UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CRAWFORD, GEORGE

v.

SIGNET BNK INC


98-7105a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: George W. and  Harriet M.
Crawford appeal the district court's adverse sum- mary judgment in an
action for discriminatory mortgage  denial and negligent house
appraisal. Appellee Signet Mort- gage Corporation, formerly a
subsidiary of appellee Signet  Bank, (collectively referred to as
Signet)1 denied the Craw- fords' application for a home mortgage
refinance loan on the  asserted ground that the Crawfords' home equity
was insuffi- cient based on an appraisal by appellee Stephen F.
Fenning,  an employee of appellee Capitol Appraisal Service (Capitol).
 The appraisal was contracted to Capitol by appellee Steele  Software
Systems Corporation (Steele), an appraisal manage- ment company
engaged by Signet. The district court con- cluded that the Crawfords
neither established a prima facie  case of discrimination nor
articulated a standard of care for  the appraisal profession, the
breach of which could support a  negligence claim. We agree with these




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n 1 Signet has since been merged into First Union Corporation.  See
Signet's Certificate as to Parties, Rulings and Related Cases  (filed
as part of Signet's brief on Feb. 26, 1999).


2 We also affirm the district court's denial of the Crawfords'  motion
to extend discovery because the Crawfords did not inform  the court
when the defendants filed their summary judgment  motions that
additional facts were needed to oppose the motions, as  required by
Fed. R. Civ. P. 56(f) ("Should it appear from the  affidavits of a
party opposing the motion that the party cannot for  reasons stated
present by affidavit facts essential to justify the  party's
opposition, the court may refuse the application for judg- ment or may
order a continuance to permit affidavits to be obtained  or
depositions to be taken or discovery to be had or may make such  other
order as is just.") (emphasis added). See Strang v. United 


I.


In February 1994 Lonnie Bass, a Signet employee, solicited  the
Crawfords by telephone to refinance their house. In  March 1994 the
Crawfords submitted an application for a loan  in the amount of
$233,000, representing the value of their  house as $325,000.


On March 24, 1994 Connee Piercy, a Signet loan underwrit- er approved a
loan for $233,000 conditioned on, inter alia,  receiving an appraisal
value for the Crawfords' house of at  least $311,000. Signet then
contacted Steele which arranged  for Capitol to appraise the
Crawfords' house. Capitol as- signed the appraisal to Fenning who
performed a "walk- through" home-comparison appraisal and prepared a
report  dated April 8, 1994 that valued the house at $190,000.


Bass told the Crawfords the amount of the appraisal and  asked for any
information they had to support their represen- tation that the house
was worth $325,000. The Crawfords  sent Bass two earlier appraisals:
one dated August 23, 1990  for $304,000 and one dated August 10, 1993,
for $340,000.3


Jack May, a senior appraiser at Signet, notified Steele of  the
disputed valuation and Steele informed Capitol, request- ing a review
of Fenning's appraisal. In a letter dated April  19, 1994 Capitol
reported that Fenning's estimate was "at the  high end for the
neighborhood" and concluded it "was justi- fied and well supported."
Appendix Exhibits (App. Exhs.) 46.  On April 26, 1994 Steele informed
May of the review of  Fenning's appraisal and of the drive-by
appraisal value. May  "deferred to Capitol and Steele's conclusion
that the Capitol  appraisal was well-founded and that the 1990 and




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n States Arms Control & Disarmament Agency, 864 F.2d 859, 861  (D.C.
Cir. 1989) (citing rule 56(f) to affirm denial of discovery  extension
where plaintiff "never stated concretely why she could  not, absent
discovery, present by affidavit facts essential to justify  her
opposition to [defendant's] summary judgment motion").


3 The Crawfords did not mention two lower appraisals: one dated 
February 27, 1989 for $225,000 and one dated June 22, 1992 for 


praisals were not." Id. 339. Accordingly, he recommended  to Piercy
that Signet "should continue to rely on the Capitol  appraisal." Id.
339-40. On May 4, 1994 Piercy notified the  Crawfords that the loan
was denied because of "[i]nadequate  collateral." Id. 51.


The Crawfords filed this action on October 17, 1996. The  second
amended complaint (filed July 2, 1997) alleges seven  counts: (1)
racially discriminatory "redlining"4 in violation of  42 U.S.C. s
1981; (2) conspiring to redline in violation of 42  U.S.C. s 1985(3);
(3) negligent review of Fenning's appraisal  by Signet; (4) negligent
appraisal by Steele, Capitol and  Fenning; (5) vicarious liability
against Signet for Steele's and  Capitol's negligence; (6) vicarious
liability against Steele for  Capitol's negligence; and (7) vicarious
liability against Capitol  for Fenning's negligence. App. Exhs. 75-87.
The district  court granted summary judgment in the defendants' favor
in  an unpublished memorandum and opinion filed April 16, 1998.  The
Crawfords appeal the court's judgment.


II.


"We review grants of summary judgment de novo; a party  is only
entitled to summary judgment if the record, viewed in  the light most
favorable to the nonmoving party, reveals that  there is no genuine
issue as to any material fact." Aka v.  Washington Hosp. Ctr., 156
F.3d 1284, 1288 (D.C. Cir. 1998)  (en banc). Applying this standard,
we affirm the district  court.


First, we conclude the Crawfords failed to make out a  prima facie case
of discrimination in violation of 42 U.S.C.  s 1981 or s 1985(3).
Under the familiar burden shifting  scheme of McDonnell Douglas Corp.
v. Green, 411 U.S. 792  (1973), a prima facie case of discrimination
requires a showing  "that a qualified plaintiff who is a member of a
protected class  was disadvantaged in favor of a person who is not a
member 




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n 4 "Redlining" is "the practice of financial institutions
intentionally  not lending to certain neighborhoods or parts of a
community."  H.R. Rep. No. 104-193 at 177 (1995).


of the protected class." Whitacre v. Davey, 890 F.2d 1168,  1169-70
(D.C. Cir. 1989); see, e.g., Kolstad v. American  Dental Ass'n, 108
F.3d 1431, 1436 (D.C. Cir. 1997) ("Where  sex discrimination in
promotion is alleged, a plaintiff proves  her prima facie case by
showing that she is female, that she  was refused a position for which
she applied and was quali- fied, and that the employer filled the
position with a male.");  Paquin v. Federal Nat'l Mortgage Ass'n, 119
F.3d 23, 26  (D.C. Cir. 1997) ("In the [Age Discrimination in
Employment  Act] context a complainant makes his required prima facie 
showing if he (i) belongs to the protected age group, (ii) was 
qualified for the position, (iii) was terminated and (iv) was 
replaced by a younger person."). Assuming the framework  applies in a
redlining case,5 the Crawfords were required to  show inter alia that
they were "qualified" for the loan they  were denied. Accord Latimore
v. Citibank, F.S.B., 979  F. Supp. 662, 665 (N.D. Ill. 1997) ("[I]n a
case where the  plaintiff alleges that her loan application was
discriminatorily  denied, she must prove (1) that she is a member of a
 protected class, (2) that she applied for and was qualified for  a
loan, (3) that the loan was rejected despite her qualifica- tions, and
(4) that the defendants continued to approve loans  for applicants
with qualifications similar to those of the  plaintiff.") (citing
Thomas v. First Fed. Sav. Bank, 653  F. Supp. 1330, 1338 (N.D. Ind.
1987); Gross v. United States  Small Bus. Admin., 669 F. Supp. 50,
52-53 (N.D.N.Y. 1987);  Bell v. Mike Ford Realty Co., 857 F. Supp.
1550, 1556 (S.D.  Ala. 1994)). They failed to make such a showing.




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n 5 The Seventh Circuit has concluded the McDonnell Douglas  framework
is not "available" in a mortgage discrimination suit and  that
therefore a plaintiff in such a case is required to "try to show  in a
conventional way, without relying on any special doctrines of 
burden-shifting, that there is enough evidence, direct or circumstan-
tial, of discrimination to create a triable issue." Latimore v. 
Citibank, Fed. Sav. Bank, 151 F.3d 712, 715 (7th Cir. 1998). We  need
not resolve this issue here because, as we explain, assuming  that the
framework does apply, the Crawfords have failed to meet  their burden


The Signet loan approval was by its terms contingent upon  "[r]eceipt
and review of satisfactory subject property apprais- al to support a
minimum fair market value of $311,000."  Signet Supplemental App. at
11. The only appraisal report  meeting this value requirement, the one
dated August 24,  1993, was not "satisfactory" because, as the
Crawfords ac- knowledged at oral argument, as of April 1994 it was
eight  months old and it had not been recertified by an appraiser 
within the previous four months as required by the Federal  National
Mortgage Association (FannieMae). See FannieMae  Appraisal Guide s 201
(App. Exhs. 414-15) (providing "the  property must have been appraised
within the 12 months that  precede the date of the note and mortgage"
and when ap- praisal "will be more than four months old on the date of
the  note and mortgage," appraiser "must inspect the exterior of  the
property and review current market date" and provide a 
"certification" that "he or she believes that the property has  not
declined in value");6 see also App. Exhs. 338-39 (affidavit  of Jack
May). Because there was no evidence before the  district court of an
appraisal satisfying the loan approval  conditions, we conclude the
Crawfords failed to show they  were qualified for the loan they sought
and therefore did not  establish a prima facie case of


The Crawfords also failed to produce evidence to support  their
remaining claims. As the district court correctly con- cluded, counts
3 and 4, alleging negligence by Signet, Steele,  Capitol and Fenning,
required expert testimony on the stan- dard of care governing the
appraisal profession. See District  of Columbia v. Hampton, 666 A.2d
30, 35 (D.C. 1995) ("The  plaintiff in a negligence action bears the
burden of proving  the applicable standard of care, a deviation from
that stan- dard by the defendant, and a causal relationship between
that  deviation and the plaintiff's injury. Furthermore, if the 
subject in question is so distinctly related to some science, 
profession, or occupation as to be beyond the ken of the 




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n 6 The Crawfords agreed at oral argument that if appraisers  followed
the FannieMae guidelines, they would be "okay," that is 
nondiscriminatory.


average layperson, expert testimony is usually required to  prove the
standard of care.") (internal quotations omitted).  None was offered.
Further, because the Crawfords estab- lished no underlying negligence
as alleged in counts 3 and 4,  summary judgment was properly granted
on counts 5  through 7 alleging vicarious liability for the
negligence.  "[V]icarious liability is not an independent cause of
action, but  rather is a legal concept used to transfer liability from
an  agent to a principal at trial." Young v. 1st American Fin. 
Servs., 977 F. Supp. 38 (D.D.C. 1997). In the absence of  agent
liability, therefore, none can attach to the principal.


For the foregoing reasons, the judgment of the district  court is


Affirmed.