Spann v. Colonial Vill., Inc.,
899 F.2d 24, 27–29 (D.C. Cir. 1990) (holding plaintiffs had standing because their
alleged injury, the depletion of resources which were diverted to enforcement actions
surrounding the advertisements, was concrete and fairly traceable). This injury is fairly
traceable to the Connor Group advertisements, which are at issue in this case, and Miami

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Valley’s requested relief will redress its injury. Therefore, we find that Miami Valley
has standing to bring this suit.
III.
We review de novo a district court’s denial of a renewed motion for judgment
as a matter of law under Rule 50(b). Loesel v. City of Frankenmuth, 692 F.3d 452, 461
(6th Cir. 2012) (citing Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.
2007)). “The motion may be granted only if in viewing the evidence in the light most
favorable to the non-moving party, there is no genuine issue of material fact for the jury,
and reasonable minds could come to but one conclusion, in favor of the moving party.”
Id. (internal quotation marks omitted).
Section 3604(c) of the Fair Housing Act, 42 U.S.C.A. § 3604 (West 2013),
makes it unlawful
[t]o make, print, or publish, or cause to be made, printed, or published
any notice, statement, or advertisement, with respect to the sale or rental
of a dwelling that indicates any preference, limitation, or discrimination
based on race, color, religion, sex, handicap, familial status, or national
origin, or an intention to make any such preference, limitation or
discrimination.
The Fair Housing Act’s language is purposely broad and “the statute and regulations
create no fixed and immutable rules to determine whether an advertisement is
discriminatory.” Hous. Opportunities Made Equal, Inc., 943 F.2d at 647. Subjective
intent to discriminate is not required to establish a violation of section 3604. This Court,
in Housing Opportunities Made Equal, adopted the Second Circuit’s “ordinary reader”
standard first discussed in Ragin v. New York Times Company, 923 F.2d 995, 999 (2d
Cir. 1991) [hereinafter Ragin I]. Id. (citing Ragin I, 923 F.2d at 999). Under this
standard, an ad violates the statute if it suggests to an ordinary reader that a particular
group is “preferred or dispreferred” for housing because of a prohibited factor listed in
the statute. Ragin I, 923 F.2d at 999. We must consider how “an ordinary reader” or

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“reasonable reader” would read the advertisement and the ordinary reader is “‘neither
the most suspicious nor the most insensitive of our citizenry.’” Jancik v. Dep’t of Hous.
& Urban Dev., 44 F.3d 553, 556 n.4 (7th Cir. 1995) (quoting Ragin I, 923 F.2d at 1002);
Hous. Opportunities Made Equal, Inc., 943 F.2d at 646; Spann, 899 F.2d at 29. The
“reader does not apply a mechanical test . . . .” Ragin I, 923 F.2d at 1002.
Before continuing with our analysis, we feel it imperative to clarify that we do
not believe that this ordinary-reader standard requires an advertisement to “discourage”
an ordinary reader of a particular protected class. Panels from both the Second Circuit
and the Seventh Circuit have interpreted the Fair Housing Act’s use of the word
“preference” to be synonymous with “discourage.” Ragin I, 923 F.2d at 999–1000
(noting that “we read the word ‘preference’ to describe any ad that would discourage an
ordinary reader of a particular race from answering it”); Jancik, 44 F.3d at 556. But the
Ragin I panel did not explain how it made the leap from the term “preference” to
“discourage,” a leap that has no textual support in the statute. Ragin I, 923 F.2d at
999–1000. Furthermore, the Jancik panel copied the Ragin I language verbatim, but
provided no additional insight into the relationship between the terms “preference” and
“discourage.” Jancik, 44 F.3d at 556.
We believe that using “discourage” could create First Amendment concerns by
creating an overly broad restriction on speech. For example, advertisements that do not
indicate a preference and merely describe a property, such as “walk-up, no elevators”
or “very small apartment,” could potentially “discourage” an ordinary reader of a
protected class from considering it. The Second Circuit itself avoided using its own
“discourage” language in the second Ragin case, Ragin v. Harry Macklowe Real Estate
Co., 6 F.3d 898, 905 (2d Cir. 1993) [hereinafter Ragin II] (considering only whether a
particular group was “preferred or dispreferred”). Additionally, other than the Seventh
Circuit, this Circuit and other circuits have declined to adopt the “discourage” language

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and instead have stayed true to the statute’s “preference” language. E.g. United States
v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972); Hous. Opportunities Made Equal, Inc., 942
F.2d at 646. We decline to incorporate the discourage language into our ordinary-reader
analysis.
Thus, in assessing the motion for a directed verdict, we consider only whether
an ordinary reader would find that the advertisement indicates a preference and not
whether the ad would discourage the reader. We do not believe that the Connor Group
advertisement violates the Fair Housing Act as a matter of law. To find that the
advertisement violates the statute requires that we make inferences because the ad could
be interpreted in multiple ways. For example, an ordinary reader could find that the ad,
while badly worded, shows no indication that women or families would be unwelcome,
but merely expresses an opinion about who would find the apartment appealing. In the
alternative, an ordinary reader may find that the ad clearly suggests a preference for
single men in the apartment complex. Such inferences are best left to the jury to
consider. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility
determinations, the weighing of the evidence and the drawing of legitimate inferences
from the facts are jury functions.”). Because reasonable minds could differ, we decline
to hold that the ad violated section 3604(c) as a matter of law.
Miami Valley also alleges that the bachelor pad ad violates the Ohio housing
statute, Ohio Revised Code section 4112.02(H)(7). The Ohio statute mirrors the Fair
Housing Act, but differs in one respect: it forbids advertisements that express “any
preference, limitation, specification, or discrimination.” Ohio Rev. Code Ann.
§ 4112.02(H)(7) (West 2013) (emphasis added). There is some non-binding precedent
in this Circuit and in the Ohio Courts of Appeals that indicates Ohio courts look to
analogous federal statutes to determine if section 4112.02 has been violated. Eva v.
Midwest Nat’l Mortg. Bank, Inc., 143 F. Supp. 2d 862, 890–91 (N.D. Ohio 2001) (“The

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Court notes, and the parties do not dispute, that both federal and state fair housing claims
may be analyzed using federal case law. . . . Consequently, the Court may rely upon the
federal case law under the FHA . . . as it relates to Plaintiffs’ claims under Ohio’s
equivalent fair housing statute in § 4112”); Ohio Civil Rights Comm’n v. Harlett,
724 N.E.2d 1242, 1244–45 (Ohio Ct. App. 1999) (“When interpreting R.C. Chapter
4112, Ohio courts have looked to analogous federal statutes and case law for
guidance.”); Hughes v. Miller, 909 N.E.2d 642, 647 (Ohio Ct. App. 2009) (noting that
“Ohio’s anti-retaliation law[, Ohio Rev.Code § 4112.02(I),] has a broader scope than
Title VII because it does not limit its coverage to people in an employer-employee
situation . . . but the standard for proving retaliatory discrimination in the employment
context is the same under Ohio law as it is under Title VII”); Wooten v. Columbus, Div.
of Water, 632 N.E.2d 605, 610 (Ohio Ct. App. 1993) (“When interpreting R.C. Chapter
4112, it is not inappropriate to look to analogous federal statutes such as the
Rehabilitation Act of 1973, Section 708 et seq., Title 29, U.S.Code and the Americans
with Disabilities Act of 1990, 104 Stat. 327, Section 12101, Title 42, U.S.Code, as
amended, R.C. 4112.02 appearing to confer equal or greater rights on a handicapped
employee.”).
Here, the Ohio statute’s addition of the word “specification” arguably broadens
the scope of the statute beyond that covered by the Fair Housing Act. However, we
believe that under an ordinary-reader standard, as it is applied to a Fair-Housing-Act
analysis, an ordinary reader could find multiple ways to interpret the advertisement as
it related to the Ohio statute’s non-specification requirement. On the one hand, an
ordinary reader could find the ad had a specification based upon familial status and sex
when it “specified” a single man. Or, an ordinary reader could find that while the ad
discusses a single man, it does not specify who can actually live in the apartment. For

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these reasons, we also decline to find that the ad violated the Ohio housing statute, and
we affirm the denial of the motion for a directed verdict.
IV.
We next consider whether the jury instructions warrant reversal. “A party is not
entitled to a new trial based upon alleged deficiencies in the jury instructions unless the
instructions, taken as a whole, are misleading or give an inadequate understanding of the
law.” Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir. 1998) (citation
omitted). We cannot look at only certain parts of the instructions “in isolation; we must
consider the charge as a whole.” United States v. Prince, 214 F.3d 740, 760–61 (6th Cir.
2000).
Miami Valley argues that the district court implemented the wrong legal standard
when instructing the jury about the “ordinary reader” standard from Metropolitan
Milwaukee Fair Housing Council v. Labor and Industry Review Commission,
496 N.W.2d 159, 162 (Wis. Ct. App. 1992).
As discussed in section III, supra, the proper standard for considering a violation
of the Fair Housing Act is an ordinary-reader standard. The jury instructions referred
to the ordinary-reader standard, but supplemented that standard with language gleaned
from Metropolitan Milwaukee. In that case, the Wisconsin Court of Appeals considered
whether an ad for a “COTTAGE, 2 bedrooms, ideal for couple. Not suitable for pets or
children” violated the Wisconsin Open Housing Act, section 101.22, which prohibited
an ad that “states or indicates any discrimination in connection with housing.” Metro.
Milwaukee Fair Hous. Council, 496 N.W.2d at 160; Wis. Stat. Ann. § 101.22(2)
(1989–1990). The Wisconsin Court of Appeals adopted the Second Circuit ordinary-
reader standard set out in Ragin I and further held that “the correct inquiry is whether
such dissuasion is the product of any discriminatory statement or indication in the
advertisement.” Id. at 204–205. The court said that “the focus of the message is the

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suitability of the property to the renter–not the acceptability of the renter to the owner.”
Id. at 205.
The district court borrowed directly from Metropolitan Milwaukee in its jury
instructions. While the first paragraph of the instructions describes the Ragin I ordinary-
reader standard, the next three paragraphs pull primarily from the language in
Metropolitan Milwaukee. The court told the jury that “[t]he question is not whether the
particular advertisement discourages some potential renters from applying. The
appropriate question is whether such discouragement is the product of any
discriminatory statement or indication in the advertisement.” The district court further
guided the jury by saying “[a]sk yourselves whether the message focuses on the
suitability of the property to the renter, which is permissible, or whether it impermissibly
focuses on the suitability of the renter to the owner.”
The district court’s reliance on Metropolitan Milwaukee was misplaced because
Metropolitan Milwaukee does not represent the law of this Circuit, nor does it properly
apply the ordinary-reader standard. To begin, not only is Metropolitan Milwaukee an
opinion from a state appellate court in Wisconsin, but since its release in 1992, it has not
been cited by any other court, including Wisconsin courts, as precedent. Furthermore,
Metropolitan Milwaukee is not a case about the Fair Housing Act, but instead interprets
Wisconsin’s state housing statute. The Wisconsin Open Housing Act was a much
narrower statute that prohibited only actual discrimination, unlike the Fair Housing Act,
which broadly prohibits any “preference, limitation, or discrimination . . . .” Wis. Stat.
Ann. § 101.22(1) (1989–1990); 42 U.S.C.A. § 3604 (West 2013).
In addition, while the Wisconsin court allegedly adopted the Ragin I ordinary-
reader standard, instructing the jury that it is permissible for an ad to focus on the
suitability of the property to the renter perverts the ordinary-reader standard. Under such
a suitability analysis, many ads would be permissible that in fact violate the Fair

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Housing Act. Consider, for example, the following advertisements: “Great house for
people who like only white neighbors;” “Great school district with all-white schools;”
“Property not suitable for families.” Each of these examples would satisfy the suitability
standard as expressed in Metropolitan Milwaukee and this case’s jury instruction
because they focus only on the suitability of the property to the renter; however, they
indicate an impermissible preference to an ordinary reader and violate the Fair Housing
Act.
We hold that the legal standards expressed in the jury instructions were
erroneous, but to reverse we must find the erroneous jury instructions to be “confusing,
misleading, and prejudicial.’” Bridgeport Music, Inc. v. UMG Recordings, Inc.,
585 F.3d 267, 273–274 (6th Cir. 2009). As discussed above, the district court’s
instruction told the jury to “[a]sk yourselves whether the message focuses on the
suitability of the property to the renter, which is permissible, or whether it impermissibly
focuses on the suitability of the renter to the owner.” We believe that a jury, applying
the instructions, would have no option but to find for the Connor Group because the
advertisement’s description of “a great bachelor pad for any single man looking to hook
up” clearly focuses only on the suitability of the apartment to the renter, a single man.
In fact, we believe that under the suitability standard as articulated in the instructions,
this advertisement would be so clearly permissible that it could have been decided as a
matter of law.
Furthermore, Connor Group emphasized the suitability part of the instructions
in its closing arguments by using a demonstrative exhibit, thereby further magnifying
an erroneous standard. We hold that the jury instructions were erroneous and prejudicial
enough to warrant reversal.
V.
Connor Group argues that the district court erred in overruling Connor’s motion
for attorney’s fees without providing for a hearing. We review a district court’s decision
on a motion for attorney’s fees under an abuse-of-discretion standard. Garner v.

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Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 634 (6th Cir. 2009). For a defendant to
prevail on a motion for attorney’s fees, the district court must find that “‘the plaintiff’s
action was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.’” Wolfe v. Perry, 412 F.3d 707, 720 (6th Cir. 2005) (quoting
Wayne v. Vill. of Sebring, 36 F.3d 517, 530 (6th Cir. 1994)). The standard is particularly
high for civil rights actions, LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 770 (2d Cir.
1998), because “‘[a]n award of attorney’s fees against a losing plaintiff in a civil rights
action is an extreme sanction,’” and it “‘must be limited to truly egregious cases of
misconduct.’” Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427, 438 (6th Cir. 2009)
(quoting Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986)).
An “award to prevailing defendants will depend on the factual circumstances of
each case.” Brooks v. Ctr. Park Assocs., 33 F.3d 585, 587 (6th Cir. 1994) (quoting Smith
v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985)). It is important to consider
the evidence that the plaintiffs had going into trial, and what happened during litigation,
including whether the plaintiff’s case survived a motion for a directed verdict. Id.;
Lowery, 586 F.3d at 438.
Here, the district court did not abuse its discretion in denying Connor Group’s
motion for attorney’s fees. Miami Valley’s case survived a motion for a directed verdict
after it had presented its case at trial. Furthermore, before filing a complaint, Miami
Valley brought an administrative complaint to the Ohio Civil Rights Commission, which
investigated and found the ad had probably violated the law. Miami Valley did not bring
a frivolous or unreasonable claim, so we affirm the district court’s ruling on this issue.
VI.
For the foregoing reasons, we AFFIRM the district court’s denial of Miami
Valley’s Rule 50 motion for a directed verdict as well as the denial of the Connor

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Group’s motion for attorney’s fees, but REVERSE the district court’s denial of Miami
Valley’s Rule 59 motion for a new trial and REMAND for further proceedings.

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