0050061:Filshtein v. West Hartford Housing Authority, Memorandum of Decision
CHRO NO. 0050061
Commission on Human Rights and Opportunities ex rel. Herman Filshtein, Complainant
West Hartford Housing Authority, Respondent
October 4, 2001
MEMORANDUM OF DECISION
I Preliminary Statement
The Public Hearing ("Hearing") on the above-captioned matter was held on May 7 and 8, 2001, pursuant to an Order of the undersigned Human Rights Referee dated October 4, 2000. Attorney Karl Fleischmann appeared on behalf of Mr. Herman Filshtein ("Complainant"). Assistant Attorney General David M. Teed appeared on behalf of the commission on human rights and opportunities ("Commission"). Attorney Rudolph P. Arnold appeared on behalf of West Hartford Housing Authority ("Respondent" or "HA"). The issues addressed in this decision are: 1) whether the Respondent wrongfully discriminated against the Complainant by failing to provide a reasonable accommodation for his disability when it denied Complainant’s request to continue to reside in Complainant’s current residence owned by his daughter with the use of a Section 8 certificate, and 2) if so, whether the Complainant is entitled to any damages or other relief.
For the reasons set forth below, it is hereby determined that the Complainant has proved a prima facie case for discrimination under state and federal law. The Respondent has violated the FHAA and Connecticut law based on a refusal to accommodate. Judgment is entered in favor of the Complainant with damages set forth below.
The Complainant, Herman Filshtein, resides at 95 Shadow Lane, Apartment #A2, West Hartford, CT 06110. The Commission is located at 21 Grand St., 4th Floor, Hartford, CT 06106. The Respondent, West Hartford Housing Authority, is located at 759 Farmington Ave., West Hartford, CT 06119.
III Procedural History
On December 2, 1999, the Complainant filed a complaint affidavit with the Commission alleging that the Respondent failed to make a reasonable accommodation because of his physical disability (coronary artery disease and myocardial infraction), 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 Act 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 affidavit was certified to public hearing on September 14, 2000, in accordance with General Statutes § 46a-84(a). On September 21, 2000, the Office of Public Hearings served upon all parties of record the Original Notice of Public Hearing along with the complaint affidavit. The Respondent filed an answer to the complaint on October 4, 2000. The Hearing was held on May 7 and 8, 2001. All statutory and procedural prerequisites to the public hearing were satisfied and this complaint is properly before the undersigned Human Rights Referee for decision.
IV Findings of Fact
- The Complainant suffers from a cardiac disability, which impairs his ability to walk up stairs. The Respondent conceded to Complainant having a disability. Complainant Exhibit ("C.Ex.") 1,3, 4f(iv), 4e(ix); and Transcript page ("Tr.")33.
- On April 12, 1999, the Respondent became aware of the Complainant’s disability when the Complainant provided the Respondent with a letter from Doctor Kagan dated April 12, 1999, documenting the disability and the need for an accommodation, which was to live in his first floor apartment, which is owned by his daughter, utilizing his Section 8 certificate. Tr. 70, 73, 140; C.Ex.4f(iv), 4e(vi). The Respondent confirmed its knowledge of Complainant’s disability. C.Ex.4f(v).
- Through the U.S. Department of Housing and Urban Development ("HUD"), the Respondent administered federally funded programs called Section 8 and the HOPE program. The programs were designed to assist lower income families and elderly individuals to rent homes throughout their community at an affordable rate. Tr.129-30.
- The Respondent accepted and approved applications for the HOPE and Section 8 programs. Once an applicant was approved for the Section 8 program, she/he would be placed on a waiting list. Once a certificate for the Section 8 program became available, the applicant would be notified to receive the certificate and would then seek a home that met the minimum guidelines, subject to inspection by the Respondent. Tr. 129-35.
- At the time the Complainant applied for the Respondent’s programs (HOPE and Section 8), the Complainant was living (and is living still) at 95 Shadow Lane, West Hartford, CT 06110, a residence owned by his daughter. C.Ex. 1; Tr. 39; Tr. 66-7; Tr. 253.
- The Complainant needed a first floor apartment accommodation for his disability and the Complainant’s current apartment provided for that accommodation. C.Ex.4f(iv); Tr. 40-1.
- The Complainant first applied to the Respondent for the HOPE program to receive housing assistance. The Complainant was denied acceptance to the HOPE program on February 5, 1999. Tr. 68, 130-1; C.Ex.9.
- In a letter dated February 5, 1999, to the Complainant, the Respondent’s Executive Director, Lynn Koroser ("Koroser") denied the Complainant participation in the HOPE program and stated that the reason was the fact that the Complainant was related to his landlord who is his daughter.Tr. 127-8; C.Ex.9. Koroser quoted the federal regulation which states that "[t]he Housing Authority must not approve a unit if the owner is the parent, child, grandparent, grandchild, sister, or brother of any member of the family." C.Ex.9. The quote was not the full text of the federal regulation and excluded the exception clause for disabled persons. Tr. 47-55, 240. Koroser also stated that if the Complainant decided to move to another apartment where there would not be a relationship between he and the landlord, then she would review his eligibility for the HOPE program again. C.Ex.9.
- The Complainant went to a law library and researched the federal regulation and found the entire text. Within the text, an exception clause existed which allowed for disabled persons, receiving housing assistance from the Respondent to rent from relatives if the dwelling provided for a reasonable accommodation. Tr. 50-56. C.Ex. 4f(v).
- The Complainant also had applied to the Respondent for Section 8 housing assistance and was granted a certificate for the Section 8 program effective April 16, 1999. C.Ex.4f(i), 4f(ii).
- On April 16, 1999, the Complainant signed an affidavit stating that he was related to the landlord, his daughter, of his apartment and requested an exception to the federal regulation because of his disability. C.Ex. 4f(iii), Tr.140.
- Koroser inspected the Complainant’s apartment and determined that it did not provide a reasonable accommodation to the Complainant and therefore, refused the Complainant a reasonable accommodation. Tr.141; C.Ex.4f(v).
- The Respondent asked HUD for advice on interpreting the federal regulation. C.Ex. 4d(ii). HUD personnel informed Koroser that the Complainant’s request for an exception needed to satisfy a two-part test, which was: "is the request accompanied by documentation supporting the disability of the applicant as defined by HUD guidelines; [and] what distinguishes the apartment occupied by the Filshteins in terms of its accommodations from any other available apartments that would satisfy the accommodation." The Respondent believed that the Complainant did not meet this test and thus, denied Complainant’s request to use his Section 8 certificate for his current residence. C.Ex. 4e(ix), 4f(v), 4d(iii); Tr. 144-6.
- The Complainant satisfied the plain text of the federal regulation but not the Respondent’s interpretation, which used the two-part test for interpreting the federal regulation. 24 CFR 982.306; C.Ex. 4f (v), 4f(iv).
- The Complainant requested a hearing with the board of commissioners of the Respondent ("board") who heard Complainant’s case on June 1, 1999 and decided on July 9, 1999 that the Respondent was correct in its interpretation of the regulation and, therefore, affirmed that the Complainant could not use his Section 8 certificate in his current dwelling owned by his daughter. C.Ex. 4e(iv), 4e(ix); Tr. 143,147-8.
- Koroser misled the board into thinking that the Complainant lied about his relationship with his daughter. Tr. 137-40, 240.
- The Respondent provided the Complainant with information about possible vacant apartments in West Hartford that might suit his needs for him to move to. C.Ex. 4f(viii); 4f(xiii); Tr. 43-5,148-150.
- The Complainant did not find that the apartments suggested by the Respondent were available or suitable and informed the Respondent of such. C.Ex.4f(xii), 4f(xviii).
- The Complainant conducted a search for other apartments but was unsuccessful in finding another apartment. C.Ex.4e(vi), 4f(xviii), 4f(xii); Tr. 251.
- The Complainant’s Section 8 certificate expired on October 11, 1999, after being extended a number of times by the Respondent. C.Ex. 4f(xxii), 4f(xix), 4f(xv), 4f(ix); Tr. 249, 256.
- The Respondent would not have incurred any substantial costs or a burden if it had allowed the Complainant to remain living in his current first floor apartment because any costs were too speculative. Tr. 134, 200-1.
- The mortgage of Complainant’s daughter for the Complainant’s apartment was $362.94 and the condo fee was $188.47 for a monthly total of $551.41. The monthly amount of rent charged by the Complainant’s daughter to the Complainant was $590. Commission Exhibit ("CHRO Ex.") 12,13,14; Tr.110.
- The maximum amount of rent allowed by the Respondent at 95 Shadow Lane was calculated at $534.00. The Complainant’s portion of the rent would have been $282. The difference, which is the amount of the rent that would have been paid by the Respondent, was $252.00. C.Ex. 4f(ix).
- The Complainant was "surprised" when he received the denial of the HOPE program. Tr. 48. The Complainant was "shocked" when he found out that the full language of the regulation allowed for an exception. Tr. 55, 83. He felt "uncomfortable" speaking with Ms. Capobianco ("Capobianco"), an employee of the Respondent, about the exception for his disability because she made him feel as if he was asking for something "illegal." Tr. 59-60. He also felt "terrible." Tr. 58-61. The Complainant became upset, nervous, stressed and quick-tempered, which affected his heart condition. He received medication for this condition. Tr. 85-86. The Complainant has experienced changes with his blood pressure and heart condition for the last few years. Tr. 115.
- The denial process began on April 16, 1999 when the Complainant first was notified by the Respondent that it was denying the Complainant’s request for an accommodation. C.Ex.4f(v).
The Respondent has been charged with violating General Statutes § 46a-64c et seq. and Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act ("FHAA") of 1988 and as enforced through General Statutes § 46a-58(a), when it denied Complainant’s request for a reasonable accommodation. Connecticut courts are guided by cases interpreting federal fair housing laws when interpreting Connecticut’s fair housing statutes. See Zlokower v. Commission on Human Rights and Opportunities, 200 Conn. 261, 264 (1986).
General Statutes § 46a-58(a) states in pertinent part: "It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of …color, race,… or physical disability."
As set forth in General Statutes § 46a-64c(a)(6), it is a discriminatory practice in violation of this section:
- To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a learning disability or physical or mental disability of: (i) Such buyer or renter; (ii) a person residing in or intending to reside in such dwelling after it is sold, rented, or made available; or (iii) any person associated with such buyer or renter.
- To discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a learning disability or physical or mental disability of: (i) Such person; or (ii) a person residing in or intending to reside in such dwelling after it is so sold, rented, or made available; or (iii) any person associated with such person.
- Complainant suffers from a handicap as defined in the Act;
- Respondent knows of the Complainant’s disability or should reasonably be expected to know of it;
- Accommodation of the handicap may be necessary to afford the Complainant an equal opportunity to use and enjoy the dwelling;
- The accommodation is reasonable; and
- Respondent refused to make such accommodation.
- Subjective Internal Emotional Reaction
- Public Display
- Offensiveness and Impact
- Consequential Factors
General Statutes § 46a-51(15) defines a person with a physical disability as: "any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes from illness…" See also General Statutes §1-1f(b).
In 1988, Congress adopted the Fair Housing Amendments Act ("FHAA") to prohibit housing discrimination against persons with physical or mental handicaps. Pub.L. No. 100-430, 102 Stat. 1619 (codified at 42 U.S.C. Sec. 3601-3619 (1988)). The House Judiciary Report set forth the purpose of the Amendments:
The Fair Housing Amendments Act, like Section 504 of the Rehabilitation Act of 1973, as amended, is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.
H.R.Rep. No.711, 100th Cong.2d Sess.
By its terms, the FHAA is made applicable to any recipient of federal funds.
42 U.S.C. Sec. 3603. It defines a handicapped person as one who has "a
physical or mental impairment which substantially limits one or more of such
person’s life activities," or who has a "record of having such an
impairment." 42 U.S.C. Sec. 3602(h). The FHAA prohibits various types of
discrimination including "a refusal to make reasonable accommodations in
rules, policies, practices, or services, when such accommodations
may be necessary to afford such person equal opportunity to use and enjoy a
42 U.S.C. § 3604(F)(3)(B).
"It is appropriate to look to case law interpreting § 504 of the Rehabilitation Act of 1973, for the purpose of evaluating whether [Respondent] failed to make reasonable accommodations within the meaning of the FHAA." Woodside Village v. Hertzmark, 1993 WL268293 (Conn.Super.)
§ 504 provides:
No otherwise qualified individual with handicaps in the United States, as defined in 29 USCS § 706(8), shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Failure to Reasonably Accommodate standard
The issue is whether under Connecticut law and FHAA, the Respondent failed to reasonably accommodate the Complainant, a disabled tenant. The state and federal fair housing laws create a statutory right to a reasonable accommodation once the Complainant has proven he has a disability and has made a request for an accommodation. See U.S. v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir.1994). Hence, "[a] housing provider’s duty reasonably to accommodate a person with a disability arises when the provider becomes aware of the person’s disability and the disabled person makes a request for a reasonable accommodation." Boulder Meadows, et al. v. Saville, 2 P.3d 131, 137 (Colo.App. 2000); See also Worthington v. City of New Haven, 1999 WL 958627 (D.Conn.); Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 894 (7th Cir. 1996) (because petitioners were aware tenant was handicapped, when tenant requested an assigned parking space as a reasonable accommodation, petitioners had a duty to make some reasonable accommodation). The analysis used in the present case will determine whether there was a violation under both state and federal law.
Pursuant to the federal regulation in question, 24 CFR 982.306(d), which states:
"the HA [Housing Authority] must not approve a unit if the owner is the parent, child, grandparent, grandchild, sister, or brother of any member of the family, unless the HA determines that approving the unit would provide reasonable accommodation for a family member who is a person with a disabilities," the Respondent did not approve the Complainant’s apartment because his daughter owned it and thus, the Complainant could not use the Section 8 certificate for his apartment. Findings of Fact ("FF.") 8. As a next step, the Complainant requested an exception to the federal regulation as an accommodation based on his disability and the Respondent refused this request. FF. 2, 11, 12.
The parties agreed in their respective briefs that the following elements are necessary to prove a prima facie case of a Fair Housing Amendments Act violation based on a failure to reasonably accommodate: Joint brief at 5 and Respondent brief at 3.
HUD v. Riverbay Corporation, HUDALJ 02-93-0320-1 (1994); See also HUD v. Dedham Housing Authority., 2 Fair Housing-Fair Lending (P-H) Paragraph 25,015 at 25,212 (HUDALJ Nov. 15, 1991). I will use the elements in the Riverbay analysis as a guide and in addition will supplement the elements with state and federal case law to determine proof of a prima facie case under the FHAA and Connecticut law. Once the Complainant has satisfied these elements and has proven a prima facie case, then the Respondent must produce evidence to rebut the presumption of discrimination "by demonstrating that [the accommodation was] unreasonable" because it imposed an undue financial or administrative burden. U.S. v. Jack Freer, 864 F. Supp. 324, 326 (July 7, 1994); See also Southeastern Community College v. Davis, 442 U.S. 397, 412-3 (1979).
First Element of Prima Facie Case
The Complainant satisfied the first element because the Respondent conceded that the Complainant suffers from a heart condition, which prevents him from walking up stairs, and thus, qualifies as a physical disability under the FHAA and Connecticut law. FF. 1; Respondent brief at 4. Therefore, there is no need to further analyze the Complainant’s impairment.
Second Element of Prima Facie Case
The Complainant has satisfied the second element because he informed the Respondent about his disability via a letter from Jeffrey M. Kagan, M.D. ("Kagan") dated April 12, 1999, which stated that the Complainant had a cardiac disability and should not walk up stairs. FF.2. In addition, on April 16, 1999, the Complainant signed the Respondent’s form stating that he was related to his landlord and based on his heart condition, requested an exception to the federal regulation which prohibits relatives receiving housing assistance to rent from relatives. FF. 11. The Respondent also confirmed in a letter to the Complainant that it was aware of the Complainant’s disability. FF. 2.
Third Element of Prima Facie Case
The Complainant must prove that an accommodation for the handicap may be necessary to afford the Complainant an equal opportunity to use and enjoy the dwelling. HUD v. Riverbay Corporation, supra. The Complainant has shown that an accommodation was necessary in the present case. FF. 2, 6. The FHAA prohibits discrimination including a "refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." § 3604(f)(3)(B); See also 24 CFR 100.204. As stated earlier, Connecticut’s courts follow this same law when interpreting their fair housing statutes in housing. See infra p.9.
The Respondent claimed that the accommodation was not "necessary" to afford the Complainant an equal opportunity to use and enjoy the dwelling. Respondent brief at 5. The Respondent contends that according to its interpretation of the federal regulation, the Complainant did not meet the exception clause of the federal regulation (i.e. "unless the HA determines that approving the unit would provide reasonable accommodation for a family member who is a person with disabilities") and therefore does not need an accommodation. This is because the Respondent argued that in order for the Complainant to have satisfied the exception clause of the federal regulation, he had to meet a two-part test: "is the request accompanied by documentation supporting the disability of the applicant as defined by HUD guidelines; [and] what distinguishes the apartment occupied by the Filshteins in terms of its accommodations from any other available apartments that would satisfy the accommodation." C.Ex. 4D(iii); FF.13; Respondent brief at 9-10.
The Respondent argued that the Complainant did not meet this two-part test because his apartment was not unique. That is, it didn’t "contain special adaptions, which provided for a person with disabilities that were not readily available in the community." Respondent brief at 9; Tr. 153-155. The Respondent stated that Koroser "determined that the Complainant did not need an accommodation in order to have equal access to the Section 8 program because there was an ample supply of apartments in the region, which were suitable for the Complainant." Respondent brief at 2; FF.13; Tr. 141-3.
The Respondent mistakenly believed that the Complainant had to produce evidence to establish that either there were no other first floor apartments or buildings with elevators in the greater Hartford Region that he could rent, or produce evidence that his unit had unique characteristics or "special adaptions [because] such evidence is necessary in order for the Complainant to establish that he needed an accommodation in order to participate in the Section 8 program." Respondent brief at 7, 9. Hence, the Respondent determined that an accommodation was not necessary to afford the Complainant an opportunity to use and enjoy the dwelling. FF.12. The Respondent’s argument is not a valid one for determining whether the accommodation was necessary.
"[T]he concept of necessity requires, at a minimum, the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability." Bronk v. Ineichen, 54 F.3d 425, 429, (7th Cir.1995)(emphasis added). Whether the other apartments were available is irrelevant in determining if the requested accommodation would alleviate the disability or if it may be necessary. The following examples illustrate the requirement that the accommodation be necessary to allow the handicapped person to use and enjoy the dwelling: "[e]xample (1) involves the case of a blind person’s inability to obtain housing in a complex with a ‘no pets’ policy due to his owning a seeing-eye dog[;] [e]xample (2) involves a man with mobility difficulties who could not rent an apartment in a particular housing complex because parking spaces were allocated on a first come first served basis. In both cases, the housing complex was in violation of the FHAA because of its refusal to accommodate the needs of the disabled tenant." Woodside Village v. Hertzmark, supra, 4.
The Complainant requested a reasonable accommodation to allow him to remain in his current dwelling, which is a first floor apartment, with the use of his Section 8 certificate because of his disability. FF. 2, 11. He needed a first floor apartment in order to avoid walking up stairs due to his handicap of a heart condition. FF. 2, 6. The Complainant provided the Respondent with documentation from Kagan stating that he would not be able to walk up stairs. FF.2. The Respondent accepted this documentation and began giving the Complainant information regarding other apartments, which had first floors and elevators in order for him to move. FF.17. The Respondent stated in a letter to the Complainant that "we are trying to assist you in finding an alternate unit that can accommodate the documented disability requirements and allow you to utilize the Section 8 voucher." C.Ex. 4f(xx). Also, in a letter to the Complainant, Koroser stated that "[t]he doctor’s letter which you provided is considered sufficient documentation supporting the disability of Mr. Filshtein. It is clear that Mr. Filshtein has a disability which requires accommodation in terms of a unit where he does not have to climb stairs…It was determined that the apartment does not offer an accommodation that cannot be found in any other available units in West Hartford." C.Ex. 4e(ix). The Respondent did not believe that an accommodation of Complainant’s handicap was necessary to afford the Complainant an equal opportunity to use and enjoy his current first floor apartment with the use of his Section 8 certificate but did believe it was necessary to afford him an equal opportunity to use and enjoy any other first floor apartment in West Hartford. This is inconsistent with Respondent’s contention that the accommodation was not necessary. It is obvious that Respondent does believe the accommodation was necessary, just not by Complainant’s current apartment.
The present case is analogous to Oxford House, Inc. v. Town of Babylon, 819 F.Supp.1179, (E.D.N.Y. 1993), where the court agreed that it was necessary for the plaintiffs to live in a residential setting to assist in their alcohol and drug recovery and therefore the Town was "required to make an accommodation in its Code allowing plaintiffs to occupy this house." Id at 1185. In the present case, the Complainant needs to live in a first floor apartment so to ameliorate his disability. Therefore, the proposed accommodation in the federal regulation may be necessary to allow the disabled Complainant to occupy his current apartment utilizing the Section 8 certificate.
In U.S. v. California Mobile Home Park Management Co., 29 F.3d 1413, 1417 ( 9th Cir. 1994), a mobile home lot charged guest fees for long-term guest and guest parking, and the tenant was disabled and needed the care of a home health care aide. The mobile home lot refused to waive the guest fees for the tenant who paid the fees for her health care aide. The court ruled that "such charges must be examined on a case-by-case basis to determine whether, in a given case, a waiver of the charge, in whole or at least in part, may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling, 42 U.S.C. § 3604(f)(3)(B), and whether such waiver would impose an undue burden on the landlord." This present case is also similar to U.S. v. California Mobile Home Park Management Co., in that it may be necessary for the Respondent to make an exception to its rules to afford the Complainant an equal opportunity to use and enjoy his apartment.
The Respondent’s analysis of the necessity of the accommodation is neither logical nor appropriate. The Complainant’s current dwelling provided a first floor environment conducive to his disability, and the Complainant told the Respondent that he fit the exception clause in the federal regulation and requested that the Respondent allow him to remain in his dwelling. As the Respondent conceded that the Complainant had a disability and accepted the Doctor’s note regarding an accommodation for his disability, allowing the Complainant to remain living in his first floor apartment was necessary to ameliorate his heart condition in order for him to live comfortably. The Respondent mistakenly argued that the accommodation was not necessary because the Complainant could obtain it elsewhere. This reasoning is extremely faulty because other apartments existing with first floors and elevators do not in any way negate the Complainant’s need for one where he currently resides. It is not FHAA’s intent to require the Complainant to search out other apartments. The Respondent failed to rebut the fact that the accommodation was necessary and thus, the Complainant has met this third element.
It is important to note that the Complainant satisfied the plain language of the federal regulation and it was not until the Complainant brought this fact to the Respondent’s attention that the Respondent then introduced further language –the two-part test- to interpret the federal regulation, as a basis for denying the Complainant an accommodation. FF. 14-15. "The unreasonableness of the result produced by one among alternative possible interpretations of a [rule] is reason for rejecting that interpretation in favor of another which would produce a reasonable result." Commission on Human Rights and Opportunities v. Sullivan Associates, 250 Conn. 763 (1999). Forcing the Complainant to move to another apartment when his current apartment was conducive to his disability would have been unreasonable. FF.17-19. Hence, applying the plain language of the federal regulation would have resulted in allowing the Complainant to use the Section 8 certificate for his current apartment, which provided an accommodation for his disability, a reasonable result.
Fourth Element of Prima Facie Case
The Respondent failed to prove that the proffered accommodation was unreasonable, thus, the Complainant has satisfied this element. "The [Complainant] bears the burden to describe and/or identify an accommodation, the costs of which do not clearly exceed the benefit." Carolyn M. Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir. 1999). Whether the accommodation is reasonable is fact specific and must be analyzed on a case-by-case basis. Id. "In an action under Fair Housing Amendments Act (FHAA), [a complainant] is not required to prove that [the] proposed accommodation for handicapped persons is reasonable; rather, burden rests with the [respondent] to show either that [respondent] was unable to accommodate [complainant] or that proposed accommodation was unreasonable." Civil Rights Act of 1968 § 804(f)(3)(B), as amended, 42 U.S.C.A. § 3604(f)(3)(B). "To establish that the accommodation proffered by [complainant] was not reasonable, the [respondent] was required to prove that it could not have granted the variance without imposing undue financial and administrative burdens…" Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1104 (3d Cir. 1996); See also Southeastern Community College v. Davis, 442 U.S. 397, 412 (1979).
In order for a case involving a certain rule or regulation to be reviewed under 42 U.S.C. 3604(f)(3)(B), the challenged rule must have the potential to deny persons an "equal opportunity to use and enjoy a dwelling" because of their handicap. U.S. v. California Mobile Home Park Management Co., supra, 1417. "The ‘opportunity to use and enjoy’ language of the FHAA reinforces the ability of people with handicaps to have the same opportunity as similarly situated persons who have no evident handicaps." Salute v. Stratford Greens Garden Apts. 136 F.3d 293, 302 (2d Cir.1998). Once a complainant requests an accommodation involving a rule or regulation, the reasonable accommodations provision of 42 U.S.C. 3604(f)(3)(B) is triggered and "a defendant can be required to incur ‘reasonable costs’ to accommodate a plaintiff’s handicap, provided such accommodations do not pose an undue hardship or a substantial burden." Shapiro v. Cadman Towers, Inc. 51 F.3d 328, 335 (2d Cir. 1995)(emphasis added); See also Boulder Meadows v. Saville 2 P.3d 131,138, (Colo.App.2000); U.S. v. California Mobile Home, supra. "The accommodation must facilitate a disabled individual’s ability to function, and it must survive a cost-benefit balancing that takes both parties’ needs into account." Bronk vs. Ineichen, supra, 54 F.3d 431.
As stated previously, the federal regulation in question prohibits a disabled individual, receiving housing assistance, from renting from relatives unless the apartment provides a reasonable accommodation. See infra p. 13. The Complainant, who possessed a Section 8 certificate, told the Respondent that he satisfied the exception clause in the federal regulation and as an accommodation he requested that the Respondent allow him to use the Section 8 certificate for his current dwelling, which is a first floor apartment owned by his daughter and conducive to his handicap. FF.2,10. The Complainant’s request is similar to the one in Oxford House Inc. v. Town of Babylon, supra, 819 F.Supp. 1181, where the defendant Town’s Code prohibited ‘rooming houses’ or ‘boarding houses’ in multifamily and single family districts, thus, plaintiffs who needed a residential living environment for their alcohol and drug recovery were not allowed to rent in the town. "The plaintiffs requested that the Town modify the definition of a ‘family’ as it was applied to them because as recovering alcoholics…, they must live in a residential neighborhood…" Id. at 1185. The court in Oxford found that "[b]ecause an Oxford House cannot exist in a single family, residential district under the Town Code, a modification of the definition of a ‘family’ in plaintiffs’ situation is warranted so that they may have the same opportunity to rent a house as do persons without handicaps." Id. "Title VIII 42 U.S.C. § 3604(f)(3)(B) dictates that a handicapped individual must be allowed to enjoy a particular dwelling, not just some dwelling somewhere in the town." Id. citing City of Plainfield, 769 F.Supp. 1329,1344 (D.N.J 1991). The court in Oxford held that the requested accommodation was reasonable and that "[a]n accommodation is reasonable under the FHA if it does not cause any undue hardship or fiscal or administrative burdens on the municipality…". Oxford House Inc. v. Town of Babylon, supra, 1186.
The Respondent did not specifically claim that the proffered accommodation was unreasonable, but instead raised arguments as to the reason that it did not accommodate the Complainant. The Respondent testified that it did not want to accommodate the Complainant by allowing him to remain living in his current first floor apartment with the use of the Section 8 certificate because if it made an exception in this case, pursuant to the regulation, it would have to start making exceptions for any possible future similar requests. C.Ex. 4e(ii), 4e(v). Tr.198. From this argument, I can infer that one possible burden to the Respondent would have been an administrative burden to inspect units on a case by case basis for disabled tenants seeking to use Section 8 certificates for a relative’s home. In addition, the Respondent presented evidence showing a concern that other applicants who might be unhappy with the Respondent’s decisions would also appeal to the board to overturn the Respondent’s decisions, which I infer to be another possible administrative burden. C. Ex. 4e(v). Lastly, the Respondent asserted that it had a concern for potential abuse of the Section 8 program and fraud by relatives renting from each other. Respondent brief at 9. Koroser stated in a letter to the board of commissioners, that "the purpose of the regulation was to reduce the amount of fraud associated with the program where relatives were benefiting from the government payments." C.Ex.4e(v). This can be viewed as a possible cost to the Respondent.
Taking all of the Respondent’s reasons in their entirety, none impose an undue administrative burden or financial cost to the Respondent. There was no evidence showing that any of these situations have actually occurred. The Respondent testified on cross-examination that the concern for a growing number of similar requests had not materialized. Tr. 200-201. Regardless, the Respondent already has the task of inspecting all units for Section 8 tenants as a practice and would not have incurred an additional burden if more requests were filed. FF.4; Tr.134. Also, the Respondent stated in its brief that it "[has] not claimed that the Complainant is involved in financial abuse of the program." Respondent brief at 9. Any cost from the accommodation, in the present case, is too speculative to be considered an undue hardship or substantial burden to the Respondent. FF.21. The Respondent complained of issues that are extremely speculative in nature, similar to those argued by the respondent in HUD v. Riverbay, supra, where the Respondent had argued "purely speculative assertions of the potential cost of future accommodations" and that the current accommodation "will unleash a flood of [similar] request[s]". Id. at 25,741. The administrative law judge held that the respondent violated the FHAA by refusing to allow a mentally disabled tenant to keep her dog, which was necessary to ease the effects of her recurrent depression. Riverbay, supra. "[A] simple accommodation is all that the Act requires." Id. at 25,741. In the present case, allowing the Complainant to remain living in his current apartment would have been a "simple" accommodation.
Additionally, the Respondent is a recipient of federal funds for its administration of the Section 8 program. FF.4. Courts must look to the body of law developed under § 504 of the Rehabilitation Act as an interpretative guide to the "reasonable accommodations" provision of the FHAA. 45 CFR Sec. 85.53 sets forth the requirement of reasonable accommodations with respect to Sec. 504:
A recipient [of federal funds] shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose undue hardship on the operation of its program. Where reasonable accommodation does not overcome the effects of a person’s handicap, or where reasonable accommodation causes undue hardship, it is not required.
"An otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers… To assure meaningful access, reasonable accommodation in the grantee’s program or benefit may have to be made." Alexander v. Choate, 469 U.S. 296, 301, 105 S.CT.712, 719 n.19 (1985). The grantee need not make "fundamental" or "substantial" modifications to accommodate the handicapped, only "reasonable" ones. Southeastern Community College v. Davis, supra, 442 U.S. 399. Accommodations which impose "undue financial and administrative burdens" on the landlord; Rothschild v. Grottenhaler, 907 F.2d 286, 289 (2nd Cir.1990); or which require "fundamental alterations in the nature of the program"; Southeastern Community College v. Davis, supra, 410; are not reasonable. "Reasonable accommodation under section 504 can and often will involve some costs." Oxford House Inc. v. Town of Babylon, supra; See also Dopico v. Goldschmidt, 687 F.2d 644, 652(2nd Cir. 1982) ("[S]ection 504 does require at least modest, affirmative steps to accommodate the handicapped…"); Civil Rights Act of 1968 § 804(f)(3)(B), as amended, 42 U.S.C.A. § 3604(f)(3)(B); Shapiro v. Cadman Towers, Inc. 51 F.3d 328 (2nd Cir. 1995); Borkowski v. Valley Central School District, 63 F.3d 131, 139 (2d 1995). "The requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well." U.S. v. Village of Palatine 37 F.3d 1230, 1234 (7th Cir. 1994) ("determining whether a requested accommodation is reasonable requires, among other things, balancing the needs of the parties involved.").
The Respondent’s requirement that the Complainant move is similar to the situation in Boulder Meadows v. Saville, 2 P.3d 131, (Colo.App.2000). FF. 8, 17. In Boulder Meadows, the "[a]lternatives offered by the mobile home park to a handicapped tenant who could not perform the [required] maintenance did not provide the reasonable accommodation required by the FHAA…" Id. One of the proffered alternatives was to have the tenant move out and pay an impractical maintenance fee and another one was to sell or move her mobile home from the park. These alternatives were considered an absolute prohibition against her use and enjoyment of her home. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C.A. § 3601 et seq. Forcing the Complainant to move would not have been consistent with the FHAA.
The FHAA was intended to "require that changes be made to …traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling." Hovsons, Inc. v. Township of Brick ,supra, 1105 citing H.R. Rep. No. 711, 100th Cong. 2d Sess. 24, reprinted in 1988 U.S.C.C.A.N. 2173, 2185. "As one court has explained, strict adherence to a rule which has the effect of precluding handicapped individuals from residing in the residence [of their choice] was precisely the type of conduct which the Fair Housing Amendments Act sought to overcome with the enactment of § 3604(f)(3)(B)." United States v. Village of Marshall, Wisconsin, 787 F.Supp. 872, 879 (W.D.Wis.1991).
"The FHAA’s reasonable accommodations provision prohibits the enforcement of zoning ordinances and local housing policies in a manner that denies people with disabilities access to housing on par with that of those who are not disabled." Hovsons Inc. v. Township of Brick, supra, 1104. "Because one of the purposes of the reasonable accommodations provisions is to address individual needs and respond to individual circumstances, courts have held that municipalities must change, waive, or make exceptions in their zoning rules to afford people with disabilities the same access to housing as those who are without disabilities." Oxford House Inc. v. Town of Babylon, supra, 1186 citing Horizon House Dev. Svcs., Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 699-700 (E.D. Pa. 1992). In the present case, the Respondent is required to make such exceptions in implementing the federal regulation in order to afford the Complainant the same access to his apartment that a person without a disability would have.
The Respondent could not attest to definite costs that it would have incurred if it had granted the accommodation to the Complainant, unlike the respondent in Congdon v. Strine, 854 F.Supp. 355(E.D. Penn. 1994), where it was proven that the cost outweighed the benefit. The court in Congdon found that it was too costly to replace the elevator with a brand new elevator as requested by the disabled plaintiff and more reasonable for the tenant to take an alternative accommodation, which the landlord had offered. The financial burden to the landlord of replacing the elevator outweighed the benefit to the plaintiff. Similarly in Southeastern Community College v. Davis, supra, 399, the court held that neither the language, purpose nor legislative history of section 504 revealed an intent to impose affirmative action obligations on recipients of federal funds. In rejecting the plaintiff’s claim, the Court reasoned that section 504 did not require recipients to make substantial changes in their programs nor to make changes that would cause "undue financial or administrative burdens." Id. at 412. In the present case, the Complainant is not requesting that the Respondent make any substantial changes in its program or policy nor to incur any substantial costs, but merely to make an exception in his individual case.
The Complainant requested that the Respondent interpret the federal regulation so to allow Complainant to fit under the exception clause so that he could have resided in his dwelling owned by his daughter with the use of his Section 8 certificate. FF. 11. This is similar to a tenant asking a landlord for permission to keep a pet when the property has a "no pets policy" (See Riverbay, supra) or to waive a parking fee for visitors who are nurses required to care for disabled tenants when the property requires all visitors to pay parking fees (See U.S. v. California Mobile Home, supra). As the Respondent is charged with providing a federally funded program, it must comply with the intent and purpose of the Rehabilitation Act and FHAA. See infra pp. 10-12.
I find that there is no real cost to the Respondent. FF. 21. It is more reasonable to allow the Complainant to remain residing in his current dwelling and the benefit of allowing him to stay outweighs any speculative burden to the Respondent. The Respondent has an obligation to make changes to its policies unless it can prove it is unreasonable to do so and would generate a cost that outweighs the benefit to the Complainant. The Respondent cannot accomplish this by simply telling the Complainant to move. The Respondent has not proven the existence of any such burden or cost.
Fifth Element of Prima Facie
The Complainant clearly satisfied the fifth element when the Respondent refused to reasonably accommodate the Complainant by not allowing him to use his Section 8 certificate in his current apartment owned by his daughter. FF. 12-15.
Even if the Respondent had argued, that it had provided an alternative accommodation to the Complainant by providing him with possible leads on first floor and elevator equipped apartments, moving out, was not a reasonable accommodation. See Boulder Meadows v. Saville, supra, 138. This argument would fail simply because once a Complainant requests a reasonable accommodation, the Respondent has the duty to offer a reasonable accommodation. Boulder Meadows v. Saville, supra, 137. The only thing that the Respondent offered to the Complainant was the door, by telling the Complainant to find alternative housing and providing him with potential vacancies to move to elsewhere. FF. 17. The Respondent used its interpretation of the regulation as support for not accommodating the Complainant, which it had an obligation to do under General Statutes 46a-64c et seq. and § 504 of the Rehabilitation Act and FHAA.
The Respondent has violated the FHAA and Connecticut law based on its refusal to accommodate the Complainant’s disability by not allowing him to use his Section 8 certificate in his current dwelling. The Complainant and the Commission have established a prima facie case of discrimination under FHAA and Connecticut law. The Complainant has satisfied all elements of his prima facie case in that he is disabled, the Respondent was aware of the Complainant’s disability, the accommodation of the handicap was necessary to ameliorate the Complainant’s disability, the Complainant requested an accommodation and the Respondent refused to make such accommodation. The Respondent has failed to rebut the presumption of discrimination because he submitted insufficient evidence that the Complainant’s proposed accommodation was unreasonable. See U.S. v. Jack Freer, supra, 864 F. Supp. 326. Therefore, I find that the accommodation was reasonable. The Respondent has ignored its obligation under federal and state law and is liable for discrimination because it failed to reasonably accommodate the Complainant.
General Statute § 46a-86(c) expressly authorizes me to award emotional distress damages in housing cases as well as compensatory damages and to order such relief as is necessary to eliminate the discriminatory practice and make the Complainant whole.
The following are factors which the courts and administrative officers have found relevant in determining the amount to award for emotional distress damages. See Commission on Human Rights and Opportunities, ex rel. Donna Harrison v. John Greco, No.7930433 (June 3, 1985). (1) The subjective internal emotional reaction of the Complainant to the discriminatory experience which [he] has undergone… (See Commission on on Human Rights and Opportunities, ex rel. Donna Harrison v. John Greco, supra, See also 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)) and whether the reaction was intense, prolonged and understandable. (See Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, No. 9510408 (Aug. 5, 1998)); (2) whether the discrimination occurred in front of other people, consider if it occurred in public and in view or earshot of other persons which would cause a more intense feeling of humiliation and embarrassment. See Commission on Human Rights and Opportunities, ex rel. Donna Harrison v. John Greco, supra, and (3) the degree of the offensiveness of the discrimination and the impact on the Complainant. Id. In other words, was the act egregious and was it done with the intention and effect of producing the maximum pain, embarrassment and humiliation. See Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra. It is also important to consider other factors that exacerbate the emotional distress suffered by the Complainant. See Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, supra. These other factors are the consequences arising from the discrimination. See Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, No. 9850105, (Jan. 14, 2000).
The Complainant’s attorney claims in its brief that the Complainant has provided overwhelming evidence concerning all three of the above named factors. "[T]hat the Complainant’s subjective internal emotional reaction was severe, that the discrimination occurred in public, and that the discrimination was offensive, both objectively and in its impact on the Complainant." Joint brief at 22. While I agree that the Complainant has experienced some emotional distress, I disagree that there is overwhelming evidence to show severe emotional distress.
In determining the Complainant’s subjective internal emotional reaction, I look to Complainant’s testimony of his feelings when the acts during the denial process occurred. The Complainant stated that when he received the letter of Feb. 5, 1999 from Koroser denying him admission to the HOPE program that he was surprised because he didn’t believe it was a logical ruling. C.Ex. 9; Tr. 48, 55, 59, 83. In this letter, Koroser stated that the reason for the denial was based on the federal regulation prohibiting tenants to rent from relatives. In this letter, Koroser only quoted part of the regulation leaving out the clause providing for an exception to the prohibition which allows for tenants to rent from relatives if they are disabled and the unit provides for an accommodation. FF. 8-9; C.Ex. 9; See infra pp. 12-13. The Complainant researched the federal regulation and found out that there was an exception to the regulation. FF.9; Tr.46-55. He was shocked when he learned of the full text of the federal regulation, which included the exception clause to allow for an accommodation. FF.24. He testified that "[he] didn’t understand why this important part was hidden from [him]. I can’t understand this." Tr. 55.
On April 16, he stated in writing that because of his disability, he was requesting the exception for an accommodation. FF.11. After Koroser inspected the Complainant’s apartment, she found that the unit did not provide for a reasonable accommodation and denied him the accommodation as it related to the Section 8 certificate. FF.12; Tr. 56; C.Ex. 4f(v). The Complainant again, felt terrible. FF.24; Tr. 60–61. On another occasion, Capobianco told the Complainant that she also had a heart condition, but wasn’t applying for any program. Tr.59-60. The Complainant’s reaction to this was that he didn’t understand it and it made him feel as if he was doing an illegal act. FF.24; Tr. 59-60. He testified that he felt terrible and that every time that he went to the HA, it was stressful. FF.24; Tr.60.
The Complainant’s wife testified that during the entire process of dealing with the Respondent, the Complainant became nervous which affected his heart condition, which also became worse. Tr. 85-6. He became quick tempered and angry. Id. She testified that during this time, the Complainant received medication, which he is still taking. Tr. 86; FF.24. She testified that his blood pressure rose and that he was too excited to drive the car. Tr. 86. His daughter testified that she noticed changes for the last few years, with his blood pressure and his heart condition. Tr. 115. She testified that he would complain that he was stressed and worried about the situation. Tr. 115. The Complainant did not testify about his current feelings or emotional state of mind. The Complainant testified of his medical condition but did not distinguish which elements of the condition were results of the emotional distress from the discrimination. Tr. 33.
The Complainant’s and Commission’s attorneys argued in their joint brief that the actions of Koroser, misleading the board, were very significant to the Complainant’s emotional distress, but the Complainant did not testify specifically as to his subjective emotional reaction to this particular situation. Joint brief at 22. The Complainant alleged in its brief that Koroser defamed the Complainant when she informed the board at various times that the Complainant had initially stated that he wasn’t related to his landlord and then changed his story when he had to sign an affidavit stating that he was related to his landlord. Tr. 139-140; C.Ex.4f(iii). This was proven to be not true because the Complainant revealed early on in the process via the Feb. 5, 1999 letter that the he was related to his landlord. FF.16; C.Ex. 9; Tr. 240-2. The Complainant did not address what his feelings were regarding this particular situation. In regard to the entire denial process with the Respondent the Complainant’s wife and daughter testified to the Complainant’s overall emotional distress and the Complainant testified to particular incidents of the denial process stated herein, See infra pp. 34. Therefore, I find that the entire denial process caused feelings of anger, shock, surprise and emotional distress to the Complainant, which affected him mentally and physically. Also, I find that the Complainant’s reaction was prolonged because his daughter testified that she had noticed the change in his mental state for the last few years and his wife testified that he is still taking medication. Tr. 115. I find that the Complainant’s reaction was intense and understandable under the circumstances. See Commission on Human Rights and Opportunities ex rel. Lynne Thomas v. Samuel Mills, supra. The Respondent provided no cross-examination to rebut the testimonies of the Complainant and his witnesses. Tr. 86, 115.
The discrimination did occur in front of other people because the board hearing was held before the board of commissioners to hear the Complainant’s appeal. The hearing with the board was a public venue where others were able to see and hear the act of denying the accommodation and the reasons for such action. FF. 15-16. Koroser gave documentation to the board in regard to the Complainant’s appeal. In the documentation, among other statements made, she insinuated that the Complainant had lied to the Respondent about his relationship with his daughter. FF. 16; C.Ex.4e(v). I find that the Complainant experienced feelings of embarrassment, which I can infer from the evidence, because this act was done in a public setting. See Lorraine Cullen v. Nassau County Civil Service et al, 53 N.Y. 2d 492, 497 (N.Y. 1981) ("that there must be proof that the complainant in fact suffered mental anguish or humiliation, which may be established through the testimony of the complainant alone, with deference to be accorded the inferences drawn by an administrative agency from the evidence…"). In addition, I find that Koroser’s act of lying to the board was embarrassing but without further, more specific testimony from the Complainant, I do not find that the situation was humiliating. Id.
I find that the degree of offensiveness of the discrimination during the denial process was not at a high level. The discrimination toward the Complainant was not of a direct nature in that it did not involve disparaging remarks, derogatory comments or physical or verbal abuse surrounding the Complainant’s disability. (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. Bierko, No. 9420599, (Feb. 8, 1995); Commission on Human Rights and Opportunities, ex rel. Susan Maybin v. Tina Berthiaume, No. 9950026, (March 29, 1999); Commission on Human Rights and Opportunities, ex rel. Victoria Nelson v. David Malinguggio, No. 9740155, (June 10, 1995); Shannon Broome et al. V. Nicholas Biondi et al., 17 F.Supp. 2d 211 (S.D.N.Y. 1997), where in these cases, the complainants, because of their protected class, were berated, degraded and subjected to derogatory remarks, verbal and physical abuse, violence and threats.)
In the present case, the Respondent hid behind the federal regulation when it denied the Complainant the accommodation. The discrimination was masked by a bureaucratic reason: the federal regulation did not allow for the requested accommodation according to the Respondent, which was similar to the situation in Commission on Human Rights and Opportunities, ex rel. Aguiar v. Frenzilli, No. 9850105, (January 14, 2000), where the Respondent argued that the law would not allow her to rent to children, which made the discrimination more subtle and indirect. Again, the Respondent did not go out of its way to cause emotional distress to the Complainant by the use of disparaging remarks.
The Respondent denied the Complainant an accommodation, which was an exception to the federal regulation. The Respondent also, attempted to convince the board that the Complainant was a liar. This type of behavior is upsetting and embarrassing, but the Complainant provided no evidence that he felt more than that. The testimony of the Complainant’s daughter and wife showed that the impact on the Complainant was that he remained an angry, quick-tempered man and was still taking medication due to the situation. Therefore, I do not find that the acts involved in denying the accommodation were egregious and that they were intended to produce the maximum amount of humiliation. In particular, I also do not find that the acts of Koroser’s misleading the board and not fully informing the Complainant about the exception in the federal regulation were egregious. FF.8, 16. I would consider these acts wrong and deceitful, but not egregious.
As a result of the discrimination, the Complainant did not move out of his current apartment, but remains living there, paying the full amount of rent. FF. 5, 22. The Complainant had been paying the full amount of rent without housing assistance since the start of the Section 8 application. The actual acts of the denial process lasted approximately three months from the time of the Respondent’s first denial of an accommodation (April 16, 1999) stemming from the Complainant’s first request for an accommodation (April 12, 1999) until the board’s decision of July 9, 1999, confirming the denial of the accommodation. FF. 2, 11-15, 25. At the time of the Hearing, the Complainant still had not received the Section 8 certificate for his current apartment.
In summary, I find that the Complainant and his witnesses were credible and that the Complainant sustained emotional distress but I do not find that the injuries he suffered warrant a high award. The larger emotional distress awards stem from 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, Aguiar v. Frenzilli, supra, 10. The lower awards come from cases where the discriminatory acts were perpetrated in a single incident, not highly offensive and were not done in the presence of others. Id. at 12. In Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, supra, the Complainant was shocked, fairly upset, and experienced pain, humiliation and embarrassment. The complainant had no apartment and had to reside with his sister for three months. Also, in Commission on Human Rights and Opportunities ex rel. Harris v. Tambur, supra, the complainant was shocked and had to stay in a hotel after losing his deposit and rent.
"The amount of mental anguish damages assessed must specifically compensate only the injury proved." Lorraine Cullen v. Nassau County Civil Service Commission et al, supra, 442 N.Y.S. 2d 473. When courts determine emotional distress damages they must make wholly speculative judgments as to credibility, to separate the genuine from the baseless. Therefore, "…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.
In the present case, the Complainant experienced feelings of anger, shock, surprise and he simply felt terrible. The discriminatory acts did not consist of direct disparaging remarks about his disability and therefore I do not find them severe. The Complainant was medicating still for his mental state at the time of this hearing, but there is no evidence as to what the medication was, what it specifically was used for, whether he used it in the past, and how often did he administer it. The actual discriminating acts of the denial process lasted approximately three months from the time of the first denial of an accommodation on April 16, 1999, until the final board’s decision of July 9, 1999, denying the accommodation and the Complainant still had not been accommodated. FF. 25. The acts were done in public, but they were not highly offensive. The Complainant may have experienced some embarrassment from Koroser’s actions but not enough to cause degradation and humiliation. The consequences of the act also were not severe because the Complainant remained living in his apartment where he needed the accommodation. He did have to pay the full amount of rent, which he previously managed to pay prior to applying for the Section 8, unlike, other housing matters where the Complainant’s were required to move and incur additional costs. See Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, supra. The Complainant did suffer emotional distress, however not severe. For these reasons, I find that the Complainant’s emotional distress warrants a small amount of damages. See Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, supra. I award the Complainant $2,500 in emotional distress damages.
Actual Rental Fee damages
The Complainant claims that he incurred costs of $8,568 which is the sum of $252 per month for 34 months since January 1, 1999, when he should have been admitted into the Section 8 program. Joint Brief at 24. The Complainant has provided no support for this contention, therefore, I do not have an idea why the Complainant believes that he should have been admitted into the Section 8 program since January 1, 1999.
The Respondent denied the Complainant’s application for acceptance into the Hope program on February 5, 1999. C.Ex.9. The Respondent also denied the Complainant an accommodation for participation in the Section 8 program on April 16, 1999. The common reason for both denials was that the Complainant rented his unit from his daughter and based on the federal regulation this was not allowed. Id.; FF. 10-12.
In order for the Complainant to recover damages in a failure to reasonably accommodate action, the Respondent must have been aware that the Complainant was disabled. See Boulder Meadows v. Saville, supra; See also discussion infra pp. 14-15. The Complainant did not notify the Respondent that he needed to remain living in his current apartment because it was conducive to his disability until he delivered to the Respondent the letter from his doctor dated April 12, 1999. The Respondent does not have an obligation to reasonably accommodate a disabled individual until it is made aware that the Complainant has a disability and the Complainant requests a reasonable accommodation. See Boulder Meadows, et al. v. Saville, supra, 137; Worthington v. City of New Haven, supra; Jankowski Lee & Assoc. v. Cisneros, supra, 91 F.3d 894. Even though, the Respondent did not quote the entire language of the federal regulation in the letter dated February 5, 1999, which would have included the exception clause for disabled individuals, if the Complainant needed an accommodation to receive housing assistance from the Respondent for his current apartment, he should have made the Respondent aware of his disability. Having reasonable accommodation language in a policy, rule or regulation is not a requirement before a complainant can request a reasonable accommodation. The Complainant did not make the Respondent aware of his disability until he researched the full text of the federal regulation and saw that there was an exception for disabled individuals. Tr. 50-56. A complainant has a right to request an accommodation at any time, not just because he/she is made aware of a rule providing such right. The Complainant should have requested a reasonable accommodation as soon as he was denied housing assistance for his current apartment, which would have been in February 1999, but he did not.
On April 12, 1999, the Complainant brought the letter from the doctor, dated April 12, 1999, to the Respondent’s office (Tr. 70) and on April 16, 1999, wrote on the affidavit that he needed an exception for his heart condition. FF. 11. As of April 12, 1999, the Respondent was made aware of the Complainant’s disability and had a duty to accommodate.
Therefore, without further evidence to the contrary, the money damages shall commence as of April 12, 1999, and continue through the date of this decision. The rent that the Complainant would have saved through the Section 8 program is $252, multiplied by the number of months he has had to pay full rent since the denial which is 29.75 months. FF. 23. The total monetary damages are $7,497.00. The Respondent also shall pay to the Complainant the amount of $252 per month from the date of this decision until he receives a Section 8 certificate to be used for his current dwelling. C.Ex. 4f(ix).
General Statute 46a-86(c) authorizes me to determine and allow for attorney’s fees.The Complainant has requested an attorney’s fee award of $ 8,775.00, which is the sum of 39 hours of time spent at an hourly rate of $225.00. C.Ex.16; Complainant brief at 25. In determining reasonable attorney’s fees, I will follow the analysis used in Mulligan v. Rioux et al., 1996 WL 614817 (Conn.Super.). The attorney fee award is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." See also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "This figure, commonly referred to as the ‘lodestar’, provides an objective framework within which to evaluate an attorneys fee request…". Mulligan v. Rioux et al., supra. Mulligan used the ‘lodestar’ figure in interpreting the reasonable fee intended by Title 42, U.S.C. § 1988 which provides that in certain specified federal civil rights actions, "the court in its discretion, may allow the prevailing party…a reasonable attorneys fee as part of the costs." Mulligan v. Rioux et al., supra. "There is a ‘strong presumption’ that the ‘lodestar figure’ represents a reasonable fee". Mulligan v. Rioux et al., supra. See also Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546,565 (1986). "The burden is on the fee applicant to produce satisfactory evidence… that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Mulligan v. Rioux et al., supra; See also Blum v. Stenson, 465 U.S. 886, (1984). "The party seeking a fee award must produce contemporaneous time records of sufficient detail 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 et al., supra. See also New York Association for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983). "In evaluating what is a reasonable hourly rate for attorneys,…the court may rely on its own knowledge of hourly rates in the community." Mulligan v. Rioux et al., supra. See also Association for Retarded Citizens of Connecticut, Inc. v. Thorne, 68 F.3d 547, 554 (2d Cir.1995). "The court may also consider awards made in other cases…" Mulligan v. Rioux et al., supra; See also Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1160 (2d Cir.1994).
While I find that the Complainant’s attorney’s time expended on the case is reasonable based on the time schedule provided ( C.Ex.16), I do not find the hourly rate to be reasonable. The Complainant’s attorney did not provide me with a prevailing rate of attorney fee’s in the Hartford community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Also, I do not have information regarding the Complainant’s attorney’s experience in this area of law in order to determine a reasonable amount of attorney’s fees for him. Therefore, I find that the rate of $225.00 an hour to be excessive. I find the hourly rate of $150.00 to be more reasonable.
General Statute § 37-3a specifically authorizes an award for interest at the rate of 10% per annum until the date of payment. Silhouette Optical Limited v. Commission on Human Rights and Opportunities, Superior Court, Judicial District of Hartford/New Britain, Docket No. 92-520590 (January 27, 1994). See also Commission on Human Rights and Opportunities, ex rel. Lynne Thomas v. Samuel Mills, supra. I award pre-judgment and post-judgment interest as set forth in the Order below.
2. The Respondent shall grant the Complainant a Section 8 certificate to be used for his current apartment at 95 Shadow Lane.
3. The Respondent shall pay to the Complainant the amount of $252 per month until the Respondent grants the Complainant a Section 8 certificate and it becomes effective.
4. The Respondent shall pay to the Complainant’s attorney the amount of $5,850 for attorney’s fees together with post-judgment interest at the rate of 10% per annum until it is paid.
5. The Respondent shall pay to the Complainant the amount of $2,500 for emotional distress damages together with post-judgment interest at the rate of 10% per annum until it is paid.
6. The Respondent shall cease and desist from engaging in any further discriminatory conduct towards the Complainant, as well as from any retaliatory conduct against any person who participated in this proceeding.
Therefore, in accordance with the provisions of General Statutes § 46a-86, the Respondent has been found liable for discrimination based on a failure to reasonably accommodate the Complainant.
Dated this _______ day of October 2001 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut.
The Honorable Donna Maria Wilkerson
Presiding Human Rights Referee
David Teed, Assistant Attorney General
Attorney Rudy Arnold
Attorney Karl Fleischmann Lynn Koroser, West Hartford Housing Authority
Atty. Raymond Peck, Deputy Commission Counsel