10-010304 Fannie Billingsley vs. Housing Authority Of The City Of Winter Park Status: Closed Recommended Order on Monday, March 21, 2011.

Summary: No violation of Florida Fair Housing Act where facts show Petitioner was not qualified to rent an apartment because she did not provide proof of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FANNIE BILLINGSLEY , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10304

)

HOUSING AUTHORITY OF )

THE CITY OF WINTER PARK , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on January 28, 2011, by video teleconference between Tallahassee

and Orlando, Florida , before Thomas P. Crapps, a designated

Administrative Law Judge of the Division of Administrative

Hearing s.

APPEARANCES

For Petitioner: Fannie Billingsley, pro se

915 Randall Street

Orlando, Florida 32805

For Respondent: Michael H. Bowling , Esquire

Bell, Roper & Kohlmyer, P.A.

2707 East Jefferson Street

Orlando, Florida 328 03

STATEMENT OF THE ISSUE

Whether Petitioner showed by a preponderance of the evidence

that Respondent engaged in an unfair and discriminatory housing

practice in violation of the Florida Fair Housing Act, section

760.20 et seq. , Florida Statutes (2010) . 1/

PRELIMINARY STATEMENT

On July 13, 2010, Petitioner, Fannie Billingsley

(Ms. Billingsley), filed a Housing Discrimination Complaint

(Complaint) against Respondent, Housing Authority of the City of

Winter Park (Housing Authority). Ms. Billingsley file d the

Complaint with the U.S. Department of Housing and Urban

Development (HUD). In the Complaint, Ms. Billingsley alleged

that the Housing Authority had denied her housing because she

was an African - American and that the Housing Authority had a

racial pr eference for Hispanics. 2/

On July 13, 2010, HUD forwarded Ms. Billingsley's Complaint

to the Florida Commission on Human Relations (Commission) for

investigation and provided the Housing Authority a copy of the

Complaint. On t hat same date, the Commission contacted the

Housing Authority and began its investigation. During the

investigation, the Housing Authority promptly responded to the

Commission's requests for information.

On September 16, 2010, the Commission's investigator issued

his report finding n o reasonable cause to believe that a

violation of the federal Fair Housing Act had occurred.

Consequently, on October 5, 2010, the Commission issued its

Notice of Determination of No Cause.

On November 4, 2010, Ms. Billingsley filed a Petition for

Relief with the Commission alleging that the Housing Authority

had violated the Florida Fair Housing Act and that the

Commission's investigator had been biased. Further,

Ms. Billingsley alleged that she had not had an opportunity to

reply to the new evidence su pplied by the Housing Authority and

that "I am proof" of the discrimination.

On November 19, 2010, the Commission transmitted

Ms. Billingsley's petition to the Division of Administrative

Hearings for a formal administrative hearing.

On November 19, 2010, Thomas P. Crapps, a duly - appointed

Administrative Law Judge, was assigned the instant case. A

final administrative hearing was set for January 28, 2011.

At the January 28, 2011 hearing, Ms. Billingsley testified

on her own behalf and did not submit or in troduce any exhibits

into evidence. The Housing Authority called Lynda Hinckley

(Ms. Hinckley) as its witness and introduced, without objection,

Exhibits 1 through 14 into evidence. The Housing Authority's

exhibits were admitted into evidence.

A one - vo lume Transcript of the proceedings was filed on

February 23, 2011. The parties were given an opportunity to

present proposed recommended orders. The Housing Authority

submitted a Proposed Recommended Order, but Ms. Billingsley did

not submit one.

FINDIN GS OF FACT

1. Ms. Billingsley is an African - American woman; thus, a

member of a protected class.

2. The Housing Authority is a government entity of the City

of Winter Park, Florida, that provides affordable, public

assistance housing for elderly, disabl ed, and low - income families

and individuals.

3. Applicants for the public housing are required to fill

out an application that requests information identifying the

applicant's income source, Social Security number, addresses for

the past five years, and the size of the apartment that the

applicant is seeking to rent. The applicant is then placed on a

waiting list for an available apartment. Generally, an applicant

is informed that the wait for housing is between six to 12

months. The time on this waiti ng list can be affected by whether

or not an applicant meets the criteria for a preference in

granting the housing and transfers of existing tenants within the

housing complex.

4. Ms. Hinckley, the Housing Authority's executive

director, credibly testifi ed that the Housing Authority provides

preferences for working families and families with disabled

members. In order to qualify for a working - family preference, an

applicant must have worked at least 20 hours a week for six of

the last 12 months. Ms. Hin ckley credibly explained that before

an applicant is moved into a housing unit, the Housing Authority

will conduct a home visit and verify the applicant's employment

for the working preference. In addition to preferences,

Ms. Hinckley explained that the a mount of time an applicant is on

the waiting list can be affected by transfers within the housing

complex. The Housing Authority allows a family to transfer

within the housing complex based on need, before accepting new

families from the waiting list. Fo r example, a family living in

a two - bedroom apartment would be allowed to transfer to a larger

three - bedroom apartment before an applicant from the waiting list

would be allowed to move into the housing complex.

5. On August 27, 2008, Ms. Billingsley app lied with the

Housing Authority for a three - bedroom apartment. She indicated

in her application that she was eligible for the working - family

preference. Ms. Billingsley was then placed on the waiting list

and given a working - family preference. On June 2 , 2009,

Ms. Hinckley conducted the home visit with Ms. Billingsley

concerning her application.

6. Between December 2009 and Spring 2010, the Housing

Authority began renovations of the rental unit bathrooms. During

this time, the Housing Authority was u nable to accommodate

Ms. Billingsley for a three - bedroom apartment. Moreover, the

Housing Authority honored transfers within the housing complex

before offering Ms. Billingsley a housing unit.

7. On April 9, 2010, the Housing Authority contacted

Ms. Bill ingsley and informed her that a three - bedroom unit would

be available in May of 2010. The Housing Authority then sought

to verify Ms. Billingsley's working status. Unfortunately,

Ms. Billingsley had recently been discharged from employment.

The Housing Authority contacted Ms. Billingsley and asked her to

provide proof of employment.

8. On May 12, 2010, Ms. Billingsley informed the Housing

Authority that she was not employed, but that she was looking for

work. Based on the fact that Ms. Billingsley was not working at

the time in late April 2010, she was no longer eligible for the

working - family preference. As a result, the Housing Authority

did not rent the available unit to Ms. Billingsley.

9. Ms. Billingsley has not provided the Housing Authority

wit h any subsequent proof of employment. Moreover, the Housing

Authority has not been able to verify her recent claim that she

has been employed by Toys - R - Us.

10. Ms. Billingsley did not introduce any evidence, either

direct or indirect, showing that the Housing Authority

discriminated against her based on her race or that the Housing

Authority had a racial preference for Hispanics.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of th is

proceeding. § 120.57(1), Fla. Stat.

12. In the instant case, Ms. Billingsley's initial

complaint sent to HUD alleged that the Housing Authority had

violated the federal Fair Housing Act, section 804(b). Because

HUD transferred the case to the Commiss ion, the issue is whether

the Housing Authority violated the Florida Fair Housing Act,

which is substantially similar to the federal Fair Housing Act. 3/

13. Under the Florida Fair Housing Act ("Act"), sections

760.20 through 760.37, it is unlawful to disc riminate 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 d welling to any person because of

race, color, national origin, sex, handicap,

familial status, or religion.

14 . Because the Florida Fair Housing Act is patterned

after the federal Fair Housing Act, 45 U.S.C. sections 3601

through 3631, 4/ federal case law dealing with the federal Fair

Housing Act is applicable. See Fla. Dep't. of Cmty. Aff. v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

15. Ms. Billingsley bears the burden of proof in this

cause to establish by a preponderance of the evidence that the

Hou sing Authority committed an unlawful act constituting a

violation of section 760.25. See § 760.34(5 ) .

16. In order to establish a prima facie case of housing

discrimination, Ms. Billingsley must prove that: (1) she is a

member of a protected class; (2) s he attempted to engage in a

real estate transaction with the Housing Authority and she met

all relevant qualifications for doing so; (3) the Housing

Authority failed to engage in the transaction despite

Ms. Billingsley's qualifications; and (4) the Housing Authority

continued to engage in that type of transaction with similarly

qualified persons outside of Petitioner's protected class.

Velez, et al., v. Centerstate Banks , Inc., et al. , Case No. 10 -

3182 (Fla. DOAH Dec. 3, 2010; FCHR Mar. 3, 2011); accord Se c'y,

Hous. and Urban Dev. ex. rel. Herron v. Blackwell , 908 F.2d 864,

870 (11th Cir. 1990) (applying the burden - shifting analysis from

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), in a

housing discrimination case under the federal Fair Housing

Act . ). Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666

So. 2d 1008, 1013 n.6 (Fla. 1st DCA), aff'd , 679 So. 2d 1183

(Fla. 1996) (citing Arnold v. Burger Queen Sys. , 509 So. 2d 958

(Fla. 2d DCA 1987)).

1 7. If the threshold prima facie case is met, then a

presumption of discriminatory action is created. Blackwell ,

at 870. T he burden then shifts to the Housing Authority to

articulate some legitimate, non - discriminatory reason for its

action. Id. If the Housing Authority offers a non -

discriminatory explanation, then the presumption is rebutted and

the burden shifts back to Ms. Billingsley to establish by a

preponderance of the evidence that the reason asserted by the

Housing Authority 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. den. ,

513 U.S. 808, 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994) ("Fair

housing discrimination cases are subject to the three - pa rt test

articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). "). Pretext can be

shown by inconsistencies and/or contradictions in testimony.

Blackwell , 908 F.2d at 871 .

18. "Discriminatory intent may b e established through

direct or indirect circumstantial evidence." Johnson v.

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

evidence of discrimination is 'evidence that, if believed,

proves the existence of a fact without inference or

pres umption ' ." Dixon v. Hallmark Cos ., 627 F.3d 849, 854 (11th

Cir. 2010), quoting Wilson v. B/E Aerospace, Inc. , 376 F.3d

1079, 1086 (11th Cir. 2004 ) . However, "direct evidence of

intent is often unavailable and a circumstantial case may be

proven." Shealy v. City of Albany, G eorgia , 89 F.3d 804, 806

(11th Cir. 1996).

19. On the other hand, proof that, in essence, amounts to

no more than mere speculation and self - serving belief on the

part of Petitioner concerning the motives of Respondent is

insufficient, standing alone, to establish a prima facie case of

intentional discrimination. See Goring v. Bd. of Supervisors of

L ouisian a State Univ. & Agric & Mech. Coll. , 2011 U.S. App.

LEXIS 2352 *4 (5th Cir. Feb. 4, 2011)( stating "We are left with

Goring's subjec tive belief that the decision was discriminatory,

which is insufficient to create an inference of pretext"); see

also Ade v. KidsPeace Corp. , 2010 U.S. App. LEXIS 23558 *13 (3d

Cir. Nov. 15, 2010) ("Ade simply offers denials of his own

inappropriate conduct and his opinion that the real reason was a

racial animus. A denial that he engaged in the conduct for

which he was purportedly terminated is insufficient to create a

genuine issue of material fact." ). Sherrills v. Beison , 242

Fed. Appx. 332, 338 (6th Ci r. 2007)(Sherrill s ' subjective

impression that Kimmel's "didn't seem to appear comfortable

talking with me," insufficient proof); Woythal v. Tex - Tenn

Corp. , 112 F.3d 243, 247 (6th Cir. 1997) ("[M]ere personal

belief, conjecture and speculation are insuffic ient to support

an inference of . . . discrimination.") (internal quotation

marks omitted); Waggoner v. City of Garland , Texas , 987 F.2d

1160, 1166 (5th Cir. 1993)(subjective belief that discharge was

based on a discriminatory animus insufficient to establ ish a

claim for purposes of summary judgment).

20. Applying the rule of law to the facts here, it is

clear that Ms. Billingsley did not prove a prima facie case of

housing discrimination. Here, Ms. Billingsley did offer

evidence that she was a member of a protected class; that she

was qualified to rent the apartment , but not qualified for the

working - family preference ; and that the Housing Authority had

refused to rent to her. However, Ms. Billingsley did not offer

any evidence that the Housing Authority provided housing to

individuals who were similarly situated to her, but not members

of her protected class. In fact, the exhibits admitted into

evidence show that the majority of the tenants that moved into

the Housing Authority's complex at the same tim e were the same

protected class as Ms. Billingsley, African - American. Thus, the

evidence offered by the Housing Authority refuted

Ms. Billingsley's claim that the Housing Authority had a

preference for Hispanics over African - Americans.

Ms. Billingsley's evidence here is no more than her subjective

belief that she had been discriminated against. This belief is

insufficient to support her claim.

21. Even if one assumed that Ms. Billingsley had

established a prima facie case, the record clearly shows t hat

the Housing Authority offered a legitimate, non - discriminatory

explanation for not providing Ms. Billingsley the housing unit.

Ms. Hinckley credibly testified about the working - family

preference and that Ms. Billingsley did not qualify for the

prefere nce when the Housing Authority offered Ms. Billingsley

the rental unit. Ms. Billingsley did not provide any evidence

to show that the Housing Authority's non - discriminatory

explanation for her not receiving the rental unit was

pretextual.

22. Rather, si mply put, Ms. Billingsley is still on the

waiting list for an apartment, because she has not provided

proof that she has been employed for at least 20 hours a week

for six months out of the past year. Consequently,

Ms. Billingsley holds the key to the apa rtment, if she will

become employed and provide the Housing Authority with proof.

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 dismiss ing Petitioner, Fannie Billingsley's,

Petition for Relief.

DONE AND ENT ERED this 21st day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 21st day of March , 2011 .

ENDNOTES

1/ Un less otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

2/ Petitioner 's Initial Complaint filed with the U.S. Department

of Housing and Urban Development alleged that Respondent

violated section 804(b) and (f) of Title V III of the Civil

Rights Act, as amended.

3/ In her Petition for Relief, that is subject of this hearing,

Petitioner alleged that Respondent violated the Florida Fair

Housing Act.

4/ The language in s ection 760.25 , is identical to the language

in 42 U. S.C. s ection 3605, the federal Fair Housing Act.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on H uman Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Fannie Billingsley

915 Randall Street

Orlando, Florida 32805

Michael H. Bowling, Esquire

Bell, Roper & Kohlmyer, P.A.

2707 East Jefferson Street

Orlando, Florida 32803

Lynda Hinckley, Executive Director

Housing Authority of the

City of Winter Park

718 Margaret Square

Winter Park, Florida 32789

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.