is . . . intended for occupancy as a residence by one or more families . . .," a definition also satisfied by the same apartment.
3. Section 1982 guarantees that all citizens shall have "the same right" to lease real property "as is enjoyed by white citizens." Section 3604(b) makes it "unlawful . . . to discriminate against any person in the terms, conditions or privileges of . . . rental of a dwelling, . . . because of race, color, religion, sex, or national origin." Most often "race" and "color" discrimination are viewed as synonymous, just as the term "white citizens" is most often contrasted with "black citizens"--a racial distinction. But the very inclusion of "color" as a separate term in addition to "race" in Section 3604(b) implies strongly that someone who is of the same race ("race" used in the ethnic sense, not the broader sense announced in St. Francis College v. Al-Khazraji, 481 U.S. 604, 609-13, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987) as the 19th century understanding of that term) but who is treated differently because of his dark skin has been discriminated against because of his color--something expressly forbidden by Section 3604(b). And a citizen such as Roberto, who has been treated differently in the leasing of real property because of the color of his skin, has by reason of that treatment not been permitted to enjoy the same right as "white citizens"--something expressly forbidden by Section 1982.
4. Conclusion 3's common-sense and internally logical reading of the statutes at issue here conforms to the reading given a decade ago to the parallel Title VII prohibition against employment discrimination on account of "color" as well as "race" in Felix v. Marquez, 27 Empl. Prac. Dec. (CCH) P 32,241 (D.D.C. 1981). There District Judge Pratt, dealing with a plaintiff of identical racial characteristics to Roberto's (a Puerto Rican with mixed racial ancestry), ruled against that plaintiff on the merits but held in the respect relevant here (id. at 22,767 and 22,769 (citations omitted)):
This case presents, for perhaps the first time in a federal court, an allegation of color discrimination that is not subordinated to a more familiar claim of racial discrimination. Discrimination on account of color is expressly forbidden by the 1964 Civil Rights Act, not only in Title VII (employment), but also in Titles II (public accommodations), III (public facilities), IV (public education), VI (federally assisted programs), VIII (voting) and IX (community relations services).
Color is a rare claim, but considering the mixture of races and ancestral national origins in Puerto Rico, it can be an appropriate claim for a Puerto Rican to present.
In 1870, the Fifteenth Amendment to the United States Constitution proscribed the denial or abridgement of a citizen's right to vote on account of "race, color, or previous condition of servitude." Since that time, the same proscription, modified by the deletion of "previous condition of servitude" and, often, by the addition of "creed," has been written into numerous federal laws and Executive Orders enacted to protect individual civil rights. Although the legislative history of these acts is silent on the meaning of the term "color," and no definitive interpretation has been provided by the courts, this court is constrained to believe that "color" is a particularly appropriate term in the context of this case involving a person from Puerto Rico with a mixed racial ancestry.
5. Though there were cases from the pre-1987 period that had expressed a different view as to the prohibitions under Section 1981, they have since been discredited by the expansive concept of "racial" discrimination articulated in St. Francis College. That is the conclusion reached in Walker v. Secretary of the Treasury, 713 F. Supp. 403, 405-07 (N.D. Ga. 1989), an extended and thoughtful discussion by Senior District Judge Moye from which a like ruling in this case really flows a fortiori. This Court sees no reason to repeat what is said there (an opinion that should be read to be appreciated fully), and it reaches the identical conclusion for purposes of this case.
6. Absent any proof of out-of-pocket damages, both Roberto and Carol are relegated to recovery for the intangible harm that they have suffered and for possible punitive damages as well. In the latter respect, this Court finds Gattusos to have acted with a purposeful discriminatory intent (see St. Francis College, 481 U.S. at 613 and the more extended discussion of such intent in Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1529-30 (7th Cir. 1990)). Gattusos' fabricated version of events as well as the deliberately discriminatory treatment of Roberto that was evinced by Biagio, in which Carmela concurred (though as a less overt participant), supports the conclusion that both of them acted wantonly and wilfully as well as with the already-mentioned purposeful discriminatory intent. Those factors entitle Rodriguezes to recover both compensatory and punitive damages (for our Court of Appeals' opinions dealing with damages issues and their quantification in housing discrimination cases, see Phillips v. Hunter Trails Community Ass'n, 685 F.2d 184, 190-91 (7th Cir. 1982); Hamilton v. Svatik, 779 F.2d 383, 388-89 (7th Cir. 1985); and Douglas v. Metro Rental Services, Inc., 827 F.2d 252, 256-57 (7th Cir. 1987)). As to the non-joint-and-several liability for punitive damages, Biagio appears from the evidence to have been more culpable than Carmela, and the awards in Finding 12 reflect that.
* * *
This Court orders that judgment be entered in favor of plaintiffs Roberto and Carol Rodriguez and against defendants Biagio and Carmela Gattuso in the following amounts, together with costs under Rule 54(d):
(a) Roberto is awarded an aggregate of $ 6,000 in actual damages jointly and severally against Gattusos.
(b) Carol is awarded an aggregate of $ 4,000 in actual damages jointly and severally against Gattusos.
(c) Roberto is awarded $ 3,000 in punitive damages against Biagio and $ 1,500 in punitive damages against Carmela.
(d) Carol is awarded $ 2,000 in punitive damages against Biagio and $ 1,000 in punitive damages against Carmela.
Because the finality of such a judgment is not impaired by the added availability of an attorneys' fee award in Rodriguezes' favor (see Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201-02, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988)) this order is for entry of a final judgment in this action.
Milton I. Shadur
United States District Judge
Date: May 29, 1992