ROCHELLE DRUMMER, Appellant, v. NEWARK HOUSING AUTHORITY, Respondent.
Plaintiff appeals from the May 29, 2012 “Finding of No
Probable Cause” issued by the Director of the New Jersey
Division on Civil Rights (the “Division”), as to a complaint she filed with that agency against her landlord, defendant Newark Housing Authority (“NHA”). We have considered the arguments she has raised on appeal in light of the record and applicable legal standards. We affirm.
Plaintiff filed her complaint against NHA because she believed it discriminated against her by not providing reasonable accommodations which she needed due to her physical reaction to chemicals used by exterminators who serviced NHA's building. The Division's final determination resulted in the dismissal of plaintiff's complaint, without a hearing on the merits.
The material facts are not in dispute. Plaintiff rented an apartment from NHA in 2006 pursuant to a written lease. The lease required plaintiff to prepare her apartment for treatment by an exterminator and to provide NHA with access to the apartment for that purpose. Failure to do so could result in the lease being terminated.
In February 2010, NHA advised plaintiff and its other tenants that the building would be treated for bed bugs. Shortly thereafter, plaintiff gave NHA a letter from her doctor advising that plaintiff was under his care. He further advised that as a result of her physical problems, plaintiff “should not be exposed to sprays or similar chemicals from exterminators in her apartment.” In response, NHA scheduled an inspection of plaintiff's apartment to determine if she had any infestation of bed bugs and, if so, how best to deal with it in light of plaintiff's condition. NHA did not schedule any treatment for plaintiff's apartment. However, plaintiff advised NHA that the scheduled date for the inspection was not good as she had a doctor's appointment and, as a result, another day should be selected. NHA treated all of the other apartments in the building as scheduled, but did not inspect or treat plaintiff's at any time.
Shortly thereafter, plaintiff's attorney wrote to NHA and requested a reasonable accommodation and specifically noted that plaintiff “would agree to give access to the NHA to inspect her apartment and upon confirmation that there are no bed bugs in her unit, the NHA's exterminators ․ will not apply any chemicals to [plaintiff's] apartment.” The letter continued with an alternative proposal: “[Plaintiff] requests that the NHA provide[ ] a reasonable accommodation in that she be permitted to deduct from her monthly rent any and all cost[s] incurred for hotel stay(s) for any time [plaintiff] is required to stay away from her apartment.” The letter also requested that all future contact by NHA be through plaintiff's counsel.
Plaintiff's counsel followed up in July 2010 with another letter requesting NHA to enter into a “dialogue” with counsel about the inspections and again requesting contact only through counsel. In September, 2010, he again contacted the NHA and specifically demanded that any attempts to inspect the apartment be stopped. A subsequent letter from counsel alleged that NHA representatives went to plaintiff's apartment and threatened that they would break in and do her harm and that such threats were recorded.1
In September, 2010, NHA again tried to inspect but not treat plaintiff's apartment. Plaintiff refused to allow access for bed bug inspection and for any other inspection or treatment. As a result, NHA served plaintiff with a “Notice to Cease” 2 but took no other action against plaintiff. Instead, NHA repeatedly advised plaintiff that it stood ready and willing to work with plaintiff to find ways to insure that her apartment could be inspected and, if needed, treated for any infestations (bed bugs or otherwise) without subjecting plaintiff to being exposed to any threat of physical injury.
On December 10, 2010, plaintiff filed her complaint with the Division. In the complaint plaintiff alleged that NHA committed “unlawful housing discrimination in violation of the New Jersey Law Against Discrimination [LAD] (N.J.S.A. 10:5.1 et. seq.) and specifically within the meaning of 10:5–4, including but not limited to 10:5–12(a) of said law because of ․ reprisal.” Specifically, she alleged that since March 23, 2010, NHA “has denied her request for a reasonable accommodation for her physical disability (chronic severe migraine attacks).” She added that NHA “has repeatedly ignored her requests, and has continued to threaten her with eviction through written correspondence and by threatening her verbally in the building in question.” NHA filed a response to the complaint essentially denying plaintiff's allegations of discrimination and its refusal to accommodate plaintiff.
After plaintiff filed her complaint, the Division's representatives investigated her allegations. The Division's investigator not only interviewed NHA representatives and the exterminator, but he also spoke with plaintiff and plaintiff's doctor. In addition, he gathered information from all sources. Moreover, the investigator attempted to remedy the situation by agreeing to be present in plaintiff's apartment when the exterminator came for an inspection to ensure that treatment would take place. When the investigator spoke to plaintiff about that arrangement, she would not agree and, instead, spoke to him about another tenant who plaintiff claimed was threatening her and using drugs. In total, the investigator spent approximately forty hours investigating the claim and attempting to resolve it. The investigator's ultimate recommendation of “no probable cause” was incorporated into the Division's “Findings of the Investigation.”
On May 29, 2012, the Division's director issued his “Finding of No Probable Cause.” The Director's determination was supported by the “Findings of the Investigation” which concluded that plaintiff's claim could not be substantiated. Furthermore, it was noted that other than issuing the September 2010 “Notice to Cease,” NHA has not taken any action against plaintiff even though she still continued to not allow its representatives to conduct an inspection of her apartment. Plaintiff then filed this appeal.
In her appeal, plaintiff argues that the Division's determination should be reversed because she initially did not allow inspection of her apartment based upon the advice of her doctor, then her attorney, and ultimately because she was frightened by NHA's and its exterminator's representatives. We find no merit to these arguments.
Appellate courts have a limited role in reviewing the decisions of administrative agencies. In re Taylor, 158 N.J. 644, 656 (1999) (internal citation omitted). We will not reverse an agency decision unless “ ‘it is arbitrary, capricious or unreasonable or it is not supported by substantial, credible evidence in the record as a whole.’ ” Id. at 657 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1980)).
“Although the factual background is important to our determination in this matter, we are not being called upon to decide the merits of appellant's” claim. Sprague v. Glassboro State College, 161 N.J.Super. 218, 224 (App.Div.1978). “The underlying issue[ ] for us to decide [is] whether the determination of the Director that no probable cause exists ‘for crediting the allegations of the complaint’ ” constitutes an abuse of discretion. Ibid.
Pursuant to N.J.S.A. 10:5–14, the Director is charged with investigating claims of discrimination made under LAD, N.J.S.A. 10:5–1 to –49, and determining whether probable cause exists that a violation occurred. As we have noted, “although not defined in [LAD], in the analogous field of civil rights ‘probable cause’ has been defined as a reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated.” Sprague, supra, 161 N.J.Super. at 224–25 (quotations and citations omitted).
The record reveals that the Division's representative spent forty hours interviewing witnesses and analyzing documents before making his recommendation. The Director, as a result of this investigation, made a finding that no probable cause existed for crediting plaintiff's allegations. The Director determined that there was no basis for plaintiff's complaint as there was no proof that NHA took any action against plaintiff. Rather, the investigation concluded that NHA agreed not to treat plaintiff's apartment as she requested. The investigation further determined that plaintiff refused to allow any access to her apartment, even though 1) it was only to determine what action, if any, needed to be taken to treat her apartment and, if so, what accommodations could be made, and 2) she had expressly agreed to that procedure.
We have carefully considered this record as well as the alleged errors and omissions that plaintiff argues were contained in the investigative report. We are satisfied that the Director's finding of no probable cause was not an abuse of discretion because there was nothing to indicate NHA took any retaliatory action against her because of her disability or otherwise. Sprague, supra, 161 N.J Super. at 225; see also Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 409–410 (1973).
1. FN1. These alleged recordings are not part of the record.
2. FN2. Pursuant to a New Jersey's Anti Eviction Act, a landlord must serve a “Notice to Cease” on a tenant who is allegedly breaching a lease to give the tenant an opportunity to remedy the breach. N.J.S.A.2A:18–61.1(e)(1).