9850105, Aguiar v. Frenzilli, Final Decision
CASE NO. 9850105
Commission on Human Rights and Opportunities ex rel. Aguiar, Deborah & Raymond Jr. Complainants
Frenzilli, Nancy & Ralph Respondents
January 14, 2000
I Preliminary Statement
A Hearing in Damages ("Hearing") on the above-captioned matter was held on September 21, 1999 at 10:00 a.m. pursuant to an Order of Default dated July 1, 1999 against the Respondents for failure to answer and failure to appear at the hearing conference. The Order of Default established liability of the Respondents for discrimination against the Complainants. Attorney Robert J. Kor appeared on behalf of the Complainants. Assistant Attorney General David Teed appeared on behalf of the Commission on Human Rights and Opportunities ("Commission"). The Respondents did not appear at the Hearing. Since liability has been determined, I will only address damages. On November 24, 1999, the Commission and the Complainants’ filed a Joint Post Hearing Memorandum ("Commission and Complainant brief"). The Complainants requested an award for emotional distress damages in the amount of $50,000 each plus pre-and post-judgment interest as well as attorney fees with pre-and post-judgment interest.
The Complainants are Deborah and Raymond Aguiar, Jr. who reside at 128 Country Club Road, Apt. A, Cheshire, CT 06410. The Commission is located at 21 Grand St., Hartford, CT 06106. The Respondents are Nancy and Ralph Frenzilli who reside at 2319 Gainesborough Loop, Sun City Center, FL 33573.
III Procedural History
On May 28, 1999, Deborah Aguiar ("Complainant wife") and Raymond Aguiar, Jr. ("Complainant husband") filed a complaint with the Commission alleging that the property owners, Ralph Frenzilli ("Respondent husband") and Nancy Frenzilli ("Respondent wife"), discriminated against them in the rental of a home because of their family status, (family with minor children), in violation of General Statutes § 46a-64c et seq. and Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments of 1988 as enforced through General Statutes § 46a-58(a). The Commission investigated the allegations of the complaint affidavit, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on April 1, 1999, in accordance with General Statutes § 46a-84(a). I entered an Order for Default on July 1, 1999 and the Hearing was held on September 21, 1999. All statutory and procedural prerequisites necessary for the Hearing have been satisfied and this complaint is properly before me for decision.
IV Procedural Facts
- On April 15, 1999, the Notice of Public Hearing was mailed to all parties notifying them that a public hearing would commence with a hearing conference to be held on May 6, 1999 at 11:00 a.m. Commission Exhibit 1.
- On April 20, 1999, the Complainants filed a motion to reschedule the hearing conference. After hearing no objection by the parties, on May 5, 1999, I granted the motion to reschedule and the hearing conference was held on May 10, 1999. Commission Exhibit 4-6.
- On May 10, 1999, Attorney Teed appeared for the Commission, Attorney Kor appeared for the Complainants and the Respondents did not appear. Commission Exhibit 7.
- On May 14, 1999, the Complainants filed a motion to default the Respondents for failure to file an answer and for failure to appear at the hearing conference scheduled for May 6, 1999 or the hearing conference scheduled for May 10, 1999. I granted the motion for default and ordered the Hearing be held on September 10, 1999. Commission Exhibit 8.
- On July 20, 1999, Complainants filed a request to reschedule the Hearing which I granted and rescheduled for September 21, 1999. The Respondents did not object. Commission Exhibit 17.
- On July 10, 1999, the Respondents filed letters which were construed as a motion to open default. On August 31, 1999, I denied the motion to open default and ordered that the Hearing be held on September 21, 1999. Commission Exhibit 12, 17 and 20.
- On July 30, 1999, the Respondents filed a motion for dismissal. On August 27, 1999, I denied the motion for dismissal. Commission Exhibit 16 and 19.
- On September 6, 1999, the Respondents filed another motion for dismissal, which was denied, on the record at the Hearing on September 21, 1999. Commission Exhibit 21.
- The Respondents were given proper notice of the complaint, the Motion for an Order of Default, the Order of Default, and the Notice of the Hearing in Damages. Commission Exhibits 1-3 and 8.
V Findings of Fact
- The liability of the Respondents for violations of law alleged in the complaint was established pursuant to the Order of Default. Commission Exhibit 8.
- The Respondents discriminated against the Complainants in regard to their familial status because the Complainants have two small children, under the age of six years old at the time of the complaint. Complainant Exhibit 1, Tr. at 32, 33, 55 and 56, Commission Exhibit 3.
- The Complainant wife read a newspaper advertisement in the Cheshire Herald dated April 23, 1998 for the rental of a home. Tr. at 27 and Complainant Exhibit 1.
- On April 23, 1998, the Complainant husband called the telephone number in the advertisement and spoke with the Respondent wife who told him that she would contact him when the current tenants moved out. Tr. at 31, 52 and 53.
- On May 4, 1998, the Complainants drove by the advertised home and saw a "For Rent" sign posted. Tr. at 55.
- The Complainant husband, while alone in the bedroom, called the telephone number posted on the sign which was the same number in the advertisement and spoke with the Respondent wife. She asked him if he had any children under the age of six years old. He replied, "yes" and Respondent wife told him that she could not rent the home to him because the house may have lead paint and it is illegal to rent to people with children under six. Tr. at 32, 55, 56 and 65.
- The Complainant husband was shocked after speaking with the Respondent wife and felt angry and embarrassed when he told his wife the results of his conversation. Tr. at 56, 57 and 58.
- After being told of the conversation, the Complainant wife’s heart sank and she did not believe what she had heard. The next day without identifying herself, she contacted the Respondent wife to ask if the house was still available to rent. The Respondent wife asked Complainant wife if she had children. The Complainant wife stated, "yes" and that she had a one and a two-year-old. The Respondent wife stated that she could not rent the house to her because the house may have lead paint in it and that it was illegal to rent to families with children under the age of six. The Complainant wife was very upset after this conversation. Tr. at 33.
- The Complainants felt violated in that due to the Respondent’s discrimination they were unable to provide their family with better living conditions. Tr. at 43.
- Subsequently, the Complainants read another advertisement dated May 7, 1998 for the rental of the same house which explicitly stated "no children under six." Tr. at 67.
- As a result of the Respondents’ discrimination, the Complainants were not allowed the opportunity to apply to rent this single family home, which is a private residence with a private yard. Tr. at 44 and 54.
- The Complainants were forced to remain living in a sixteen-unit apartment complex with ten garages and much traffic in the driveway. Tr. at 27 and 28.
- The Complainants were deprived of better living conditions, including, among other things, an extra bedroom for the children, a safer yard where they could leave their toys outside and constantly not having to supervise the children as they play. Tr. at 52, 54, 72 and 73.
- The Complainants are forced to live in a situation where they must constantly discipline the children for being too loud and where they are awakened constantly by noisy tenants. Tr. at 59.
- The Complainants tried to find other suitable homes with a monthly rent under $1,200.00, but were unsuccessful. Tr. at 46 and 47.
- As a result of the Respondents’ discrimination, the Complainants were extremely upset and frustrated while trying to find other homes and they experienced much tension between themselves and more frequent arguments at home. Tr. at 34 and 35 and 40.
- As a result of the Respondents’ discrimination, the Complainant wife experienced crying spells, an increase in appetite and she succumbed to eating binges causing an increase in her weight. Tr. at 42 and 50.
- As a result of Respondents’ discrimination, the Complainants experienced embarrassment and humiliation when having to explain to relatives and friends, whom they had previously informed, that the home that they had found and were so excited about renting, was now unavailable to them because they had children. Tr. at 42 and 58.
- The home is located five residences from their current residence and they drive by it regularly to and from their apartment complex which forces them to view the home and the current owners everyday. The Complainants felt a great deal of distress and frustration as a result. Tr. at 32, 34, 39, 59 and 60.
- The Complainants suffered and continue to suffer emotional distress as a result of the discriminatory practices of the Respondents.
The Order of Default in this case established that the Respondents violated General Statutes §§ 46a-58, 46a-64c and 42 USC § 3601 et seq. General Statute § 46a-86(c) expressly authorizes the Human Rights Referee to award emotional distress damages in housing cases as compensatory damages and to order such relief as is necessary to eliminate the discriminatory practice and make the complainants whole.
The issue before me is to determine the amount to award for emotional distress damages based on the facts of the present case.
The court in Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Norwalk, Docket No. CVNO8806-1209 (Nov. 8, 1988) agreed with the usage of the factual analysis articulated in Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, No. 7930433 (June 3, 1985) which was again utilized in Commission on Human Rights and Opportunities, ex rel. Lynne Thomas v. Samuel Mills, No. 9510408 (Aug. 5, 1998) to determine the amount of emotional distress damages in a particular case. In Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Eva Belinsky, supra, 7, the court found "the excellent discussion in CHRO ex rel. Harrison vs. Greco Id. (at p.6-10) on emotional distress awards to be persuasive." I will use it as a guide in the present case to determine the amount of emotional distress damages.
"Awarding humiliation and mental distress damages would deter discrimination and encourage filing complaints, particularly in the housing area where actual out-of-pocket damages are often small." Commission on Human Rights and Opportunities, ex rel. Donna Harrison v. John Greco, supra, 13. The following are factors which the courts and administrative officers have found relevant in determining the amount to award for humiliation and emotional distress damages. Id at 15.
1. Factors of the Harrison Analysis
First, "the most important factor of such damages is the subjective internal emotional reaction of the complainant[s] to the discriminatory experience which [they] ha[ve] undergone…" (Id. at 15, citing Smith v. Anchor Building Corp., 536 F. 2d 344 (7th Cir. 1971)) and whether the reaction was intense, prolonged and understandable. Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra, 7. Second, is whether the discrimination occurred in front of other people. Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra, 15, citing Commission on Human Rights and Opportunities vs. Lampost Inn, 1 CHRR 1685 (1979) and Seaton vs. Sky Realty Co., Inc., 491 F. 2d 634 (7th Cir. 1974). For this we must consider if the discriminatory act was in public and in the view or earshot of other persons which would cause a more intense feeling of humiliation and embarrassment.
The third and final factor is the degree of the offensiveness of the discrimination and the impact on the Complainant. Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra, 15, citing Commission on Human Rights and Opportunities vs. Rhana Pippins, 1 CHRR 1617 (1980); and Seaton vs. Sky Realty Co., Inc., supra. In other words, was the act egregious and was it done with the intention and effect of producing the maximum pain, embarrassment and humiliation. Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra, 8. It is important to also consider further factors that exacerbate the emotional distress suffered by the Complainants. Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra, 17. These further factors are consequences arising from the discrimination.
2. Higher Awards
It has been well documented that discrimination in housing cases has produced a wide array of emotional distress awards ranging from $1,500 to $75,000 in Connecticut. The larger awards in the past five years stem from a majority of cases where the discrimination was prolonged over a certain period of time and/or the discrimination was highly offensive and egregious and perpetrated in the presence of others who heard or saw the acts. See Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra; Commission on Human Rights and Opportunities, ex rel. Nildal Planas v. Bronislaus Bierko, No. 9420599, (Feb. 8, 1995); Commission on Human Rights and Opportunities ex rel. Susan Maybin v. Tina Berthiaume, No. 9950026, (March 29, 1999); and Commission on Human Rights and Opportunities ex rel. Victoria Nelson v. David Malinguggio, No. 9740155, (June 10, 1995).
In Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra, the complainant was awarded $25,000.00 in emotional distress damages. She experienced great humiliation, embarrassment and fear. The discriminatory acts were done in public and over a course of months. The discriminatory acts were highly offensive and egregious in that the complainant was threatened, disgraced, ridiculed and injured by the respondent. The complainant avoided all contact with the respondent who also infringed on her civil duties as a voter. Ultimately, the complainant purchased a gun to protect herself. In Commission on Human Rights and Opportunities ex rel. Nildal Planas v. Bronislaus Bierko, supra, the complainant was awarded $75,000 in emotional distress damages. She was in a state of emotional turmoil and prayed in church at length throughout the entire three years that the discrimination occurred. The discrimination was done in public. The complainant experienced racial slurs, hate mail, false complaints filed against her, hate signs posted on her property and negative comments made to her neighbors and priest by the respondent. The complainant was forced to put her house on the market, to change churches and to stop serving as a minister.
In Commission on Human Rights and Opportunities ex rel. Susan Maybin v. Tina Berthiaume, supra, the complainant was awarded $50,000.00. She was placed in fear. The discriminatory act was done in public. The complainant experienced racial slurs towards her and her family by the respondent. The complainant and her family were afraid to leave the house; the children experienced nightmares; their schoolwork suffered; and the complainants sought medical assistance. In Commission on Human Rights and Opportunities ex rel. Victoria Nelson v. David Malinguggio, supra, the complainant was awarded $15,000.00. The complainant suffered extreme emotional distress. The discriminatory act was done in public. The respondent made derogatory statements and remarks about the complainant and her children. Ultimately, the complainant moved her residence.
3. Lower Awards
On the other hand, where the discriminatory acts were perpetrated in a single incident, were not highly offensive and were not done in the presence of others, the emotional distress awards in the majority of these cases have been at the lower end of the spectrum. See Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Eva Belinsky, supra; Chestnut Realty Inc. v. Commission on Human Rights and Opportunities et al, 201 Conn. 350 (1986); and Commission on Human Rights and Opportunities, ex rel. Harris v. Tamburo, No. 8020257, (October 17, 1983). In Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, supra, the complainant was awarded $3,500.00. The complainant was shocked and fairly upset and experienced pain, humiliation and embarrassment. The discriminatory act was not done in public. The respondent told the complainant that the apartment was for rent and then after seeing the complainant, the respondent told him that it was unavailable. The complainant suffered three months of aggravation because he had to live with his sister and sleep on the couch and was unable to perform his work responsibilities.
In Chestnut Realty Inc. v. Commission on Human Rights and Opportunities et al, supra, the complainant was originally awarded $2,000.00, but the case ultimately was remanded to the Commission and the parties entered into a stipulated agreement. The complainant was upset, shocked and humiliated. The discriminatory act was not done in public. The respondent had shown complainant a piece of property for sale and when the complainant’s agent tried to give the respondent a deposit, the respondent would not contract to sell the property because the complainant was black. The complainant was distressed and had to build a home that was further from his job. In Commission on Human Rights and Opportunities, ex rel. Harris v. Tamburo, supra, the complainant was awarded $2,500.00. The complainant was shocked. The discriminatory act was not done in public. The respondent’s agent took the complainant’s deposit and entire rent for an apartment and then the landlord told the agent to tell the complainant that he could not rent the apartment to him because he was black. The complainant had to stay in a hotel.
The Complainant and the Commission cite to Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra, as authority to warrant an award here of $50,000. The present case is no comparison for Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra; Commission on Human Rights and Opportunities, ex rel. Nildal Planas v. Bronislaus Bierko, No. 9420599, (Feb. 8, 1995); or Commission on Human Rights and Opportunities ex rel. Susan Maybin v. Tina Berthiaume, No. 9950026, (March 29, 1999), which are all cited by the Complainant and the Commission in their post hearing brief. See Commission and Complainant brief at 3 and 5. The Complainant and the Commission state that the law and facts of the aforementioned cases easily support a large award in the present case. See Commission and Complainant brief at 5. The circumstances in the aforementioned cases as I previously articulated earlier were far more harmful than the circumstances in the present case. In those cases, the actual discriminatory acts were highly egregious, repeated over a course of time and were committed in the presence of others. These are the factors that increase the value of the emotional distress damages, but they are not present in the instant case.
The Complainant and the Commission urge that I be guided by significant awards of higher amounts in federal cases. Commission and Complainant brief at 3 and 4. Even though the awards were high in certain federal cases, those federal courts still stressed the importance of appropriately valuing the emotional distress injuries with the award. The award should be in line with the injury. See Shannon Broome et al. v. Nicholas Biondi et al., 17 F. Supp. 2d 211 (S.D.N.Y. 1997). It is helpful to view similar cases when assessing the award, but in Shannon Broome et al v. Nicholas Biondi et al., supra, 223 citing Schramm v. Long Island R.R. Co., 857 F. Supp 255 (E.D.N.Y. 1994), the court states that "in viewing these similar cases, however, the court should take into consideration plaintiff’s particular injuries and the unique circumstances of [the] case." Also, in Schneider v. National R.R. Passenger Corp., 987 F 2d 132, 137 (2nd Cir. 1993), the court rejected proffered comparable cases because they did not involve injuries as severe or long lasting as plaintiff’s.
In Shannon Broome et al. v. Nicholas Biondi et al., supra, there was testimony of direct evidence of racial discrimination. The injuries and evidence which were considered in granting the award in Broome were different than in the present case. Here, the discrimination was not as direct and conspicuous which if so would allow an inference of emotional injury in addition to allowing actual evidence of emotional injury proffered as in Broome. "The amount of mental anguish damages assessed must specifically compensate only the injury proved." Lorraine Cullen v. Nassau County Civil Service Commission et al, 442 N.Y.S. 2d at 473, (2nd Cir. 1981).
"The large variation in compensatory awards underscores the Second Circuit’s observation that courts determining emotional damages must make wholly speculative judgments as to credibility, to separate the genuine from the baseless." Shannon Broome et al. v. Nicholas Biondi et al., supra, 225 citing Ragin v. NY Times Co., 923 F. 2d 995 (2nd Cir. 1991). "Therefore, in the midst of these seemingly capricious determinations, the court must rely primarily on case specific facts relating to the severity of the discriminatory behavior and duration of resulting emotional damage." Shannon Broome et al v. Nicholas Biondi et al., supra, 225. The Complainants testified as to how they felt in the past as a result of the discrimination, but they did not provide evidence as to the duration of those feelings and injuries. Tr. at 42. I do find that the Complainants are credible in that they sustained emotional distress but I do not find that the injuries suffered were fully supported by the evidence to warrant high awards. The Complainants did suffer some emotional distress, however, not severe. I do not find the evidence to support injuries of embarrassment and humiliation, but merely that the Complainants were angry and upset.
- Subjective Internal Emotional Reaction
Here, the discriminatory act was a telephone call in which the Complainants were told that the Respondents could not rent to them because they had children under six years old and the house may have lead paint. Tr. at 32, 55, 56 and 65. The Complainant wife’s testimony of her subjective internal emotional reaction was that she was hurt and in disbelief. Tr. at 33. The Complainant husband’s testimony of his subjective internal emotional reaction was that he was angry, embarrassed and shocked. Tr. at 56-58. If the Respondent wife’s actions on the telephone were inherently degrading or humiliating then it would be more reasonable for me to infer that the Complainants suffered humiliation or distress from that action and the conclusory evidence testified to by the Complainants would be more acceptable. See United States v. Balistrieri, 981 F. 2d 916 (7th Cir. 1992). The Respondent wife’s actions were not inherently degrading and the Complainants did not testify that they were humiliated from the Respondent wife’s actions on the telephone but that they were upset, angry and shocked. Therefore, I can only put but a minimal amount of weight on the Complainants’ summarized testimony as to their emotional distress.
b) Public Display
The discriminatory act did not occur in public in front of other people. The Commission and the Complainants posit that the discriminatory act satisfies the second element in the Harrison analysis, because it was a public act, stated out loud by the Respondent wife and because it was posted in the newspaper. Commission and Complainant Brief at 3. The Respondent wife did make the discriminatory statement out loud, but it was not in public for others to see or hear. The Complainant wife was the only one in the room at the time of the telephone call and no one else was on the telephone besides the Respondent wife and the Complainant wife. Also, when the Complainant husband contacted the Respondent wife, he was the only one in the room and no one else was on the telephone other than him and Respondent wife. The newspaper advertisement is a document written to be read by the public, but unless it is read by more than one person in the presence of those persons it can not be construed under the Harrison analysis as being a discriminatory act done in public and which caused increased emotional distress to the Complainants.
In Luther M. Ragin Jr., et al., v. Harry Macklowe Real Estate Co. et al., 6 F.3d 898 (2nd Cir. 1993), the plaintiffs were awarded emotional distress damages of $2,500.00 each because of the emotional distress they sustained after individually viewing a newspaper advertisement depicting only whites as tenants of an apartment complex rented mostly by blacks. The plaintiffs did not view the advertisement in public, in front of other people, but their individual emotional distress sustained from the viewing of the advertisement warranted recovery.
While it is a found fact that the Respondents placed an advertisement in the newspaper dated May 7, 1999 soliciting the rental of their home and eliminating applicants with children under the age of six, the Complainants did not testify to the effect of that advertisement on their emotional state when they read the advertisement. Tr. at 67. They testified that the second advertisement for May 7, 1998 included the statement "no children under six", but the Complainants provided no testimony as to how they felt when they read this advertisement. Tr. at 67. Also, any viewers of the advertisement were not aware that the discrimination was intended directly toward the Complainants to cause them pain, humiliation or embarrassment.
Here, the newspaper advertisement may have been a "public display of discrimination", but according to the lack of testimony there is no causal connection between the discriminatory act of the May 7, 1999 newspaper advertisement and the emotional distress of the Complainants. Tr. at 67. In order to recover for emotional distress regardless of the severity when the discrimination is public, the Complainants would have to show that they were affected by it. The Complainants did not show that they were affected by the advertisement, but testified that they were affected by the private telephone calls.
When the discriminatory act is perpetrated in public, there is a certain expectation that embarrassment or humiliation will occur as a result increasing the emotional distress of a complainant. The award of damages for emotional distress and mental anguish in civil rights cases as a result of a public display must be based on a finding that the complainant actually suffered "embarrassment, humiliation, mental anguish and emotional shock, not merely that she was upset or distressed". Commission on Human Rights and Opportunities ex rel. Valerie Cohen v. Lampost Inn et al, No. 7920085 at 10, (Oct. 13, 1980), citing Browning v. Slenderella Systems of Seattle, 341 P. 2d 859, 1959.
The discriminatory statements were not made to the Complainants in the presence of or within the earshot of any other persons. Any embarrassment, pain or humiliation felt on the part of the Complainants is greatly limited. The embarrassment and humiliation that Complainants testified to was partly caused when the Complainants themselves told their relatives and friends about the possibility of renting a home which they had not applied for yet or viewed and then had to tell those same people about the discrimination. Tr. at 42 and 58. Also, Complainant husband testified that he felt embarrassed when he had to explain the situation to his wife. Tr. at 58. This type of embarrassment, which was not felt due to a public display, is not the "embarrassment" contemplated under the second factor of the Harrison analysis. As stated in Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, supra, 7, "[t]he absence of such a public display of discrimination in this case is the sole reason for reducing the award to $3,500, from the requested amount of $5,000". This is not to say that the Complainants did not experience emotional distress, but their damages are limited.
c) Offensiveness and Impact
The discriminatory act was not highly offensive or egregious. In the present case, the discriminatory act was two statements over the telephone, one being made to the Complainant wife and the other to the Complainant husband. The statements were very similar. The Respondent wife told the Complainants that she could not rent the home to them because they had children and the home may have lead paint. Tr. at 32, 55, 56 and 65. This was testified to by both of the Complainants themselves. Tr. at 32, 55, 56 and 65. Unlike Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra, where the respondent asked the complainant her race and then told her that he could not rent to her because she was black, and used offensive language, here the Respondent wife asked if the Complainants had children and then stated that she could not rent to them because the house may have lead paint. Tr. at 32,55,56 and 65. When considering this statement, I don’t find the degree of offensiveness being at a high level. Instead, the degree of offensiveness seems to be minimal. It lacks the intent and effect of producing the maximum pain, embarrassment and humiliation. Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra, 8.
Even though the Respondents were found liable for a discriminatory act, the act itself was accompanied by an explanation, which was not derogatory in nature. This is unlike the aforementioned cases where the respondents gave no possible legitimate explanation and were strictly offensive. See Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra; Commission on Human Rights and Opportunities ex rel. Nildal Planas v. Bronislaus Bierko, supra; Commission on Human Rights and Opportunities ex rel. Susan Maybin v. Tina Berthiaume, supra; and Commission on Human Rights and Opportunities ex rel. Victoria Nelson v. David Malinguggio, supra. In those cases, the respondents made derogatory statements toward the complainants, were verbally abusive, encouraged others to be verbally abusive and clearly stated that the reason was because of race, religion or sexual preference.
Here at the Hearing, in response to the question, "she was just flat out saying, you’ve got two small children, I won’t rent to you?" the Complainant husband testified, "Exactly…" Tr. at 58. This testimony is contrary to the testimony of both the Complainant husband and wife. The Respondent wife did not say "oh no I can’t rent to you because of the children" and left it at that, she continued by claiming a concern for the illegality of children living in a home where this is lead paint. Tr. at 32, 55, 56 and 65. This discriminatory act cannot be viewed as being offensive, derogatory or egregious, but instead, maybe confusing and legally incorrect.
The negative impact on the Complainant wife was that she experienced eating binges, crying spells, became more stressed, and argued more with her spouse. No testimony was provided as to the duration of these conditions. The Complainant wife also testified that she and her spouse felt violated. Tr. at 43. The impact on the Complainant husband was that of anger and frustration which caused increased tension and arguments in the relationship. Tr. at 60 and 66-67. The Complainant husband did not take off any days of work because of any effects of the discrimination. Tr. at 61. He did come home early one day, because his wife was upset. Tr. at 61-63. Although, the Complainants testified that they were upset, felt violated, frustrated, angry and shocked, they essentially went on with their lives as usual and continued to search for other homes. The discriminatory act did not discourage them to the extent that they could not continue to seek other rentals or continue with their daily life activities. Tr. at 46-49.
The court in Luther M. Ragin Jr., et al., v. Harry Macklowe Real Estate Co. et al., supra, 908, states that the factors in determining severe emotional distress are manifested when the complainant is "inhibited or deterred by the [discriminatory] experience from seeking housing wherever desired and sustain[s] depression affecting the relationship, ability to work or to function." This doesn’t seem to be the case here. The Complainants are living under the same conditions, which were present prior to the discrimination. Although, the Complainant wife had experienced weight gain and crying spells, essentially the Complainants are functioning as a family. The Complainants did not sustain severe emotional distress that caused them not to function in their daily lives.
d) Consequential Factors
Other additional factors to take into account when determining the amount of emotional distress awards are the consequences of the discrimination. These factors exacerbate the distress caused from the discrimination. Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra, 17.
Here, the discriminatory acts occurred in April 1998 and May 1998, therefore for approximately one and one half years the Complainants have had to drive by the "perfect home" and felt upset and frustrated for not being able to live there. See Tr. at 34 and 60. The Complainants have tried to rent other homes, but they are limited to the amount of rental payments they can undertake. The Respondents’ home was only $850.00 per month to rent, which was well within the Complainants price range. Tr. at 47. They can only afford a house under $1,200.00 per month. Tr. 44. There are very few homes in Bristol renting below $1,200.00 per month and when the Complainants found one, it was usually already rented. Tr. at 44-47. The emotional reactions intensify as time passes and the Complainants are still not able to find another affordable home. This case is distinguished from Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, supra, in that Mr. Peoples did not have to drive by everyday and see the home which he was denied the opportunity to rent. This sole factor intensifies the impact on the Complainants by increasing the distress felt by the Complainants. This factor aids in carrying some of the weight for the weaknesses of the second and third factors of the Harrison analysis.
The factors from the Harrison analysis that weigh the heaviest in this case are: whether or not the discriminatory act was committed in public, in the view or earshot of other people which would support embarrassment and humiliation; and the degree of offensiveness of the discriminatory act and the impact on the complainants as a result of the discriminatory act. That is not to say that I am not considering the other elements and factors, but I will weigh these factors the heaviest in determining the amount of emotional distress award.
I find that the Complainants are credible and therefore the evidence supports the findings that the Complainants sustained emotional distress, however, which was neither severe nor long in duration. Here, the Complainant wife experienced distress and disbelief. The Complainant husband experienced anger and shock. The discriminatory act was not done in public, not in the earshot or view of others, the level or degree of offensiveness was not high at all, but quite subtle and inconspicuous. The impact on the Complainant wife was manifested by crying spells, eating binges, stress and feelings of frustration and violation. The impact on the Complainant husband was that of anger, frustration, violation and stress. The consequential factors were that of having to remain in the sixteen-unit apartment complex with no privacy and the stress of constantly watching the children while they play outside and having to be woken up early by noisy neighbors, but these are the same conditions and circumstances which were present prior to the discrimination and therefore have not added drastically to consequences of the discrimination.
Additionally, the Complainants still live five houses from the home that they were denied to rent and therefore, they drive by the home on their daily route. Having to see the house everyday causes more distress being that the Complainants remain in their current living situation. It is no doubt that the Complainants have suffered emotional distress, but in total the amount of severity of the emotional distress is lacking and therefore the damages requested are reduced significantly from the total of $100,000 to the actual total award of $11,000. The following affirmative relief and damages are awarded.
IX Attorney Fees
The Complainants have filed a Motion for Attorney’s fees, Memorandum of Law dated November 24, 1999 and supporting affidavits requesting an award of attorney’s fees. A copy of these documents was served by mail on the Respondents who responded with corrections to the attorney fees calculation. The applicable statute, § 46a-86(c), clearly mandates the award of attorney fees and costs if a discriminatory practice is found, as in this case. I agree with the rationale of the well-prepared Memorandum of Law and award the total attorney’s fees of $ 8,236.25 to the Complainants for the reasons set forth in the Memorandum of Law in support of the Complainants’ Motion for Attorney’s Fees.
SO ORDERED this ____ day of January, 2000 at Hartford, Connecticut.
Hon. Donna Maria Wilkerson
Presiding Human Rights Referee
c.: AAG David Teed
PO Box 120
55 Elm St.
Hartford, CT 06141-0120
Attorney Robert Kor
81 South Main Street
West Hartford, CT 06107
Ralph and Nancy Frenzilli
2319 Gainesborough Loop
Sun City Center, FL 33573
Deborah and Raymond Aguiar Jr.
128 Country Club Road, Apt. A
Cheshire, CT 06410
Ann Galer Pasternak
21 Grand Street, 3rd Floor
Hartford, CT, 06106
Deputy Commission Counsel
21 Grand Street, 4th Floor
Hartford, CT, 06106