9950020, Scott v. Robert Jamison, et al., Final Decision
CHRO No. 9950020
Commission on Human Rights and Opportunities ex rel. : Juliet Scott, Complainant
Robert Jemison a.k.a. Muammar Muhammad and Crescent Realty, Inc., Respondents : March 20, 2000
On September 4, 1998, Juliet Scott ("complainant") filed an Affidavit of Illegal Discriminatory Practice ("complaint") with the Commission on Human Rights and Opportunities ("commission"). The complainant alleged that from June 1996 and continuing to the date of the complaint she was illegally discriminated against by the respondents ("respondents") Robert Jemison a.k.a. Muammar Muhammad ("Muhammad") and Crescent Realty, Inc. ("Crescent"). She alleged that she was physically and verbally assaulted and harassed, denied equal services, and threatened with eviction on the basis of her race and color and of her children’s race and color in violation of General Statutes § 46a-64c(a) and Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. 3601 et seq.
On November 5, 1998, the complainant filed an amendment to her complaint adding the allegation that the respondents had retaliated against her in violation of General Statutes § 46a-60(a)(4). The commission filed a second amended complaint on September 9, 1999 substituting General Statutes §§ 46a-64c(a)(2) and 46a-64c(a)(3) for the third unnumbered paragraph of the original complaint. For the reasons stated herein, the respondents are found to have violated General Statutes §§ 46a-64c(a)(2), 46a-64c(a)(3), and 46a-60(a)(4). The complainant is awarded $6,000.00 in compensatory damages for emotional distress, $25,296.44 in attorney’s fees and costs, and such further relief as is herein set forth.
The complainant is Juliet Scott of 202 Burnham Street, Hartford, Connecticut. The Commission on Human Rights and Opportunities is located at 21 Grand Street, Hartford, Connecticut. The respondents are Robert Jemison now known as Muammar Muhammad of 47 Woodland Road, Bloomfield, Connecticut and Crescent Realty, Inc. of 136 Barbour Street, Hartford, Connecticut.
II PROCEDURAL HISTORY
The complaint was filed on September 4, 1998 and assigned to an investigator. The complaint was amended on November 5, 1998. The investigator found reasonable cause for believing that an unfair practice was committed as alleged in the complaint. On March 1, 1999, the investigator certified the complaint and the results of the investigation to the executive director of the commission and to the attorney general. Pursuant to General Statutes § 46a-84 the undersigned was appointed as the presiding Human Rights Referee.
After due notice to all of the parties, a hearing conference was held on April 8, 1999. The commission and the complainant appeared, but the respondents did not appear. By motion dated April 13, 1999, the commission’s counsel filed a motion to default the respondents for failure to answer the complaint. By correspondence dated April 15, 1999 and filed April 19, 1999, Muhammad claimed that he had not received the notice of the hearing conference. By order dated April 20, 1999, a status conference was scheduled for May 12, 1999 and the respondents were ordered to file their answers on or before May 3, 1999.
On May 3, 1999, Muhammad filed an answer. Contrary to Section 46a-54-94 of the Regulations of Connecticut State Agencies ("Regs."), the answer was not under oath. On May 12, 1999, a status conference was held. At that conference, public hearing dates were scheduled for September 2 – 3, 1999, dates were established for related prehearing activities, and the commission’s motion to default the respondents was denied.
On September 1, 1999, Attorney Herman Woodard, Jr., filed a Superior Court appearance form on behalf of "the defendant" [sic] and also a motion to continue the public hearing scheduled for September 2 – 3, 1999. The motion was granted and a scheduling conference was ordered for September 3, 1999.
On September 3, 1999, counsel for the commission and for the respondents were present at the scheduling conference. The complainant and the respondents were excused from attending. At that conference, dates were established for a settlement conference, production requests, the exchange of witness and exhibit lists, a prehearing conference, and the public hearing. Further, the commission’s counsel was ordered to file an amended complaint on or before September 10, 1999 specifying the subsection(s) of General Statutes § 46a-64c that the respondents had allegedly violated. The respondents’ counsel was ordered to file an amended appearance reflecting his representation of both respondents on or before September 10, 1999 and also to file an answer to the amended complaint on or before September 17, 1999.
On September 9, 1999, the commission’s counsel filed its motion to amend the complaint. There being no objection to the motion, it was granted on September 21, 1999. On October 13, 1999, the respondents’ counsel filed an answer. The answer was solely on behalf of Muhammad. The answer was not under oath. No answer under oath was ever filed on behalf of either respondent. In addition, no amended appearance was ever filed by Attorney Woodard.
On September 22, 1999, Attorney Kenneth J. Bartschi, of Horton, Shields & Cormier, P.C., filed an appearance on behalf of the complainant. On October 20, 1999, Attorney Bartschi filed a motion to default the respondents for failure to file an answer. As no objection was filed, the motion was granted on November 3, 1999 and a hearing in damages was scheduled for November 23, 1999.
Although the respondents’ counsel apparently did not receive the motion to default and the order until November 8, 1999, counsel took no action until November 22, 1999 when, at approximately 4:45 p.m., he faxed a Motion to Dismiss and a Motion to Set Aside Default Judgment. At the hearing on November 23, 1999, the parties presented oral argument on the motions. For the reasons stated on the record, both motions were denied and the hearing in damages proceeded as scheduled with Attorney Ngobeni appearing on behalf of the respondents. Hearings were also held on December 13, 1999 and December 15, 1999 and, at the parties’ request, a briefing schedule was ordered. Simultaneous briefs were ordered to be filed on or before February 10, 2000 and simultaneous reply briefs were to be filed on or before February 29, 2000, at which time the record would be closed.
On January 20, 2000, Attorney Paul M. Ngobeni filed an appearance on behalf of both the respondents in lieu of the appearance by Attorney Woodard.
All parties timely filed their briefs. Only counsel for the commission and the complainant filed reply briefs.
III PARTIES’ POSITIONS
As the result of an entry of a default order against the respondents for their failure to file a verified answer, the sole issue is determining the relief necessary to eliminate the discriminatory practice and make the complainant whole.
The complainant seeks $15,000.00 for emotional distress damages; $23,742.50 for attorney’s fees; and $1,553.94 for costs. The commission and the complainant contend that, for a two and one-half year period, the respondents directed racially derogatory language towards the complainant and her children and failed to make timely repairs to her apartment because of her race, color, marital status, familial status, and religion. They further contend that the respondents retaliated against the complainant after she filed her complaint with the commission.
The respondents argue that, notwithstanding the finding of liability, no damages should be awarded. The respondents contend that the complainant failed to offer sufficient competent evidence to sustain any emotional distress award. They further argue that the complainant damaged her apartment beyond normal wear and tear.
IV FINDINGS OF FACT
Based upon a review of the pleadings, exhibits, testimony, and transcript, the following facts relevant to this decision are found:
- All procedural, notice and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to hear the complaint and render a decision. (Tr. 19-28; Commission’s Exs. 1-15.)
- The complainant is a member of one or more protected classes, being a single, black, African-American female with children and having alleged that the respondents retaliated against her for her filing a complaint. (Commission’s Exs. 1, 6, and 12.)
- The complainant has five children. Their dates of birth are December 13, 1988; January 9, 1992; February 15, 1995; October 20, 1996; and November 20, 1998. (Complainant, Tr. 30-32.)
- The respondent Robert Jemison, now known as Muammar Muhammad, is a black, African-American male. (Commission’s Ex. 1.)
- The respondent Crescent Realty, Inc. is the landlord of 136 Barbour Street, Apt. B-1, Hartford, Connecticut. (Complainant’s Exs. 1 and 7.)
- The complainant moved into 136 Barbour Street, Apt. B-1, Hartford, Connecticut, on June 22, 1996 and lived there until April 1999. (Complainant, Tr. 30.) The apartment is a Section 8 subsidized unit. (Commission’s Ex. 1; Respondents’ Ex. 1.)
- Approximately three to four months after she moved into the apartment, the complainant began having difficulties with the respondents because repairs to her apartment would not be made for weeks or months after her requests. (Complainant, Tr. 33-34.)
- As a result of the respondents’ failure to make timely repairs, the complainant contacted the City of Hartford’s Department of Licenses and Inspections. Thereafter, the department repeatedly cited the respondents for ongoing violations including mice infestations, and plumbing, electrical and refrigeration problems. (Complainant, Tr. 34; Geraci, Tr. 275; Commission’s Ex. 1; Complainant’s Exs. 2 and 3; Respondents’ Exs. 2, 3, 4, 5, 6, and 8.)
- After the complainant contacted the Department of Licenses and Inspections, Muhammad began making derogatory remarks to and about the complainant and her children. (Complainant, Tr. 34-36.) He called the complainant a "nigger" and ugly, and he made derogatory remarks about her status as a single parent. He would also call her children "bastards". (Complainant, Tr. 34.)
- Muhammad said that "blacks are nasty" and that he would move Puerto Ricans into his building instead of blacks because they are cleaner. (Complainant, Tr. 34; Commission’s Ex. 1.)
- Muhammad yelled at and physically threatened the complainant and her children. (Complainant, Tr. 35, 37, 39.)
- The complainant’s children, primarily her son, were present when Muhammad demeaned her. Also present on occasion was Maurice Muhammad. (Complainant, Tr. 35.)
- The interaction between the complainant and Muhammad and between the complainant and others resulted in frequent telephone calls from one or the other to the police and police presence at the apartment. (Complainant, Tr. 36, 70, and 73-74; Wadell Muhammad, Tr. 146-47; Maria Muhammad, 389; Complainant’s Exs. 4, 5, and 6; Respondent’s Exs. 10 and 11.)
- Within weeks of the complainant filing her complaint with the commission, Crescent served her with a Notice To Quit on October 2, 1998 and a Summary Process summons on November 2, 1998. (Commission Ex. 6; Complainant’s Ex. 1.) Also, on October 8, 1998, Muhammad offered to allow the complainant to remain in her apartment if she would retract the statements she made about his behavior and her complaint to the commission. (Commission’s Ex. 6.)
- After the complainant filed her complaint with the commission, Muhammad made a prank telephone call to the complainant pretending to be a commission investigator seeking information. (Complainant, Tr. 40-41.)
- When the complainant initially moved in the respondent’s apartment, the respondent spoke to her about the Nation of Islam religion, showed her where the mosque was located, and asked her to worship there. When the complainant stopped regularly attending the mosque, the respondent approached her stating that he expected his tenants to worship at the mosque. After the complainant became pregnant and because she was not married, the respondent refused to provide necessary repairs or services to the complainant’s apartment. (Complainant, Tr. 35-37; Commission’s Ex. 6.)
- As a result of the respondents’ discriminatory conduct, the complainant became emotionally upset. She became sensitive about her status as a single parent. (Complainant, Tr. 43-44.)
- Prior to her experience with Muhammad, the complainant had seen the world without judgment or prejudice. By making statements that Puerto Ricans were better than blacks and that dark women were ugly and unwanted, Muhammad brought color and prejudice into the complainant’s life. Prior to her experience with Muhammad, the complainant was not a prejudicial or judgmental person. (Complainant, Tr. 43-44 and 46-47.)
- As a result of the respondents’ conduct, the complainant was always on the defensive. She felt like a man by always having to defend herself and her children from Muhammad. She felt that everyone was out to get her. After Muhammad had her arrested and jailed, she felt that no one was concerned about pregnant women. (Complainant, Tr. 44 and 47.)
- Muhammad’s threats to the complainant’s children hurt her as their mother. (Complainant, Tr. 47.)
- The complainant felt overwhelmed by Muhammad’s threats of eviction and harassment. She had feelings of isolation that she had not had before her contact with him. (Complainant, Tr. 565-67.)
- Previous to her contact with Muhammad, the complainant had felt in a better mental state and that her life’s challenges were manageable. However, the respondents’ actions "lifted a veil" and she now viewed the challenges in her life as insurmountable. (Complainant, Tr. 43 and 567.) With this veil lifted, the complainant came to see the world as a hostile place and she felt inadequate as a human being. (Complainant, Tr. 43-44, 47, and 567.)
- In addition to the emotional reaction the complainant sustained as a result of the respondents’ discriminatory conduct, she also suffered physical and emotional stress. She had premature contractions while pregnant. She suffered from depression and anxiety attacks. These anxiety attacks manifested themselves in rapid heartbeats and a sick feeling in her stomach. These attacks typically occurred in the afternoon following an encounter with Muhammad. (Complainant, Tr. 43-44.) The threats to her children made her cry. (Complainant, Tr. 47.) The respondents’ conduct opened long-healed wounds from other painful experiences in the complainant’s early upbringing of seclusion and cruel treatment by her mother. (Complainant, Tr. 512 and 567.)
- The respondents’ conduct spanned nearly two and one-half years, beginning in 1997 a few months after the complainant moved into the apartment and continuing until she moved out in April 1999. (Complainant, Tr. 44.) During this time, Muhammad used derogatory language about her children occasionally but used racially derogatory language to refer to the complainant in almost every encounter the parties had. (Complainant, Tr. 35.)
A. APPLICABLE STATUTES, REGULATIONS AND CASE LAW
Upon certification of a complaint, the respondent must file a verified answer to the complaint, notwithstanding any answer he may have filed with the investigator prior to certification. General Statutes § 46a-84(f); Regs., Conn. State Agencies §§ 46a-54-90(a)(5) and 46a-54-94. If the respondent fails to file a verified written answer, the presiding officer is authorized to enter an order of default and order such relief as is necessary to eliminate the discriminatory practice and make the complainant whole. General Statutes § 46a-84(f); Regs., Conn. State Agencies § 46a-54-95. The presiding officer shall notify the respondents of the entry of the default and advise them of the date, time, and place that a hearing in damages shall take place. Regs., Conn. State Agencies § 46a-54-95(d). Allegations in the complaint that are not answered under oath by the respondent are deemed admitted without the need for further proof. Regs., Conn. State Agencies § 46a-54-94.
In addition, the presiding officer is authorized to award damages for emotional distress in this case under General Statutes § 46a-86(c) as other costs incurred. Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Belinsky, 1988 WL 492460 *5 (Conn. Super.); Commission on Human Rights and Opportunities ex rel. Donna Harrison v. John Greco, CHRO Case No. 7930433, pp. 6-7 (June 3, 1985). Criteria to be considered in awarding emotional distress damages include: (1) the subjective internal emotional reaction of the complainant to the discriminatory experience, (2) whether the discrimination occurred in front of other people, (3) the degree of offensiveness of the discrimination, and (4) the impact on the complainant. Harrison v. Greco, supra, CHRO Case No. 7930433, pp. 7-8; CHRO ex rel. Lynne Thomas v. Samuel Mills, CHRO Case No. 9510408, p. 7 (August 5, 1998); Peoples v. Belinsky, supra, 1988 WL 492460, *6.
The complainant need not present medical testimony to establish emotional harm. Commission on Human Rights and Opportunities ex rel. Malisa McNeal-Morris v. Czeslaw Gnat, CHRO Case No. 9950108, p. 7 (January 4, 2000); Thomas v. Mills, supra, CHRO Case No. 951048, pp. 6-7. A complainant’s own testimony may suffice. McNeal-Morris v. Gnat, supra, CHRO Case No. 9950108, p.7.
The award for emotional distress damages must be limited to compensatory, rather than punitive, amounts. Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350, 366 (1986). "That such compensatory damages may be incapable of precise mathematical computation and necessarily uncertain does not, however, prevent them from being awarded. That damages may be difficult to assess is, in itself, insufficient reason for refusing to award them once the right to damages has been established." (Internal quotation marks omitted.) CHRO ex rel. Tyrone Cohen v. Patrick Menillo, CHRO Case No. 9420047, pp. 12-13 (June 21, 1995)(citing Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 420 (1982); CHRO ex rel. Lynne Thomas v. Samuel Mills, CHRO Case No. 9510408, p. 8 (August 5, 1998)(also citing Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 420 (1982).
Awards for emotional distress have ranged from $1,500 to $75,000. Thoughtful surveys and analysis of these awards can be found in McNeal-Morris v. Gnat, supra, CHRO Case No. 9950108 pp. 7-9 (January 4, 2000) and also in Commission on Human Rights and Opportunities ex rel. Deborah and Raymond Aguilar v. Nancy and Ralph Frenzilli, CHRO Case No. 9850105, pp. 9-15 (January 14, 2000).
In addition to awarding damages for emotional distress, the undersigned is also authorized to award attorney’s fees and costs to a prevailing complainant. General Statutes § 42a-86(c).
The respondents’ legal analysis as propounded in their brief is incomplete. The respondents’ citations are all to federal court decisions and federal statutes. While Connecticut courts often look to federal discrimination law for guidance, "federal law defines the beginning and not the end of our approach to the subject." (Internal citations and quotation marks omitted.) State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989). That federal law is not dispositive of state law is particularly true where, as in this case, a significant body of state court and commission case law exists on this topic. Further, most of the federal statutes cited by the respondents are also irrelevant to this case because the complainant is not alleging violations of federal civil rights; of 42 U.S.C. §§ 1981, 1982 and 1983; or of First or Fourteenth Amendments to the federal constitution.
1. Factors supporting an award for emotional distress
The complainant has presented credible and detailed evidence demonstrating her emotional distress as a result of the respondents’ discriminatory conduct. First, she suffered a serious, subjective emotional reaction to the conduct. She became aware of her status as a single parent, which had not bothered her before her involvement with the respondents. She became aware of prejudice and judgment, again, which she had not been aware of before her contact with the respondents. Muhammad put prejudice and color into the complainant’s world by forcing his prejudice on her. She was always on the defensive. She felt like a man because she had to defend herself and her children. She felt that everyone was out to get her. After Muhammad had her arrested and jailed, she felt that no one was concerned about pregnant women. Muhammad’s threats to her children hurt her as their mother. The complainant felt overwhelmed by the way Muhammad treated her. She had feelings of inadequacy and isolation that she had not had before her contact with him. (FF 17, 18, 19, 20, 21, and 22.)
Second, the conduct occurred in public. The fact that only one other adult besides the complainant and Muhammad was present is offset by the fact that the humiliation and inappropriateness of such conduct occurred in front of the complainant’s young and impressionable children. (FF 3, 12.)
Third, the racial slurs, the threats to the complainant and her children, and the retaliatory actions were highly offensive conduct. (FF 9, 10, 11, 12, 14, 15, and 16.) This offensive conduct often resulted in frequent complaints to the police and the City of Hartford’s Department of Licensing and Inspections (FF 8 and 13). The conduct was of long duration, spanning a two and one-half year period of time. (FF 24.)
Fourth, the conduct had an impact on the complainant. She suffered premature contractions while pregnant, although they subsided, and also anxiety attacks. She was depressed and always on the defensive. The conduct resurrected painful memories from her childhood that she had put behind her. The threats to her children made her cry. (FF 19 and 23.)
Finally, although liability is not an issue, Muhammad’s own conduct at the public hearing supports the complainant’s contention of his behavior. During his testimony, he exhibited a sexist attitude, criticizing the complainant for "act[ing] like a man". (Muhammad, Tr. 458). He also made racist comments under examination by the complainant’s attorney (a white male). (Muhammad, Tr. 476-77.)
The respondents’ argument that the complainant could have mitigated her damages by moving is contradicted by the many efforts she made to deal with the situation. The complainant contacted the police, the city’s Department of Licenses and Inspections, and the commission. (FF 8 and 13.) Furthermore, her options were limited, given that the Section 8 certificate upon which she depended for housing was attached to her unit and not to her, as acknowledged by the respondents themselves. (Respondents’ Brief, p. 1.)
2. Factors mitigating against the complainant’s claim for $15,000.00
As a result of the entry of a default order, liability is presumed by operation of law. However, factors are present mitigating the complainant’s claim for $15,000.00 in damages for emotional distress.
The complaint alleges, inter alia, that the respondents failed to make timely repairs to her apartment because of her color and race. (Commission’s Ex. 1.) However, it is clear that the delay in repair and city inspection was at times caused by the complainant’s own failure to allow the respondents and the city inspector access to her apartment. (Complainant, Tr. 60-61; Farrakhan Muhammad, Tr. 200-201; Morales, Tr. 257; Geraci, Tr. 305 and 307; Respondent’s Exs. 7 and 8.) It is also clear that at least some of the damage to the apartment necessitating the repairs was not normal wear and tear and may have been intentional. (Complainant, Tr. 83-87and 98-99; Farrakhan Muhammad, Tr. 211 and 213-16; Morales, Tr. 249, 252, and 259; Geraci, Tr. 298; Maria Muhammad, Tr. 395-96; Respondent Muhammad, Tr. 429 and 460; Complainant’s Ex. 1; Respondent’s Exs. 2, 3, 4, and 11.) She also appears to have intentionally caused water damage to Muhammad’s store, located beneath her second floor apartment. (Wadell Muhammad, Tr. 142-43 and 145.)
Although her own behavior does not excuse the respondents’ discriminatory conduct, the complainant apparently also used derogatory and vulgar language and threats in her frequent arguments with Muhammad as well as with other people. (Wadell Muhammad, Tr. 146-47; Shaw, Tr. 166; Maria Muhammad, Tr. 389; Respondent Muhammad, Tr. 458.)
Interestingly, while the complainant complained about the respondents to the building inspector and the police, she did not complain of their discriminatory conduct to the assisting minister of her and Muhammad’s mosque (Wadell Muhammad, Tr. 141;), to a minister of the Salvation Army (Butler, Tr. 349, 356), or to a social worker at St. Francis Hospital and Medical Center when discussing stresses in her life. (Respondent’s Ex. 13.)
3. Attorney’s fees and costs
At the hearing on December 15, 1999, the complainant’s counsel was instructed by the undersigned to file his request for attorney’s fees and costs with his brief, and a supplemental request with his reply brief, in order to provide the respondents with the opportunity to address the bulk of the request in their reply brief. (Tr. 572.) Despite the opportunity to do so, the respondents did not respond to the complainant’s counsel’s request for fees and costs nor address the complainant’s counsel’s hourly rate, number of hours claimed, or costs incurred. Based upon a review of the wholly unopposed requests, the amount for attorney’s fees and costs requested is found to be reasonable and appropriate.
VI CONCLUSIONS OF LAW
As a result of the entry of a default order against the respondents for their failure to file a verified answer, a hearing in damages was held for the sole purpose of determining the relief necessary to eliminate the discriminatory practice and make the complainant whole. The complainant has presented sufficient credible and detailed evidence from which compensatory damages for emotional distress and attorney’s fees and costs can be awarded for the respondents’ violation of General Statutes §§ 46a-60(a)(4), 46a-64c(a)(2), and 46a-64c(a)(3).
VII ORDER OF RELIEF
Based on the foregoing, it is hereby Ordered:
The respondents shall cease and desist from refusing to rent, from refusing to negotiate to rent, or from refusing to make timely repairs to such premises to which the provisions of General Statutes § 46a-64c are applicable to any person because of race, creed, color, national origin, ancestry, sex, marital status, age, lawful source of income, or family status except as otherwise may be permitted by Chapter 814c of the General Statutes.
The respondents shall pay to the complainant the sum of $6,000.00 as compensatory damages.
The respondents shall pay to the complainant attorney’s fees in the amount of $23,742.50 and costs of $1,553.94, totaling $25,296.44.
Post judgment interest pursuant to General Statutes § 37-3a on the award of compensatory damages and attorney’s fees is also granted at the rate of ten percent per annum from the date of this decision.
The respondents and their agents or employees shall not engage in any conduct against the complainant, her children, or any participant to this proceeding.
Hon. Jon P. FitzGerald, Presiding Human Rights Referee
C: Ms. Juliet Scott
Atty. Kenneth J. Bartschi
Mr. Muammar Muhammad
Crescent Realty, Inc.
Atty. Paul M. Ngobeni
Atty. Emily V. Melendez
Atty. Raymond P. Pech