Tracy Johnson v. Delrob, Inc.

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
TRACY JOHNSON
Complainant
Complaint #8938
and (CLE) H4101399 (31830) 121000
HUD #: 05 – 00 – 0585 – 8
DELROB, INC. &
ROBERT E. THOMPSON
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Wayne D. Williams, Esq. Gabrielle T. Ross, Esq.
Associate Attorney General 12924 Forest Hill Avenue
Civil Right Section East Cleveland, OH 44112
Lausche State Office Tower, 11th Floor (216) 851-3436
615 West Superior Avenue
Cleveland, OH 44113-1899 Counsel for Respondent
(216) 787-3030
Counsel for the Commission
David G. Faulkner, Esq. Tracy Johnson
820 West Superior Avenue, 9th Floor Building C - Apt. 712
Cleveland, OH 44113-1800 25200 Rockside Road
Bedford Heights, OH 44146
Complainant's Representative
Complainant
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

1
INTRODUCTION AND PROCEDURAL HISTORY
Tracy Johnson (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on January 21, 2000.
The Commission investigated and found probable cause that unlawful
discriminatory practices had been engaged in by Delrob, Inc. and Robert E.
Thompson (Respondent) in violation of Revised Code (R.C.) 4112.02(H)(4),
(7) and (12).
The Commission issued a Complaint, Notice of Hearing, and Notice of
Right of Election on November 16, 2000. The Commission subsequently
attempted conciliation. The matter was scheduled for public hearing after
conciliation efforts failed.
The Complaint alleged that Respondent published a discriminatory
statement subjecting families with children to different terms and conditions
of rental, and has coerced, intimidated, threatened or interfered with
Complainant’s exercise or enjoyment of rights granted protection by R.C.

2
4112.02(H), because Complainant has exercised those rights. The Complaint
further alleged that Respondent has discriminated against Complainant
because of her familial status.
Respondent filed an Answer to the Complaint on March 18, 2002.
Respondent admitted certain procedural allegations, but denied that he
engaged in any unlawful discriminatory practices.
A public hearing was held September 13, 2002 at the Lausche State
Office Building in Cleveland, Ohio.
The record consists of the previously described pleadings, 179-page
transcript, exhibits admitted into evidence at the hearing, and post-hearing
briefs filed by the Commission on December 13, 2002, and by Respondent on
January 27, 2003.

3
FINDINGS OF FACT
The following findings of fact are based upon the Administrative Law
Judge’s (ALJ) assessment of the credibility of the witnesses who testified
before her in this case. These findings are also based on the pleadings and
exhibits submitted by counsel.
1. Complainant filed a sworn charge affidavit with the Commission on
January 21, 2000.
2. The Commission determined on November 16, 2000 that it was
probable that Respondent engaged in unlawful discriminatory practices in
violation of R.C. 4112.02(H)(4), (7) and (12).
3. The Commission attempted, but failed to resolve these matters by
informal methods of conciliation.
4. Complainant moved into East Woodland Estates in 1995.

4
5. Complainant has two children, Diante Sullins and Logan Johnson,
who resided with her in a three-bedroom townhouse.1
6. East Woodland Estates is located at 73rd and Woodland in
Cleveland, Ohio. As a housing provider Respondent receives rent subsidies
from the Department of Housing and Urban Development (HUD).
7. The housing units in East Woodland Estates are two-story
townhouses. The complex has approximately 80 townhouses. The complex
also has 2.5 acres of playground area.
8. During the last year of Complainant’s tenure at East Woodland
Estates she started receiving written communications from Respondent Robert
Thompson. Respondent is the general partner and owner of East Woodland
Estates.
9. The first written communication Complainant received from
Respondent was a letter dated April 20, 1999.
1 At the time of the hearing, Diante was nine (9) years old and Logan was
twelve (12).

5
10. The letter was addressed “To Residents of East Woodland Estates”
and stated: “In review of our last inspection, you must bring your living
quarters in compliance with the agreement that you signed in reference to your
lease.” (Comm.Ex. 2)
11. None of the items were specifically addressed to Complainant or
her children. However, Item One was a statement that asked residents “to
instruct your children that they are not to throw any rocks or debris on
the roofs of any building in Summit Gardens.“ Of the six items listed in the
letter, only one was specifically directed toward the behavior of children.
12. Complainant received the next communication from Respondent,
a memo addressed to “The Residents of East Woodland Estates”, regarding
“General Concerns”. It was dated June 8, 1999. (Comm.Ex. 3)
13. Of the five concerns listed in the memo, only one was directed
toward the behavior of children:

6
Understanding that children will be children, and appreciating the
lack of recreational facilities on the property, we have been lenient
in enforcing some of the more rigid rules of the property as they
pertain to control of children. However, unruly and destructive
behavior by children can result in the cancellation of the offending
family’s lease.
14. The next communication received by Complainant was a letter
entitled ”Second Important Notice”. It was dated October 1, 1999 and was
addressed to “All Residents of East Woodland Estates”. (Comm.Ex. 4)
15. The letter focused on the use of the grass around the units in the
complex. The letter stated a prohibition from using these areas for bicycle
riding, football playing, or baseball playing in order to “keep up the appearance
of our landscape”.
16. The letter further stated that if the resident’s children or guests were
discovered violating the terms of their lease agreement, they would be
charged a fee of $75.00.
17. The letter also indicated that there is an “open area between 71st
and 73rd, also between Otis Court and Dell Avenue that can be utilized for the
aforementioned activities”.

7
18. The next communication received by Complainant was a letter
addressed to Complainant, dated October 4, 1999. (Comm. Ex. 5)
19. The letter directed Complainant’s attention to the October 1, 1999
notice regarding “Playing on Grass”. It further stated that Complainant had
violated her lease agreement terms and was being billed $75.00 on her next
month’s rent.
20. Complainant asked her neighbors who have children if they had
received the same notice letter, and they responded in the negative.
21. The last communication received by Complainant was dated
October 13, 1999, and was addressed to “Residents at East Woodland
Estates”. (Comm. Ex. 6)
22. This communication announced that a 9:00 p.m. curfew had
recently been established. It further stated: “All children who lives (sic) in
East Woodland Estates can no longer play or have any loud conversations.
We will not tolerate annoying any residents because of certain children.”

8
23. Complainant moved out of the townhouse in February of 2000.
CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. To the extent that the proposed findings and
conclusions submitted by the parties and the arguments made by them are in
accordance with the findings, conclusions, and views stated herein, they have
been accepted; to the extent they are inconsistent therewith, they have been
rejected. Certain proposed findings and conclusions have been omitted as
not relevant or as not necessary to a proper determination of the material
issues presented.
1. The Complaint alleged that Respondent’s written communications
restricted children in their use of Respondent’s facilities. The Complaint
alleged that this restriction subjected Complainants to “different terms and
conditions of rental with regard to services provided” because of their familial
status.

9
2. The Complaint further alleged that children were subjected to curfew
and possible fines, while tenants without children who engaged in disruptive
behavior were not put on notice or threatened with fines.
3. The Commission’s Complaint alleged Respondent violated R.C.
4112.02(H)(4), (7) and (12), which prohibits persons from engaging in the
following conduct:
(4) Discriminate against any persons in the terms or conditions
of . . . leasing . . . any housing accommodations or in
furnishing privileges in connection with the . . . occupancy,
or use of any housing accommodations . . . because of
familial status (. . .).
(7) Print, publish, or circulate any statement or advertisement,
or make or cause to be made any statement or
advertisement, relating to the . . . lease . . . of any housing
accommodations . . . that indicates any preference,
limitation, specification, or discrimination based upon . . .
familial status . . . or an intention to make any such
preference, limitation, specification, or discrimination.
(12) Coerce, intimidate, threaten, or interfere with any person in
the exercise or enjoyment of, or on account of that person’s
having exercised or enjoyed or having aided or encouraged
any other person in the exercise or enjoyment of, any right
granted or protection by division (H) of this section.

10
4. The Commission has the burden of proof in cases brought under
R.C. Chapter 4112. The Commission must prove a violation of R.C.
4112.02(H) by a preponderance of reliable, probative, and substantial
evidence. R.C. 4112.05(G) and 4112.06(E).
5. Federal case law generally applies to alleged violations of R.C.
Chapter 4112. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio
St.3d 569. Therefore, reliable, probative, and substantial evidence means
evidence sufficient to support a finding of unlawful discrimination under the
federal Fair Housing Act of 1968 (Title VIII), as amended.2
6. The Commission argues that “rules unreasonably restricting
children’s use of facilities are facially unlawfully discriminatory”.
(Comm.Br. 3) In support of its argument, the Commission cites U.S. v.
M. Westland Co., Fair Housing-Fair Lending 15,941 (HUD ALJ 1994) where a
landlord’s rules restricted children’s use of the swimming pool, play area,
and use of common areas without being accompanied by an adult.
2 Sections 3604(b) of Title VIII is substantially the same as R.C. 4112.02(H)(4).

11
The Commission cites HUD v. Paradise Gardens, Fair Housing-Fair Lending
Rptr. ¶25,037 (HUD ALJ 1992) as support for this argument.
7. Respondent’s restrictive rules were directed toward children and
are discriminatory on their face, even though the rules were not enforced.
Martin v. Palm Beach Atlantic Association, Inc., 696 So. 2d 919 (1997).
ACTUAL DAMAGES
8. Damages may be imposed only where there is credible proof of
harm proximately caused by the violation. Under Havens Realty Corp. v.
Coleman, 455 U.S. 363 (1982), plaintiff must ultimately prove defendants’
illegal actions actually caused her to suffer injuries within the meaning of
the statute before she will be entitled to a damages remedy. Id. at 379.
To this end, while inquiry into defendant’s intent is unnecessary as to
violation, convincing non-discriminatory motive will be relevant for
consideration by the factfinder as to plaintiff’s damages, if any, and causation.

12
9. The Commission argues that Complainant and her children
suffered emotional distress, embarrassment, and humiliation because of
Respondent’s written communications and rules that restricted the
behavior of children with regard to common play areas and curfew.
Additionally, the Commission argues that Complainant was subjected to
intimidation, threats, and coercion because of Respondent’s monitoring of her
apartment and assessment of a fee for her children’s violation of the rule.
10. However, the credible evidence in the record supports a finding
that Respondent’s unlawful conduct of publishing the facially-discriminatory
rules or the assessment of a fine referred to herein was not the cause of
Complainant’s or her children’s “stress, loss of sleep, sadness, and emotional
damage”.
11. Complainant was a less-than-model tenant. Her emotional distress
was more likely than not caused by Respondent’s identification, monitoring,
and correction of the problems that resulted from Complainant’s breach of the
covenants in her lease agreement.

13
12. Respondent’s testimony regarding Complainant’s failure to correct
a situation that could create a safety violation is credible:
(On direct examination, Tr. 9)
Q: Why did you send out the notices?
A: Well, we were receiving several phone calls from residents
of the noise that the children were making outside. I
directed a call to Mrs. Johnson’s house primarily because
there were serious violations that had taken place and
that—she disregarded talking to the to the manager or the
service man to correct these violations. One, she didn’t
have any electric (sic), and she was burning candles, which
is a distinct violation. These are adjacent buildings. There’s
no sub-zero lots. So you’ve got a chance of burning down a
whole building with ten families.3
(In regard to the installation of a 220 line, Tr.86)
Q. What, if anything, had to be done to rectify the problem?
A. We sent her a total statement—what was involved, the man
hours, and the material that was used in straightening out
the electrical system and the plumbing system that was
altered by Mrs. Johnson.
Q. When you say the electrical system, can you explain exactly
what you mean?
3 On cross-examination, Complainant testified that her electricity was turned off
for two weeks because she could not afford to pay the bill. (Tr. 35)

14
A. Well, there are no provisions for 220 lines to go into these
units. They’re all 110. We provide ample washing facilities
to all tenants. We have a wash room that has ample
amount of washers and dryers where tenants can go and
wash their—and dry their clothes. Mrs. Johnson had got
someone to boost 110 to 220. And it was called to our
attention primarily when a H.U.D. inspection came up and
we received the report that – that the panel box had been
disturbed, the wire’s in violation. So when my people came
out she refused to talk to them. I went down and told her
that we had to come in because there was a serious
violation. Matter of fact, when we went down there she was
not in her unit. We went in because it was a serious
problem. She was contacted, and said you’re in violation of
your lease and you have to restore the mechanicals and the
plumbing. She refused to do so. We had to go in on it.
That was a violation imposed on the property. So —
fortunately, it wasn’t a city violation, but it was a H.U.D.
violation.
13. Respondent also testified that the only personal interaction he had
with Complainant was regarding the above-referenced violations.
14. As a result of Complainant’s refusal to correct the violations,
she received an eviction notice. However, Complainant appealed to
Respondent’s property manager, and apologized for her conduct. The
property manager appealed to Respondent to withdraw the eviction notice,
which he did. (Tr. 89)

15
PUNITIVE DAMAGES
15. The purpose of an award of punitive damages pursuant to R.C.
4112.05(G) is to deter future illegal conduct. O.A.C. 4112-6-02. Thus,
punitive damages are appropriate “as a deterrent measure”, even when
there is no proof of actual malice. Shoenfelt v. Ohio Civ. Rights Comm.
(1995), 105 Ohio App.3d 379, 385, citing and quoting, Marr v. Rife, 503 F.2d
735, 744 (6th Cir. 1974).
16. The amount of punitive damages depends on a number of factors,
including:
 The nature of Respondent’s conduct;
 Respondent’s prior history of discrimination;
 Respondent’s size and profitability;
 Respondent’s cooperation or lack of cooperation during the
investigation of the charge; and
 The effect Respondent’s actions had upon Complainant.4
O.A.C. 4112-6-02.
4 O.A.C. 4112-6-02 also lists the effect that the illegal action had upon the
Complainant as a factor. However, this factor is more appropriately considered when
determining actual damages.

16
17. Applying the foregoing criteria to this case:
 The Commission did not present evidence that there have
been previous findings of unlawful discrimination against
Respondent;
 The Commission did present evidence at the hearing about
the size of Respondent’s housing accommodations; and
 Neither the Commission nor Respondent presented any
evidence regarding Respondent’s cooperation or lack of
cooperation during the investigation.
18. Based on the foregoing discussion, the ALJ recommends
Respondent be assessed punitive damages in the amount of $1,000.00. See
R.C. 4112.05(G)(1)(b).
OTHER RELIEF – ATTORNEY’S FEES
19. R.C. 4112.05(G)(1) provides in pertinent part that the Commission,
if it finds a violation of the statute, may order a Respondent “to take any . . .
affirmative or other action that will effectuate the purposes of this
chapter.” In cases such as this, it is not uncommon to require respondents
who have violated the fair housing laws to receive training on those laws from
a non-profit fair housing agency. Therefore, I am recommending that the
Commission order Respondent to receive such training at his expense.

17
20. It is also not uncommon to ensure that future tenants are protected
from a landlord who has demonstrated a propensity to violate the fair housing
laws. Thus, the Commission’s request that Respondent include an equal
housing opportunity statement in all advertisements, rental applications and
agreements and other documents used by Respondent is not unreasonable.
In addition to the statement suggested by the Commission in its brief, I
recommend Respondent also include in boldface type at the end of that first
sentence a statement regarding the prohibition against retaliating against any
person who files a charge with the Commission or who participates in a
Commission investigation. (See Appendix A)
21. In addition, respondents who have demonstrated a propensity to
violate the fair housing law should be monitored. In this case, Respondent
should notify the Commission every time the tenancy of one of its units
changes, whether by eviction or expiration of a lease. The Commission
should be notified about the circumstances surrounding the expiration of the
tenancy. The Commission should be notified about the race, sex and family
composition of the occupants and also about the race, sex, and family
composition of the new tenants, along with a list of the applicants, and

18
pertinent information about those applicants so the Commission can make
comparisons to ensure that the fair housing laws are not being violated in the
future by Respondent.
22. The Commission’s counsel is entitled to attorney's fees. R.C.
4112.05(G)(1); Shoenfelt, supra at 386. If the parties cannot agree on the
amount of attorney's fees, the parties shall present evidence in the form of
affidavits.
23. To create a record regarding attorney's fees, the Commission's
counsel should file affidavits from plaintiffs' attorneys in Cuyahoga County,
Ohio regarding the reasonable and customary hourly fees that they charge in
housing discrimination cases. Also, a detailed accounting of the time
spent on this case must be provided and served upon Respondent.
Respondent may respond with counter-affidavits and other arguments
regarding the amount of attorney's fees in this case.

19
24. If the Commission adopts the ALJ’s Report and the parties cannot
agree on the amount of attorney's fees, the Commission should file an
Application for Attorney's Fees within 30 days after the ALJ’s Report is
adopted. Respondent may respond within 30 days from receipt of the
Commission's Application for Attorney's Fees.
25. Meanwhile, any objections to this Report should be filed pursuant to
the Ohio Administrative Code. Any objections to the recommendation of
attorney's fees can be filed after the ALJ makes her Supplemental
Recommendation to the Commission regarding attorney's fees.
RECOMMENDATIONS
For all the foregoing reasons, it is recommended in Complaint # 8938
that:
1. The Commission issue a Cease and Desist Order prohibiting
Respondent from engaging in unlawful discriminatory conduct in violation of
R.C. 4112.02(H);

20
2. The Commission order Respondent within ten (10) days of receipt of
the Commission’s Final Order to pay Complainant $1,000.00 in punitive
damages;
3. The Commission order Respondent, within ten (10) days of receipt
of the Commission's Final Order, to pay the Ohio Attorney General reasonable
attorney’s fees, to be determined in the future;
4. The Commission order Respondent to attend a training course on
fair housing law sponsored by a fair housing agency at his expense;
5. The Commission order Respondent to use equal housing
opportunity notices similar to the one set out in Appendix A; and
6. The Commission order Respondent to report to the Commission’s
Compliance Department for the next three (3) years, as set out in the ALJ’s
Report.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
December 19, 2003

EQUAL HOUSING OPPORTUNITY
It is illegal to discriminate against any person because of race, color, religion,
sex, familial status (having one or more children), ancestry, disability, or
national origin. Anyone who feels he or she has been discriminated against
should contact:
Ohio Civil Rights Commission
Lausche State Office Building, Suite 885
615 West Superior Avenue
Cleveland, Ohio 44113-1899
Toll Free: (888) 278-7101 Voice: (216) 787-3150
TTY: (216) 787-3549 Fax: (216) 787-4121
IT IS ALSO ILLEGAL TO RETALIATE AGAINST ANYONE
WHO FILES A CHARGE WITH THE OHIO CIVIL RIGHTS COMMISSION
OR PARTICIPATES IN A COMMISSION INVESTIGATION.
APPENDIX A