12-001212 Robert Suarez And Caridad Espinosa vs. Housing Authority Of The City Of Miami Beach And Miguel Del Campillo, Executive Director Of The Hacmb Status: Closed Recommended Order on Friday, August 17, 2012.

Summary: Pet failed to prove housing discrim. Age not a protected category. For natl origin, Pets failed to prove prima facie case. ALJ denied Pets' req to broaden grounds of discrim to disability and retaliation and Resps' req for fees and costs under 120.595(1).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT SUAREZ AND CARIDAD )

ESPINOSA , )

)

Petitioner s , )

)

vs. ) Case No. 12 - 1212

)

HOUSING AUTHORITY OF THE CITY OF )

MIAMI BEACH AND MIGUEL DEL )

CAMPILLO , EXECUTIVE DIRECTOR OF )

THE HOUSING AUTHORITY OF THE )

CITY OF MI AMI BEACH, ) )

)

Respondent s . )

)

RECOMMENDED ORDER

On July 25 and 30, 2012, Robert E. Meale, Administrative

La w Judge of the Division of Administrative Hearings, conducted

the final hearing by videoconference in Tallahassee and Miami,

Florida.

APPEARANCES

For Petitioner: Robert Suarez, pro se

Caridad Espinosa, pro se

5055 Northwe st Seventh Street

Apartment 209

Miami, Florida 33126

For Respondent: Margaret H. Mevers, Esquire

Jessica N. Pacheco, Esquire

Lydecker | Diaz

1221 Brickell Avenue, 19th Floor

Miami, Florida 33131

Eve Boutsis, Esquire

Figueredo and Boutsis, P.A.

18001 Old Cutler Road, Suite 533

Palmetto Bay, Florida 3 3157

STATEMENT OF THE ISSUE

The issue is whether either respondent engaged in a

discriminator y housing practice against P etitioners, based on

their national origin and age, in violation of the Florida Fair

Housing Act, sections 760.20 - 760.36, Florida Stat utes.

PRELIMINARY STATEMENT

On November 9, 2011, Petitioners filed a Housing

Discrimination Complaint with the Florida Commission on Human

Relations. The complaint alleges that Respondents engaged in

discrimination based on national origin against Petitio ners by

" [d]iscriminatory advertising, statements and notices [and]

[d]iscriminatory terms, conditions, privileges, or services and

facilities. "

More particularly, the complaint alleges that Petitioners

sought to purchase a home through t he Housing Choice Voucher

Homeownership Program (Homeo wnership Program) administered by

Respondent Housing Authority. In doing so, Petitioners

identified themselves as Hispanics of Cuban descent.

In December 2010, a representative of Respondent Housing

Authority allegedly told Petitioners that Petitioner Espinosa,

who is Petitioner Suarez ' s mother and the head of the household,

was on a waiting list for the Homeo wnership Program. A few

weeks later, Respondent del Campillo allegedly told Petit i oner

Suarez that his mother wa s not on the waiting list for the

Homeo wnership Program. On March 15, 2011, Respondent del

Campillo allegedly told Petitioner Suarez:

You Cubans want everything done your way.

You have to wait like everyone else. You

all are not the best. You have to c omply

with the rules. . . . You want to take

advantage of this program, so that when your

mother dies, you would remain paying very

little for your house. I am not going to

permit your mother, at her age, to be

responsible for a mortgage payment. You ar e

not going to buy a house even if President

Obama comes here.

The complaint alleges that Respondent del Campillo added

that he had many friends who could help Petitioners, or not help

them. The complaint concludes that Respondents have continued

to di scriminate against Petitioners in t heir participation in

the Homeo wnership Program.

After an investigation, on March 5, 2012, the Florida

Commission on Human Relations entered a Notice of Determination

of No Cause.

By Petition f or Relief dated April 2, 201 2, Petitioners

alleged that Petitioner Suarez had suffered $25 million in

damages and Petitioner Espinosa had suffered $30 million in

damages. The petition asserts :

With my best efforts I tried to give

evidence of d iscriminatory statements of

Mr. Del Ca mpillo. Please, excuse any errors

in the translation of these documents. Or

any other error [.]

Because of my emotional state I am not able

to continue working on this issue to send

the rest of the evidence we have to prove

our allegations, I hope I ' m se nding enough

evidences and have the opportunity to

present the rest of the evidence in court.

In conclusion I want you to be aware that in

Mr. Del Campillo defence there are missing

arguments to prove that he did not make

discriminatory statements against my family

and the rest of the Cuban community.

For example in my statement I mention a

security guard and Ms. Vanessa (Mr. Del

[C]ampillo ' s assistant) as witnesses that I

had a conversation with Mr. Del Campillo.

Neither the investigation nor Mr. Del

Ca mpillo got testimonies of these people to

declare in this investigation. Therefore,

there is no doubt that Mr. Del Campillo made

discriminatory statements in violation of

the Florida Fair Housing. In addition, Mr.

Del Campillo accepted mediation to reach an

amicable agreement in this case which

demonstrated its willingness to alleviate

the damage caused to us with his attitude

discriminatory.

Shortly prior to the final hearing, this case was

transferred to the undersigned Administrative Law Judge.

On t he morning of the hearing, Respondents filed a Motion

for Attorneys ' Fees and Costs, pursuant to section 120.595(1),

on the ground that Petitioners had participated in the

pro ceeding for an improper purpose. Respondents contend that

Petitioners commenced the proceeding to harass Respondents, and

their improper purpose may be inferred from the duplicative and

frivolous filings. This motion was not addressed at the

hearing.

At the start of the hearing, Respondents orally moved for

an order in limine to proh ibit Petitioners from introducing

evidence of discrimination on the grounds of disability and

retaliation. The Administrative Law Judge granted the motion.

At the hearing, Petitioners called five witnes ses and

offered into evidence four exhibits : Petitio ners Exhibits 1 - 4 .

Respondents called one witness, although they examined certain

of Petitioners ' witnesses as though Respondents had called them,

and offered into evidence ten exhibits : Respondent Exhibits

1 - 10 .

The parties did not order a transcript. Respondents filed

a proposed recommended order on August 8, 2012.

FINDING S OF FACT

1. Petitioners are Hispanics of Cuban descent. Petitioner

Espinosa is the mother of Petitioner Suarez. The record fails

to disclose the age of Petitioner E spinosa, bu t she appears to

be in her seventies.

2. Petitioner Suarez lives with Petitioner Espinosa. At

all material times, as head of a household, Petitioner Espinosa

has participated in Respondent Housing Authority ' s Section 8

Housing Choice Voucher Program (Sec tion 8 Program) , which

provides her financial assistance with which to pay her rent.

3. Twenty years ago, Respondent Housing Authority started

the Financial Self Sufficiency Program (FSS Program) . The

purpose of this program is to provide training and support to

low - incom e persons participating in the Section 8 Program, so

that the participants may achieve financial self - sufficiency and

no longer require public assistance.

4. In 2004, the governing board of Respondent Housing

Authority adopted Resoluti on No. 2004 - 23, which created the

Homeownership Program . In general, a participant in the Section

8 Program, upon completion of the Homeownership Program,

converts his or her rental voucher into a mortgage voucher, so

the program pays for part of the part icipant ' s mortgage payment.

5. Since its creation, the Homeownership Program has

always been filled to capacity with participants and has always

had a waiting list. Resolution No. 2004 - 23 provides that

participation in the FSS Program is not a prerequisi te for

participation in the Homeownership Program, but also provides

that , if applications to the Homeownership Program exceed a

specified threshold, as they always have , participants in the

FSS Program will have a preference for admission into the

Homeown ership Program.

6. In turn, at all material times, the FSS Program has

always been filled to capacity with participants and has always

had a waiting list. There are a set number of slots in the FSS

Program. For each participant who fails to complete the

program, Respondent Housing Authority fills his or her slot with

someone on the FSS Program waiting list. However, for each

participant who completes the FSS program, one slot is forever

removed from the FSS Program. The FSS Program ends when its

final slot is removed , at which time the FSS Program preference

will no longer be available in the Homeownership Program .

7. The FSS Program is a five - year program. Generally,

participants in the FSS Program must be employed, but this

requirement is waived for persons who are unable to work. The

participants set their own goals for the FSS Program. These

goals include purchasing a home, acquiring an education,

obtaining a job, rehabilitating credit, opening a small

business, and learning English.

8. Due to the unexpected timing of openings in the FSS

Program -- i.e., through the withdrawal of existing participant s

from the program -- it is impossible to pr oject the length of time

that applicant s may remain on the FSS Program waiting list.

Although one applican t was accepted into the program in as

little as three months, one to two years is more common.

9. Petitioner Espinosa applied for the Homeownership

Program in 2008 and for the FSS Program on February 11, 2009.

She has been on the waiting lists for both p rograms ever since.

10. Three years is a little longer than usual for a person

to wait to be admitted to the FSS Program, but this fact does

not establish discrimination against either petitioner . The

record is not entirely clear, but Petitioner Suarez ' s part - time

employment seems to have been an impediment to his participation

in Homeownership Program , although it is unclear why this would

delay the acceptance of his mother (and possibly him) into the

FSS Program .

11. In any event, t he relatively long duration that

Petitioners have been on the waiting list for the FSS Program is

no basis on which to infer some form of discrimination. The

Homeownership Program and, thus, the FSS Program are popular

programs that have served many persons of Petitioners ' national

origin and Petitioner Espinosa ' s age.

12 . Additionally, t here is no evidence in the record that

Respondent del Campillo made the remarks that he is alleged to

have made to Petitioner Suarez. The only testimony on the point

is from Respondent d el Campillo, who himself is of Cuban

descent. Respondent del Campillo testified that he never

uttered anyth ing resembling w hat Petitioner Suarez has alleged

about Petitioners ' national origin and Petitioner Espinosa ' s

age. Respondent del Campillo ' s testi mony is credited.

CONCLUSIONS OF LAW

1 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 760.35(3), Fla. Stat.

1 4 . Petitioners ' attempt to broaden the scope of the case

to include claims of di scrimination on the bases of disability

and retaliation was improper under the authority of Scholz v.

RDV Sports , 710 So. 2d 618, 622 (Fla. 5th DCA 1998). Addressing

the same issue in a case under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. Secti ons 2000e, et seq., the Scholz court

stated:

As a general rule, a Title VII plaintiff

cannot bring claims in a lawsuit that were

not included in her EEOC charge. Alexander

v. Gardner - Denver Co. , 415 U.S. 36, 47, 94

S. Ct. 1011, 1019, 39 L. Ed. 2d 147 (19 74).

This rule serves the dual purpose of

affording the EEOC and the employer an

opportunity to settle the dispute through

conference, conciliation, and persuasion,

Id. at 44, 94 S. Ct. at 1017, and of giving

the employer some warning of the conduct

about which the employee is aggrieved. Rush

v. McDonald ' s Corp. , 966 F.2d 1104, 1110

(7th Cir. 1992); Schnellbaecher v. Baskin

Clothing Co. , 887 F.2d 124, 127 (7th Cir.

1989). Although the rule is not

jurisdictional, Zipes vans World

Airlines, Inc. , 455 U. S. 385, 392, 102

S. Ct. 1127, 1131, 71 L. Ed. 2d 234 (1982),

it is a condition precedent with which Title

VII plaintiffs must comply. Babrocky v.

Jewel Food Co. , 773 F.2d 857, 864 (7th Cir.

1985). For allowing a complaint to

encompass allegations outside the ambit of

the predicate EEOC charge would frustrate

the EEOC ' s investigatory and conciliatory

role, as well as deprive the charged party

of notice of the charge. Cheek [v. Western

& Southern Life Ins. Co. , 31 F.3d 497, 500

Notwithst anding the

liberal construction afforded the Title VII

presuit procedure ,n.2 its req uirements

cannot be overlooked. In this regard, Title

VII claims set forth in a complaint are

cognizable only if they encompass

allegations which are like or reasonably

re lated to the allegations contained in an

EEOC charge. Jenkins v. Blue Cross Mut.

Hosp. Ins., Inc. , 538 F.2d 164, 167 (7th

Cir. 1976) (en banc) (quoting Danner v.

Phillips Petroleum Co. , 447 F.2d 159, 162

(5th Cir. 1971)), cert. denied , 429 U.S.

986, 50 L. Ed. 2d 598, 97 S. Ct. 506 (1976).

See also Sanchez v. Standard Brands, Inc. ,

431 F.2d 455, 466. The Jenkins test is

satisfied if: (a) there is a reasonable

relationship between the allegations in the

EEOC charge and the claims in the complaint,

and (b) the claims in the complaint can

reasonably be expected to grow out of an

investigation into the allegations in the

EEOC charge. Cheek , 31 F.3d at 500. " This

means that the EEOC charge and the complaint

must, at minimum, describe the same conduct

and impl icate the same individuals. " Id.

(emphasis in original).

[n2 It is well established that the Title

VII procedure should be user - friendly and

that substance should prevail over form.

See Sanchez v. Standard Brands, Inc. , 431

F.2d 455, 465 (5th Cir. 1970). ]

1 5 . Retaliation is not the same conduct as the underlying

discrimination and is necessarily separated in time from the

underlying discrimination, so that an investigation into the

claims in the Housing Discrimination Complaint concerning

discrimination based on national origin and age w ould not

reasonably have led to the claim of retaliation. Disability is

a closer issue, but Petitioners provided no details of

discrimination based on disability to the Florida Commission on

Human Relations or Respondent s. There is no relationship

between the charges of discrimination based on national origin

and age and a later charge of discrimination based on

disability, such that a robust investigation would have

reasonably encompassed this charge of discrimination b ased on

disability. For these reasons, the Administrative Law Judge

granted the motion in limine.

1 6 . Section 760.23(2) provides:

It is unlawful to discriminate against any

person in the terms, conditions, or

privileges of sale or rental of a dwelling,

o r in the provision of services or

facilities in connection therewith, because

of race, color, national origin, sex,

handicap, familial status, or religion.

1 7 . The framework for evaluating most claims of housing

discrimination borrows from McDonnell Doug las Corp. v. Green ,

411 U.S. 792, 802 - 03 (1973), which recognizes that, once the

plaintiff proves a prima facie case of discrimination, the

burden shifts to the defendant to prove a legitimate,

nondiscriminatory reason for the complained - of act, after whic h

the burden shifts to the plaintiff to show that the proffered

reason is pretextual.

1 8 . In a housing discrimination case, a plaintiff makes a

prima facie showing of discrimination by showing that he or she

is a member of a protected class, he or she s ought and was

qualified for the sale or rental services at issue, and he or

she was rejected. Mitchell v. Shane , 350 F.3d 39, 47 (2d Cir.

2003).

1 9 . National origin, but not age, is a protected class

under the Florida Fair Housing Act. Thus, Petitioner Espinosa ' s

age claim must be rejected on this ground.

20 . Even assuming that age were a protected class,

Petitioners have failed to show that they were qualified to

participate in the Homeownership Program. The preponderance of

the evidence suggests that they remained on the waiting list for

both programs for legitimate, nondiscriminatory reasons,

including that their turn had not yet come up and possibly an

issue with Petitioner Suarez ' s part - time employment. On this

record, there is no evidence whatsoe ver that national origin or

age played any role in the fact that Petitioners have not yet

been accepted into the FSS Program or Homeownership Program.

2 1 . The Administrative Law Judge has given careful

consideration to Respondents ' claim for attorneys ' fe es and

costs under section 120.595(1), Florida Statutes, which

authorizes an award of fees and costs, if the Administrative Law

Judge determines that Petitioners participated in this case for

an " improper purpose . " Having studied the demeanor of each

Peti tioner at the hearing, it is far from clear that either of

them possessed an understanding of how the FSS Program or

Homeownership Program worked. E ach Petitioner was easily

capable of inferring from his or her lack of admission into

these programs over t he periods of time involved that the

decisionmaking was tainted by some form of discrimination, when

a clearer understanding of program requirements and eligibility

determinations would have revealed that the decisionmaking was

entirely free of discriminat ion.

2 2 . Also, it is far from clear that either Petitio ner

possessed an understanding of how to litigate, even in the more

forgiving administrative forum. Neither Petitioner had any idea

how to prepare a mot ion or a response to a motion. Instead,

th eir pleading style reflected an abundance of caution, in which

all issues were always restated in every pleading, so as, one

supposes, not to miss or waive anything. Of course, this had

the unfortunate effect of forcing opposing counsel (and the

Administr ative Law Judge) to spend inordinate amounts of time

trying to figure out what Petitioners were trying to say.

2 3 . On these facts, it is impossible to determine that

Petitioners participated in this case for an improper purpose or

to harass Respondents . Respondents ' Motion for Attorneys ' Fees

and Costs is therefore denied.

RECOMMENDATION

I t is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petition of Relief

dated April 2, 2012.

DONE AND ENTERED this 17th d ay of August, 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of August, 2012 .

COPIES FURNISHED :

Eve A. Boutsis, Esquire

Figuredo and Boutsis, P.A.

18001 Old Cutler Road

Palmetto Bay, Florida 33157

eboutsis @fbm - law.com

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Roberto Suarez

Caridad Espinosa

Apartment 209

5055 Northwest 7th Street

Miami, Florida 33126

[e-mail]

Margaret H. Mevers, Esquire

Lydecker | Diaz

19th Floor

1221 Brickell Avenue

Miami, Florida 33131

[e-mail]

Miguel del Campillo, Executive Director

Housing Authority of the City of Miami Beach

200 Alto n Road

Miami Beach, Florida 33139 - 6742

Lawrence F. Kranert, Jr., Gen. Counsel

Florida Commission 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.