10-001848 Christopher Castellio, Sr. vs. Alachua County Housing Authority Status: Closed Recommended Order on Wednesday, November 24, 2010.

Summary: Pet. failed to prove that Resp. discriminated against him based upon race or handicap, or that Resp. failed to make reasonable accommodations for Pet.'s disability in providing housing assistance to Pet. and his family.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER CASTELLIO, SR., )

)

Petitioner, )

)

vs. ) Case No. 10 - 1848

)

ALACHUA COUNTY HOUSING )

AUTHORITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A fi nal hearing was conducted in this case on October 4,

2010 , in Gainesville , Florida, before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Christopher Cas t ellio, Sr. , pro se

3910 N ortheast First Terrace

Gainesville, Florida 32609

For Respondent: Gary S. Edinger , Esquire

305 N ortheast First Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE S

I. Whether Respondent dis criminated against Petitioner

based upon PetitionerÓs race or handicap in providing housing

assistance.

II. Whether Respondent , in providing housing assistance,

failed to make reasonable accommodations for PetitionerÓs

physical disability.

PRELIMINARY STA TEMENT

On or about December 11 , 2009, Petitioner filed a

discrimination complaint (Complaint) as set forth in a letter

dated November 24, 2009, addressed to the United States

Department of Housing and Urban Development (HUD) , Office of

Fair Housing and Equ al Opportunity .

The Florida Commission on Human Relations (Commission or

FCHR) investigated the Complaint, which was assigned FCHR Number

2010H0157. F ollowing completion of its inves tigation, the

Commission issued a Determination dated Fe bruary 16, 2010,

finding no cause. On March 3, 2010, the Commission issued a

Notice of Determination of No Cause (Notice) on the Complaint

finding that Ð the FCHR has determined that reasonable cause does

not exist to believe that a discriminatory housing practice has

occu rred. Ñ

The Notice advised Petitioner of h is right to file a

Petition for Relief for a formal administrative proceeding on

h is Complaint within 30 days. Petitioner timely filed a

Petition for Relief with the Commission reiterating the

allegations of his Complaint .

On April 8, 2010, t he Commission filed a Transmittal of

Petition with the Division of Administrative Hearings (DOAH) for

assignment of an administrative law judge to conduct a n

administrative hearing on PetitionerÓs Petition for Relief.

At the a dministrative hearing in this matter held on

October 4, 2010, Petitioner presented the testimony of his wife,

Ethelyn Reese - Castell i o, and testified on his own behalf .

Petitioner offered eight exhibits which were received into

evidence without objection a s Exhibit s P - 1 through P - 8.

Respondent presented the testimony of three witness es:

Respondent's Housing Administrator and representative , Gail

Monahan ; Respondent's Housing Manager , Cathy Scott ; and

Respondent's Section 8 Coordinator , Karen Webster. Resp ondent

offered two exhibits which were received into evidence without

objection as RespondentÓs Exhibits R - 1 and R - 2. In addition,

during the hearing, Respondent played the recording of a 911

call placed by Johnetta Slay to the Alachua County SheriffÓs

Of fice on May 19, 2010 .

The evidentiary portion of the hearing concluded on

October 4, 2010. No transcript was ordered. The parties were

given until October 14, 2010, to file their respective Proposed

Recommended Orders. Respondent filed its Proposed Reco mmended

Order on October 14, 2010. Petitioner did not file a Proposed

Recomme nded Order. Respondent's Proposed Recommended Order has

been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner and his family ha ve been in subsidiz ed

housing for many years. Most recently, housing assistance ha s

been provided by the Alachua County Housing Authority, first

through the Tenant Based Rental Assistance (TBRA) program and,

currently, through Section 8 subsidized housing.

2. At the time o f the administrative hearing, Petitioner

and his family were still in Section 8 housing administered by

Respondent.

3. Under the TBRA program, the Castellio family was

required to meet regularly with Housing Authority staff and

their affiliates . They als o had to meet certain performance

standards relative to employment searches and maintenance of the

household. PetitionerÓs family was often unable to meet those

performance standards - Î particularly with respect to employment

and payment of electrical bills .

4. Because of his interactions with Respondent's staff,

Petitioner had earned the reputation of being loud, deman ding,

and physically imposing.

5. In one incident, Petitioner tried to prevent one of

Respondent's worker s from mowing his yard by physical ly blocking

the lawn mower, even though such maintenance was required under

the government program and was also an issue of local code

enforcement. More than one of Respondent's staff reported that

Petitioner would raise his voi ce when he was in Responden t's

H ousing Authority office.

6. Some of Respondent's staff were intimidated by

Petitioner. Because of this, the director of the Alachua

Housing Authority, Gail Mon a han, was tasked with dealing with

Petitioner and the Cas t ellio family.

7. The pertinent part of Petitioner's Complaint states:

My name is Christopher S.A. Castellio.

My wife's name is Ethelyn L. Reese - Castello.

We are the proud parents of five children

which ages are 5, 7, 9, 11, and 16. Our 16

year old is living in Bend, Oregon with his

u ncle who has more resources to provide for

him.

Approximately for two years now, my family

and I have lived on Section 8 through the

Alachua County Housing Authority here in

Gainesville, Florida. We have to report to

the Executive Director of the Alachua County

Housing Authority, Ms . Gail Mon a han , every

Wednesday of every week in order to report

progress of trying to become self supporting

and financial independent. During this time

I have been humiliated in front of my wife,

Ms . Mon a han's office staff, o ther customers

and patrons and, most humiliating, in front

of my own kids. Ms. Gail Mon a han has

absolutely no compassion, professionalism,

or moral conduct.

Ms. Gail Mon a han has called me everything

but a child of God. In front of my kids,

she has calle d me a lying sack of s - t, a

sorry son of a b -- h, a con artist, a -- hole,

and an f -- wad. One day I just walked into

her office and the first thing she said was,

"hay you little s -- tbird, what have you done

s -- ted out today."

I served 6 years in the United States Marine

Corps during Desert Storm from 1986 until

1992. While serving I injured my knee in

Kuwait. I returned to the states where I

underwent knee surgery. I was honorably

discharged several months later.

Ms . Mon a han says I'm lying about my servi ce,

despite my service and medical records.

Right now I am in constant pain in both my

knees and my back. I have taken two MRI's

for both knees and my doctor says that I

desperately need a total right knee

replacement and a basic left knee operation

base d on my MRI's. Ms . Mon a han also says

that's a lie. And she refuses to look at

any doctor's reports. She said I probably

faked them.

Ever s ince I've been meeting with

Ms. Mon a han she has always had something

discrimitory [sic], degrading, intimidating,

and threaten [sic] to say to me. She always

threatens to take our housing away from us,

like she's doing right now, if we don't do

exactly what she says to do. I do believe

that she is prejudice [sic] against me

because I am a very, very light - skinned

bl ack man with red hair and freckles. I do

look like a white man to most people and my

wife is very dark skinned African American.

We have done everything she has told us to

do but still she says that we have done

nothing. She does not take into

considera tion the bad economy and that jobs

are very hard to come by and that more and

more people are being laid off every day.

So she is going to make a family with 4

small children become homeless just because

I can't work because of my back and my knees

and be cause my wife couldn't find a job in

today's economy. By the way, my wife has

finally found a job working at Wal - mart.

We fin ally received a letter from

Ms. Monahan informing us of the termination

of tenant based rental assistance. In the

allotted time of seven working days, I have

answered her letter in writing, requesting a

hearing to appeal her decision. As of the

date of this letter, I have not received

anything or any notice of any hearing from

Ms. Mon a han. I will fax you a copy of both

letters. Our move out date has been set as

December 31 st , 2009.

8. Consistent with his Complaint, Petitioner testified

that Ms. Monahan, the director of the Alachua County Housing

Authority treated him badly, believed he was lazy , and

questioned whether he suffer ed from a physical disability.

9. In further support of the allegations, PetitionerÓs

wife, Ms. Reese - Castellio , testified that Gail Monahan was

ÐmeanÑ to their family. Accord ing to Ms. Reese - Castellio,

Ms. Monahan called Petitioner a liar, said that he ÐdidnÓt give

a damnÑ about his family , and suggested to her that she should

consider leaving Petitioner .

10. At the final hearing, Ms. Monahan admitted that she

did not respect Mr. Cast e llio because he did not appear to be

making any effort to support his family . She denied, however,

that she cursed at him , and testified that she never

discriminated against Petitioner or his family.

11. While it is clear that there was personal animosity

between Petitioner and Ms. Monahan, the evidence was

insufficient t o show that either Ms. Monahan or Respondent

discriminated against Petitioner or his family.

12. On cross - examination , Ms. Reese - Castellio disclosed

that Ms. Monahan's remarks were only directed toward Petitioner,

and that Ms. Monahan did not use racial e pithets or otherwise

give any indication that she was discriminating against

Petitioner or his family because of race, handicap, or any other

impermissible factor. Petitioner's wife further testified that

she had no complaints about any of the other staff members at

the Housing Authority.

13. Likewise, Petitioner failed to provide evidence that

either Ms. Monahan or Respondent has ever acted in a

discriminatory manner toward him or his family based on race,

ethnicity, handicap, or any other impermissible basis.

14. Further, the evidence presented at the final hearing

did not show that either Petitioner or his family ha ve ever been

denied housing assistance by Respondent . In fact, the evidence

revealed that Petitioner and his familyÓs housing benefits

adm inistered by Respondent have never been interrupted or

denied, and that the Castellio family has been treated at least

as well, if not better, than other housing clients served by

Respondent .

15. In addition to administering basic housing benefits

under TBRA and the Section 8 program , Respondent arranged to pay

over $1,300 to repair PetitionerÓs family car, paid for

utilities when th e Castellios were unable to do so , and provided

bus vouchers and other transportation for the family on a

regular basis. Re spondentÓs decision to provide these

additional benefits was made by Ms. Monahan.

16. At the final hearing, both Petitioner and his wife

confirmed that Respondent had provided additional assistance and

that Gail Monahan had control over these additional benefits .

Neither Petitioner nor Ms. Reese - Castellio offer ed an

explanation for why Ms. Monahan would go Ðabove and beyondÑ the

requirements of subsidized housing in order to assist the

Castellio family .

17. Ms. Monahan, in her credible testimony, expla ined that

she had considerable compassion for Ethelyn Castellio and the

PetitionerÓs children , and that her compassion led her to offer

extensive support for the Castellio family beyond simple housing

assistance.

18. Although Petitioner testified that the family was

rejected as potential tenants at an apartment complex known as

ÐEden ParkÑ after initially being accepted by the private

landlord , and said that h e believed that Gail Monahan had

something to do with the rejection, Petitioner offered no

evidenc e to support that belief.

19. Ms. Monahan stated that neither she nor anyone from

the Housing Authority spoke to anyone at Eden Park regarding the

Petitioner or his family. She explained that tenants are

responsible for locating suitable housing which is then

inspected and approved by the Housing Authority.

20. The credible testimony of Ms. Monahan , together with

Petitioner's own testimony and admissions, demonstrated that

Respondent did not interfere in the Eden Park situation, and

never delayed inspe ctions or unreasonably rejected any housing

benefits for the Castellio family.

21. In addition, while indeed, as alleged in the

Complaint, Respondent issued a letter informing Petitioner that

his family's rental assistance was scheduled to be terminated,

the evidence adduced at the final hearing showed that the letter

was issued in error, and that it was withdraw n .

22. Finally, w hile the Commission states on page 5 of its

Determination of no cause dated February 16, 2010, that

ÐComplainant alleged he req uested a reasonable accommodation,

and Respondents denied his request,Ñ a plain reading of the

Complaint, quoted in paragraph 7, above, does not reveal that

Petitioner ever alleged that Respondent failed to accommodate

his disability.

23. Moreover, t he applications Petitioner and his f amily

filed in 2008 and 2009 to obtain housing assistance from the

Respondent state that the family was not seeking any

accommodations on account of disability and that no one in the

family suffered from any physical handic ap .

24. At the final hearing, Petitioner confirmed that the

family never asked Respondent for accommodation based on any

physical disability and reported in their applications that no

member of the family was handicapped or required an

accommodation.

CONC LUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760.20 - 760.37, Fla.

Stat. (20 1 0); see also Fla. Admin. Code R. 60Y - 4.016 and 60Y -

8.001.

26. FloridaÓs Fair Housing Act (Act) is codified in

Sections 760.20 through 760.37, Florida Statutes (200 9 ). 1 /

27. Among other things, the Act makes certain acts

Ðdiscriminatory housing practicesÑ and gives the Commission the

authority, if it finds (foll owing an administrative hearing

conducted by an administrative law judge) that a Ðdiscriminatory

housing practiceÑ has occurred. If such a finding is made, the

Act further authorizes the Commission to issue an order

Ðprohibiting the practiceÑ and provide s Ðaffirmative relief from

the effects of the practice, including quantifiable damages and

reasonable attorneyÓs fees and costs.Ñ £ 760.35(3)(b), Fla.

Stat.

28. The Ðdiscriminatory housing practicesÑ prohibited by

the Act include those described in Sectio n 760.23(2), Florida

Statutes, which provides:

(2) It is unlawful to discriminate against

any person in terms, conditions, or

privileges of sale or rental of a dwelling,

or in the provision of services or

facilities in connection therewith, because

of rac e , color, national origin, sex,

handicap , familial status, or religion.

(Emphasis added.)

29. The language in Section 760.23(2), Florida Statutes,

is identical to the prohibition in 42 U.S.C. Section 3604(b), a

provision in the federal Fair Housing Act. Since Section

760.23(2), Florida Statutes, is patterned after a federal law on

the same subject, Ðit [should] be accorded the same construction

as in federal courts to the extent the construction is

harmonious with the spirit of the Florida legislation.Ñ

Cf . Winn - Dixie Stores, Inc. v. Reddick , 954 So. 2d 723, 728

(Fla. 1st DCA), rev . denied , 967 So. 2d 198 (Fla. 2007)

( discussing the same rule of construction in the context of the

Florida Civil Rights Act of 1992, §§ 760.01 - 760.11, Fla. Stat.) .

30. Pet itioner has the burden of establishing facts to

prove a prima facie case of discrimination. U.S. Department of

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

(11th Cir. 1990).

31. The three - part Ðburden of proofÑ pattern developed in

McDon nell Douglas Corp. v. Green , 4 11 U.S. 792, 93 S. Ct. 1817

(1973), applies. Blackwell , 908 F.2d at 870. Under that test:

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Pe titioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

Id. , citing Pollitt v. Bramel , 669 F. Supp. 172, 175 (S.D. Ohio

1987)(federal Fair Housing Act claim)(quoting McDonnell Douglas ,

411 U.S. at 802, 804, 93 S. Ct. at 1824, 1825).

32. In order to establish a prima facie case in this

matter, Petitioner must have shown by a preponderance of the

evidence : 1) that he was a member of a protected class or that

he was handicapped ; 2) that he applied for and was qualified t o

receive services from Respondent ; 3) that he was rejected from

or discriminated against in receiving the services; and 4) that

the services were available to non - minorities or those without a

handicap . See § 760.23(2), Fla. Stat., supra ; cf. Blackwell ,

908 F.2d at 870 (listing elements establishing a prima facie

case under the federal Fair Housing Act in the context of

refusing to rent).

33. The evidence supported only the first two elements

required to establish a prima facie case. As an African -

Ameri can, Petitioner is a member of a protected class . In

addition, the Petitioner showed that he applied for and was

qualified to receive services under Respondent .

34. Petitioner failed, however, to provide evidence that

that he was rejected from receiving housing assistance or that

Respondent otherwise discriminated against him in providing, or

failing to provide, housing assistance to Petitioner or his

family.

35. In addition, other than h is speculation and belief,

Petitioner submitted no evidence to supp ort h is contention that

Respondent discriminated against him or his family based upon

his race or handicap. Mere speculation or self - serving belief

on the part of a compl ainant concerning motives of a R espondent

is insufficient, standing alone, to establi sh a prima facie case

of intentional discrimination. See Lizardo v. DennyÓs, Inc. ,

270 F.3d 94, 104 (2d Cir. 2001) (ÐPlaintiffs have done little

more than cite to their mistreatment and ask the court to

conclude that it must have been related to their rac e. This is

not sufficient.Ñ).

36. In sum, Petitioner failed to present a prima facie

case. Failure to establish a prima facie case of race

discrimination ends the inquiry. Ratliff v. State , 666 So. 2d,

1008, 1013 n.6 (citations omitted).

37. Even if P etitioner had established a prima facie case,

RespondentÓs evidence presented at the final hearing refuted

PetitionerÓs argument that RespondentÓs actions were

discriminatory. Respondent provided persuasive evidence that

Respondent treated Petitioner and his family just as well, if

not better than others qualified to receive services, in its

provision of housing assistance benefits .

38. In sum, no discriminatory intent or effect was shown

and Petitioner failed to establish that Respondent discriminated

ag ainst Petitioner based upon PetitionerÓs race or handicap in

providing housing assistance to Petitioner and his family.

39. Petitioner also failed to establish that Respondent

failed to reasonably accommodate Petitioner's disability when

providing service s to Petitioner and his family. Florida and

Federal law provide strong remedies in the case of

discrimination in housing or the administration of public

housing benefits. See generally Florida Civil Rights Act of

1992(§§ 760.01 - 760.11, Fla. Stat.), the F lorida Fair Housing Act

(§§ 760.20 - 760.37, Fla. Stat.), or the U.S. Fair Housing Act (42

U.S.C.A. § 3604). Those statutes also require reasonable

accommodations for persons with disabilities.

40. Although the Commissio n suggest ed that Petitioner 's

Compla int allege s that Respondent failed to accommodate his

disability, the Complaint, as well as the evidence at trial,

fail s to support such a claim. See Findings of Fact 22 - 24,

supra . In fact, the evidence shows that Petitioner never asked

Respondent for an accommodation for a disability. Id. ; cf.

Gaston v. Bellingrath Gardens and Home, Inc. , 167 F.3d 1361,

1363 - 64 (11th Cir. 1999) ( must request an accommodation and be

denied such prior to bringing a reasonable accommodation claim

under Title I of the ADA ) .

In sum, Petitioner failed to prove that Respondent

discriminated against Petitioner based upon PetitionerÓs race or

handicap, or that Respondent failed to make reasonable

accommodations for PetitionerÓs physical disability, in

providing housing assistance to Petitioner and his family.

RECOMMENDATION

Based on 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 Complaint and Petition for

Relief.

DONE AND ENTERED this 24th day of November, 2010, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of November , 20 10 .

ENDNOTE

1 / U nless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Gary S. Edinger, Esquire

Gary S. Edinger & Associates, P.A.

305 Northeast First Street

Gainesville, Florida 32601

Christopher Castellio, Sr.

3 910 Northeast First Terrace

Gainesville, Florida 32609

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relation s

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.