Patricia Helliger
2625 Park Ave.
Bridgeport, CT 06604

Avalon Bay Properties a/k/a
Avalon Properties and its agents
Leigh Podchaiski & Sandy Santopietro
100 Town Walk Drive
Hamden, CT 06518

c/o Emily Melendez, Assistant Attorney General
Office of the Attorney General
55 Elm Street, P.O. Box 120
Hartford, CT 06141-0120

The Connecticut Supreme Court has uniformly held 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). These cases set the bar for this action, in which the Complainant claims she was not shown or rented an apartment and was steered away from Respondent because of her race and color in violation of Conn. Gen. Stat. §§ 46a-64c(a)(1), 46a-64c(a)(2), 46a-64c(a)(4)A and 46a-64c(a)(4)B, and the Fair Housing Act, Title VIII of the Civil Rights Act of 1964.

This line of authority requires, in the circumstances present in this case, that the Complainant establish a prima facie case under the disparate treatment theory underlying this housing discrimination claim. Therefore, Complainant must demonstrate 1) That she belongs to a statutorily protected class; 2) that she applied for and was otherwise qualified to rent a unit at Avalon; 3) she was turned away (i.e., rejected) by the owner/landlord; and 4) a rental unit remained available. Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350, 360 (1986); Zlokower v. Commission on Human Rights and Opportunities, 200 Conn. 264 (1986). This formula, the so-called McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) "test", is not intended, however, to serve as a rigid, inflexible formulation, but rather establishes requirements of proof that can be tailored to an individual fact pattern. Miko 220 Conn. at 204.

Once this prima facie showing is made, the burden shifts to the Respondent to articulate a legitimate, non-discriminatory business reason for the adverse action complained about. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Frazier v. Rominge, 27F.3d828 (2^nd Cir 1994). Once such a reason is asserted, the burden of proof returns to the Complainant and requires her to prove that the stated reason was pretextual. Such proof in showing pretext is the preponderance of the evidence. Miko 220 Conn. at 204.

Importantly, in the Second Circuit a Complainant "in stating a claim under the Federal Fair Housing Act need not show that the decision complained of was made with discriminatory intent." Soules v. U.S. Department of Housing and Urban Development, 967 F.2d817, 822 (2^nd Cir. 1992); United States v. Yonkers Board of Education, 837F.2d 1181, 1217 (2^nd Cir 1987).

B. The Respondent and its agents refused to negotiate a rental or otherwise made a rental opportunity unavailable in violation of Conn. Gen. Stat. § 46a-64c(a)(1) and Title VIII, 42 U.S.C. § 3604(a), and represented that rental unit(s) were not available for rental or inspection when they were available in violation of Conn. Gen. Stat. § 46a-647c(a)(4)(A) and Title VIII, 42 U.S.C. 3604(d).

The statutory violations cited by the Complainant as above referenced substantially overlap in the factual context of this case and are accordingly discussed together. Essentially the claim here is that the misrepresentations as to the availability of units by the Respondent represented the device by which it denied a rental to the Complainant for at least a portion of the relevant time frame involved here.

Applying a "tailored" McDonnell Douglas formula to these allegations required the Complainant to show her membership in a protected class, an "application" for, and qualification to rent a unit, and a rejection. Alternatively, Complainant had to show that units were available for rental or inspection notwithstanding Respondents’ representations to the contrary. The record unambiguously shows that the Complainant easily met these requirements for a prima facie case.

The Complainant is an African-American whose color is black. On February 18, 1997 she visited Respondent’s complex at Avalon Walk for the express purpose of seeking a rental opportunity there. The Respondent disingenuously argues in its Brief (p.22) that Complainant’s case founders for lack of an application – and a denial – for a lease. However, the uncontradicted testimony of both the Complainant and Podchaiski is that on February 18, 1997 the latter advised Complainant that there were no units available and that no application form was provided to her. It is difficult to credit Respondents’ self-fulfilling argument on this point, as an application is not likely to be made for a (allegedly) non-existing, non-available unit.

The Complainant was qualified to rent a unit at Avalon, which was recognized by the Respondent in encouraging her to make a deposit on Unit 21212 (TR. 16, 134-135), accepting a deposit on unit 8302 (TR. 18, 147-48), and actually "pre-leasing" unit 27303 to her on March 12, 1997 (TR. 154; Exhibit R-20). At the time in question she was leasing an apartment in Bridgeport (TR. 6) for $825.00 per month rent, a figure higher than a number of units at issue in these proceedings. The record is also clear that there were in fact units available on and after February 18, 1997, (Finding of Fact 28; Tr. 33-38), despite representations to the contrary made by Podchaiski (Tr. 8, 75, 83, 84).

Thus, I find that the Complainant fully established her prima facie case as to these allegations, thereby shifting the burden to the Respondent to articulate a legitimate, non-discriminatory reason for the adverse action(s). Texas Department of Community Affairs v. Burdine supra, 450 U.S. at 254 (1981).

With the focus on February 18, 1997, the Respondent’s articulated non-discriminatory reasons for refusing to negotiate a rental with the Complainant boil down to its claim that Complainant had insisted on rentals under $800.00 per month, and a move-in date no later than March 1, 1997. Its argument is that there were no units of that description available as shown on its Detail Unit Status Report dated February 18, 1997. (TR. 87, 116, 119). Having put on the table these reasons, the Complainant was required to show by a preponderance of the evidence that they were a pretext for its alleged discriminatory acts.

I find that she has done so.

Up front there is a credibility determination to be made, as the Complainant’s testimony was that she told Podchaiski that she would like to move in April of 1997 and that she was looking for a price in the $700.00-$800.00 per month "range" or a "little more" (TR. 8-9). Podchaiski, on the other hand, testified that the Complainant wanted to move in before March 1, 1997 and insisted on paying less than $800.00 per month rent. Having carefully examined the demeanor, the tone, the responsiveness and other attributes of the witnesses, I found the Complainant’s testimony to be the more credible. This conclusion is strongly buttressed by other facts of a corroborating nature.

First, it was and is hard to believe that March 1, 1997 could have been a hard and fast date for a move by Complainant, as that would have allowed at the outset merely 10 days to accomplish all the myriad tasks associated with a move (e.g. scheduling movers, obtaining credit reports, etc.). There was no evidence whatsoever of any compelling urgency driving Complainant to such a hasty schedule; quite to the contrary, the evidence was that she had a lease on her apartment through to April of 1997, and in fact still lived there at the time of the Public Hearing (August 1999). Secondly, Complainant went back to Avalon Walk on February 26, 1997 to look at units (with Santopietro), and again on March 10 and March 11, 1997 to look at and measure unit 27303. The Respondent Santopietro herself testified (TR. 138) that Complainant told her on February 26, 1997 that she was reluctant to place a $100.00 deposit on unit 21212 because "she was under a current lease (to April 1) and would have to talk to the Landlord to see if she could get out of the lease." Respondents claims regarding March 1, 1997 as a move-in date – thus making some units non-qualifying" – are not credible.

Podchaiski testified, as did Santopietro, that Complainant insisted on a rental "below" $800.00, or in Santopietro’s case $700.00 (TR. 125-26). Yet Santopietro had no difficulty showing Complainant two units on February 26 that were priced at $815.00 one of which (unit 21212) Complainant showed interest in and called to arrange a rental for on February 28, 1999. These events are consistent with Complainant’s version of the truth, and not that of the agents.

Podchaiski also did not inform the Complainant about units listed on the Detail Unit Status Report; did not ask Complainant, according to her own testimony, whether she could be flexible on her move-in date or monthly rental even though it was her practice to do so (TR. 106); did not show Complainant a model unit on February 18, nor did she check to see if one was available, even though it was her normal practice to do so; did not show Complainant the traffic card she completed; and did not follow-up to advise Complainant that units that had been over $800.00 per month had been dropped below that figure on February 24, 1997, even though it was her normal practice to do so in similar situations (TR. 96-97).

Notwithstanding notations in the traffic card filled out by Podchaiski which are of a self-serving nature in this case, the undersigned finds the stated reasons listed by Respondent through its agent Podchaiski to be false and misleading, and a pretext for the discriminatory action taken by Podchaiski in February 1997. The evidence is clear to me that there were units meeting Complainant’s criteria on and after February 18, 1997, and that misrepresentations were made as to their non-availability.

Although not required to support my conclusion above-stated, it should be emphasized that even if Podchaiski’s claims regarding Complainant’s stated criteria were true, there were units on the February 18, 1997 Detail Status Unit Report showing move-out dates of February 23 (units 8202 and 8302) and rentals of $792.00 per month (See CHRO Exhibit 16); in other words meeting even Podchaiski’s description of Complainant’s criteria.

As the record indicates the interaction between Complainant and Respondent did not end on February 18, 1997. On returning to Avalon Walk on February 26, 1997 and encountering Respondent’s Agent Santopietro, Complainant was shown two units referenced earlier, namely 21212 and 21322. These units were "markdowns" from $827.00 to $815.00 rentals, although as noted previously they were interestingly considerably above the $700.00 range Santopietro claimed was Complainant’s requirement. Complainant especially liked 21212 because of its beige carpeting (TR. 132), and, at the time, the unit still had furniture in it. (TR.16, 134-135). Santopietro told Complainant that it would take a "couple of days" to be cleaned and prepared, and that was one reason why Complainant did not leave the $100.00 deposit recommended by Santopietro (the other being her need to talk to her landlord about "breaking her" April 1 lease).

Complainant testified that Santopietro indicated that the apartment would not be available to be shown for several days, and that the latter would call her if it appeared someone else was interested in renting the unit. Two days later when Complainant called to say she wanted to rent the unit she was told that it was being leased; Santopietro had not called to advise her of that development (TR. 16, 17, 142-143).

Respondent’s articulated non-discriminatory reason for the failure to rent unit 21212 was Complainant’s failure to put a $100.00 hold deposit. However, the testimony of Janice Miner, Portfolio Director for the Respondent, indicated that there was no mandatory written hold policy in effect (TR. 194). In view of the circumstances here where Complainant had expected the unit not to be shown for several days, and Santopietro had told her she would call her if anyone expressed interest in the unit, and only two days had elapsed, I find this articulated reason to be pretextual as well, especially in view of the other inconsistencies previously noted.

Perhaps unwittingly, Santopietro expressed her true sentiment towards Complainant, and that of Podchaiski, when she described Complainant (TR. 175) as having come to Avalon "with a lot of demands (author’s emphasis) for as soon as possible move-in … (etc)", when more objective, fair-minded people would describe them as preferences.

For these reasons I find that Respondent violated C.G.S. § 46a-64c(a)(1) and C.G.S. § 46a-64c(a)4(A) on February 18. 1997, and C.G.S. § 46a-64c(a)(1) on February 26-28, 1997.

C. Insufficient evidence was submitted to conclude that Respondent steered Complainant to an area with a greater minority population in violation of C.G.S. § 46a-64c(a)4(B).

As noted at the outset, it is basic and well-understood law that the burden of persuasion remains at all times with the Complainant in presenting a discrimination claim. This fundamental premise transcends the vagaries of any particular burden shifting formula applicable to any particular fact pattern. St. Mary’s Honor v. Hicks, 509 U.S. 502 (1993); Fisher v. Vassar College, 114 F. 3d 1332 (2^nd Cir 1997).

Seen in that light no extensive analysis is necessary to resolve this particular allegation in Respondent’s favor. There is no dispute but that Podchaiski provided Complainant with an apartment guide at the conclusion of their February 18 meeting, and that she suggested the latter look at the Apple Hill, Chestnut Hill and Seramonte apartment complexes. Complainant produced evidence that located these apartments in a different zip code than that of Avalon Walk (TR. 24-26), and that the minority population for the former was approximately eight (8%) percent as opposed to the latter’s three (3%) percent. However, as Respondent points out in its brief, even those numbers are predicated on the 1990 census, and there was no direct evidence produced that would relate even that dated information to the specific apartments themselves.

Neither was there any evidence offered as to whether the differential reflected by the 1990 census data was statistically significant even if it were accurate. Complainant’s allegation of "steering" therefore appears to me to be based largely on conjecture and supposition. Such conjecture might or might not be true; what is not conjecture is that it falls a long way short of meeting the burden of proof required.

D. Complainant failed to establish that Respondent imposed different terms and conditions of rental in violation of C.G.S. 46a-64c(a)(2) and Title VIII, 42 U.S.C. 3604(d) with respect to its "hold" policy.

Similarly, the Complainant failed to offer any substantial evidence that the "hold" policy described by the Respondent’s agent Santopietro was discriminatorily applied to her. The only evidence supplied in this regard was testimony to the effect that the policy was not a "written" one, or a "mandatory" policy required of all Respondents affiliated enterprises. There was no evidence that this policy was not applied to a similarly situated individual not in Complainant’s protected class.

Although the Respondent’s agents’ actions, with respect to Unit 21212, have been found by me to be discriminatory for other reasons (see above), I cannot find that Complainant has met her burden of proof as to this allegation.

E. Avalon Bay Properties / Avalon Bay Communities is liable for the discriminatory acts of its agents.

In order to find the corporate Respondent liable, I must find that discriminatory acts were committed, and that Podchaiski and Santopietro were agents of the corporate Respondent at the time they committed the proscribed actions. Carbrera v. Jakabovitz, 24 F.3d 372 (2^nd Cir. 1994)

There was no dispute that, during the relevant time period here (February 18 – March 12, 1997), the Respondents Podchaiski and Santopietro were duly authorized agents of the corporate Respondent, and that during the course of their interactions with the Complainant were acting within the scope of their employment. A principal "need not specifically authorize an agent to discriminate in order to be held liable for the actions of its agents. Carbrera, supra, 24 F.3d at 389.

Avalon Bay Properties is liable for the discriminatory acts of its agents as hereinabove described.

Complainant seeks compensatory damages pursuant to Conn. Gen. Stat. Sec. 46a-86(c) which reads, in part that "upon a finding of a discriminatory practice prohibited by Section … 46a-64(c) … the presiding officer shall determine the damage suffered by the Complainant, which damage shall include but not be limited to the expense incurred by the Complainant for obtaining alternate housing, or space, storage of goods and effects, moving costs and other costs actually (emphasis added) incurred by him as a result of such discriminatory practice." Pursuant to such provision the Complainant advances various arguments in her Brief (pg. 22-24) in support of compensation for the (1) "cost of alternative housing", (2) additional Travel costs, and (3) Lost Opportunities for Overtime Pay", the total of which would be $12,424.00. Respondent advances various claims (p.42-48) in support of a drastic reduction in this figure.

It is generally accepted that mitigation of costs is a relevant element in awarding compensatory damages. Lovejoy v. Darien, 131 Conn. 533 (1945), and that Complainant has a general duty to mitigate damages. Vera-Lozano v. International Broadcasting, 50 F.3d 67 (1^st Cir. 1995). The burden for establishing that there was a failure to mitigate damages is the Respondent’s. Ann Howards Apricot Restaurant v. CHRO, 237 Conn. 209 (1996). A determination of whether the [Complainant] used reasonable diligence to mitigate is an individual determination to be made on the facts. Thurber v. Jack Reilly’s Inc., 51 F.Supp 242 (D. Mass. 1981).

The Respondent has vigorously asserted as a primary defense to the claims of discrimination in this case its (agent’s) efforts to find Complainant a Unit especially during the period February 28-March 12, 1997. These efforts culminated in the "pre-leasing" of Unit 27303 to the Complainant on the latter date (TR. 154, Exh. R-20). In asserting these actions as a defense from a liability perspective, Respondent has interestingly enough not put them forward in behalf of a mitigation argument.

As noted previously, the undersigned has concluded that the Respondents committed discriminatory practices against the Complainant during the period February 18, 1997 to February 28, 1997. That being said, it is equally clear to the undersigned that the Complainant was presented with an opportunity to totally mitigate her economic losses when Unit 27303 was offered to her on or about March 11-12, 1997. According to her own testimony, Complainant was not prepared to move to Avalon Walk until April of 1997. Had she not cancelled the pro-offered lease, she would not have suffered any of the economic losses itemized by her.

That being the case, I am forced to conclude that the Complainant has failed to establish her entitlement to any economic, compensatory damages.

I find the additional, prospective Relief sought by the Complainant and the Commission to prevent future discriminatory acts to be reasonable and proper.