Commission on Human Rights and Opportunities Ex Rel. Ernest Cameron et al. v. 58A LLC (2012)

MEMORANDUM OF DECISION

This matter involves a claim of discrimination brought by the Commission on Human Rights and Opportunities on behalf of the relator, Ernest Cameron and the relator, Ernest Cameron, individually.   The plaintiffs make the claim against the defendant LLC and the defendant, Dennis Hersh, individually.

The plaintiffs' amended complaint alleges housing discrimination on the part of the defendants on the basis of the individual plaintiff's lawful source of income, in violation of Connecticut General Statutes § 46a–64c.   In a two-count complaint, one each as to the defendant LLC and the defendant Dennis Hersh, the plaintiffs seek both compensatory damages, punitive damages, a civil penalty and the award of attorneys fees, pursuant to Connecticut General Statutes § 46a–64(c), 46a–86(c), 46a–89(b)(2).   The defendants have denied the allegations.

Procedurally, this matter was initially administratively brought before the Commission on Human Rights and Opportunities (hereinafter “CHRO”) wherein a CHRO investigator made a finding of reasonable cause to believe that housing discrimination had occurred, pursuant to Connecticut General Statutes § 46a–83.   Thereafter, the defendants, pursuant to Connecticut General Statutes § 46a–83(d)(2), elected to proceed via civil action in superior court in lieu of an administrative hearing.

The plaintiffs, the Commission on Human Rights and Opportunities, on behalf of the relator, and later intervening plaintiff, Ernest Cameron, a prospective tenant of the defendants, seek to recover damages for the defendants' alleged discriminatory housing practices.   The relator, a recipient of a Rental Assistance Program (hereinafter “RAP”) voucher, inquired by telephone in response to a newspaper advertisement for an apartment in Hartford, Connecticut.   The plaintiffs assert that Mr. Cameron confirmed the availability of the premises in question.   Thereafter, the claim is that upon inquiring as to whether the landlord accepted “Section Eight” (Section Eight is shorthand for a housing program wherein all or a portion of a recipient's rent is paid by the government to a landlord), the person on the other end of the telephone responded in the negative.

The Court, after deciding a number of pre-trial motions, heard from several witnesses and received numerous exhibits into evidence.   After the close of testimony, the parties submitted several briefs regarding liability and damages.   The Court makes the following factual findings and reaches the conclusions of law stated herein:

The Proceedings

“The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties.”  (Internal quotation marks omitted.)  Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005).

Credibility

It is well established that “[i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ․ Credibility must be assessed ․ not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude ․ An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] ․ [who has] an opportunity to observe the demeanor of the witnesses and the parties;  thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.”  (Internal quotation marks omitted.)  State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92–93, 192 A. 557 (1937)).   Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility.  State v. McLaughlin, 126 Conn. 257, 264–65, 10 A.2d 758 (1939).   It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath.  Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).

“[I]n cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ․ it is the quintessential function of the factfinder to reject or accept certain evidence ․” (Citations omitted;  internal quotation marks omitted.)  In re Antonio M., 56 Conn.App. 534, 540 (2000).  “The sifting and weighing of evidence is peculiarly the function of the trier [of fact]” Smith v. Smith, 183 Conn. 121, 123 (1981).  “[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony.”   (Citation omitted;  internal quotation marks omitted.)  Toffolon v. Avon, 173 Conn. 525, 530 (1977).  “The trier is free to accept or reject, in whole or in part, the testimony offered by either party.”  Smith v. Smith, supra, 183 Conn. 123.  “Then determination of credibility as a function of the trial court.”  Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333 (2001).   The trier of fact is entitled to believe or disbelieve any testimony.  Willow Funding Co. v. Grencom Associates, 246 Conn. 615, 623, 717 A.2d 1211 (1998).   The fact that certain evidence is not controverted does not mean that it must be credited.  DeBrizzi v. Georgette, 11 Conn.App. 515, 518, 528 A.2d 407 (1987).

Physical and Mental Capacity

All witnesses may be questioned as to their testimonial capacity on such matters as perception and knowledge, recollection, and manner of communication.  State v. Thomas, 132 Conn. 483, 487–88, 45 A.2d 583 (1946).   A witness's inability to observe, faulty memory, difficulty of articulation, etc., may be brought out on cross-examination of the witness or by another witness.  Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433 (1955).

A witness may not be impeached for just being an alcoholic unless that condition affected the witness on the date of his observation or trial testimony.  State v. Smith, 42 Conn.App. 41, 58–59, 680 A.2d 1340 (1996).   The fact that a witness was intoxicated when the witness heard the accused confess goes to the weight of the witness's testimony, not to competence.   State v. Ireland, 218 Conn. 447, 455–57, 590 A.2d 106 (1991).

DISCUSSION

Under Connecticut General Statutes § 46a–64c(a), it is a discriminatory practice to refuse to rent a dwelling to any person on the basis of, among other reasons, a “lawful source of income,” which is defined by statute C.G.S. § 46a–63(3) as, inter alia, “income derived from ․ housing assistance ․ or public or state-administered general assistance.”  Conn. Gen.Stat. § 46a–63.

In the instant matter, it is undisputed that Rental Assistance Program (“RAP”) vouchers and Section 8 certificates, forms of housing assistance, constitute a lawful source of income under § 46a–64c.  Commission on Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 765, 739 A.2d 238 (1999) (section 8 housing vouchers constitute lawful source of income).   See also Commission on Human Rights Ex Rel. Arnold v. Forvil, 302 Conn. 263, 272–73 (2011).

In Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 596 A.2d 396 (1991), the state supreme court we noted that the “case that sets forth the standard to be applied where there is direct evidence of discrimination is Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).”  Miko v. Commission on Human Rights & Opportunities, supra, 205.   The court characterized that standard as follows:  “[W]here the plaintiff had introduced sufficient evidence that prohibited discrimination had played a motivating part in her rejection the [discriminator] had to establish by a preponderance of the evidence that a legitimate reason would have led to the same decision in the absence of discrimination ․ The critical inquiry is whether the discriminatory motive was a factor in the decision at the moment it was made ․ An alleged discriminator may not prevail in a [direct evidence] case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id.

The court wrote further:  “The United States Supreme Court has set forth three theories of discrimination, each of which requires a different prima facie case and corresponding burden of proof.   These theories are:  (1) the [pretext] theory;  see Texas Department of Community Affairs v. Burdine 450 U.S. 248, 252–56,101 S.Ct. 1089, 67 L.Ed.2d 207 (1981);  McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);  (2) the disparate impact theory;  [fn13] see Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989);  International Brotherhood of Teamsters v. United States, 431 U.S. 324, 357–62, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977);  and (3) the [mixed motives] theory.   See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion).”  Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. 202–03.

The mixed motives theory requires a plaintiff to show, as part of his prima facie case, disparate treatment.  Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 579–80 (1st Cir.1999).   The United States Supreme Court explained that “[d]isparate treatment' ․ is the most easily understood type of discrimination.   The [defendant] simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected trait].”  International Brotherhood of Teamsters v. United States, supra, 431 U.S. 335 n.15.

Once a plaintiff has made a prima facie showing of disparate treatment, the mixed motives analysis applies in cases in which there is at least one improper motive and one proper motive.   See Ostrowski v. Atlantic Mutual Ins. Co., 968 F.2d 171, 181 (2d Cir.1992) (“issue [of mixed motives] does not arise for the trier of fact until the plaintiff has carried the burden of persuading the trier that the forbidden animus was a motivating factor in the employment decision but has failed to persuade the trier that non-discriminatory reasons proffered by the employer were pretexts and not also motivating factors”).   In her concurrence in Price Waterhouse v. Hopkins, supra, 490 U.S. 277, Justice O'Connor explained a plaintiff's required prima facie showing in a mixed motives case:  “What is required [to trigger a mixed motives analysis] is ․ direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.”   The court has since clarified that circumstantial evidence may trigger a mixed motives analysis when such circumstantial evidence is “sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that [membership in a protected group] was a motivating factor” for the decision.  (Internal quotation marks omitted.)  Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).

In the instant matter, the plaintiffs have elected to proceed on the direct evidence theory under the mixed motives analysis, pursuant to Commission on Human Rights and Opportunities v. Sullivan, 285 Conn. 208, 234 (2008).   The method of proof selected by a plaintiff who alleges that a landlord has discriminated against her depends on the evidence that the plaintiff offers in support of his prima facie case.   Under Sullivan, a plaintiff alleging discrimination must show as part of his prima facie case that he is a member of a protected class and that an impermissible factor motivated the defendant in making the adverse decision.  Sullivan, supra, 285 Conn. 230–31.   Once the plaintiff has made this showing, the burden then shifts to the defendant to show, by a preponderance of the evidence, that it would have made the same decision even in the absence of the impermissible factor.  Price Waterhouse v. Hopkins, supra, 258.   Unlike a defendant's burden in a pretext case, it is not sufficient for the defendant to show that a legitimate, nondiscriminatory reason would have justified the decision.  Id., 276 (O'Connor, J., concurring).   A defendant may prevail in a mixed motives case only if it can show that it actually was motivated, at the time that the decision was made, by a legitimate reason and that “its legitimate reason, standing alone, would have induced it to make the same decision.”  Id. 252.   See also Commission on Human Rights Ex Rel. Arnold v. Forvil, supra, 302 Conn. 277–78.

Motion to Dismiss/Motion for Directed Verdict

A court's decision to deny a motion for a judgment of dismissal at the close of the plaintiff's case for failure to make out a prima facie case is “not a conclusion that the plaintiff has sustained his burden of proof on the contested issues of his complaint.”  Lukas v. New Haven, 184 Conn. 205, 211 (1981).   Where a case is close, the preferable course is to deny a motion for nonsuit.  Bawol v. Gumkowski, 104 Conn. 746, 133 A. 917 (1926).   Where the granting of a nonsuit must depend in any appreciable degree upon the court's passing upon the credibility of witnesses, the nonsuit should not be granted.   Pentino v. Pappas, 96 Conn. 230, 232, 113 A. 451 (1921).

FINDINGS OF FACT

1. On March 27, 2006, Ernest Cameron was issued a Rental Assistance Program (“RAP”) certificate;

2. After a number of extensions, during which time, the RAP certificate continued to be valid, Ernest Cameron's RAP certificate was valid through August 27, 2006;

3. Prior to and including August 4, 2006, Ernest Cameron did not have a Section Eight housing subsidy;

4. On August 4, 2006, Ernest Cameron responded to an advertisement for the rental of a residential unit at 58A Buckingham Street, Hartford, Connecticut;

5. Ernest Cameron placed a telephone call to Dennis Hersh's telephone;

6. Ernest Cameron had a brief telephone conversation with Dennis Hersh;

7. In August of 2006, Ernest Cameron was actively abusing and addicted to alcohol and “crack” cocaine;

8. For a substantial period of time before August 4, 2006, Ernest Cameron was actively abusing and addicted to alcohol and “crack” cocaine;

9. For a significant period of time after August 4, 2006, Ernest Cameron was actively abusing and addicted to alcohol and “crack” cocaine;

10. Mr. Cameron has been abstinent from alcohol and drugs since May of 2008 (Exhibit 10);

11. At trial, Mr. Cameron was not able to sufficiently relate his end of the subject telephone conversation, testifying during direct examination:  “I could [have] said RAP or I could [have] said Section Eight, but I'm almost sure that I said Section Eight”;

12. In an exhibit containing Ernest Cameron's testimony in support of funding for the Connecticut Fair Housing Center, Mr. Cameron testified that he had found “several” apartments that he thought would meet his needs, but was turned down “over and over again” (Exhibit C);

13. During the aforementioned testimony, Mr. Cameron further testified that during the application process “landlords” did not want to accept his RAP voucher (Exhibit C);

14. During the aforementioned testimony, Mr. Cameron further testified that he was “finally” able to find an affordable apartment (Exhibit C);

15. During the aforementioned testimony, Mr. Cameron further testified that he “had spent a lot of time looking for an apartment that [he] could afford” (Exhibit C);

16. During the aforementioned testimony, Mr. Cameron further testified in August of 2006, he was living in a homeless shelter trying to find a landlord who would accept his “RAP voucher” (Exhibit C);

17. During the aforementioned testimony, Mr. Cameron further testified that due to the alleged discrimination, he “had to spend an additional two or three months living in a homeless shelter” (Exhibit C);

18. Mr. Cameron signed a lease agreement for an apartment on August 12, 2006, eight days after the subject conversation (Exhibit 2);

19. Mr. Cameron moved into an apartment on September 1, 2006 (Exhibit 2);

20. Mr. Hersh rented the subject unit on August 17, 2006 with a move-in date of September 1, 2006 (Exhibit 1);

21. At trial, Mr. Cameron testified that he had applied for other apartments prior to August 4, 2006.   Upon further examination, however, Mr. Cameron acknowledged prior deposition testimony that had not applied for any apartments prior to August 4, 2006;

22. At trial, Mr. Cameron testified that he had seen apartments prior to August 4, 2006.   During cross-examination, however, Mr. Cameron acknowledged prior deposition testimony that he had not seen any apartments prior to August 4, 2006;

23. In August 2006, Ernest Cameron suffered from several undiagnosed and untreated mental disorders;

24. On or about June 8, 2010, Ernest Cameron suffered from “persistent and severe” mental limitations, including “significantly impaired concentration” (Exhibit 10);

25. On or about June 8, 2010, Ernest Cameron testified in an administrative hearing that his mental health disorders resulted in “forgetfulness” (Exhibit 10);

26. Ernest Cameron has treated in the past with Leighton Huey, M.D., who supplied evidence on Mr. Cameron's behalf in an administrative hearing (Exhibit 10);

27. At trial, Mr. Cameron could not recall having treated with Dr. Huey;

28. Ernest Cameron has treated with Jayesh Kamath, M.D., who supplied evidence on Mr. Cameron's behalf in an administrative hearing (Exhibit 10);

29. Dr. Kamath supplied evidence that Mr. Cameron's diagnoses resulted in symptoms of marked or extreme difficulties including difficulty concentrating, difficulty thinking, mind going blank, communicating clearly and effectively, areas of concentration (Exhibit 10);

30. At trial, Mr. Cameron could not recall having treated with Dr. Kamath;

31. Kate Kelly, a “tester” employed by the Connecticut Fair Housing Center, was assigned to “test” the willingness of the defendants to rent to an individual with a Section Eight rental subsidy (Exhibit 17);

32. Kate Kelly was assigned to call the defendants and assume the profile of an individual with a Section Eight rental subsidy (Exhibit 17);

33. On August 10, 2006, after the telephone call from Ernest Cameron and before the unit was rented, Kate Kelly called Dennis Hersh to inquire as to the availability of the subject unit (Exhibit 17);

34. On August 10, 2006, Kate Kelly received a return telephone call from Dennis Hersh.   During the call, Ms. Kelly volunteered that she possessed a section 8 voucher.   Mr. Hersh questioned whether a section eight voucher could be used for a condominium unit.   When Ms. Kelly was uncertain, she and Mr. Hersh arranged for her to visit the rental unit (Exhibit 17);

35. On August 14, 2006, Ms. Kelly met Mr. Hersh at the subject unit.   Ms. Kelly inspected the unit.   Although expressing some concern about accepting a section eight voucher, Mr. Hersh also inquired regarding Ms. Kelly's ability to pay the rent, her employment status, her current living situation and references.   Mr. Hersh requested Ms. Kelly inquire of her social worker as to the necessity of a further inspection of the unit.   The two agreed that Ms. Kelly would call Mr. Hersh with information regarding the necessity of an inspection of the unit (Exhibit 17);

36. Ms. Kelly did not place any subsequent telephone calls to Mr.Hersh;

37. Mr. Hersh did not place any subsequent telephone calls to Ms. Kelly.

Additional Findings

The court finds, as has been noted earlier in this memorandum of decision, several inconsistencies between the trial testimony of Ernest Cameron and testimony and statements made by Mr. Cameron on other occasions.   Also, this court has made findings describing inconsistencies between Mr. Cameron's testimony and other documentary evidence.   These inconsistencies effect both the court's assessment of Mr. Cameron's credibility and the weight given to his trial testimony.   Additionally, the court's findings regarding Mr. Cameron's lengthy and significant intoxication during pivotal periods in this matter, specifically, surrounding August 4, 2006, in conjunction with his significant undiagnosed and untreated mental health issues, cause this court concern regarding Mr. Cameron's ability to recall and relate information.

Ruling

Based on the foregoing, this court finds that the plaintiffs have failed to sufficiently persuade this court as to the facts necessary to establish a prima facie case.   The court is not sufficiently convinced that, based on the entire record, the contents of the brief conversation between Ernest Cameron and Dennis Hersh constituted housing discrimination based on Mr. Cameron's legal source of income.   Accordingly, judgment enters for the Defendants.

By the Court

Hon. Vernon D. Oliver

Oliver, Vernon D., J.