Banks and Hansberry v. Eddie Eckhaus and Longhill Real Estate, Final Decision
CASE NO. 0250115 and 0250114
Commission on Human Rights and Opportunities ex rel. Shirley Banks, Phyllis Hansberry, Complainants
v.
Eddie Eckhaus and Longhill Real Estate, Respondents
May 23, 2003
FINAL DECISION
I Preliminary Statement
A Hearing in Damages ("Hearing") on the above-captioned matter was held on March 5, 2003 at 1:00 p.m. pursuant to an Order of Default dated December 18, 2002 against the Respondent, Eddie Eckhaus for failure to answer the complaint and failure to appear at the hearing conference. The Order of Default established liability of the Respondent for the discrimination alleged against the Complainants, Shirley Banks and Phyllis Hansberry. Attorney Amy Eppler-Epstein appeared on behalf of the Complainants. Assistant Commission Counsel II Alix Simonetti appeared on behalf of the Commission on Human Rights and Opportunities ("Commission"). The Respondent did not appear at the Hearing. Since liability has been determined, I shall only address damages. At the Hearing, the Complainants submitted Complainant Exhibits B1, H1 and the Affidavit of Phyllis Hansberry in support of an award for damages. Shirley Banks requested $16,500 for emotional distress damages and $2,262 for actual damages. Phyllis Hansberry requested $17,000 for emotional distress damages and $6,608.94 for actual damages. Complainants' attorney also requested an award for attorney's fees. Complainant Exhibit H4.
II Parties
The Complainants are Shirley Banks and Phyllis Hansberry. Shirley Banks resides at 240 Division St., New Haven, CT 06511 and Phyllis Hansberry resides at 436 Huntington St., New Haven, CT 06511. The Commission is located at 21 Grand St., Hartford, CT 06106. The Respondent is Eddie Eckhaus who resides at 510 Fountain St., New Haven, CT 06515.
III Procedural History
On March 22, 2002, Phyllis Hansberry ("Complainant
Hansberry") and on March 20, 2002, Shirley Banks ("Complainant
Banks") filed a complaint with the Commission alleging that the property
owner, Eddie Eckhaus ("Respondent") and his real estate agent,
Longhill Real Estate discriminated against them in the rental of a home on the
basis of their lawful source of income (Section 8 voucher) and engaged in
discriminatory public advertising1 in violation of General Statutes § 46a-64c
et seq. On July 15, 2002, the Complainants filed an amended complaint to delete
the named Respondent, Longhill Real Estate. 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 complaints were certified to public hearing on October
28, 2002, in accordance with General Statutes § 46a-84(a). I entered an Order
for Default on December 18, 2002 and the Hearing was held on March 5, 2003. All
statutory and procedural prerequisites necessary for the Hearing have been
satisfied and this complaint is properly before me for decision.
References made to the Findings of Facts shall be noted as
"FF." with the corresponding number. References made to the transcript
pages shall be noted as "Tr. at" with the corresponding page number.
References made to the Complainant Banks' Exhibits shall be noted as Complainant
Exhibit "B" with the corresponding number. References made to the
Complainant Hansberry's Exhibits shall be noted as Complainant Exhibit
"H" with the corresponding number. References made to the Commission's
Exhibits shall be noted as "CHRO" Exhibit with the corresponding
number. On March 18, 2003, the Complainants' attorney submitted additional
documents in response to my request and these exhibits were made part of the
record. They have not been marked and shall be referred to by their title or
description.
IV Procedural Facts
1. On October 30, 2002, the Notice of Public Hearing was mailed to all parties in the Shirley Banks case notifying them that a public hearing would commence with a hearing conference to be held on November 15, 2002 at 9:30 a.m. CHRO Exhibit 3. On October 30, 2002, the Notice of Public Hearing was mailed to all parties in the Phyllis Hansberry case notifying them that a public hearing would commence with a hearing conference to be held on November 25, 2002 at 9:30 a.m. CHRO Exhibit 6.
2. On November 13, 2002, the Commission filed a motion to consolidate the two cases and a motion to reschedule the hearing conferences. There being no objection by the other parties, on November 13 and 20, 2002, notices were sent to the parties rescheduling both hearing conferences to December 2, 2002. Record Exhibit. On November 29, 2002 the motion to consolidate was granted. CHRO Exhibit 8.
3. On December 2, 2002 at the hearing conference, Attorney Hopkins2 appeared for the Commission, Attorney Eppler-Epstein appeared for the Complainants and the Respondent did not appear.
4. On December 4, 2002, the Complainants filed a motion to default the Respondent for failure to file an answer to the complaint and for failure to appear at the hearing conference scheduled for December 2, 2002. CHRO Exhibits 9 and 10. The motion for default was granted and an order was entered that the Hearing be held on March 5, 2002. CHRO Exhibit 11.
5. The Respondent was 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. CHRO Exhibit 12.
V Findings of Fact
1. The liability of the Respondent for violations of law alleged in the
complaint was
established pursuant to the Order of Default. CHRO Exhibit 9.
2. The Respondent discriminated against the Complainants in regard to their lawful source of income on the basis that both Complainants received section 8 vouchers. CHRO Exhibit 1 and 4.
3. At the time the complaint was filed, Complainant Banks with her four children resided at 81 Rockview Circle, New Haven, CT, a public housing project owned by the Housing Authority. CHRO Exhibit 1 and Tr. at 8.
4. The Housing Authority was preparing to demolish the Rockview Circle public housing project. In order to assist Complainant Banks in relocating, she was given a section 8 voucher that permitted her to rent an apartment not exceeding $1,563 per month. CHRO Exhibit 1 and Tr. at 8.
5. Complainant Banks saw an advertisement in the New Haven Register for a rental apartment on Whalley Ave. in New Haven, CT, which was in a safer environment with better schools than where Complainant Banks was currently residing. CHRO Exhibit 1.
6. In January 2002, Complainant Banks, while in a room with her daughter, called the telephone number listed in the advertisement. She spoke with the Longhill Real Estate rental agent, Lydia. Lydia told Complainant Banks that the apartment was a 6 bedroom apartment, on the second and third floors of the building located at 638 Whalley Ave. CHRO Exhibit 1.
7. Complainant Banks told Lydia that she had a section 8 voucher. Lydia told her that she does not rent to section 8 recipients and that the owner would not accept the section 8 voucher. CHRO Exhibit 1.
8. Complainant Banks told Lydia that it was against the law to refuse her to apply for the apartment and Lydia told Complainant Banks that the owner had discretion to do what he wanted; that she was the agent working for the owner; and that she was doing what he instructed her to do and that he had instructed her not to accept "section 8". CHRO Exhibit 1.
9. At that time, Complainant Banks hung up the phone. Her "heart dropped" and she felt rejected. She told her daughter, who was present at the time, what had transpired on the telephone. CHRO Exhibit 1 and Tr. at 47.
10. It took 6 months for Complainant Banks to find and move into another apartment. Tr. at 9.
11. As a result of the Respondent's discrimination, Complainant Banks was extremely stressed while having to look for alternative housing. Tr. at 18. As a result of the Respondent's discrimination, Complainant Banks experienced increased stress, low self-esteem, and hair loss. CHRO Exhibit 1; Tr. at 13-15.
12. Eventually all other tenants in the Rockview Circle public housing project had moved and Complainant Banks was the only existing tenant. Tr. at 9. It was very dangerous, stressful and difficult for her and her family living there because many people parked their cars at Rockview Circle and participated in illegal activities. Tr. at 9; 13; and 49-52. Often the outdoor lights would break from gunshots, leaving the area dark. Tr. at 25-26. Frequently, she heard gunshots going off. Tr. at 49-51. The vacant buildings were boarded up. Tr. at 12 and Complainant Exhibit B2.
13. Complainant Banks was frightened for herself and her children. She did not go outside after dark. Some nights she would not sleep for fear of a burglar entering her home. She lost her hair from the stress and had to wear wigs. Tr. at 14-15. At times, she cried. Tr. at 18.
14. The interior condition of Complainant Banks' apartment was dreadful. They were forced to remain living in a neglected apartment which was roach infested, had paint peeling, holes in the kitchen floor and ceiling, missing doors and broken windows.3 Tr. at 39-40.
15. Complainant Banks continued diligently to find another apartment/home which would have five bedrooms and would accept the section 8 voucher. It took her approximately 6 months to locate the home, which she signed a lease for on July 5, 2002 and moved into on July 12, 2002. Complainant Exhibit B1; Tr. at 9 and 20. Once Complainant found a home, her stress subsided and her hair began to grow back. Tr. at 15.
16. The new home that she currently lives in now is very pleasing to Complainant Banks; she "loves it." Tr. at 44. It is between two churches and it is very quiet. Tr. at 44.
17. At one of the meetings at the Commission's regional office, Complainant Banks encountered the Respondent who when seeing the Complainants, stated that "if [they] weren't so lazy and if [they] got off of [their] butts and got a job [they] wouldn't have to worry about suing him for an apartment or for damages." Tr. at 16. It lowered her self esteem. No one else was present during this encounter.
18. Complainant Banks worked at the New Haven Board of Education until June 15, 2002. Letter from Carl S. Babb. Complainant Banks worked at the New Haven Board of Education for $9 an hour for approximately 10 hours per week. Tr. at 28-29.
19. As a result of the Respondent's discrimination, Complainant Banks was not allowed the opportunity to apply to rent Respondent's apartment, which would have been a possible opportunity to remove herself from an unsafe, perhaps crime infested and deteriorating situation.
20. The Respondent's apartment for rent was on Whalley Avenue, which was a well-lit area, with busy streets, in close proximity to shopping, and had better schools than where Complainant Banks was living. Tr. at 19. Complainant Banks did not have any rental cost information on the home that she attempted to rent from the Respondent, and therefore, does not claim a loss of rent differential. Tr. at 42-44.
21. At the time the complaint was filed, Complainant Hansberry and her five children resided at her parents' home at 25 Brooklawn Circle. Tr. at 58. Complainant Hansberry and her youngest child slept on the bed and her four other children slept on the floor in the guestroom of her parents' home. Tr. at 58-59.
22. On or about December 12, 2001, Complainant Hansberry contacted the Respondent's real estate representative, Lydia, to inquire about an apartment. CHRO Exhibit 4 and Tr. at 60. No one was present during this telephone conversation. Tr. at 61.
23. Lydia asked Complainant Hansberry whether she was "on section 8". Complainant Hansberry told her that she was receiving "section 8". Lydia informed Complainant Hansberry that "we don't take section 8". CHRO Exhibit 4 and Tr. at 78.
24. Complainant Hansberry felt bad as a result of this conversation. She felt "fed up," "emotionally messed up," she cried and was stressed, frustrated, and aggravated. Tr. at 60, 63, 70 and 72. She felt that she was being stereotyped. Tr. at 73.
25. Complainant Hansberry was hurt by the discriminatory act and felt as if she was being segregated and made to feel less of a person, an outcast. CHRO Exhibit 4.
26. Complainant Hansberry had to live in an over-crowded home where the six members of her family had to sleep in one bedroom. CHRO Exhibit 4 and Tr. at 58-59. It was difficult for her to return to her parents' home after so many years of being independent and she cried every night. Tr. at 93. She felt as if she was inconveniencing her parents and it caused stress for her. CHRO Exhibit 1 and Tr. at 93. She felt bad when her children asked her when they would be moving. Id.
27. Complainant Hansberry found another home in February 2002 but due to problems with rent negotiations did not move in to the home until July 17, 2002. Complainant Exhibit H1 and Tr. at 84.
28. On another occasion at a meeting at the Commission's regional office, Complainants Hansberry and Banks encountered the Respondent. Complainant Hansberry recalled that the Respondent told her to "get a job." Tr. at 82. She felt as if the Respondent was intimidating her and stereotyping her as being a "low-life." Tr. at 82. She was furious with him. She felt aggravated as a result of this comment. Tr. at 83
29. Complainant Hansberry experienced high blood pressure for approximately four years beginning in April 1998 but it was not altered any by the discriminatory act. Letter from Doctors Oen-Hsiao and Marieb.
30. After February 2002, Complainant Hansberry no longer diligently sought another apartment once she found the current one at 436 Huntington St., New Haven, CT. Complainant Exhibit H2 and Tr. at 85.
31. Complainant Hansberry took some time off from work from December through February to find a new home, but it is extremely unclear as to the actual amount of time spent searching for a home. Complainant Exhibit H2 and Tr. at 85-89. Complainant Hansberry drove her vehicle to search for homes, but it is unclear as to how many homes she searched for and during what time she did so. Tr. at 88-89.
32. Prior to moving to her parents' home, Complainant Hansberry paid $17 per month for rent at her former apartment. Tr. at 77.
33. Complainant Hansberry paid her mother $300 per month of which $150 was for the rent. The rental difference between $150 and $17 is $133. Affidavit of Gwendolyn Hansberry. Tr. at 77-79.
34. Complainant Hansberry incurred storage costs of $110 per month for seven months plus late fees of $45 from December 12, 2001 until July 17, 2002 and spent $7.99 each for 6 storage bins. Tr. at 92, 94; Stowaway Storage Customer Ledger and Affidavit of Phyllis Hansberry.
35. As a result of Respondent's discriminatory act, Complainant Hansberry experienced aggravation and stress. She incurred costs of storage and increased rent. Stowaway Storage Customer Ledger and Affidavit of Phyllis Hansberry. She had to remain living in stressful over-crowded conditions. Tr. at 58, 63 and 70.
VI Discussion
The Order of Default in this case established that the
Respondent violated General Statutes § 46a-64c et seq. General Statutes §
46a-86(c) expressly authorizes the undersigned Human Rights Referee to award
emotional distress damages and actual 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 and actual 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 use of the factual analysis articulated in Commission
on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, No.
7930433 (June 3, 1985), to determine the amount of emotional distress damages in
a particular case. See also Commission on Human Rights and Opportunities, ex rel.
Aguiar v. Frenzilli, No. 9850105, (January 14, 2000) and Commission on Human
Rights and Opportunities, ex rel. Lynne Thomas v. Samuel Mills, No. 9510408
(Aug. 5, 1998). 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." Commission on Human Rights and
Opportunities, ex rel. Aguiar v. Frenzilli, supra, 8. That criteria will be used
here to determine the award for 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." Id. 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.
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 9; see
also 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. Aguiar v. Frenzilli, supra, 8; see also
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). Consideration must be given to whether 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. Commission on Human
Rights and Opportunities, ex rel. Aguiar v. Frenzilli, supra, 9. In other words,
whether the Respondent discriminated against the Complainants in front of third
parties. Johnson v. Hale, 13 F.3d 1351, 1354 (9th Cir. 1994).
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. Aguiar v. Frenzilli, supra, 9; see also
Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John
Greco, supra, at 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, whether the act was 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. Aguiar v. Frenzilli,
supra, 9. 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. Aguiar v. Frenzilli, supra, 9, citing Commission on Human
Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra, 17. These
further factors are consequences arising from the discrimination. Id. at 10.
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. Commission on Human Rights and Opportunities, ex rel. Aguiar v. Frenzilli, supra, 10. 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. Id. at 10; see also Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra; Commission on Human Rights and Opportunities, ex rel. Nilda 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).
3. Lower Awards
On the other hand, where the discrimination arose from a single incident, was not highly offensive and was 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. Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, supra, 12. See also Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Eva Belinsky, supra; Chestnut Realty Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350 (1986); and Commission on Human Rights and Opportunities, ex rel. Harris v. Tamburo, No. 8020257, (October 17, 1983). It is here, where I find the Complainants' case to be. The present case is similar to Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, supra, where the complainant was awarded $3,500. 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 was shocked and fairly upset and experienced pain, humiliation and embarrassment. The discriminatory act was not done in public. In addition, 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.
4. Analysis of Emotional Distress Damages
The present case does not warrant a high award. In Commission on Human Rights
and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra; Commission on
Human Rights and Opportunities, ex rel. Nilda Planas v. Bronislaus Bierko, No.
9420599, (Feb. 8, 1995); and Commission on Human Rights and Opportunities ex rel.
Susan Maybin v. Tina Berthiaume, No. 9950026, (March 29, 1999), 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. See Commission on Human Rights and Opportunities, ex rel. Aguiar
v. Frenzilli, supra, 13.
Federal courts have stressed the importance of appropriately valuing the
emotional distress injuries with the award and the award should be in line with
the injury. Id. at 14. See also Shannon Broome. v. Nicholas Biondi, 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 v. Nicholas Biondi, 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." Commission on Human Rights and Opportunities, ex rel. Aguiar
v. Frenzilli, supra, 14. 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.
See Commission on Human Rights and Opportunities, ex rel. Aguiar v. Frenzilli,
supra, 14.
"The amount of mental anguish damages assessed must specifically compensate
only the injury proved." Id. citing Lorraine Cullen v. Nassau County Civil
Service Commission, 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." Commission
on Human Rights and Opportunities, ex rel. Aguiar v. Frenzilli, supra, 15.
"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." Id.
In the present case, the discriminatory behavior was not severe. Complainant
Banks' injuries were slightly intense and the impact was great in that she
experienced hair loss. Her hair began to grow back once she found another home,
which was approximately six months later. FF. 11 and 15. The stress and other
negative feelings that she experienced were not long in duration and they seemed
to have subsided also as soon as she found a home. FF. 15. Complainant
Hansberry's injuries were extremely minor and were not long in duration. She was
stressed but there is no mention that she still felt stressed after she found a
home. FF. 24.
a) Subjective Internal Emotional Reaction
In the matter of Complainant Banks, the discriminatory act was a telephone
conversation in which Complainant Banks was told by a representative of the
Respondent that the Respondent could not rent to her because he did not accept
"section 8". FF.6. At the time that she was told this, she felt
terrible, her "heart dropped", she felt rejected and less of a person.
FF. 9. In the matter of Complainant Hansberry, the discriminatory act was a
similar telephone conversation. FF. 23. At the time that Complainant Hansberry
was told this, she was "fed up," aggravated, frustrated, stressed out
and "emotionally messed up." FF. 24. She also testified that she felt
bad, her blood pressure had gone up and she cried. FF. 29. She believed the
Respondent had stereotyped her as a bad person. FF. 24. I do not find that the
reactions of both Complainants were severely intense but rather of a middling
response. I find that their reactions were understandable under the
circumstances. The Complainants did not testify as to the exact length of time
that the emotional distress lasted, therefore, I shall infer that the distress
subsided once they found new homes.
The Complainants state that another disparaging incident occurred with the
Respondent. It was not alleged in the complaint nor was the complaint amended to
include it. This information was provided at the Hearing. FF.17 and 28. I find
that this incident was not an additional discriminatory act but further
harassment from the Respondent which shall be discussed under section d)-
Consequential Factors, below.
b) Public Display
The discriminatory act of the telephone conversation did not occur in public in
front of other people. The Respondent's real estate agent did make the
discriminatory statement out loud on the telephone, but it was not in public for
others to see or hear. FF. 6-7 and 22-23. Complainant Hansberry was the only one
in the room at the time of the telephone conversation and no one else was on the
telephone besides the Respondent's real estate agent and Complainant Hansberry.
FF. 22.
When the Respondent's real estate agent spoke to Complainant Banks, Complainant
Banks repeated the conversation between her and the Respondent to her daughter
who was in the room with her when she spoke to the Respondent's representative
over the telephone. FF. 9. Complainant Banks' daughter could not hear the real
estate agent when the statement was made, she heard what her mother told her
about what was said, therefore the statement is not considered to be made in
public. In other words, in order for me to find that the statement was made in
public and Complainant Banks felt more distressed from the statement, her
daughter would have had to witness and hear the statement firsthand. Complainant
Banks contributed to any possible additional distress because she repeated the
statement for her daughter to know. Commission on Human Rights and Opportunities
ex rel. Aguiar v. Frenzilli, supra, 18-19.
As stated in Commission on Human Rights and Opportunities ex rel. Donna Harrison
v. John Greco, supra, when the discriminatory act is done in public and in the
view or earshot of other persons, it can cause a more intense feeling of
humiliation and embarrassment. Commission on Human Rights and Opportunities ex
rel. Aguiar v. Frenzilli, supra, 9. Here, the discriminatory act was not
committed in public, there was not a public display where others saw or heard
the effects of the discriminatory conduct other than the two Complainants. There
was no third party present. See Commission on Human Rights and Opportunities ex
rel. Douglas Peoples v. Estate of Eva Belinsky, supra; and Johnson v. Hale,
supra.
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. Commission on Human Rights and Opportunities ex rel. Aguiar
v. Frenzilli, supra, 19. Thus, I can not find that the Complainants actually
suffered embarrassment or humiliation from a public act, but that they felt
mainly despondent and stressed.
c) Offensiveness and Impact
The discriminatory acts of denying section 8 recipients, the Complainants, an
apartment committed via the telephone conversations, were not highly offensive
or egregious. The discriminatory acts were two statements over the telephone,
one being made to the Complainant Banks and the other to the Complainant
Hansberry. FF. 7 and 23. The statements were very similar. The Respondent's real
estate agent told both Complainants that the Respondent did not accept
"section 8". Id. 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's agent merely
stated that the Respondent does not accept "section 8" with no
offensive remarks to follow. When considering this statement, I do not find the
remark to be highly offensive or severe. There were no offensive or derogatory
words used here. It lacks the intent and effect of producing the maximum pain,
embarrassment and humiliation. Commission on Human Rights and Opportunities ex
rel. Aguiar v. Frenzilli, supra, 20 citing, Commission on Human Rights and
Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra, 8.
The negative impact on Complainant Banks was that she experienced hair loss and
had to wear wigs as a result. FF.13. After Complainant Banks found housing at
240 Division St., New Haven, CT, her hair began to grow back and she became
calmer. FF. 15. Complainant Banks alleged in the complaint that she felt pain
and humiliation, but no testimony was provided to elaborate on those feelings.
Complainant Hansberry alleged in her complaint that she felt hurt, segregated
and less of a person, an outcast. She did not elaborate on these feelings during
her testimony. The negative impact on Complainant Hansberry was that she was
stressed out. She testified that her blood pressure was extremely high as a
result of the discriminatory act, but that proved to be false. Tr. at 75-76.
Complainant Hansberry stated that she still was under a doctor's care for high
blood pressure. Id. The doctors, however, reported that Complainant Hansberry
had been under the hospital's care for approximately four years since April 1998
for high blood pressure and that it had not changed. Affidavit of Doctors Oen-Hsiao
and Marieb and FF. 29. Therefore, the discriminatory act did not cause her high
blood pressure. I do not find that the negative impact on Complainant Hansberry
was as great as she testified it to be.
The court in Luther M. Ragin v. Harry Macklowe Real Estate Co., 6 F. 3d 898, 908
(2nd Cir. 1993), said 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." See
Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, supra,
21. This does not seem to be the case here.
Complainants Banks and Hansberry were living under the same conditions, which
were present prior to the discriminatory acts. Although, Complainant Banks had
experienced hair loss and her living conditions became worse, essentially she
and her children were functioning as a family. She did not testify that her
relationships and daily routine had suffered any. Complainant Banks did not
sustain severe emotional distress that caused her and her family to not function
in their daily lives.
Complainant Hansberry did not sustain severe emotional distress that caused her
and her family to not function in their daily lives. Although, the Complainants
testified that they felt like "low-lifes" and experienced low
self-esteem, 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 such as work and college. Tr. at 17, 23, 32, 76 and 87. As mentioned
earlier, because no evidence was adduced to the contrary, I infer that their
emotional distress ceased upon their finding of new homes which was
approximately six months after the discriminatory act occurred and hence, the
duration of the emotional distress was not extremely long.
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. Aguiar v. Frenzilli, supra, 22, citing
Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John
Greco, supra, 17.
Here, the discriminatory telephone conversations occurred in December 2001 and
January 2002. Complainant Banks had to remain living in her current home
maintained by the New Haven Housing Authority for approximately six months. Tr.
at 10. Once the New Haven Housing Authority told the tenants that they had to
move, the windows and doors on the vacant homes were boarded. FF. 12.
Eventually, Complainant Banks and her family were the last and only tenants
still living at the public housing project. FF. 12. They were frightened to live
there. FF. 13. Complainant Banks was living in an area where she was afraid for
her family to be inside or outside. She believed that criminal activity was
transpiring. FF. 12. There were no steady working streetlights due to criminal
activity. Id. It was very dark in the area at night. She would not sleep in fear
of her home being burglarized. FF. 13. The interior of her home was dilapidated.
FF. 14. Complainant Banks did not find another home to move in to until July 12,
2002. FF. 15.
For approximately six months, Complainant Hansberry had to remain living with
her parents where the six of them slept in one bedroom. FF. 26. This consisted
of Complainant and her baby sleeping in the bed and the four other children
sleeping on the floor. Tr. at 58-59. These were certainly congested conditions.
Similar to Commission on Human Rights and Opportunities ex rel. Douglas Peoples
v. Estate of Eva Belinsky, supra, Complainant Hansberry had to remain living
with her parents but unlike that case, she experienced no interruption in work
or daily routines. Complainant Hansberry did not testify as to the condition of
the home she attempted to rent from the Respondent. Therefore, I can not compare
whether the home that Respondent owned would have provided a more comfortable,
suitable environment for Complainant Hansberry and her family. The home that
Complainant Banks sought to rent from the Respondent was in a safer, well-lit
neighborhood that provided for better schools than the apartment she had been
living in. FF. 5.
As stated earlier in this decision, the Complainants state that another
discriminatory act occurred when the Respondent appeared at the Commission's
regional office for a meeting on the two matters and he made a derogatory remark
to the Complainants. FF. 17 and 28. Since the statements by the Respondent at
the Commission's regional office were not alleged in the complaint and therefore
not part of the liability determination per the default order, they will be
considered as consequences of the discriminatory act for purposes of determining
emotional distress damages.
If the Respondent had not discriminated against the Complainants, they would not
have been subjected to the derogatory remark he made to them at the meeting at
the Commission's regional office. See Commission on Human Rights and
Opportunities ex rel. Donna Harrison v. John Greco, supra, 16, (where the
respondent had called the complainant derogatory names and stated that "he
would not rent to blacks." "Because of Mr. Greco's discrimination, Ms.
Harrison had to sit through a hearing and hear herself be referred to in this
manner.") At the Commission's regional office, the Respondent saw the
Complainants and according to Complainant Banks, he told her and Complainant
Hansberry that "if [they] weren't so lazy and if they got off [their] butts
and got a job, [they] wouldn't have to worry about suing him for an apartment or
for damages." FF. 17. Complainant Banks stated that her esteem was lowered.
FF. 17. According to Complainant Hansberry, she felt intimidated by the
Respondent and felt again that he was stereotyping her as being a
"low-life." FF.28. She stated that all she could remember of what he
said that day was to "get a job." Id. When asked by her attorney
whether there was any emotional harm experienced, she replied, "[H]e just
aggravated me, that's all." Tr. at 83.
This statement made in conjunction with the discriminatory act was offensive and
insulting. Neither Complainant provided information as to the date that the
remark was made at the Commission's regional office. Since the amended
complaints, which did not include this incident, were both filed on July 15,
2002 (CHRO Exhibits 1 and 4), which was after both Complainants found homes, it
is highly probable that the meeting at which the remark by the Respondent was
made occurred after the Complainants found homes. The Complainants did not
testify that they continued to experience emotional distress after they both
found homes. Both Complainants seemed to be functioning fine once they found new
homes approximately six months from the date of the discriminatory acts. FF. 15
and 27.
5. Actual Damages
Complainant Banks claimed damages for housing search expenses of lost work hours
and driving expenses. Complainant Hansberry claimed damages for housing search
expenses of lost work hours and driving expenses. She also claimed damages for a
rent differential. Complainant Exhibit B1 and H1.
In the present case, both Complainants were uncertain of information that would
have supported their actual damages claim. When I asked for particular
information, I was told "I don't know." Tr. 29, Tr. 80 and 96. When I
inquired further, I was given inconsistent answers and that is when I requested
that the Complainants provide additional documents to support their actual
damages claims. The respective information provided was inconsistent with the
testimony of both Complainants. I do not find that the Complainants were
completely truthful with their answers and/or they were not fully prepared to
provide the germane information to support their damages claims. Because of this
finding, I have concerns about the credibility of both Complainants as it
relates to the testimony given for the work loss claims, driving expenses and
emotional distress. I do not find that the injuries and losses suffered were
fully supported by the evidence to warrant high awards and in some instances,
any award.
a. Work Loss and Driving Expense Damages
Banks
Complainant Banks claimed that she had to stop working because she needed to
look for a home and requests $1,872 in actual damages for said loss of work,
that is, 8 hours per week for 26 weeks (6.5 months) from January 2002 until July
12, 2002, at $9 an hour. Complainant Exhibit B1. I do not find her testimony
credible on this claim. When I asked her when she stopped working, she replied
"[i]t's going on two years." Tr. 29-33. I questioned that response,
because that would have meant that she stopped working in March 2001. The
discriminatory act occurred in January 2002, which would have been that she was
not working at the time the discriminatory act occurred. This is inconsistent
with her claim for loss of work damages during the time she looked for another
home from January through July 2002.
Next, Complainant Banks' attorney attempted to clarify the issue by stating (not
under oath) that Complainant Banks wasn't working and wanted to go back to work
but was unable to do so because she had to find another home. Tr. at 29-30.
Complainant Banks agreed with this clarification. Complainant Banks was not
certain when she had stopped working. Tr. at 30-31. When asked why she had
stopped working, she replied, "[b]ecause I had to find an apartment."
Id. Her attorney had just stated that Complainant Banks wasn't working prior to
having to look for a home. Tr. at 29-30. To make matters even more unbelievable,
the document submitted by the Complainant at my request (Tr. at 31), signed by
Complainant Banks' former employer, Carl S. Babb, reported that Complainant
Banks worked for the New Haven Public Schools until June 15, 2002. Letter from
Carl S. Babb. The employer's document did not state that Complainant Banks took
any time off from work or that she had stopped working and returned to work. Tr.
28-31. Complainant Banks signed a lease on July 5, 2002 for her new home that
she moved in to on July 12, 2002. Tr. 15.
Therefore, all that Complainant Banks would be allowed to recover in actual
damages would be from June 15, 2002 to July 12, 2002, a twenty-seven day time
span. Being that I am unclear as to the reason why she terminated work on June
15, 2002 and I can not trust that it was in order to look for an apartment due
to such drastic inconsistencies in her testimony for loss of work damages, I
award nothing for this claim.
This leads to the issue of damages for driving expenses. Complainant Banks
claimed that she spent $15 per week for 26 weeks which is $390 on gasoline for
her car to drive around seeking another home from January 2002 until July 12,
2002. Tr. at 32-33 and Complainant Exhibit B1. Complainant Banks submitted
documentation on ten homes that she went to see and testified that she saw
approximately 4-5 homes per week. I do not find this to be true, specifically
because she would have driven around during the day when she was actually
working. She did not present a clear picture as to at what time during the day
she went searching for a home and she only submitted a list of ten homes, but
testifies it amounted to approximately 100 homes in 26 weeks. Tr. at 32-33.
I am sure Complainant Banks had to search for a home, I am just not certain how
much time she put into that considering she was still working, albeit only 10
hours per week (FF. 18), but there was not enough information adduced at the
hearing in support of her claimed damages for driving expenses. I am reluctant
to find the testimony on the losses for driving expenses credible, since I found
her testimony on the work loss claim not to be credible. I am inclined to think
there was somewhat of an effort to exaggerate the claim for actual damages.
Therefore, I award nothing for driving expenses.
Hansberry
Complainant Hansberry also claimed loss of work and driving expenses. She
requested $3,360 for lost work hours and $420 for driving expenses. Complainant
Exhibit H1. I do not find Complainant Hansberry's testimony regarding these
issues credible either. When Complainant Hansberry was initially asked whether
she was "still" looking for an apartment after finding the apartment
in February 2002 that she eventually moved to on July 17, 2002, she replied
"no" and then when asked whether she "stopped" looking, she
replied "yes". Tr. at 85. At that time, I questioned whether she could
claim loss of work if she had stopped looking for an apartment during her work
day. Tr. at 85. Complainant Hansberry attempted to explain the issue by stating
that she was still looking for other apartments because she was having problems
negotiating the rent at the apartment she found, which is the one she now
resides in. Tr. at 85-86. She stated that she periodically took time off during
the day from her job with Sarah, Inc. to look for a home, which amounted to
approximately ten hours a week for 28 weeks (7 months) at $12 an hour, a total
of $3,360 in actual work loss damages. Complainant Exhibit H1 and Tr. at 87.
When asked by her attorney, she then testified, that she was still looking for a
home. Tr. at 90.
Complainant Hansberry stated that she drove around looking for homes to rent.
Tr. at 89. According to Complainant Hansberry's apartment search report, she
states that "[f]rom February 2002 through April 2002, I believed I had
located housing that would be approved by "Section 8" for me to move
in on May 1, 2002." Complainant Exhibit H2. I infer from this that she had
stopped searching for a home from February through April 2002. She said that the
landlord had backed out and she starting searching again which was in May
because the report was dated June 4, 2002 and listed 11 "additional"
homes that she searched in the "last month." Id. She did not testify
as to any other additional homes that she visited in the month of June other
than that she worked with an agency, Home Inc. Tr. at 86. This report
contradicts Complainant Hansberry's statement that she continued looking for a
home through July 2002 which hence contradicts her claim for lost work hours
from December 12, 2001 through July 17, 2002 (28 weeks). Tr. at 88 and
Complainant Exhibit H1.
Also, Complainant Hansberry claimed $420 in driving expenses. Complainant
Exhibit H1. This is $15 per week for gas for 28 weeks. Id. Since, she found a
home in February and her testimony was drastically inconsistent, I will not
award actual damages for driving expenses.
Due to these inconsistencies, I do not find the testimony credible and
therefore, will not award damages for loss of work or driving expenses. Even
though I find the testimony not credible with regard to the timeframe of
February through July, one could argue that Complainant Hansberry is entitled to
loss of actual damages from December through February and possibly from May
until July. As I stated above with regard to Complainant Banks' claims for
actual damages, due to the inconsistencies in the testimony, I am inclined to
think that Complainant Hansberry exaggerated her losses as well. I do not find
it to be appropriate to award Complainants for half-truths.
b. Storage Expenses
Complainant Hansberry incurred storage expenses for furniture storage with Stowaway Storage of $110 per month for 7 months plus late fees of $45 for a total cost of $815. FF. 34; Affidavit of Phyllis Hansberry and Stowaway Customer Ledger.4 Complainant Hansberry did not include these expenses on the document for her damages claim. Complainant Exhibit H1. These storage expenses were first claimed through testimony at the Hearing. Tr. at 94-97. Complainant Hansberry also testified that she incurred an expense for storage bins that too were not included on the original claim for damages. Complainant Exhibit H1. Complainant Hansberry did not know the cost for the storage bins. Tr. at 96. At my request, Complainant Hansberry submitted documentation to support the claim for the furniture storage cost and storage bins cost as well as to provide the actual figures. Tr. at 96-97. The storage bins cost $7.99 each for 6 bins. The total cost for storage bins was $47.94. FF. 34.
c. Rent Differential
Complainant Hansberry requested $1,981 for a rent differential between the amount she had paid for rent prior to living with her parents and the amount she paid to her mother for living expenses. Complainant Exhibit H1. Complainant Hansberry originally claimed that she incurred a rent differential of $283 per month for 7 months. Complainant Exhibit H1. This figure was based on the amount she paid to her mother of $300 and the amount that she was previously paying, $17 per month prior to the move to her parents' home. Id.; Complainant Exhibit H3 and FF. 32. She remained living with her parents for 7 months after the Respondent's refusal to rent to her. She submitted documentation that she paid to her mother $300 per month. Complainant Exhibit H1; H3; and Tr. at 79-81. This was inaccurate information because the $300 payment included food, washing of clothes and rent. Complainant Exhibit H3. When I asked Complainant Hansberry how much of the $300 was for rent her reply was " I really don't know." Tr. at 80. At that time, I requested that she submit a statement from her mother regarding what portion of the $300 was attributed to rent. Tr. at 81. Complainant Hansberry's mother submitted an affidavit stating that $150 was for the rent. Affidavit of Gwendolyn Hansberry. Therefore, the rent differential would be much smaller than the amount claimed of $283 per month. The rent differential is $133 per month, the difference between $150 and $17 per month for 7 months. FF. 33. I will award the amount of $931 because I believe the affidavit of Complainant Hansberry's mother.
VII Summary
Even though I did not find the Complainants' testimony on specific damages
credible, I do find that the Respondent's actions caused emotional distress,
even if of a minimal amount. I find that the Complainants overstated the truth
somewhat and that is the reason that I will award only emotional distress
damages for Complainant Banks and award emotional distress damages and part of
the actual damages claimed for Complainant Hansberry.
I find that the Complainants endured emotional distress due to the Respondent's
discriminatory acts. The evidence supports the findings that the Complainants
sustained emotional distress, however, which was neither extremely severe nor
long in duration. Here, Complainant Banks experienced increased stress, low
self-esteem, and hair loss. FF. 11. Complainant Banks experienced a higher
degree of emotional distress than did Complainant Hansberry. Complainant
Hansberry experienced stress, frustration, aggravation, and feelings of being an
outcast and low-life. FF.24. The discriminatory acts were not done in public,
not in the earshot or view of others, the level or degree of offensiveness was
not high, even though directly stated. FF. 7 and 23. The consequential factors
for Complainant Banks were that of having to remain living in the Housing
Authority project with no safety, dilapidated conditions and the stress of
living in fear for herself and her children. FF. 12-14. Complainant Hansberry
remained living with her parents in an overcrowded situation, which caused a
great deal of stress. FF. 26. For both, these are some of the same conditions
and circumstances that were present prior to the discrimination and therefore
have not added drastically to the consequences of the discrimination, however
Complainant Banks' living situation was a great deal more unpleasant than that
of Complainant Hansberry and Complainant Banks' living situation became worse as
time passed. In addition, the Respondent subjected both Complainants to an
insulting remark when they saw him at a meeting at the Commission's regional
office. FF. 17.
Both Complainants have moved. Complainant Banks is living in comfortable and
safe conditions, which she is happy with. FF.16. Complainant Hansberry did not
testify as to her current living conditions, but I will assume it is better than
her former. Complainants experienced the strife of the discrimination for
approximately 6 1/2 months by having to live in unpleasant conditions. There is
no indication on the record that the Complainants suffered emotional distress
beyond the time that they moved to their current homes. In addition, the
Complainants did not prove that they were so distressed they were unable to
pursue their daily routines during the time of the discrimination until they
moved. It is no doubt that the Complainants have suffered emotional distress,
but in the entirety a certain amount of severity of the emotional distress is
lacking and therefore the award is significantly lowered. Hence, for all of the
reasons set forth above, the actual and emotional distress damages requested are
reduced. Complainant Banks shall be awarded $4,500 for emotional distress
damages. Complainant Hansberry shall be awarded $2,500 for emotional distress
damages, $862.94 for storage expenses and $931 for rental costs.
VIII Attorney Fees
At the Hearing, the Complainants' attorney submitted an Affidavit for Attorney's
Fees along with documentation of legal services rendered for each Complainant.
Complainant Exhibit H4. On March 18, 2003, Attorney Eppler-Epstein submitted a
revised document of legal services to include the time spent at the Hearing and
to exclude time spent assisting Complainants in finding a home. Legal Timetable
with Omissions. That is the document of legal services I will use to calculate
an award for attorney's fees. The applicable statute, § 46a-86(c), clearly
mandates the award of attorney's fees and costs if a discriminatory practice is
found, as in this case.
For Complainant Banks, Attorney Eppler-Epstein requested an award for 31.6 hours
at $125 per hour. Legal Timetable with Omissions and Complainant Exhibit H4. For
Complainant Hansberry, Attorney Eppler-Epstein requested an award for 34.1 hours
at $125 per hour. Id. The attorney fee award is the "number of hours
reasonably expended on the litigation multiplied by a reasonable hourly
rate." Commission on Human Rights and Opportunities ex rel., Filshtein v.
West Hartford Housing Authority, No. 0050061, (October 4, 2001), citing Mulligan
v. Rioux, 1996 WL 614817 (Conn.Super.) Attorney Eppler-Epstein provided the
number of years, 17, that she has been in practice (Complainant Exhibit H4), but
did not provide the number of years that she has litigated or the experience she
may have in housing discrimination cases. See Commission on Human Rights and
Opportunities ex rel., Filshtein v. West Hartford Housing Authority, supra, 43
citing Mulligan v. Rioux, supra. Therefore, I do not know Attorney Eppler-Epstein's
experience or skill in this area of law and thus, find that the modest figure of
$125 per hour to be reasonable.
In the documentation of legal services provided, Attorney Eppler-Epstein
included legal services that consisted of preparation for trial and actual
litigation of the Hearing. Legal Timetable with Omissions. "The party
seeking a fee award must produce…to permit a neutral judge to make a fair
evaluation of the time expended, the nature and need for the service, and the
reasonable fees to be allowed." Mulligan v. Rioux, supra. My main concern
here is not so much the reasonableness of the hourly rate, but the
reasonableness of the time expended. I do not find that Attorney Eppler-Epstein
prepared fully for the Hearing. I do not believe it was reasonable for the
attorney to bill for services that were not fully performed. In addition, there
were duplicative billings, explained below.
At the Hearing, the evidence was not adduced from the Complainants to fully
support their damages claims. Attorney Eppler-Epstein provided figures for the
damages claims but did not elicit corroborative testimony from the Complainants
nor did she provide evidence at the Hearing to completely support the damages
claims. Since I was not provided the pertinent information in order to compute
the damages claims, either by oral testimony or written documents, I requested
that certain documents be submitted to me by March 19, 2003. Tr. at 102-103. On
March 18, 2003, the Complainants' attorney did submit the requested
documentation but, unfortunately, it did not support the testimony given at the
Hearing nor did it support the particular claims for damages. In fact, it
contradicted the testimony given at the Hearing and decreased the damages
calculations submitted by Complainants' attorney.
To be more specific, Complainant Hansberry testified that her blood pressure had
risen due to the discrimination and she had just starting seeing her doctor for
this condition around 2000-2001. Tr. at 75-76. The letter from Doctors Oen-Hsiao
and Marieb submitted by Attorney Eppler-Epstein reported that Complainant
Hansberry had been diagnosed with high blood pressure in April 1998 and had been
treated for it, "but she remains hypertensive since the time of the
diagnosis without any variability in her blood pressure over the last four
years." (emphasis added) Letter from Doctors Oen-Hsiao and Marieb.
Therefore, her testimony was misleading and her attorney submitted contradicting
evidence.
Also, Attorney Eppler-Epstein submitted information stating that the amount of
rent Complainant Hansberry paid to her mother was $300 (Complainant Exhibit H1),
but the affidavit from Complainant's mother stated that only $150 was for rent.
FF. 33. Attorney Eppler-Epstein did not discover prior to the Hearing that the
$300 payment was not entirely for rent before calculating the rent differential.
In addition, Attorney Eppler-Epstein did not provide in her damages calculations
(Complainant Exhibit H1) any expenses for furniture storage costs or storage
bins for Complainant Hansberry and at the Hearing, Complainant Hansberry was not
sure of the cost for the storage bins. Tr. at 81, 96-97 and 102-105. Also,
Complainant Hansberry did not testify as to the late fees attached to the
storage costs. Id. As with the other issues, I requested the attorney submit the
support for that information in order for the Complainant to be fully
compensated. Tr. at 102-103.
Clearly, had Attorney Eppler-Epstein prepared fully for this case, she would
have known that the $300 paid to Complainant's mother was not all for rent, it
stated so in the document she submitted at the Hearing, (Complainant Exhibit H3)
but she calculated the rent differential using the $300 figure regardless.
Complainant Exhibit H1. Also, Attorney Eppler-Epstein would not have submitted
the doctors' letter to contradict Complainant Hansberry's testimony, had she
been fully prepared or discovered this information prior to litigation. In
addition, she would have asked her client, Complainant Hansberry, ahead of time
about all storage costs and included them in her damage calculations to fully
compensate her client. Complainant Exhibit H1.
Next is the matter of Complainant Banks who testified that she had stopped
working to look for a new home and suffered work loss damages. Attorney Eppler-Epstein
submitted calculations for loss of work from January 2002 until July 12, 2002
(Complainant Exhibit B1), but her client, Complainant Banks, could not testify
accurately as to when she actually stopped working. Tr. at 28-31. At my request,
Attorney Eppler-Epstein provided a document from the New Haven public schools,
which reported that Complainant Banks worked all the time to June 15, 2002,
clearly contradicting her claim for loss of work from January 2002 through July
12, 2002. Letter from New Haven Public Schools. Again, Attorney Eppler-Epstein
submitted a document to contradict her own calculations and Complainant Banks'
testimony. Complainant Exhibit B1 and Tr. at 29-31.
The proper adjudication of discrimination matters is vital to our society and
should be considered a grave matter and conducted in a vigilant manner. Had
Attorney Eppler-Epstein put forth more of an effort, she would have elicited the
pertinent information and provided consistent information to support the damages
claims for both Complainants. Due to the lack of full preparation for this
trial, I am subtracting the hours, which correlate to the preparation for
"CHRO hearing" and "travel and hearing" (see Legal Timetable
with Omissions) from the total attorney's fees claim, which amounts to a
reduction of 8.5 hours for each Complainant. Id.
In addition, I find that Attorney Eppler-Epstein billed twice for the same
activity dealing with the two Complainants. For instance, Attorney Eppler-Epstein
billed each Complainant 8.1 hours for a meeting at the Commission, which was
labeled "CHRO" on Complainant Banks' bill and "CHRO fact findings
and mediation" on Complainant Hansberry's bill, which occurred on the same
date, June 19, 2002. Id. This is a total of 16.2 hours spent at the Commission
on one day, which is not possible in a single day.
Without further explanation by Attorney Eppler-Epstein, I can only infer that
the activities were incorrectly billed twice as opposed to the possibility that
she spent the identical amount of hours on the same day for the same activity
for each Complainant. Another instance is on December 2, 2002, I held a
pre-trial conference for both Complainants on this matter which lasted no more
than two hours. The travel time from New Haven to Hartford and back is
approximately two hours in total. The total time for travel and participation at
a pre-trial for both Complainants for that day would amount to approximately
fours (4) hours, which is what should have been billed. Attorney Eppler-Epstein
billed each Complainant 3.9 hours for that activity on that same day which
amounted to a total of 7.8 hours. This total is inaccurate. Therefore, I have
reduced by half the hours that are duplicative legal services on each bill from
the total hours requested. The total reduction for duplicative legal services
amounts to 8.85 for Complainant Banks and 9.05 for Complainant Hansberry.
Also, the fee award may be reduced when considering the "results
obtained." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). "[W]here a
plaintiff is deemed 'prevailing' even though he succeeded on only some of his
claims for relief, it is important to consider the 'results obtained.'" Id.
First, I consider if the complainant failed to prevail on certain claims
"that were unrelated to the claims on which he succeeded." Id. Second,
I consider if the complainant achieved a certain level of success that would
make the "hours reasonably expended a satisfactory basis for making a fee
award." Id. Both Complainants failed to prevail on their claims for work
loss damages and driving expenses. Also, Complainant Hansberry's emotional
distress award is reduced partly because of the contradiction of her blood
pressure information and her award for the rent differential was reduced. I find
that the Complainants may have achieved a higher degree of success on their
damages claims or had been awarded more of their losses had their attorney
utilized the hours expended in a more thorough manner. For all of the reasons
stated above, I reduce the attorney's fees award.
Attorney Eppler-Epstein requested attorney fees for 31.6 hours for Complainant
Banks and 34.1 for Complainant Hansberry, which I am reducing to 14.25 for
Complainant Banks and reducing to 16.55 for Complainant Hansberry. This amounts
to a total of 30.80 at $125 per hour. Considering the obvious lack of full
preparation as stated above and lack of evidence provided to me at the Hearing,
I find that Attorney Eppler-Epstein is adequately compensated for her
representation in this matter.
IX ORDER
1. The Respondent shall cease and desist from failing or refusing to rent a housing accommodation to any person because of lawful source of income or any other discriminatory reason.
2. The Respondent shall cease and desist from making or causing to be made any statement with respect to the rental of a housing accommodation that indicates any preference, limitation or discrimination based on lawful source of income or an intention to make such preference, limitation or discrimination.
3. The Respondent shall pay to Complainant Banks $4,500 for emotional distress damages.
4. The Respondent shall pay to Complainant Hansberry $2500 for emotional distress damages.
5. The Respondent shall pay to Complainant Hansberry $931 for the rent differential and $862.94 for storage costs.
6. The Respondent shall pay attorney's fees to the Complainants' attorney in the
amount of $1,781.25 for Complainant Banks' matter and $2,068.75 for Complainant
Hansberry's matter, pursuant to General Statutes § 46a-86(c).
SO ORDERED this ____ day of May, 2003 at Hartford, Connecticut.
______________________________
Hon. Donna Maria Wilkerson
Presiding Human Rights Referee
c.: Alix Simonetti, Asst. Commission Counsel II
21 Grand St., 4th Floor
Hartford, CT 06106
Attorney Amy Eppler-Epstein
New Haven Legal Assistance Association, Inc.
426 State Street
New Haven, CT 06510-2018
Shirley Banks
240 Division St.
New Haven, CT 06511
Phyllis Hansberry
436 Huntington St.
New Haven, CT 06511
Mr. Eddie Eckhaus
510 Fountain St.
New Haven, CT 06515
Raymond Pech
Deputy Commission Counsel
CHRO
21 Grand Street, 4th Floor
Hartford, CT 06106
Footnotes
1Discriminatory Public Advertising was alleged in the complaint but no evidence was presented to support an award for this claim, therefore, the damages awarded are not based on the claim for discriminatory public advertising.
2 Later substituted with Alix Simonetti.
3 Complainant Banks reported problems to the Housing Authority but her complaints were ignored. Tr. at 40-41.
4 Affidavit of Complainant Hansberry claims $800 for storage costs which excludes a $15 late fee. I find the figures from the Stowaway Storage customer ledger to be accurate and use the total figure of $815 which includes $45 of late fees from December 25, 2001 through July 12, 2002.