9710196, Cooper v. Gorski, Final Decision

Remand Case
Case No. CV990496223
Ricky and Regina Cooper, et al. v. CHRO 

CHRO Nos. 9710196 and 9710197

Commission on Human Rights and Opportunities ex rel.Ricky and Regina Cooper, Complainants 
v.
Andrew and Hanna Gorski, Respondents

 January 5, 2001

FINAL DECISION

I.  THE PARTIES:
COMPLAINANTS:
Ricky and Regina Cooper of 1467 Corbin Avenue, New Britain , CT 06053
THEIR ATTORNEYS:
Jon Bauer, Esq. and Paul Chill, Esq., Civil Rights Clinic, UCONN School of Law, 65 Elizabeth Street, Hartford, CT 06105
RESPONDENTS:
Andrew and Hanna Gorski, 108 Flagler Street, Newington, CT 06111
THEIR ATTORNEY:
Daniel A. Silver, Esq., One Liberty Square, P.O. Box 698, New Britain, CT 06050-0698
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
Philip A. Murphy, Jr., Esq., Commission Counsel, CHRO, 21 Grand Street, Hartford, CT 06106
ITS ATTORNEY:
David Teed, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120

II.  PROCEDURAL HISTORY:

On October 11, 1996, the Complainants initiated this action by filing a complaint with the Commission on Human Rights and Opportunities (hereinafter "CHRO") under the provisions of C.G.S. § 46a-64c (1)(2) and Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendment Act of 1988, 42 U.S.C. §§ 3600-3620, as enforced through C.G.S. § 46a-58(a). The Complainants, whose race and color are black, alleged that the Respondents violated Department of Housing and Urban Development (HUD) regulations and the above federal and state laws by using different application criteria and rental requirements because of the Complainants’ race. Specifically, the Complainants alleged that the proposed rental terms and conditions offered them differed from those offered the prior tenant (Ziegler), and those of the subsequent tenant (Webster), both of whom were white. The Complainants additionally alleged that the Respondents violated Section 3604(a) of the Fair Housing Act ("FHA") by "constructively denying" them, on account of their race and color, the opportunity to rent the premises located at 62 Trinity Street, New Britain, Connecticut, the subject premises.

The complaint was investigated by the CHRO and certified to a public hearing on October 1, 1997. The hearing itself was held on January 25 and 26, 1999. On May 11, 1999, the hearing officer issued his decision dismissing the complaint. The hearing officer concluded that, with respect to the differing standards claim, the Respondents’ use of a real estate agent isolated the Complainants’ transaction from any other of the Respondents’ rental practices and therefore found that a prima facie case of discrimination had not been made. Secondly, the hearing officer found that the concept of "constructive denial" of a rental was not supported by the relevant housing statutes or case law.

On June 16, 1999, the Complainants appealed this decision in a timely fashion to the Superior Court. Thereafter, on October 23, 2000, the Court in Ricky and Regina Cooper, et al. v. Commission on Human Rights et al, CV990496223 (J. District of New Britain), rendered a Memorandum of Decision (hereinafter "MOD") vacating the hearing officer’s decision and remanding it to the CHRO with the directive to render a new decision based on the existing record, and consistent with its decision.

Upon the failure of the Respondents to appeal the Court’s decision, on November 17, 2000, the undersigned designated myself as the Human Rights Referee charged with rendering the decision required by the Court’s remand order.

In compliance with that decision, the review undertaken by me is limited to the existing record. As a consequence I have thoroughly examined the pleadings and other documents filed in CHRO ex rel. Ricky and Regina Cooper v. Andrew and Hanna Gorski, CHRO #9710196 and #9710197, the transcripts of the hearing, the exhibits, and the post hearing briefs of the parties. My conclusions are based on that review in light of the Court’s decision and its findings therein

III.  .ANALYSIS:

The starting point for my analysis is the Court’s MOD. In his decision Judge Cohn affirmed the hearing officer’s conclusion that "the housing laws do not allow a claim of ‘constructive denial’" (MOD, p.9). This finding is therefore dispositive of this claim. However, the Court did find that the "hearing officer did not properly apply the law regarding whether differing rental requirements were used for blacks and whites, which formed the first portion of the plaintiff’s complaint." (MOD, p.10) The Court held that the "prima facie case applicable here required that the plaintiffs [the Coopers] … show that they were members of a protected class and that they were treated differently than similarly situated whites with respect to application and rental requirements," (MOD, p.11). It found the hearing officer erred in concluding that the Coopers had failed to make this prima facie case, since the plaintiffs were unquestionably protected class members and "the previous tenant and the subsequent tenant (both white) did not have to meet the rigorous standards imposed by the Gorskis in the application process. The fact that a realtor was supplying information to the Gorskis for their evaluation of the Coopers is not sufficiently material. In every instance of the renting of the property the Gorskis [Respondents] personally decided on the prospective tenant and the information needed from each prospective tenant." (MOD, p.11-12)

The above referenced findings and conclusions are of course binding on the undersigned, and are critical to the ultimate disposition of the case. There is no need to further discuss, therefore, the initial burden on the Complainants to establish a prima facie case with respect to their claim of discriminatory application procedures and rental requirements.

It is well understood that when "addressing housing discrimination claims the trier is to be guided by the burdens and standards of proof originally articulated in employment discrimination cases brought under Title VII of the Civil Rights Act." Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 202 (1991); Zlokower v. Commission on Human Rights and Opportunities, 200 Conn. 261, 241 (1986). Those standards were most recently explicitly clarified in Reeves v. Sanderson Plumbing Products, Inc., 2000 W.L. 743663 (U.S.), June 2000, in which the U.S. Supreme Court held that "a plaintiff’s prima facie case, combined with sufficient evidence that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, Supra, 9. In short, the Complainants prevail if the trier determines that the Respondents offered legitimate, non-discriminatory reasons for their differential treatment prove to be pre-textural.

The Court summarizes the factual context of this case (MOD, p.1-6), and there is no need to totally repeat that here as those findings are incorporated by reference herein. A fair, concise summary would be that the Respondents were the owners of a four-family apartment house located at 62 Trinity Street in New Britain. They had , for years, rented the apartments on a loose, ad hoc basis through informal means (i.e., word-of-mouth, etc.). One tenant, Ziegler (who was white) was evicted in the summer of 1996 for non-payment of rent. As a result of this financial loss, the Respondents retained a realtor, Kathy Veneziano of RE/MAX, through an "exclusive right rental agreement." In September 1996, the Complainants responded to a RE/MAX rental newspaper ad, looked at and liked the apartment, and filled out a rental application form provided by Veneziano. This form authorized a credit check, which was done, and was substantially filled out by the Complainants.

After investigating Mrs. Cooper’s employment status, and verifying their landlord reference and credit status, Veneziano determined that the Coopers were eligible renters and called Mr. Gorski to that effect and arranged a meeting of the parties for the next day.

As it transpired the meeting, held on September 10, 1996, turned out disastrously, or as the Court put it more delicately, "it commenced cordially but degenerated quickly" (MOD, p.4). The upshot was that the Respondents contended that the application was incomplete and demanded that the Coopers provide more information in a verified, written form. Even though the Coopers were present and could easily have provided that information then and there, the Respondents left and awaited the provision of the requested information. That information included Veneziano providing written verification that Mr. Cooper was attending school, other income he might have available, his prior work experience and Mrs. Cooper’s prior employment history. (Tr.166-167)

The Coopers felt almost immediately that the Respondents’ conduct was racially motivated and later that night advised Veneziano that they no longer wished to rent from the Gorskis. The agent herself called Mr. Gorski that night to say that she had obtained the additional information and, significantly to the undersigned, independently and straight-forwardly asked him whether he was discriminating against the Coopers because they were black. (Tr.,p.169, 251-252) The Respondent denied that he was. The Coopers rented a different apartment that had previously been shown to them by Veneziano.

Within two weeks of this incident, the Respondents terminated the contract with RE/MAX and rented the apartment at issue "on their own" to a white male named William Webster.

The record is clear that the Respondents treated Webster substantially different than they did the Coopers with respect to their rental application requirements. In contrast to the Coopers, the Respondents never asked Webster where he worked, what his income was, and what his work history had been. They did not ask for a reference from a prior landlord, a credit check, nor a security deposit. All of the above were required of the Coopers (Tr.254-255, 281-285), and more, in that it had to be in written, verified form. There is no dispute about these differences in the record, and in any event the Court specifically found in its decision that "the previous tenant and the subsequent tenant (Ziegler and Webster – both white) did not have to meet the rigorous standards imposed by the Gorskis’ (on the Coopers) in the application process (MOD, p.11).

The Respondents’ claimed legitimate, non-discriminatory reasons for this apparent differential treatment appear to be (1) that the tighter standards were imposed by RE/MAX through its more formalized application procedure, and not by them, and (2) their reliance on a neighbor’s referral in the case of Webster. As to the first claim, the Court gave little credence to this argument in the context of analyzing the establishment of a prima facie case. It found "the fact that a realtor was supplying information to the Gorskis for their evaluation of the Coopers is not sufficiently material. In every instance of the renting of this property the Gorskis personally decided on the merits of the prospective tenant and the information needed from each prospective tenant … and retained the right to refuse any tenant" (MOD, p.11-12). This determination is by itself dispositive of Respondents first claim.

It should be emphasized that the "formalized" RE/MAX application produced sufficient information to allow an agent of 18 years experience, Kathy Veneziano, to determine that the Coopers were eligible to rent Respondents’ apartment and to recommend them to the Respondents (TR. p.149-50, 152). This included a credit check, landlord reference, employment verification and income information, as well as a security deposit. These benchmarks exceeded the information previously sought by the Gorskis from prospective tenants (Return of Record, Item 1, Background, par.1; MOD, p.2). Yet, upon meeting the Coopers for the first time, the Respondents found this data to be insufficient. In demanding even more information in verified, written form, including even verification of Mr. Cooper’s student status (Tr., 167), the Respondents consciously exceeded the requirements recommended by their professional realtor. Clearly, this alleged legitimate, non-discriminatory reason has no foundation.

Equally unpersuasive is the contention by the Respondents that any apparent inconsistency in treatment as between the Coopers and Webster was justified because the latter was referred to them through a neighbor (Tr. 255). Mr. Gorski described this neighbor as a preacher whose word and opinion could be relied upon (Tr. 255). However, testimony elicited immediately thereafter indicated that he hardly knew this individual (Tr. 254), and had not even known his last name when asked about it during the investigative stage of this proceeding (Tr. 284).

The credibility, or lack thereof, of this reliance must be determined in the context of the Gorskis’ self-declared intent to be "careful and cautious" about who their next tenant would be (Tr. 281) because of the loss of three months’ rent through the eviction of the prior tenant, Ziegler (Tr. 236-38). It was this issue to be thorough and careful that had led them to use a real estate agent for the first time. It was this professed caution that allegedly led them to demand even more information from the Coopers than even the realtor felt necessary.

Yet, this caution went up in smoke only two weeks later when Webster appeared. They received none of the information the Coopers provided, nor did they ask for any. They claim to have been reassured by a "referral" from a neighbor they hardly knew, but were not reassured by the positive recommendation of a professional real estate agent with 18 years’ experience. However, Webster was white, and the Coopers were black.

The falsity and pre-textual nature of the Respondents’ proffered non-discriminatory reasons is apparent from other factors appearing in the record. The meeting on September 10, 1996 should not have degenerated as it did had it not been for the Gorskis’ obvious discomfiture with being confronted with prospective tenants who were black. The Coopers were excited about the apartment and had the apparent and real ability to pay for it; they subsequently rented an apartment costing $25.00 per month more (Tr. 54, Exhibits C-3 and C-5). The real estate agent was clear in her own mind as to the qualifications of the Coopers, and had the incentive to close the deal in order to earn her commission. The Gorskis were anxious to rent the premises in order to stop the loss of income and to meet their mortgage and other costs (Tr. 256).

Although there are differing versions of certain facts concerning the meeting, it seems fairly clear, overall, that the tension that quickly developed sprang from Mrs. Gorski’s attitude. It is difficult to imagine that her question to Mr. Cooper – "Have you ever worked before?" – and her follow-up questions were intended to be friendly, or could have been perceived as such. The fact that she and her husband, when they arrived, went off into another room and then left without speaking again to the Coopers does not logically square with the desire to rent the apartment, or at least to the Coopers. Yet, the Gorskis claimed that it was urgent to rent the apartment as soon as possible to stem their financial losses.

The fact that the realtor, that very night, as previously alluded to, directly asked Mr. Gorski whether he was discriminating against the Coopers, suggests how she viewed the Respondents’ actions. The Respondents’ attempts to blame the agent instead do not appear credible or believable in the context of the record as a whole.

The Gorskis’ veracity can be called into question by other statements made. Mr. Gorski testified that he had agreed to rent the apartment previously to Ms. Ziegler "because the rent was guaranteed by the state" (Tr. 277). On cross-examination, he admitted that, in fact, the rent was paid directly by Ms. Ziegler. He also originally testified that his financial distress in 1996 was caused by receiving only two rental payments (Tr. 256), when, in fact, he later admitted that he had income from three apartments. The agent, Kathy Veneziano, testified that Mr. Gorski stated to her, when asked whether he had discriminated against the Coopers because they were black, that he had previously rented to blacks (Tr. 169-171). In fact the record indicates that in the twelve years prior to the hearing every tenant (between 3 and 4 tenants at a time) was white (Tr. 274-5). Mr. Gorski’s explanation on cross that he had said only that "he had tried to rent to blacks" instead is not credible.

In conclusion, the Court found in its decision that the Coopers had met their burden of establishing a prima facie case. For the reasons set forth above, I do not find the Respondents asserted legitimate, non-discriminatory reasons for their actions to be credible. Indeed, I find their claimed justifications to be false and pre-textual. There is no plausible basis in the record, or claimed, that would lead me to believe that these pre-textual assertions were made for any other reason than to discriminate against the Complainants on account of their race and color.

The Respondents’ final claim in the record appears to have been a challenge to the CHRO’s jurisdiction over the Respondent Hanna Gorski (Tr. 6-11) by virtue of a Motion to Dismiss filed at the opening of the hearing on January 25, 1999. Its basis was the alleged failure to make an allegation against her by way of an amended complaint (Exhibit C-12) within 180 days of the alleged discriminatory act. On this issue I agree with the CHRO and the Complainant that C.G.S. § 46a-84(g) and Section 46a-54-54(b) of the Commission’s regulations allowed as reasonable an amendment naming her as an additional Respondent to the complaint relating back to the date it was first received.

IV.  CONCLUSION:

I find that the Respondents unlawfully discriminated against the Complainants with respect to the terms, conditions, or privileges associated with the rental of 62 Trinity Street, New Britain on account of the race and color in violation of 42 U.S.C. § 3604; 24 C.F.R. § 100.60(b)(4); C.G.S. § 46a-64c(a)(2).

V.  DAMAGES:

C.G.S. § 46a-86(c) authorizes the presiding officer upon finding a prohibited discriminatory practice in cases such as these to "determine the damage suffered by the Complainant(s), which damage shall include but not be limited to the expense incurred … for obtaining alternate housing … and other costs actually (emphasis added) incurred by him as a result of such discriminatory practice. It also further empowers the presiding officer to award damages for emotional distress or other non-economic losses as long as they are limited to compensatory, as opposed to punitive amounts." Chestnut Realty, Inc. v. CHRO, 201, Conn. 350, 366 (1986); CHRO v. Truelove and Macdean, Inc., 238 Conn. 332 (1996).

a.  Compensatory Damages – Economic:

In their Post-Hearing Brief of April 1, 1999 the Complainants sought compensatory economic damages in the amount of $500.00 for the rent differential they had to pay as a result of "having to take the apartment at Corbin Avenue," and $2500.00 for the "inconvenience" due to the "differences" between the Trinity Street and Corbin Avenue apartments. (April 1, 1999 Brief of the Complainants and the Commission, p.34.)

Unfortunately, in my view, the predicate to claiming these damages was the allegation by the Coopers that they had been "constructively denied" the Trinity Street rental. They could be considered as "having" to take the Corbin Avenue apartment only by virtue of a denial to them of the Trinity Street unit. However, as noted at the outset, Judge Cohn specifically upheld the Hearing Officer’s decision dismissing this allegation. It is therefore not before me, and I can logically therefore find no compensatory economic damages in favor of the Complainants.

a.  Compensatory Damages – Emotional Distress:

Assessing such damages is necessarily imprecise, but that "damages may be difficult to assess is, in itself, insufficient reason for refusing them once the right to damages has been established." Griffin v. Nationwide Moving and Storage Co., 187 Conn. 405 (1982). In Commission on Human Rights and Opportunities ex rel. Douglas Peoples v. Estate of Eva Bileresky, (Sup. Court, J.D. Stamford, No. CVNO 8806-1209 (1988)) the Court quoted approvingly of the standards used in CHRO ex rel. Donna Harrison v. John Greco, (CHRO No. 7930433, 1985) in assessing such damages, and I will therefore use the latter as a guide.

In Greco the presiding officer stated "awarding humiliation and mental distress damages would deter discrimination and encourage filing complaints, particularly in the housing area where actual out-of pocket damages are small" (Supra p. 13). He found the following three (3) factors relevant in determining the appropriate award:

1.  the subjective internal emotional reaction of the complainants to the discriminatory experience … whether the reaction was intense, prolonged, and understandable;

2.  the degree to which the discriminatory act was in public; and,

3.  the offensiveness of the discrimination and the impact on the Complainant.

The Complainants demanded $15,000.00 in their prayer for relief by way of emotional distress damages. (Complainants’ Brief, April 1, 1999, p. 44.) In support of that demand, they cite various CHRO decisions with awards in excess of $25,000.00. However, it is difficult to find a basis to support such a figure when the facts of this case are measured against the Greco criteria set forth above.

The discriminatory conduct complained of occurred as a solitary event confined to one day, September 10, 1996, and even more particularly to one meeting between the parties. The only "public" present were the agent and the Coopers’ son, Tyrone. Although undoubtedly hurtful to the Complainants, the unlawful discrimination of the Respondents was not offensively overt but rather indirect and inferential.

This case is more properly analogous to the case of CHRO ex rel. Patricia Helliger v. Avalon Properties, CHRO No. 9730397 (1999). In that matter the Complaint was awarded $3,000.00 for emotional distress damages incurred as a result of the Respondent’s refusal to negotiate a rental or to make one available.

The discriminatory conduct established in that case occurred over a period of two weeks and resulted in her refusing an offer to rent a unit from the Respondents, not unlike the Complainants withdrawal of their application here. In both instances the feeling of humiliation and anger produced similar results, and manifested equally sincere and intense emotional distress.

In Helliger, no expert testimony was offered supportive of the emotional distress claim, and none was required as "the testimony of the victim of discrimination has been found sufficient in itself." Johnson v. Hale, 940 F.2d, 1192 (9th Cir. 1991); Human Rights Commission v. LaBrie, Inc., 668A.2 659 (1995). Contrastingly, expert testimony was offered in the case at issue by Dr. Kenneth Selig who corroborated the Coopers’ claimed emotional distress (Tr. 349, 353), and that it had continued for nearly two years after the incident.

Thus, in Helliger the acts of discrimination extended over a longer period (2 weeks v. one day), but its effects were felt by two people, not one. The feelings themselves were similar.

Based on the totality of the circumstances present, I conclude that an award of FIVE THOUSAND ($5,000.00) DOLLARS to the Complainants is justified as compensation for their emotional distress. As no other relief was requested by the Complainants and the Commission, no further determinations are necessary.

VI. ORDER:

Respondents are ORDERED to pay FIVE THOUSAND ($5,000.00) DOLLARS to the Complainants as compensation for their emotional distress.

It is so ORDERED by the undersigned on this 5th day of January 2001 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut
Hon. Gordon T. Allen
Presiding Human Rights Referee

C: Regina & Ricky Cooper
Jon Bauer, Esq. & Paul Chill, Esq.
Andrew & Hanna Gorski
Daniel A. Silver, Esq.
Philip A. Murphy, Commission Counsel
David Teed, Assistant Attorney General & Emily Melendez, Assistant Attorney General
Ann Galer-Pasternak, Public Hearing Administrator