FEHC Dec. No. 02-12, 2002 WL 1313078 (Cal.F.E.H.C.)

Fair Employment and Housing Commission

State of California

In the Matter of the Accusation of the

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

v.

MELISSA DESANTIS, formerly MELISSA RUBIO, Individually and as Owner, Respondent

ERIC CAMPBELL, Complainant/Intervenor

Case Nos. H 9900 Q-0328-00-h, C 00-01-180, 02-12

Dated: May 7, 2002

 

 

DECISION

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.

Any party adversely affected by this decision may seek judicial review of the decision under Government Code sections 11523 and 12987.1, Code of Civil Procedure section 1094.5, and California Code of Regulations, title 2, section 7437. Any petition for judicial review and related papers shall be served on the Department, the Commission, respondent, and complainant.

 

George Woolverton

Catherine F. Hallinan

Anne Ronce

Herschel Rosenthal

Joseph Julian

 

 

PROPOSED DECISION

Hearing Officer Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on July 31, August 30 and 31, 2001, in San Jose, California, and telephonically on October 19, 2001. Regina Brown, Senior Staff Counsel, represented the Department of Fair Employment and Housing (Department). Kerstin Arusha, Esq., Directing Attorney, Fair Housing Law Project, represented complainant Eric Campbell. Ron DeSantis appeared as a representative for respondent Melissa DeSantis, formerly Melissa Rubio. Both complainant and respondent attended the hearing. Carina Castro served as the certified Tagalog interpreter.

The Commission received the transcript of the final day's proceedings on November 20, 2001, and the matter was submitted for decision on that date.

After consideration of the entire record and arguments, the Hearing Officer makes the following findings of fact, determination of issues, and order.

 

FINDINGS OF FACT

 

1. On May 3, 2000, Eric Campbell (complainant) filed a written, verified complaint with the Department of Fair Employment and Housing (Department) against Melissa Rubino-Tenant. The complaint alleged that Melissa Rubino denied complainant rental of a room in an apartment unit located at 58 South 6th Street, San Jose, California, on account of complainant's race, "Black," in violation of the Fair Employment and Housing Act (Act). (Gov. Code, 12900 et seq.)

2. The Department is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On May 3, 2001, Dennis W. Hayashi, in his official capacity as Director of the Department, issued an accusation against Melissa Rubino, individually and as an owner, alleging that she discriminated against complainant because of his race, "Black," by denying him an opportunity to rent a room in an apartment unit, in violation of Government Code section 12955, subdivisions (a), (c) and (k). On June 29, 2001, the Department issued an amended accusation correcting a typographical error in the complaint number, but otherwise realleging the former allegations.

3. On July 19, 2001, the Commission granted complainant's motion to intervene in these proceedings. (Gov. Code 12981; Cal. Code Regs., tit. 2, 7425, subd. (a).) On August 30, 2001, the Department sought and was granted leave to amend the accusation to correct respondent's name to Melissa DeSantis, formerly Melissa Rubio (respondent). Respondent did not object to the amendment. Respondent, who was also formerly known as Melissa Swinton, married Ron DeSantis on February 14, 2000.

4. On July 31, 2001, the first day of hearing, the Department filed a motion to determine jurisdiction over respondent on the basis that the Department was unable to show completed service of the accusation and notice of hearing. On respondent's appearance at hearing, the Department withdrew its motion and the case was continued to a later date so that the Commission could engage an interpreter for respondent.

5. In May 1999, respondent, then a single woman in her 20s, was looking for a roommate to share her two-bedroom apartment located at 58 South Sixth Street, Apt. 2, San Jose, California (the apartment). Respondent is Filipina-American. Respondent needed a roommate to help pay the rent, which was $1150 per month. Her landlord was Robert Schafer, owner of the apartment building. Since moving into the apartment in mid-1998 up to May 1999, respondent had shared it with three different roommates, two females and one male, who were either Asian or Caucasian. The one prior roommate identified by name in the testimony was Vivian Chu, who was Asian. In May 1999, the roommate's share of the rent was $525 a month, plus a security deposit of $150. Respondent occupied the larger of the two bedrooms; the available second room was small and partially furnished, with a single bed and dresser. There was one shared bathroom, a kitchen and living room.

6. In early May 1999, respondent placed a "For Rent" sign with her telephone number in her apartment window. Respondent's practice for selecting roommates was to have applicants call first, then come to see the room, fill out an application, which she and her mother reviewed, and to check references. Respondent required applicants to pay the first month's rent and a security deposit.

7. On May 4, 1999, complainant called respondent and asked about the room for rent. Complainant is African-American and was then 33 years old. He was living at the time at the Acondo Motel, located at 141 West Santa Clara Street, San Jose, California. When respondent told complainant the rent and deposit amounts, which were $525 and $150 respectively, complainant told respondent that he did not have enough money for both the rent and the deposit. Respondent nevertheless invited him to come and look at the apartment. They agreed on 5:00 p.m. that day.

8. At approximately 5:20 p.m. on May 4, 1999, complainant went to the 58 South Sixth Street apartment building, accompanied by his friend Ralph Ewing. Ewing is Caucasian. Complainant and Ewing walked around the building looking for a way in. Complainant then entered the front of the building and knocked on the door of apartment two. Ewing remained in the hallway of the building. Respondent opened the door and showed complainant the bedroom that was for rent. Complainant said that the room was small and expensive, then asked to see the other bedroom. Respondent told him that the other room was not for rent--it was her bedroom. Complainant did not understand why respondent would not show him that room. He protested that he had come to look at the room, that he had called about it, and insisted on seeing it. Respondent again told him that the room was not for rent. She then told complainant that her boyfriend was in the room. Complainant left. Respondent's then boyfriend, Ron DeSantis, was watching television in respondent's room throughout this interchange. The door was ajar and DeSantis overheard most of the conversation.

9. Complainant was upset. He was under the mistaken impression that the room respondent had not permitted him to see was being offered for rent--but not to him. He left respondent's apartment, telling Ralph Ewing that respondent said the room was already rented. Complainant and Ewing crossed the street to a pay phone and complainant called his then girlfriend Belen Bernal. He told Bernal that the room he had gone to see was not available and that he thought that respondent did not want to rent to him because of his race. Bernal immediately called respondent and verified that the room was still available for rent. Bernal relayed that information to complainant.

10. Complainant did not try to contact respondent again about the room. The next day, May 5, 1999, he contacted Project Sentinel, a non-profit group that investigates allegations of housing discrimination.

11. On May 6, 1999, Project Sentinel sent two "testers" to the apartment-- Obediah Lewis and Jason L'anglais. Lewis is African-American and L'anglais is Caucasian. After calling to make separate appointments with respondent, they arrived to see the room at the apartment at the same time--at 4:30 in the afternoon of May 6. Neither Lewis nor L'anglais realized that they were both from Project Sentinel. When respondent opened the door, L'anglais explained that he was there to see the apartment. Respondent asked if they were together. L'anglais said that he and the other man (Lewis) were not together, and that he wanted the room just for himself. Respondent invited them both inside and showed them the room for rent. She gave them both an application form to fill out. L'anglais then thanked respondent for her time and left. Lewis then asked about storage space and respondent gave him the keys to go down and look at the storage area in the basement, which he did. Lewis then left the apartment, filled out the rental application, and returned it to respondent later that afternoon, around 5:15 p.m. Lewis knocked, and when respondent opened the door, handed her the application. Lewis asked if that was enough information. Respondent said that someone else would be reviewing the applications and that they would call him.

12. Tester Jason L'anglais returned his completed application to respondent on May 10, 1999. Respondent asked L'anglais if he could pay the first month's rent and the deposit. L'anglais told respondent that he would not have the money until Friday. Respondent made clear that the money was required up front. Respondent said that someone else was coming to look at the room the next day, and that, "Actually, I don't really like black guys. I try to be fair and all, but they scare me." L'anglais considered respondent's remark "totally unexpected" and "unsolicited." The record did not reflect what further conversation took place, if any.

13. On May 13, 1999, Obediah Lewis telephoned respondent about the room. Respondent told him the room was still available. Respondent said she did not know about what happened to Lewis' application.

14. Both testers submitted written reports to Project Sentinel. Project Sentinel thereafter referred the case to the Fair Housing Law Project.

15. In late May 1999, respondent rented the room at the apartment to "Joe," a Caucasian student at California State University, San Jose. He had earlier filled out an application during the first week of May, then returned to see the apartment with his parents in mid-May. Respondent was favorably impressed that Joe was a college student, had brought his parents with him to see the room, and could pay the rent and deposit in full. Joe moved in to the room in the apartment in the last week of May 1999.

16. At some point before filing his complaint with the Department, complainant was informed of Project Sentinel's testing. Who spoke to complainant about the testing was not elicited at hearing. Complainant believed, based on what he was told, that of the two testers sent to the apartment, respondent had shown the Caucasian tester the apartment and had told the African-American tester, "No." Complainant was also told that respondent had said she was scared of Blacks. Hearing this statement made complainant upset, because he felt that he was being judged by his color.

17. Complainant looked for other accommodations for two or three weeks, then moved into shared housing at 651 Miller Street, San Jose, where the rent was $660 per month, and the deposit was $350. At some point complainant moved to Las Vegas for a period. Upon his return to San Jose he moved in with his mother, with whom he lived at the time of hearing, paying $400 per month in rent.

 

DETERMINATION OF ISSUES

Liability

 

The Department alleges that respondent refused to rent a housing accommodation to complainant because of his race and made a discriminatory statement based on race, in violation of Government Code section 12955, subdivisions (a), (c), and (k).

 

A. Whether Respondent is Subject to the Act

 

This case presents the issue of whether the Act prohibits a tenant who is looking for a roommate with whom to share her apartment and the rent, from refusing to rent to an applicant on the basis of race. Respondent, while denying that any discrimination took place, asserts that she had a right to choose with whom she shared her two-bedroom apartment.

The Department asserts that respondent was an "owner" within the meaning of section 12955, subdivision (a), and is therefore subject to that provision's prohibition against discrimination. The Act defines "owner" to include "the lessee, sublessee, assignee, managing agent, real estate broker or salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations, and includes the state and any of its political subdivisions and any agency thereof." (Gov. Code, 12927, subd. (e).) Respondent, as a tenant of the apartment, was a lessee with a legal right to possession of her unit. Thus, respondent was an "owner" within the meaning of section 12955, subdivision (a). Respondent's apartment also qualifies as a "housing accommodation" within the meaning of the Act because it is a "building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence for one or more families." (Gov. Code, 12927, subd. (d).)

The Act provides that certain owners who are renting to a "roomer" or "boarder" are exempted from the prohibitions against discrimination in housing. (Gov. Code 12927, subd. (c)(2)(A).) That section provides that "discrimination" does not include:

Refusal to rent or lease a portion of an owner-occupied single-family house to a person as a roomer or boarder living within the household, provided that no more than one roomer or boarder is to live within the household, and the owner complies with subdivision (c) of Section 12955, which prohibits discriminatory notices, statements, and advertisements. (Gov. Code section 12927, subd. (c)(2)(A).)

Complainant argues that this exemption does not apply to respondent because she made a statement of preference based on race when she told one of the testers that "I really don't like black guys. I try to be fair and all but they scare me." This statement, complainant argues, strips respondent of any protections of section 12927, subdivision (c)(2)(A).

Complainant's argument has merit. Section 12927, subdivision (c)(2)(A), specifically conditions its application providing that respondent complies with Government Code section 12955, subdivision (c). Thus, this decision turns to whether respondent complied with Government Code section 12955, subdivision (c).

 

B. Government Code section 12955, subdivision (c)

 

Government Code section 12955, subdivision (c), provides that it is unlawful for a person to make any statement with respect to the rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race.

Tester Jason L'anglais testified that respondent said, "Actually, I don't really like Black guys. I try to be fair and all, but they scare me." [Footnote 1: This case raises significant issues of the constitutional protections of freedom of speech and the right to privacy and association. However, the Commission as an administrative agency has no power to declare a statute unenforceable on the basis of it being unconstitutional unless an appellate court has made that determination. (Cal.Const., art. III, 3.5.)] L'anglais testified that this comment followed respondent's mentioning another prospective tenant who was due to see the room the next day. Respondent did not mention, nor was L'anglais made aware of, that prospective tenant's race. Respondent denied having made the remark. She testified, "Why would I say such a thing?"

The language difference between L'anglais and respondent gave rise to some confusion in their communications--for example, L'anglais testified that respondent did not understand him when he asked whether she was the manager of the apartment building. Moreover, L'anglais was unable to explain a context for respondent's statement that she was afraid of Blacks. However, L'anglais was overall convincing in his testimony and had no motive other than to report accurately respondent's alleged statement. Thus this decision credits L'anglais' testimony that respondent made the statement in question.

Respondent's statement indicated a preference or limitation based on race and sex--being afraid of African-American males. L'anglais testified that respondent made the statement when L'anglais returned his rental application while posing as a prospective tenant. The statement is sufficiently related to respondent's rental of the room to be "in respect to the rental of a housing accommodation." Thus, this decision finds a violation of Government Code section 12955, subdivision (c).

Having found that respondent did not comply with Government Code section 12955, subdivision (c), she is therefore not exempted from the Act's anti-discrimination provisions under section 12927, subdivision (c)(2)(A). The next issue then, is whether the Department proved that respondent discriminated against complainant by denying him an opportunity to rent a room in her apartment.

 

C. Government Code section 12955, subdivisions (a) and (k)

 

Government Code section 12955, subdivision (a), provides that it is unlawful "[f]or the owner of any housing accommodation to discriminate against any person because of the race [or] color ... of that person." Government Code section 12955, subdivision (k), makes it unlawful to otherwise make unavailable or deny a dwelling because of race. Such discrimination is established if a preponderance of all the evidence demonstrates that complainant's race was a motivating factor for respondent's refusal to rent to complainant, even if other factors may have also motivated the refusal to rent. (Gov. Code, 12955.8, subd. (a); Dept. Fair Empl & Hous. v. Osamu Kokado (1995) No. 95-05, FEHC Precedential Decs. 1994-95, CEB 3, p. 9; Dept. Fair Empl. & Hous. v. Davis Realty Co. (1987) No. 87-02, FEHC Precedential Decs. 1986-1987, CEB 5, p. 18.) Discrimination includes, inter alia, the "refusal to rent or lease housing accommodations, and any other denial or withholding of housing accommodations." (Gov. Code, 12927, subd. (c)(1).)

Complainant testified that respondent refused to show him the room for rent in respondent's apartment. In contrast, respondent and Ron DeSantis both testified that respondent showed complainant the small bedroom for rent, but that complainant then insisted that he be permitted to see respondent's bedroom. This decision credits respondent and DeSantis' testimony that complainant demanded to see the second room after commenting that the first room was "small." Complainant was confused and did not understand that it was the second bedroom--respondent's bedroom--that complainant was not permitted to see. Thus, there was a fundamental misunderstanding and miscommunication about the room for rent that gave rise to the events in this case. Similar confusion was echoed by tester Obediah Lewis who insisted in his testimony that he was never inside respondent's apartment. L'anglais, by contrast, clearly testified that respondent showed the room to both him and Lewis. Lewis apparently did not realize that respondent was a tenant seeking a roommate in her own apartment.

Complainant as a witness lacked good recall of the events. He testified that he learned about the room for rent from a sign with respondent's name on it, with tear-off tags, at a video store. The evidence established that the sign placed by respondent was in the window of the apartment and did not state respondent's name. Complainant testified that he left work half an hour early in order to see the room. He later testified that he went home first, at around 5:00 o'clock, met up with his friend Ralph Ewing, and they went together to see the room. While complainant testified that respondent told him that the room was already rented, on cross examination he stated that she told him that two other couples were coming to look at the room. These difficulties with his testimony, viewed together with complainant's hesitancy and confusion, cast doubt on complainant's account that he was not permitted inside the apartment. [Footnote 2: Complainant's friend Ralph Ewing testified that respondent offered to rent the room to him without even asking him to fill out a rental application. This testimony is implausible. Moreover, Ewing was vague in his testimony, and unable to describe the room. Thus, his testimony is not credited.]

Respondent also lacked good recollection of the events in this case and she did not recall much about the applicants for the room in May 1999. Through the interpreter, respondent testified to the process that she used to find a roommate, and that her mother helped her with the applications. In particular, respondent testified that when complainant came to look at the room, she showed him the small bedroom for rent, but that he repeatedly insisted on seeing the other room. Respondent described her interaction with complainant as a "slight confrontation"--she did not exaggerate her account by turning it into a more dramatic or threatening encounter.

Ron DeSantis testified that he was present at the apartment on the day complainant came to see the room, and overheard much of complainant and respondent's conversation--in particular, complainant's insistence on looking at respondent's bedroom. While he certainly has a motive to help his wife in this case, DeSantis' demeanor, manner and attitude were consistent with those of a credible witness. The Department questioned why DeSantis did not come forward with his account sooner. However, the Department did not present evidence of its investigation of this case, in particular whether the Department's investigator ever asked respondent if she had any witnesses to corroborate her account.

The tester evidence was inconclusive in this case. Both testers were shown the room for rent, both were given applications on request. After L'anglais, the Caucasian tester, left, respondent gave Lewis, the African-American tester, the keys to the basement storage unit. This evidence is not consistent with racial bias or motivation. However, respondent later told Lewis that she did not know what happened to his application, and told L'anglais, the Caucasian tester, that she was afraid of Black men. While certainly troubling, this evidence is not sufficient to meet the Department's burden in this case, particularly in light of respondent and DeSantis' credible account of the "confrontation" with complainant when he came to view the room, which effectively prevented complainant from being considered further as respondent's prospective new roommate.

Finally, complainant testified that he did not have enough money for the monthly rent and deposit. He testified that respondent told him in their telephone call that she was willing to "work something out." The evidence established, however, that respondent required an applicant to have the rent and deposit amount, as testified to by respondent, her mother, respondent's then boyfriend, Ron DeSantis, and tester L'anglais. It is unreasonable to anticipate that respondent would waive these requirements to rent to complainant. This decision finds that she did not agree to do so, and was under no obligation to do so. Thus, complainant was not qualified to rent the room, based on his own testimony that he did not have enough money for the rent and deposit.

Viewed as a whole, the evidence does not establish that the Department met its burden to prove that respondent discriminated against complainant on the basis of race in violation of Government Code section 12955, subdivisions (a) or (k).

 

Remedy

 

The Department's accusation requests that respondent be ordered to pay complainant his out-of-pocket damages and expenses, actual damages for emotional distress, and a civil penalty. The Department further requests affirmative relief.

 

A. Make-Whole Relief

 

1. Out of Pocket Expenses

 

Because respondent is not found liable for refusing to rent the room in her apartment to complainant based on his race in violation of Government Code section 12955, subdivision (a) or (k), complainant's claimed rent differential is not recoverable. The Department did not establish that complainant suffered any economic damages resulting from respondent's violation of 12955, subdivision (c), the making of a statement of limitation, preference or discrimination. The Department and complainant's attorney established that complainant missed work to attend the hearing, costing him $240 in lost wages. This amount is awarded to complainant as a cost of this proceeding.

 

2. Compensatory Damages for Emotional Distress

 

The Department and complainant request that the Commission order respondent to pay actual damages to compensate complainant for his emotional distress. As discussed above, the damage award is limited to that resulting from respondent's violation of Government Code section 12955, subdivision (c), the statement of limitation or preference made by respondent to a tester on May 10, 1999.

Government Code section 12987, subdivision (a)(4), authorizes the Commission to award actual damages for emotional distress to a complainant. This authority is currently under review by the California Supreme Court. (Konig v. Fair Employment & Housing Com. (2000) 79 Cal.App.4th 10, review granted June 28, 2000 (No. S087843).) Pending the court's determination, the California Constitution requires that the Commission enforce the provisions of the Act. (Cal. Const., art. 3, 3.5; Dept. Fair Empl. & Hous. v. River Meadow Trailer Park (1998) No. 98-15, FEHC Precedential Decs. 1998-1999, CEB 3, pp. 31-32.)

Complainant testified that when he learned of respondent's statement to the tester, he was upset, because he felt he was being judged based on his color. Much of complainant's emotional distress, however, resulted from complainant's perceptions that he was denied the rental of the room because of his race. This emotional distress is not recoverable because no underlying violation was found. Thus, complainant is awarded the sum of $500 to compensate for his upset at learning of respondent's statement to the tester.

 

B. Civil Penalty

 

The Department seeks an order of a civil penalty alleging that respondent's conduct was "particularly deliberate and egregious, revealing oppression and malice." The Department did not establish that a civil penalty is appropriate in this case. Respondent's single statement to a white tester that she felt afraid of African-Americans does not support a finding that respondent acted maliciously or oppressively. Thus, no civil penalty is awarded.

 

C. Affirmative Relief

 

The Department asks that respondent be ordered to undergo training "at respondent's expense" concerning her obligations under the Act. Because respondent is deemed to be an "owner" under the Act, and was found to have violated the Act, training is an appropriate remedy. Thus this decision orders that respondent undergo a minimum four hours of training, at her own cost, on the prevention of housing discrimination.

 

ORDER

 

1. Respondent Melissa DeSantis shall immediately cease and desist from making any discriminatory statement relating to the rental of housing based on race, in violation of Government Code section 12955, subdivision (c), of the Fair Employment and Housing Act.

2. Within 60 days of the effective date of this decision, respondent Melissa DeSantis shall pay to complainant Eric Campbell out-of-pocket expenses in the amount of $240, together with interest on this amount, at the rate of ten percent per year, compounded annually, from the effective date of this decision until the date of payment.

3. Within 60 days of the effective date of this decision, respondent Melissa DeSantis shall pay to complainant Eric Campbell compensatory damages for emotional distress in the sum of $500, together with interest on this amount, at the rate of ten percent per year, compounded annually, from the effective date of this decision until the date of payment.

4. Within 60 days of the effective date of this decision, respondent Melissa DeSantis shall attend four hours of training on housing discrimination under the Fair Employment and Housing Act. Respondent shall pay all fees and costs associated with the training.

5. Within 100 days after the effective date of this decision, respondent Melissa DeSantis shall in writing notify the Department and the Commission of the nature of her compliance with sections two though four of this Order.

Any party adversely affected by this decision may seek judicial review of the decision under Government Code sections 11523 and 12987.1, Code of Civil Procedure section 1094.5 and California Code of Regulations, title 2, section 7437. Any petition for judicial review and related papers should be served on the Department, Commission, respondent, and complainant.

DATED: February 5, 2002

 

Caroline L. Hunt

Hearing Officer