06-003271 Carmajene Wise vs. Progressive Management Inc. And Dan D`onofrio Status: Closed Recommended Order on Tuesday, January 2, 2007.

Summary: The evidence did not show housing discrimination based on gender or handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMAJENE WISE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3271

)

PROGRESSIVE MANAGEMENT INC. AND )

DAN D’ONOFRIO , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was conducted in this

proceeding before Administrative Law Judge Diane Cleavinger of

the Division of Administrative Hearings in Milton, Florida, on

November 1, 2006.

APPEARANCES

For Petitioner: Carmajene Wise , pro se

22730 Zell Ready Road

Andalusia, Alabama 36421

For Respondent: Dan D’Onofrio , pro se

Progressive Management of America

6598 North West Park Avenue

Milton, Florida 32570

STATEMENT OF THE ISSUE

Whether Petitioner was the subject of discrimination based

on her sex or handicap in leasing her apartment from Respondent

in violation of Sections 804d and 804d or f of Title VIII of the

Civil Rights Act of 1968 , as amended by the Fair Housing Act of

1988 and the Florida Fair Housing Act, Chapter 760.23(2) (4) ,

Florida Statutes (2006) .

PRELIMINARY STATEMENT

Petitioner filed a complaint with the U.S. Department of

Housing and Urban D evelopment (HUD) and the Florida Commission

on Human Relations (FCHR) on April 4, 2006, alleging that she

was discriminated against based on her sex or handicap by the

Respondent when the Respondent falsely den ied or represent ed the

availability of an apar tment , or imposed discriminatory terms ,

conditi ons , privileges, or services on Petitioner’s lease .

An investigation of the complaint was made by FCHR. The

Commission issued its determination that there was no reasonable

cause to believe that a disc riminatory housing practice had

occurred in violation of Section 760.23(1), Florida Statutes

(2006), or Sections 804d and 804d or f of Title VIII of the

Civil Rights Act of 1968 , as amended by the Fair Housing Act of

1988 . Petitioner disagreed with FCHR’s determination and filed

a Petition For Relief. The case was forwarded to the Division

of Administrative Hearings to conduct a formal hearing on the

matter.

At the hearing, Petitioner tes tified on her own behalf and

offered the testimony of one wit ness . Petitioner also offered

two exhibits into evidence. Respo ndent presented the testimony

of two witnesses and offer ed fourteen exhibits into evidence.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Order s on November 15, 200 6 , and November 11, 200 6 ,

respectively.

FINDINGS OF FACT

1. Petitioner resided at Respondent’s Thacker I property

for at least a year prior to her move to Respondent’s Pinewoods

Place Apartments located at 5929 Pinewoods Place, Milton,

Florida 3257 0. Petitioner moved to Pinewoods , Apartment 25,

around March or April of 2003. Neither Petitioner nor

R espondent had any material problems with each other during her

residency at Thacker I. Her move to Pinewoods resulted from her

request to move to a la rger apartment.

2. Pinewoods is a large complex managed by Respondent.

Some of the units are subsidized by HUD. A list of tenants in

the Pinewood complex reflect 58 tenants. Of the 58 tenants, 34

are female. Eleven of the tenants have a disabil ity. In fact,

Respondent contracts with providers who serve the disabled to

provide apartments to their clients and provides such apartments

regularly.

3 . Respondent accommodated Petitioner ’s request to move to

Pinewoods by not requir ing a full year ’s lease since she had

already completed a year at Thacker I and by allowing Petitioner

to transfer her deposit from the Thacker I apartment to the

Pinewoods apartment. Because of these accommodations ,

Petitioner was permitted to lease her Pinewoods apart ment on a

month - to - month lease with an additional deposit of $95.

4. Respondent also accommodated Petitioner in her move by

leaving her rent amount t he same as it was at Thacker I. Thus,

Petitioner paid $400 a month rent instead of the normal $450 a

month rent paid by other tenants in comparable apartments.

5 . Petitioner did not visit U nit 25 prior to her move to

Pinewoods because it was occupied . No other units were

available for her to inspect prior to her move. Additionally,

HUD inspected the Unit 25 prior to Petitioner’s m ove and found

no violations and that the apartment met HUD standards for being

mechanically sound and safe. There was no evidence of any

representations made by Respondent to Petitioner regarding Unit

25 , and Petitioner did not introduce any evidence of such

misrepresentations. Clearly, contrary to Petitioner’s

assertions of misrepresentations about her apartment or her

assertion that she looked at her Unit or a model , her apartment

was not misrepresented to her prior to her move to Pinewoods ,

and no discrimination on the basis of sex or handicap occurred.

6 . Sometime after her move, Petitioner began to complain

about her apartment. The evidence was vague regarding most of

her complaints , and Petitioner declined to testify about many of

her allegations. For instance , there was a vague complaint

about leaves being blown into her yard from the sidewalk when

the maintenance crew would clear the sidewalk of leaves.

However, this method of clearing the sidewalk occurre d

throughout the complex and was not directed toward Petitioner.

Likewise, there was a vague complaint about the trash lady

disturbing Petitioner’s morning coffee by performing her

assigned duty of picking up trash around the apartment complex.

Again, th ere was no evidence of any activity being directed at

Petitioner based on her sex or handicap.

7 . At some point, Petitioner complained t o Respondent

about her dryer vent not working properly . After several

complaints and i n an effort to resolve Pe titioner’s complaint,

Respondent’s maintenance person put an interior box - style lint

trap, in her Unit . Respondent stated he felt this was the best

solution because a member of the maintenance staff used th e same

type lint trap at his home. Petitioner, f or a variety of

reasons, was not satisfied with Responden t’s solution and vented

the dryer to the outside herself. There is some dispute over

whether Petitioner’s repair was safe or done correctly. There

is no evidence that indicates Respondent discrimin ated against

Petitioner on the basis of sex or handicap.

8 . Petitioner also complained about the sliding glass

door s being fogged and wanted them replaced. Respondent

explained that the doors were safe and that 55 other residents

have fogged glass d oors . Respondent refused to replace the

glass doors. T he next day Petitioner complained to HUD about

the fogged glass door being “non - operable . ”

9. Because of the complaint, Robert Youngblood from the

HUD office in Milton met Respondent’s mainten ance st aff at

Petitioner’s apartment and discover ed that the slider had been

knocked off its track. Mr. Youngblood reported to Respondent

that it was very clear the door had been sabotaged because he

had just inspected that same door just days before beca use of a

prior c omplaint. Respondent fixed Petitioner’s door again .

Additionally, the sliding glass door that Petitioner complained

about was inspected by both Santa Rosa Glass and Milton Glass.

10. Petitioner also kept an untagged vehicle in the

p arking lot and threatened to sue if it were towed. All the

Pinewoods ’ leases contain a provision that untagged vehicles are

not permitted on the premises and will be towed. In order to

avoid the vehicle being towed , Petitioner switched the tag from

her t agged vehicle to her untagged vehicle and back again as

notice was given to her. Petitioner again felt this action was

discrimination. Again there was no evidence to support

Petitioner’s claim.

11 . On January 5, 2006, a little more than two years a fter

she moved to Pinewoods, Petitioner complained, when she came to

the office to pay her rent, that her garbage disposal did not

work . The staff person who took Petitioner’s rent sent a

maintenance person that day to look at Petitioner’s garbage

disposa l.

12 . The maint en ance person look ed at the alleged disposal

location and discovered that Petitioner did not have a garbage

disposal. There was no plumbing for one. The evidence showed

that many units did not have a garbage disposal and that

dispo sals were removed from each unit as they broke down.

Petitioner insisted that she should have a garbage disposal

since there was a switch on the wall for one.

13 . B ecause of her actions concerning the garbage

disposal, Petitioner was given a Notice of Non - Renewal , dated

January 6, 2006 . Petitioner refused to pay any rent and refused

to vacate the apartment based on her belief that Respondent had

discriminated against her based on her sex and handicap. She

maintained this belief even though she test ified that “everybody

had problems getting things fixed.” Indeed , her only witness

corroborated that men and women, handicapped and non - handicapped

have trouble getting things fixed.

14 . No reason was given for the non - renewal. Respondent

testifi ed that he was tired of Petitioner’s actions and

deceitfulness.

15 . Petitioner chose to withhold her rent when it was due

in February 2006, so that Respondent would bring eviction

proceedings against her.

16. Respondent eventually brought evict ion proceedings

against Petitioner. At the eviction hearing, Petitioner told

the judge she wanted to be evicted so it would become public

record. Respondent was awarded possession of the premises.

After Respondent was given possession, the next morning he

received a copy of a letter to the judge requesting that he

rescind his decision and requesting another judge. Petitioner

has since moved to another apartment. As with the other

incidents described above, the evidence did not demonstrate that

Responde nt discriminated against Petitioner on the basis of her

sex or handicap. Therefore, the Petition for Relief should be

dismissed.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2006).

18. Under Florida’s Fair Housing Act (“Act”), Sections

760.20 through 760.37, Florida Statutes (2006) , it is unlawful

to discriminate in the sale or rental of housing. Section

760.23 states, in part:

(1) 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.

19 . In cases involving a claim of rental housing

discrimination , the complainant has the burden of proving a

prima facie case of discrimination by a preponderance of the

evidence. A prima facie showing of rental housing

di scrimination can be made by establishing that the complainant

applied to rent an available unit for which he or she was

qualified, the application was rejected, and, at the time of

such rejection, the complainant was a member of a class

protected by the Ac t. See Soules v. U.S. Dept. of Housing and

Urban Development , 967 F.2d 817, 822 (2d Cir. 1992). Failure to

establish a prima facie case of discrimination ends the inquiry.

See Ratliff v. State , 666 So. 2d 1008, 101 3 n. 7 (Fla. 1st DCA

1996 ), aff’d , 679 S o. 2d, 1183 ( Fla. 1996)( citing Arnold v.

Burger Queen Systems , 509 So. 2d 958 (Fla. 2d DCA 1987)).

20 . If, however, the complainant sufficiently establishes

a prima facie case, the burden then shifts to the Respondent to

articulate some legitimate, nond iscriminatory reason for its

action. If the Respondent satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the Respondent is, in fact, merely a

pretext for discrimination. See Massaro v. Mainlands Section 1

& 2 Civic Ass’n, Inc. , 3 F.3d 1472, 1476 n.6 (11th Cir. 1993),

cert. denied , 513 U.S. 808, 115 S. Ct. 56, 130 L. Ed. 2d 15

(1994)(“Fair housing discrimination cases are subject to the

three - part test articulated in McDonnell Douglas Corp. v. Green ,

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

Secretary, U.S. Dept. of Housing and Urban Development, on

Behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)(“We agree with the ALJ that the three - part burden of proo f

test developed in McDonnell Douglas [for claims brought under

Title VII of the Civil Rights Act] governs in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].”). Pretext can be shown by inconsistencies

and/or co ntradictions in testimony. Blackwell , supra ; Woodward

v. Fanboy, L.L.C. , 298 F.3d 1261 (11th Cir. 2002); Reeves v.

Sanderson Plumbing Products, Inc. , 530 U.S. 133 , 120 S. Ct.

2097, 147 L. Ed. 2d 105 (2000). "Discriminatory intent may be

established throu gh direct or indirect circumstantial evidence."

Johnson v. Hamrick , 155 F. Supp. 2d 1355, 1377 ( N.D. Ga. 2001).

21 . " Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presum ption." King v. La Playa - De Varadero

Restaurant , No. 02 - 2502, 2003 WL 435084 (Fla. DOAH

2003)(Recommended Order).

22 . " [ 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 establish 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, amount s to no more than mere speculation

and self - serving belief on the part of the 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 evidence 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 m ore 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.); Reyes v. Pacific Bell , 21

F.3d 1115 (Table), 1994 WL 107994 *4 n.1 (9th Cir. 1994)("The

only suc h evidence [of discrimination] in the record is Reyes's

own testimony that it is his belief that he was fired for

discriminatory reasons. This subjective belief is insufficient

to establish a prima facie case."); Little v. Republic Refining

Co., Ltd. , 924 F.2d 93, 96 (5th Cir. 1991)(" Little points to his

own subjective belief that age motivated Boyd. An age

discrimination plaintiff's own good faith belief that his age

motivated his employer's action is of little value."); Elliott

v. Group Medical & Surgic al Service , 714 F.2d 556, 567 (5th Cir.

1983)("We are not prepared to hold that a subjective belief of

discrimination, however genuine, can be the basis of judicial

relief."); Jackson v. Waguespack , 2002 WL 31427316 ( E.D. La.

2002) ("[T]he Plaintiff has no evidence to show Waguespack was

motivated by racial animus. Speculation and belief are

insufficient to create a fact issue as to pretext nor can

pretext be established by mere conclusory statements of a

Plaintiff that feels she has been discriminated agai nst. The

Plaintiff's evidence on this issue is entirely conclusory, she

was the only black person seated there. The Plaintiff did not

witness Defendant Waguespack make any racial remarks or racial

epithets."); 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."); Cleveland - Goins v. City

of New York , 1999 WL 673343 ( S.D. N.Y. 1999)(" Plaintiff has

fai led to proffer any relevant evidence that her race was a

factor in defendants' decision to terminate her. Plaintiff

alleges nothing more than that she 'was the only African -

American man [sic] to hold the position of administrative

assistant/secretary at M anhattan Construction.' (Compl.¶ 9.)

The Court finds that this single allegation, accompanied by

unsupported and speculative statements as to defendants'

discriminatory animus, is entirely insufficient to make out a

prima facie case or to state a claim un der Title VII."); Umansky

v. Masterpiece International Ltd. , 1998 WL 433779 ( S.D. N.Y.

1998)(" Plaintiff proffers no support for her allegations of race

and gender discrimination other than her own speculations and

assumptions. The Court finds that plainti ff cannot demonstrate

that she was discharged in circumstances giving rise to an

inference of discrimination, and therefore has failed to make

out a prima facie case of race or gender discrimination."); and

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.").

23 . In order to establish the elements of a case of

discrimination involving the terms, conditions or privilege s

related to the non - renewal of a lease, the following must be

proven:

1) Petitioner belongs to a protected class;

2) Petitioner was qualified, ready, willing

and able to continue occupancy consistent

with the terms and conditions offered by

Respondent ;

3) When did the Respondent notify the

Petitioner that the lease would not be

renewed, and what explanation was offered by

the Respondent for the decisions;

4) After the Respondent notified Petitioner

of the non - renewal, did the Respondent renew

the lea ses of other similarly situated

residents who belonged to a comparable class

of person?

24 . In order to prove the elements of a case of

discrimination in the provision of services or facilities the

following must be proven:

1) Does the Petitioner belong to a

protected class?

2) Was the Petitioner qualified, ready,

willing, and able to receive services or use

facilities consistent with the terms and

conditions offered by the Respondent?

3) Did the Respondent receive services, or

attempt to use f acilities consistent with

the terms and conditions applicable to all

person who were qualified or eligible for

services or use of facilities?

4) Did the Respondent willfully fail or

refuse to provide services, or permit use of

the facilities under the sa me terms and

conditions to the Petitioner that were

applicable to all person who were qualified

or eligible for services or use of

facilities? After the Petitioner was denied

the services or facilities, did the

Respondent provide similar services or

facil ities to a person from a comparable

class of persons?

25. In this case, Petitioner provided no evidence that she

was discriminated against on the basis of her sex or handicap.

Indeed , the evidence demonstrated that other tenants of any

variety eit her had the same problems she did or had apartment

fixtures similar to hers. If anything , the evidence

demonstrated that Petitioner’s difficulties were due to her

personality and were of her own making. Such personality

difficulties do not constitute di scrimination under Florida’s

Fair Housing Act. Therefore the Petition For Relief should be

dismissed.

DONE AND ENTERED this 2nd day of January , 200 7 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrativ e Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrat ive Hearings

this 2nd day of January , 200 7 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Re lations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Dan D’Onofrio

Progressive Management of America

6598 North West Park Avenue

Milton, Florida 32570

Carmajene Wise

22730 Zell Ready Road

Andalusia, Alabama 36421

NOTICE OF RIGHT TO S UBMIT 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.