04-000816 Florida Commission On Human Relations, On Behalf Of Derrick Bhayat vs. One Watergate Association, Inc. Status: Closed Recommended Order on Wednesday, November 3, 2004.

Summary: Discriminatory denial of housing was not proven, where a potential purchaser of a condominium unit refused to complete the condominium association`s standard application, for privacy reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA COMMISSION ON HUMAN )

RELATIONS, ON BEHALF OF DERRICK )

BHAYAT, )

)

Petitioner, )

) Case No. 04 - 0816

vs. )

)

ONE WATERGATE ASSOCIATION, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on June 23 and 24, 2004, in Sarasota, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Adminis trative Hearings.

APPEARANCES

For Petitioner: Vicki D. Johnson, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301 - 4857

For Respondent: Harry W. Haskins, Esquire

Mary R. Hawk, Esquire

Porges, Hamlin, Knowles & Prouty, P.A.

3400 South Tamiami Trail, Suite 201

Sarasota, Florida 34239

STATEMENT OF THE ISSUES

The issues presented for decision are whether Respondent

discriminate d against Derrick Bhayat on the basis of his race or

national origin by failing to approve his application to

purchase a condominium unit in Respondent's building, and, if

so, what are the damages to which Mr. Bhayat is entitled.

PRELIMINARY STATEMENT

O n July 19, 2002, Derrick Bhayat filed a Housing

Discrimination Complaint (the "Complaint") with the Florida

Commission on Human Relations (the "Commission") against

Respondent One Watergate Association, Inc. ("One Watergate").

The Complaint was also filed with the Federal Department of

Housing and Urban Development pursuant to 42 U.S.C. Subsection

3610(a)(1)(A). The Complaint alleged that One Watergate

discriminated against Mr. Bhayat on the basis of national origin

and color in violation of Title VII of the Civil Rights Act of

1968, as amended by the Fair Housing Act of 1988, and of the

Florida Fair Housing Act, Sections 760.22 through 760.37,

Florida Statutes (2003) (the "Fair Housing Act"). The alleged

discrimination concerned the failure of One Waterg ate's Board of

Directors (the "Board") to approve Mr. Bhayat's application to

purchase a unit in the One Watergate building.

The Commission conducted an investigation of the Complaint.

By letter dated November 14, 2003, the Commission notified

Mr. Bha yat of its determination that reasonable cause existed to

believe that a discriminatory housing practice had occurred and

that as the Complainant, Mr. Bhayat could elect to have the

Attorney General bring a court action in the name of the state

on his beha lf to enforce the provisions of the Fair Housing Act

or to have the Commission petition the Division of

Administrative Hearings ("DOAH") for an administrative hearing

and seek relief on his behalf. Mr. Bhayat elected to have the

Commission pursue an admin istrative remedy.

The Commission first attempted to conciliate the matter

pursuant to Florida Administrative Code Rule 60Y - 7.005. The

Commission issued a Notice of Failure of Conciliation on

March 10, 2004, and filed a Petition for Relief at DOAH on

Marc h 12, 2004. The matter was referred to the undersigned and

scheduled for hearing on June 3 and 4, 2004. By Order dated

April 12, 2004, Respondent's Motion to Continue was granted, and

the hearing was re - scheduled for June 23 and 24, 2004, when it

was hel d.

At the final hearing, the Commission presented the

testimony of Mr. Bhayat and of the following persons: Gary

McDonald, a home mortgage consultant; Janey Hess, the owner of

the unit in One Watergate that Mr. Bhayat attempted to purchase;

and Jan G illett, a former resident and Board member of One

Watergate. The Commission also presented rebuttal testimony by

Mr. Bhayat and Julie Horstkamp, Mr. Bhayat's attorney in the

condominium purchase. The Commission's Exhibits 1 through 5,

7 through 16, and 1 8 through 21 were admitted into evidence.

Respondent presented the testimony of Carolyn Collins, a

resident and former Board member of One Watergate; Douglas

Carpenter, a resident and former vice - president of the Board of

One Watergate; Adele Kurtz, an attorney for One Watergate;

Kathie Srur, a resident of One Watergate; Larry Farr, building

superintendent of One Watergate; John J. Wilhelm, a resident and

current president of the Board of One Watergate; Janis Farr, the

resident manager of One Watergate; Richard A. Bouchard, a

resident of One Watergate who was president of the Board during

the time relevant to this case; and Warren Plant, president of

Renters Reference of Florida, Inc. Respondent's Exhibits 1

through 13, 16 through 27, 29, 30, 33 through 37, and 39 were

admitted into evidence.

A four - volume Transcript of the final hearing was filed at

DOAH on July 21, 2004. At the close of the hearing, the parties

agreed that their proposed recommended orders would be filed

20 days after the transcript was filed at DOAH. Respondent's

Proposed Recommended Order was filed on August 6, 2004. The

Commission's Proposed Recommended Order was filed on August 9,

2004.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are made:

1. The Commission is the state agency charged with

investigating complaints of discriminatory housing practices and

enforcing the Fair Housing Act, Sections 760.20 through 760.37,

Florida Statutes (2003). The Commission is charged with

investigating fair housing complaints filed with the Commission

and with the federal Department of Housing and Urban Development

("HUD") under the Federal Fair Housing Act, 42 U.S.C. Section

3601, et. seq.

2. For the past ten years, Derrick Bhayat has been a

realtor with Michael Sanders and Company in Sarasota. Before

that, Mr. Bhayat worked for the United States Department of

Defense in Europe. Mr. Bhayat is originally from Capetown,

South Africa, where he was considered "colored." His ancestry

is Malaysian, Zulu, and French. It is undisputed that

Mr. Bhayat is a person of color.

3. Respondent, One Watergate, is the duly - incorporated

owners' association for the One Watergate condo minium building

in Sarasota. The Board is the governing body of One Watergate

and is responsible for the approval or denial of potential

residents and purchasers of units in the One Watergate building.

4. Prior to May 2002, prospective buyers or residen ts at

One Watergate were required to complete an application that

asked for character references but did not require the applicant

to provide bank references or other financial information. In

early 2001, the Board commenced a search process to find a

thi rd - party investigative firm to conduct more detailed

screenings of potential residents and purchasers at One

Watergate. In April 2002, then - president Richard Bouchard

provided the Board with detailed information regarding one such

firm, Renters Reference of Florida, Inc. ("Renters Reference"),

an investigative consumer reporting agency operating under the

Federal Fair Credit Reporting Act. Renters Reference performs

background checks of potential residents, employees, and

contractors for such residential entities as condominiums,

homeowner associations, and mobile home parks.

5. On April 16, 2002, the Board met in a duly - noticed,

regularly scheduled meeting. On the motion of Board member John

Wilhelm, the Board voted to pursue a contract with Renters

R eference to conduct applicant screenings. On May 2, 2002, One

Watergate and Renters Reference entered into an "Agreement for

Service" for the conduct of confidential background checks,

credit checks, and other screenings of potential One Watergate

residen ts.

6. In cooperation with the Board, Renters Reference

established a form "Application for Occupancy/Approval" to be

completed by potential residents and a form "Application for

Purchase, Transfer, Gift, Devise or Inheritance Approval" to be

completed by potential unit purchasers. The forms required

applicants to sign an authorization to release their banking,

credit, residence, employment, and police record information to

Renters Reference. The forms also required applicants to

disclose their Social Se curity numbers to Renters Reference,

which would allow Renters Reference to obtain credit reports

directly from the three national credit reporting agencies,

Trans Union, Experian, and Equifax. The Application for

Purchase form also contained a hold harml ess provision requiring

the applicant to assent to the following:

I understand that the Board of Directors of

One Watergate Association, Inc. may cause to

be instituted an investigation of my

background as the Board may deem necessary.

Accordingly, I spec ifically authorize the

Board of Directors, Management and Renters

Reference of Florida, Inc. to make such

investigation and agree that the information

contained in this and the attached

application may be used in such

investigation, and that the Board of

D irectors, Officer and Management of the One

Watergate Association, Inc, itself shall be

held harmless from any action or claim by me

in connection with the use of the

information contained herein or any

investigation by the Board of Directors.

7. Both forms advised applicants that a failure to

complete any portion would result in the application being

"returned, not processed and not approved." Renters Reference

advised One Watergate to strictly enforce the requirement that

applicants complete all port ions of the forms on the ground that

a waiver of application requirements for any one applicant would

necessitate such a waiver for any subsequent applicant or else

invite a discrimination claim by the subsequent applicant.

8. Applicants complete the form s and submit them to Janis

Farr, the resident manager of One Watergate, who forwards the

materials to Renters Reference for the conduct of its background

investigation. After completing the investigation, Renters

Reference sends a report to One Watergate with its findings.

The Renters Reference report is purely informational. Renters

Reference is not authorized to approve or deny the application,

and it makes no recommendations as to approval of the

application.

9. The Board has established a screening committee to act

upon the applications. The screening committee consists of

Ms. Farr and the sitting Board president. The screening

committee's decision to approve or disapprove the application is

later subject to a ratification vote by the full Board.

1 0. On May 16, 2002, potential unit purchaser Marcia Lang

submitted a completed form Application for Occupancy/Approval

and a completed form Application for Purchase. The application

was forwarded to Renters Reference, which performed a background

screeni ng that included obtaining a Trans Union credit report

dated May 24, 2002. Renters Reference completed its

investigation on May 29, 2002, and made its report to One

Watergate. The screening committee, consisting of Ms. Farr and

then - president of the Boar d, Richard Bouchard, approved the

application and issued an undated Certificate of Approval.

Ms. Lang closed on her unit in One Watergate in August 2002.

Because the Board does not meet during the months of May through

August, the Board did not ratify th e screening committee's

approval until its October 15, 2002, meeting.

11. On May 29, 2002, Mr. Bhayat entered into a contract

with Janey and Paul Hess to purchase their One Watergate unit

for $315,000. On May 30, 2002, Mr. Bhayat telephoned Ms. Farr

and requested that he not be required to complete the

application forms. Mr. Bhayat explained that he had always been

cautious about providing personal information, such as his

Social Security number to businesses. This general cautiousness

became alarm in 2 001 when his wife, Nancy Bhayat, was the victim

of an identity theft. The thief used Mrs. Bhayat's Social

Security number to obtain a Visa card and make $12,000 worth of

purchases.

12. Ms. Farr responded that the application would not be

accepted unless all the requested information was provided.

Nevertheless, on May 31, 2002, Mr. Bhayat submitted to the One

Watergate office an Application for Occupancy/Approval and an

Application for Purchase. On these applications, Mr. Bhayat did

not provide his or hi s wife's Social Security number. He did

not sign the authorization to release his banking, credit,

residence, employment, and police record information to Renters

Reference. Mr. Bhayat also struck through the hold harmless

provision on the Application fo r Purchase.

13. The applications were accompanied by a cover letter

from Julie Horstkamp, Mr. Bhayat's attorney. The letter

repeated Mr. Bhayat's concerns about disclosure of personal

information and stated that the Bhayats did not want to release

any more information than necessary to process their

application. The letter stated that Ms. Horstkamp was

enclosing, in addition to the two applications, a "credit report

prepared by MSC Mortgage." Ms. Horstkamp also included

attestations concerning the Bha yats' background that were

intended to obviate the need for Renters Reference to perform a

criminal records check.

14. After receiving this package of materials from

Mr. Bhayat, Ms. Farr consulted with Warren Plant, the president

of Renters Reference, who again advised her that it would be in

the best long - term interest of One Watergate to insist that the

applications be completed in full. Ms. Farr then sent a

letter to Ms. Horstkamp, dated May 31, 2002, and received by

Ms. Horstkamp on June 3, 2002, that stated as follows:

We are in receipt of the packet delivered

from your office on behalf of Derrick &

Nancy Bhayat. While we can appreciate the

angst felt by the Bhayat's [sic] as the

result of her identity theft, we must adhere

to the stipulations of our new policy. The

Board of Directors of One Watergate at a

duly posted meeting in April 2002 approved a

contract with Renters Reference Inc. to

handle the investigation of prospective

purchasers and lessees. they felt to best

serve the security of all One Watergate

owners, the approval process needed to be

utilized to it [sic] fullest.

You may inform your clients they can rest

assured that all the information disclosed

in this application will be held in complete

confidence by both One Watergate Associati on

and Renters Reference Inc., as we are bound

by both [the] Federal Fair Credit Act and

Florida Statutes Chapter 718. These laws

apply to both the application as well as any

reports received from them.

Therefore we are returning the package to be

comple ted in full. We cannot accept or

approve this sale based on the incomplete

information submitted.

15. By letter dated June 4, 2002, Ms. Farr informed One

Watergate's law firm of the situation with the Bhayats. With

her letter, Ms. Farr enclosed corres pondence received by

Mr. Bouchard and other members of the Board from Janey Hess,

owner of the unit that the Bhayats were attempting to purchase.

Ms. Hess had written at least three letters to the Board on

June 3 and 4, 2002, demanding an emergency meetin g of the full

Board to consider waiving the requirements of the new

application forms, which sought "invasive and unnecessary

information" from the Bhayats. Ms. Hess and Mr. Bouchard were

also having conversations about the issues, but these took a

turn t oward personal animosity on the part of Ms. Hess.

Ms. Hess' letters became progressively less concerned with the

Bhayats' situation than with Mr. Bouchard's status as the owner

of several One Watergate units and his alleged manipulation of

rules restricti ng the rental of those units. Mr. Bouchard

testified that his own lawyer advised him to cease

communications with Ms. Hess.

16. One Watergate's lawyer, Stephen Thompson, wrote a

letter to both the Bhayats and the Hesses dated June 6, 2002,

that stated as follows, in relevant part:

In order to help facilitate the approval

process, One Watergate has contracted with

Renters Reference for applicant screening.

The information necessary to process the

Application for [sic] includes, but is not

limited to the a pplicant's date of birth and

social security number. It is my

understanding that the application submitted

by Mr. and Mrs. Bhayat did not include the

required social security numbers for each of

the applicants. While it is Mr. and Mrs.

Bhayat's right to refuse to release this

information to the Association, it is the

Association's duty and responsibility to

conduct thorough credit and criminal

background checks on potential owners and

tenants. Without the applicable social

security numbers, such backgrou nd checks

cannot be conducted by Renters Reference and

therefore such applications cannot be

approved by One Watergate Association.

While the Association is required to either

approve or disapprove an application within

thirty (30) days after receipt of s uch

application, in the present situation the

thirty (30) day time frame will not begin to

run until a complete application is

submitted, including the applicants' social

security numbers. If Mr. and Mrs. Bhayat

decide to submit a completed application,

O ne Watergate Association will use their

best efforts to obtain a complete background

check and render a decision prior to the

anticipated June 28, 2002, closing date.

17. Negotiations commenced between Ms. Horstkamp, the

Bhayats' attorney, and Adele Kur tz, Mr. Thompson's co - counsel,

on behalf of One Watergate. On June 11, 2002, Ms. Kurtz wrote a

letter to Ms. Horstkamp that stated as follows, in relevant

part:

Pursuant to our conversation yesterday, the

Board of Directors of One Watergate

Association ha d agreed to accept Mr. and

Mrs. Bhayat's Application to purchase Unit

5 - D so long as said Application was complete

and accompanied by copies of their current

driver's license and up to date credit

reports for both purchasers. This action

was taken for the sole purpose of

alleviating any confusion there may have

been by the Seller as related to the

contract between One Watergate and Renters

Reference. This action did not constitute a

waiver or modification of the Application

requirements and One Watergate retained the

right to require complete and accurate

applications be submitted to the Board for

review.

18. Ms. Kurtz went on to note that an application

submitted by the Bhayats on June 10, 2002, was unacceptable

because it did not include the Bhayats' d river's licenses, and

the hold harmless clause was again stricken from the Application

for Purchase. On June 12, 2002, Ms. Horstkamp responded that

the Bhayats "are okay" with including the hold harmless

provision, that they had submitted their driver's l icense

information to One Watergate, and that the credit report

covering both Mr. and Mrs. Bhayat had also been submitted.

19. On June 14, 2002, Ms. Kurtz wrote a letter to

Ms. Horstkamp that stated, in relevant part:

It has come to my attention that the credit

report submitted by Mr. and Mrs. Bhayat is

not a credit report from a national credit

reporting bureau but, in fact, is a consumer

report which apparently is used quite often

by mortgage brokers and realtors to compile

only the positive aspects of a n individual's

credit reports. As a result of Mr. and Mrs.

Bhayat's misrepresentation and attempt to

deceive the Association, at this point only

a complete and accurate application will be

accepted by One Watergate Association. A

complete and accurate ap plication shall

include both applicant's [sic] date of birth

and social security numbers, as well as all

other information requested on the

application. . . .

20. The credit report in question had been obtained by

Mr. Bhayat through Gary McDonald, a home mortgage consultant

with MSC Mortgage, a joint venture of Wells Fargo Bank, and

Mr. Bhayat's employer, Michael Sanders and Company. Mr. Bhayat

gave his Social Security number to Mr. McDonald, who ordered a

report from RELS Reporting Services, a Wells Far go - affiliated

company that gathers information from the major credit reporting

services. The report that Mr. McDonald generated for Mr. Bhayat

is called a "tri - merge" report, because it combined information

from all three major reporting services into a s ingle report.

The full report was 11 pages long.

21. At the hearing, there was a dispute as to whether

Mr. Bhayat submitted the full 11 - page report to One Watergate,

or whether he only submitted the first two pages summarizing the

information in the full report. Mr. Bhayat insisted that he

submitted the full report. Ms. Farr and Mr. Bouchard both

testified that they had only ever seen the two - page summary.

Mr. Plant testified that One Watergate forwarded to Renters

Reference only the two - page summary, not the full 11 - page

report.

22. The weight of the credible evidence leads to the

finding that Mr. Bhayat submitted only the two - page summary of

the RELS credit report, not the full 11 pages.

23. In any event, the result would have been the same had

Mr . Bhayat submitted the full RELS report, because Mr. Plant

testified that even the full report did not meet Renters

Reference's criteria for a credit report. Mr. Plant stated that

Renters Reference deals directly with the credit reporting

bureaus and will accept only a full report from one of the three

major bureaus. He termed the RELS document a "concocted

report," meaning that it is the product of a third party that

bought information from a credit reporting bureau, then prepared

its own report.

24. Mr. Plant testified that he has found such "concocted

reports" to be unreliable because their authors may make

mistakes in transcribing the information from the credit

reporting bureau and, more significantly, because their authors

may downplay or hide neg ative information to assist the

potential homebuyer in obtaining a loan.

25. Mr. Plant further testified that his company does not

"mess around" with the Fair Housing Act and that he would have

immediately canceled the contract with One Watergate if he had

had the least suspicion that the Board was basing its actions on

Mr. Bhayat's race, color, or national origin. Mr. Plant has

been the president of Renters Reference throughout its 25 - year

existence, and his long experience in these matters is credited .

26. The Bhayats made no further attempts to submit

applications to One Watergate. Neither the screening committee,

nor the full Board, ever took official action because the

application was never deemed complete. The Bhayats' purchase of

the Hesses' un it fell through. The Hesses ultimately leased

their unit to another person.

27. The record indicates that several subsequent

purchasers completed their applications and were approved to buy

and reside in units in One Watergate without incident.

28. The record indicates that, while the majority of One

Watergate's residents are white, persons of color and of varying

national origins own units and reside in One Watergate. No

evidence was produced of strained relations among One

Watergate's residents relati ng to their race, color, national

origin, sex, handicap, familial status, or religion.

29. The only direct evidence of any discriminatory intent

behind the actions of One Watergate toward Mr. Bhayat came from

the testimony of Ms. Hess. On June 14, 2002, before she was

aware that the Board considered the Bhayats' second application

incomplete, Ms. Hess went to the One Watergate office to give

written permission for Mr. Bhayat's housepainter to come into

her unit and commence work. She spoke to Larry Farr, the

building superintendent and husband of Janis Farr.

30. Ms. Hess testified that she asked Mr. Farr whether he

had any news of Mr. Bhayat's status. Mr. Farr stated that he

had not heard anything, but that "I knew the minute I saw that

guy he was goi ng to be trouble." Having never seen Mr. Bhayat,

Ms. Hess asked Mr. Farr what he meant. Mr. Farr stated, "Just

wait till you see him. You'll know." Ms. Hess testified that

she pictured Mr. Bhayat as some large, frightening man, then

learned that he was neither large nor frightening. Once she

learned of Mr. Bhayat's heritage, she assumed that it was his

color and/or national origin to which Mr. Farr was referring.

31. Ms. Hess testified that Larry Farr "is a great

guy . . . but he is the most uninhibit ed speaker of anyone on

the premises . . . [S]ometimes, when he says things, I feel

they reflect the opinion of the group. And so when he said

that, I was just . . . shocked and thought, 'Well, this must be

what they all thought.' That's the feeling I g ot."

32. Mr. Farr vigorously denied making those statements to

Ms. Hess and denied making any statements to anyone regarding

Mr. Bhayat's race or national origin. It is noted that Ms. Hess

made no contemporaneous mention of this conversation during the

c ourse of her correspondence with Mr. Bouchard and the Board;

rather, she first mentioned it in a letter to the Board dated

July 26, 2002, more than a month after Mr. Farr allegedly made

the discriminatory remarks to her and after Mr. Bhayat had filed

his C omplaint with the Commission.

33. Even if Ms. Hess' version of the conversation with

Mr. Farr were to be credited, along with her assumption that

Mr. Farr was referring to Mr. Bhayat's race or national origin,

her intuitive leap in concluding that Mr. F arr's words reflected

the opinion of anyone else would be unsupported. Contrary to

Petitioner's assertion, Mr. Farr was not part of One Watergate's

"management team." He was the maintenance man. Mr. Farr did

not attend Board meetings, had no role in the process of

accepting or rejecting applications, and did not discuss

Mr. Bhayat with any Board members. There was no evidence

presented that Mr. and Mrs. Farr ever talked about Mr. Bhayat,

other than in regard to the aforementioned housepainter.

34. The re was no evidence that any member of the Board or

the screening committee discriminated against Mr. Bhayat due to

his race, national origin, or for any other reason. Most of

them never met Mr. Bhayat and were unaware of his race or

national origin during the period in dispute. Mr. Bhayat, for

reasons of his own, simply declined to submit a complete

application to One Watergate, which, in turn, declined to

consider his incomplete application.

CONCLUSIONS OF LAW

35. The Division of Administrative H earings has

jurisdiction in this proceeding pursuant to Subsection

120.57(1), Florida Statutes (2004).

36. Subsection 760.23(1), Florida Statutes (2003),

provides:

It is unlawful to refuse to sell or rent

after the making of a bona fide offer, to

refuse to negotiate for the sale or rental

of, or otherwise to make unavailable or deny

a dwelling to any person because of race,

color, national origin, sex, handicap,

familial status, or religion.

37. 42 U.S.C. Subsection 3604(a) provides that it shall be

unlawful

[t]o refuse to sell or rent after the making

of a bona fide offer, or to refuse to

negotiate for the sale or rental of, or

otherwise make unavailable or deny, a

dwelling to any person because of race,

color, religion, sex, familial status, or

nati onal origin.

38. In cases involving a claim of housing discrimination

on the basis of race, color, or national origin, the complainant

has the burden of proving a prima facie case of discrimination

by a preponderance of the evidence. McDonnell Douglas C orp. v.

Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).

39. A prima facie showing of housing discrimination can be

made by establishing that Mr. Bhayat was a member of a protected

class; that he applied for and was qualified to purchase an

a vailable unit; that One Watergate rejected him; and that the

unit remained available, thereafter, or was sold or rented to a

person not in a protected class. United States Department of

Housing and Urban Development v. Blackwell , 908 F.2d 864, 870

(11th C ir. 1990); Selden Apartments v. United States Department

of Housing and Urban Development , 785 F.2d 152, 159 (6th Cir.

1986).

40. Under the McDonnell Douglas test, once the complainant

has made a prima facie case, the burden shifts to the respondent

to establish a legitimate, nondiscriminatory reason for the

challenged action. The burden then shifts back to the claimant

to prove that the articulated nondiscriminatory reason is mere

pretext for the respondent's discriminatory intent. See

Blackwell , 908 F.2d at 870.

41. Pretext can be shown by untruths, inconsistencies,

and/or contradictions in testimony by a respondent as to the

reasons for his or her actions. Woodard v. Fanboy, L.L.C. , 298

F.3d 1261, 1265 - 66 (11th Cir. 2002). See also Combs v.

Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir. 1997),

quoting Sheridan v. E. I. DuPont de Nemours and Co. , 100 F.3d

1061, 1072 (3rd Cir. 1996) (Pretext may be shown through "such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contrad ictions in the employer's proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence").

42. "Discriminatory intent may be established through

direct or indirect circumstantial evidence." Johnson v.

Ha mrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001). "[D]irect

evidence of intent is often unavailable." Shealy v. City of

Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996). For this

reason, those who claim to be victims of discrimination "are

permitted to e stablish their cases through inferential and

circumstantial proof." Kline v. Tennessee Valley Authority , 128

F.3d 337, 348 (6th Cir. 1997). However, proof that, in essence,

amounts to no more than mere speculation and self - serving belief

on the part of t he complainant concerning the motives of the

respondent is insufficient, standing alone, to establish a prima

facie case of intentional discrimination. See Lizardo v.

Denny's, Inc. , 270 F.3d 94, 104 (2d Cir. 2001) ("The record is

barren of any direct evid ence of racial animus. Of course,

direct evidence of discrimination is not necessary. . . .

However, a jury cannot infer discrimination from thin air.

Plaintiffs have done little more than cite to their mistreatment

and ask the court to conclude that it must have been related to

their race. This is not sufficient.") ( citations omitted);

Coleman v. Exxon Chemical Corp. , 162 F. Supp. 2d 593, 622 ( S.D.

Tex. 2001) (" Plaintiff's conclusory, subjective belief that he

has suffered discrimination by Cardinal is not probative of

unlawful racial animus."); Lo v. F.D.I.C. , 846 F. Supp. 557, 563

( S.D. Tex. 1994) (" Lo's subjective belief of race and national

origin discrimination is legally insufficient to support his

claims under Title VII.").

43. In the instant ca se, the Commission failed to

establish a prima facie case of discrimination either through

direct or indirect circumstantial evidence. It was established

that Mr. Bhayat is a member of a protected class of persons.

However, it was not established that Mr . Bhayat applied for and

was qualified to purchase the Hesses' unit at One Watergate or

that One Watergate "rejected" an application that was never

completed. Mr. Bhayat never completed the form applications

that One Watergate required of all potential pu rchasers and/or

residents after May 2, 2002. The record established that One

Watergate attempted to adjust its application process enough to

satisfy Mr. Bhayat's privacy concerns, without altogether

abandoning its rationale for hiring Renters Reference an d

establishing a screening process in the first place. It was

ultimately Mr. Bhayat's choice not to complete the applications

and, thereby, forfeit his opportunity to purchase a unit in One

Watergate.

44. Even assuming for the sake of argument that the

Commission did establish a prima facie case, One Watergate

presented credible evidence of a nondiscriminatory reason for

its failure to consider Mr. Bhayat's application: Mr. Bhayat

refused to complete One Watergate's application forms. One

Watergate be gan its search for a firm to conduct applicant

investigations more than one year prior to Mr. Bhayat's

application. Mr. Bhayat was neither the first, nor the last

applicant, required to complete the Renters Reference

application forms. Renters Reference strongly advised strict

compliance with its application procedures, both to ensure a

thorough investigation of applicants and to ensure that One

Watergate could not be accused of discrimination in its

application process. Despite Renters Reference's advic e, One

Watergate attempted to work out a compromise with Mr. Bhayat.

When Mr. Bhayat submitted an unsatisfactory credit report, One

Watergate reasonably abandoned its efforts to mollify Mr. Bhayat

and demanded that he complete the application in the same manner

as any other potential purchaser. Mr. Bhayat declined to

complete the application.

45. The Commission failed to demonstrate that One

Watergate's nondiscriminatory reason for failing to consider

Mr. Bhayat's application was pretextual. Aside from a single,

somewhat ambiguous remark by One Watergate's maintenance man,

who stoutly denied ever making it, there is no direct evidence

of any racial animus by anyone at One Watergate, nor any

indirect evidence that would allow a factfinder to draw an

infe rence of discrimination.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 3r d day of November, 2004, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Hum an Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Derrick Bhayat

101 South Gulfstream Avenue, No. 7E

Sarasota, Florida 34236

Vicki D. Johnson, Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Talla hassee, Florida 32301 - 4857

Harry W. Haskins, Esquire

Mary R. Hawk, Esquire

Porges, Hamlin, Knowles & Prouty, P.A.

One Watergate Association, Inc.

3400 South Tamiami Trail, Suite 201

Sarasota, Florida 34239

Cecil Howard, General Counsel

Florida Commis sion on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.