Bobbie Ross, et al. v. Rubin Szerlip

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OHIO CIVIL RIGHTS COMMISSION

IN THE MATTER OF:
BOBBIE ROSS, ET AL.
Complainant
and
RUBIN SZERLIP

Respondent

Complaint #8696
(AKR) H3022499 (23624) 040599
HUD # 05 - 99 - 0701 - 8

HEARING EXAMINER'S FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND RECOMMENDATIONS

BETTY D. MONIGOMERY
ATTORNEY GENERAL

Judith B. Goldstein, Esq.
Assistant Attomey General
Civil Rights Section

State Office Tower, 15” Floor
30 East Broad Street
Columbus, OH 43215-3428
(614) 466-7900

Counsel for the Commission
Laura Mann, Esq.

Southeastem Ohio Legal Services
12 West Locust Street

Newark, OH 43055

Counsel for Complainant

John S. Dilts, Esq.

Bamington One Building

13 Park Avenue West, Suite 607
Mansfield, OH 44902
(419) 525-0777

Counsel for Respondent

Bobbie Ross
707 East Burgess Street
Mt. Vemon, OH 43050

Complainant

HEARING EXAMINER'S REPORT BY:

Franklin A. Martens, Esq.

Chief Hearing Examiner

Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Bobbie Ross (Complainant) filed a sworn charge affidavit with the Ohio
Civil Rights Commission (Commission) on April 5, 1999.
The Commission investigated and found probable cause that Rubin
Szerlip (Respondent) engaged in unlawful discriminatory practices in violation
of Revised Code (R.C.) 4112.02(H).
The Commission issued a Complaint, Notice of Hearing and Notice of
Right of Election on January 6, 2000. 	The public hearing was held in
abeyance pending the Commission’s conciliation efforts.
The Complaint alleged that Respondent sexually harassed Complainant
because of her gender and threatened her with eviction after she refused his
advances.
Respondent filed a timely Answer to the complaint, admitting certain
procedural 	allegations, 	but 	denying 	that 	he 	engaged 	in 	any 	unlawful
discriminatory practices.

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A public hearing was held on November 30, 2000 at the Mt. Vernon and
Knox County Public Library in Mt. Vernon, Ohio.
The record consists of the previously described pleadings, a 335-page
transcript, exhibits admitted into evidence at the hearing, and the post-hearing
briefs filed by the Commission on April 18, 2001 and by Respondent on
July 3, 2001.
FINDINGS OF FACT
The following findings are based, in part, upon the Hearing Examiner's
assessment of the credibility of the witnesses who testified before him in this
matter. 	The Hearing Examiner has applied the tests of worthiness of belief
used in current Ohio practice. 	For example, he considered each witness's
appearance and demeanor while testifying. He considered whether a witness
was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. 	He further considered the
opportunity each witness had to observe and know the things discussed; each
witness's strength of memory; frankness or the lack of frankness; and the
bias, prejudice, and interest of each witness. Finally, the Hearing Examiner

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considered the extent to which each witness was supported or contradicted by
reliable documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission on
April 5, 1999.
2. The Commission determined on January 6, 2000 that it was probable
that Respondent engaged in unlawful discriminatory practices in violation of
R.C. 4112.02(H).
3. 	Respondent is a provider of housing accommodations. 	He owns a
five-unit apartment building located at 209 North Park Street in Mt. Vernon,
Ohio.
4. 	Complainant is a female. 	Complainant is a single parent. 	In
November 	1998 	she 	was 	living 	with 	her 	mother 	and 	receiving 	public
assistance for herself and her two young children. 	She was also expecting a
third child who was born on December 8, 1998.

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5. 	Complainant responded to Respondent’s rental advertisement in
the newspaper. 	Ultimately, she rented Unit A, the apartment next to
Respondent’s apartment. 	Complainant signed a one-year rental agreement
on November 3, 1998. 	The rent, $450 per month, was paid directly to
Respondent by Knox County Metropolitan Housing Authority. 	Complainant
was responsible for paying the $450 rental deposit, the monthly gas, and
electric bills. 	Respondent was responsible for paying the water bill.
6. 	Complainant’s father gave her $200 or $250 which she applied
toward the $450 deposit. 	(Tr. 115) 	Respondent agreed to let Complainant
work for him in order to pay off the remainder of the deposit. 	Complainant
cleaned Respondent’s apartment and did other cleaning jobs around the
common areas, including the yard and the laundry room. 	Respondent paid
her $7.00 an hour. 	He paid her by check. After she cashed the check, she
occasionally made payments toward the balance due on the deposit. (Tr.
329) 	There was no payment schedule.

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7. 	When 	Complainant 	rented 	the 	apartment, 	it 	did 	not 	have 	a
refrigerator. Respondent let her use an old refrigerator that had been sitting
outside in the back of the apartment complex.
8. 	Respondent had a habit of becoming involved in the personal lives
of his tenants, most of whom were single females. 	(Tr. 17, 22) 	He also
became involved in Complainant’s personal life. 	He frequently visited her
apartment. 	(Tr. 121, 325) 	On 	occasion 	he 	brought 	food (pizzas) and
video tapes. 	(Tr. 121) He also asked Complainant to have lunch or dinner
with him. 	Complainant always declined his invitations. 	(Tr. 122)
9. 	Respondent also complimented Complainant on her appearance.
On one occasion he stated that she was “very beautiful.” 	(Tr. 123) 	On
another occasion he kissed her on the forehead. 	(Tr. 325) 	On occasion he
would also put his arms around her or touch her on the shoulder or the leg.
(Tr. 	327) 	Respondent 	also 	told 	Complainant 	that 	she 	was 	a 	great
housekeeper, a good worker, an excellent mother, that he had never met
anyone like her before, and that she was the best thing that had ever
happened to him and that he “loved her.” (Tr. 124) 	Although Respondent’s

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statements and his actions made Complainant uncomfortable, she considered
Respondent a “good friend.” 	(Tr. 124)
10. 	On February 5, 1999, Complainant went out on her first date
since she moved to 209 North Park Street. 	She went out with Steve
Keene, 	a 	friend 	of 	her 	cousin. 	When 	Complainant 	and 	Keene
returned to Complainant’s 	apartment 	that 	evening, 	they 	found 	two 	or
three of Keene’s friends waiting for Keene in order retrieve keys from him.
(Tr. 186) Respondent had observed a car with some males in it parked
across the street from the apartment complex prior to Complainant’s arrival.
When Complainant and Keene arrived, one of the occupants of the car got out
and walked up to the sidewalk. 	Keene proceeded to walk Complainant to the
door of her apartment. 	He did not enter the apartment. 	He turned around
and walked back to his car. 	(Tr. 187, 208, 209)
11. Respondent was outside when Complainant returned with Keene.
Respondent, who was prone to using profanity and cursing, yelled at her, “I’m
not having this shit here!” 	(Tr. 125, 203) 	He also said, “Don’t do this to me!

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You can choose right now, me or them, but if this is what you’re going to do
over there, you’re out!” 	(Tr. 263)
12. 	On February 11, 1999, Complainant received a Notice to Leave the
Premises (Eviction Notice). 	The grounds for the eviction were various
alleged violations 	of 	the 	rental 	agreement: 	failing to remit the balance of
the security deposit (which was $119 at that time); failing to pay utilities, which
was $105.07 for the period of time gas service was in the landlord’s name;
violating the no-smoking clause; committing disorderly conduct; and becoming
a nuisance to guests and other tenants. 	Respondent also demanded that
Complainant return the refrigerator or purchase it from him for $100.
13. 	On February 23, 1999, Respondent gave Complainant a 24-hour
notice that he was going to enter her apartment the following day to remove
the 	refrigerator. 	Complainant 	had 	made 	arrangements 	for 	another
refrigerator, 	but 	it 	was 	not 	going 	to 	be 	delivered 	until 	later 	that 	day.
Respondent would not extend the time period to allow the new refrigerator to
arrive. Complainant asked the police to intervene so she could have a few

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extra 	hours 	to 	transfer 	her 	baby 	formula 	and 	children’s 	food 	from
Respondent’s refrigerator to her new refrigerator. 	(Tr. 132, 133)
14. 	Prior to giving Complainant the Eviction Notice, Respondent did
not advise Complainant that he wanted her to pay the balance due on the
security deposit or pay him $100 for the refrigerator. 	He did not ask her to
stop violating the no-smoking clause, and he did not ask her to pay $105.07
for past gas bills.
15. 	After Complainant received the Eviction Notice, her relationship
with Respondent deteriorated. 	She stopped working for him and did not want
to associate with him. 	She was unable to voluntarily move out of the
apartment because she lacked the resources necessary to establish herself in
another apartment.
16. 	When Complainant did not leave the premises by the March 15,
1999 deadline, Respondent served her with a second eviction notice ten days
later. 	This notice ordered her to leave the premises on or before March 31,
1999. 	Complainant did not leave the premises.

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17. 	In April 1999, Respondent put a new lock on the laundry facility and
sent Complainant a letter telling her she could not longer use it.
18. 	Sometime after he gave Complainant the first eviction notice,
Respondent filed an eviction action against Complainant in Mt. Vernon
Municipal Court. 	A hearing was held in May 1999. 	The eviction failed
because Kelly Strayer, Respondent’s secretary, accepted payments from
Complainant for the balance due on the security deposit and the unpaid gas
bill, curing some of the alleged violations of the lease.
19. Respondent served Complainant with a third eviction notice on
June 	8, 	1999, 	telling 	her 	to 	leave 	the 	premises 	by 	June 	14, 	1999.
Complainant was not evicted.1
20. Respondent served Complainant with a fourth eviction notice
on July 26, 1999, notifying her to leave the premises before July 30, 1999.
This notice contained new grounds for eviction:
1 Apparently Respondent was still receiving rent from Knox County Metropolitan
Housing Authority and, therefore, this kept Complainant from being evicted.

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(1) 	Repeatedly moving trash (week of May 23, 1999);
(2) 	Laundry room vandalism (April 10, 1999);
(3) 	Tool room break-in (between May 20 - May 26, 1999);
(4) 	Harassing other tenants and guests;
(5) 	Compliance with law — threatening acts (July 25, 1999); and
(6) 	No-smoking clause.
(Comm.Ex. 7)
After receiving this notice, Complainant did not leave the premises and was
not evicted through the court proceeding.
21. 	Respondent served Complainant with a fifth eviction notice on
August 24, 1999 to leave the premises on or before August 31, 1999, for
“continued 	violations 	of 	the 	lease 	agreement 	and 	municipal 	criminal
ordinance.” Complainant did not leave the premises by August 31, 1999 and
was not evicted by the Court.
22. On September 11, 1999, Respondent called the police alleging that
Complainant was constantly running the water in her apartment. 	When the
police entered the apartment with Respondent, they found one toilet was

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running because a plastic piece was broken off in the tank. 	Complainant
knew the toilet was broken and had been turning the shut off valve on and off
whenever it was used. 	(Tr. 180, 181) 	While the police were at the
apartment, Respondent shut the water off. 	He did not turn it back on after
they left.
23. 	Complainant advised her attorney that Respondent had shut off her
water.2 Complainant’s attorney filed a Motion for a Temporary Restraining
Order to get the water turned back on. 	A hearing was held on the Motion on
September 15, 1999. 	Respondent was ordered to fix the toilet and to restore
water service to Complainant’s apartment and keep it restored during
the remainder of her tenancy. 	The Court also ordered the Knox County
Metropolitan Housing Authority to continue paying the rent into escrow and
stayed the eviction proceedings. 	Complainant was ordered to find an
alternative 	residence 	and 	move 	out 	of 	the 	residence 	as 	soon 	as
possible.
2 Complainant was represented in the eviction action by an attorney from the Legal
Aid Society.

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The Court also ordered each party to avoid each other and communicate
through their attorneys. 	Likewise, there was to be no harassment of either
Respondent, Complainant, employees or associates of either party.

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24. 	Complainant’s lease expired on November 3, 1999. 	Complainant
vacated the apartment on November 7, 1999.
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. To the extent that the testimony of various witnesses is not
in accord with the findings therein, it is not credited.3
3 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion of
Law may be deemed a Finding of Fact.

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1. 	The 	Commission 	alleged 	in 	the 	Complaint 	that 	Respondent
threatened to evict Complainant because of her gender. 	The Complaint
also 	alleged 	that 	Respondent 	harassed, 	coerced, 	and 	intimidated
Complainant for exercising rights protected by R.C. 4112.02(H).
2. 	These allegations, if proven, would constitute violations of R.C.
4112.02(H)(4) and (12). 	These provisions provide in pertinent part that:
It shall be an unlawful discriminatory practice:
(H) 	For any person to do any of the following:
(4) 	Discriminate against any person in the terms or
conditions of . . . renting, . . . any housing accom-
modations, or in furnishing . . . services, or privileges
in connection with the ownership, occupancy, or use
of any housing accommodations . . . because of [their]
sex; and
(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 . . . any
right granted or protected by division (H) of this
section.

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3. 	The Commission has the burden of proof in cases brought under
Chapter 4112 of the Revised Code. 	The Commission must prove a violation
of 	Section 	4112.02(H) 	by 	a 	preponderance 	of 	reliable, 	probative 	and
substantial evidence. 	Revised Code § 4112.05(E) and (G).
4. 	Sex discrimination claims in housing include claims of sexual
harassment. 	Although sexual harassment is not specifically mentioned in
Chapter 4112, the courts, in the context of employment discrimination and
housing discrimination, have included sexual harassment as part of the
definition of sex discrimination. 	See Shellhammer v. Lewallen, Fair Housing
Fair Lend. Reporter, ¶15,472 (W.D. Ohio 1983), affirmed without opinion, 770
F.2d 167 (6th Cir. 1985).
5. 	The same standards of proof that apply to employment discrim-
ination cases apply to housing discrimination cases.4 Since federal law is
similar to state law, federal cases may also be used to interpret state law.
4 The standards for determining sexual harassment under Title VII of the Civil
Rights Act of 1964 (Title VII) are applicable in addressing sexual harassment claims in a
housing context. 	Honce v. Vigil, supra at 1088.

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6. 	There are two forms of sexual harassment in housing cases: quid
pro quo and hostile environment. 	Honce v. Vigil, 1 F.3d 1085 (10th Cir. 1993).
Hostile environment claims require conduct that is “sufficiently severe or
pervasive to alter the conditions of the housing environment.” 	Id., at 1090,
citing Meritor Savings Bank v. Vinson, 40 FEP Cases 1822 (1986). 	In order
to satisfy the definition of sexual harassment, the behavior must have a sexual
connotation.5
7. 	Based on the foregoing discussion, Respondent’s behavior was not
sexual in nature. 	He merely asked Complainant to go out with him. 	There
was no evidence that he made sexual comments or comments that contained
sexual innuendoes. 	Nor did he touch Complainant in an intimate manner.
Furthermore, even if Respondent’s conduct could be arguably sexual in
nature, it was not serious enough to rise to the level necessary to create a
hostile housing environment. 	See Weiss v. Coca-Cola Bottling Co. of
Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (holding plaintiff’s claims –
supervisor repeatedly asked about her personal life, told her how beautiful she
was, asked her on dates, called her a dumb blonde, put his hand on her
5 Sexual harassment is defined as “unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature.” 	Admin. Code

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shoulder at least six times, placed “I love you” signs in her work area, and
tried to kiss her once at a bar and twice at work – were not sufficient for
actionable sexual harassment).
8. 	Nor was there evidence of quid pro quo harassment. 	“Quid pro quo
harassment 	occurs 	when 	housing 	benefits 	are 	explicitly 	or 	implicitly
conditioned on sexual favors.” 	Honce v. Vigil, supra at 1089.
9. 	Since the conduct in this case was not of a sexual nature and did not
involve a request for sexual favors, the Commission cannot recover under the
traditional sexual harassment theories.
10. 	However, the Commission can still recover if the terms and
conditions of Complainant’s tenancy were adversely affected by her gender or
if she was threatened, coerced, or intimidated in ways that interfered with her
quiet enjoyment of the premises because of her gender. 	Conduct of a non-
sexual nature can support a sexual harassment claim. 	The Commission
must prove the conduct would not have occurred but for Complainant’s
4112-5-05(J).

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gender. 	See Hampel, infra, quoting McKinny v. Dole, (C.A.D.C. 1985, 765
F.2d 1129, 1138-1139 (“We have never held that sexual harassment or other
unequal treatment of an employee or a group of employees that occurs
because of the sex of an employee must, to be illegal under Title VII, take the
form of sexual advances or other instances with clearly sexual overtones.
And we decline to do so now. Rather, we hold that any harassment or other
unequal treatment of an employee or group of employees that would not occur
but for the sex of the employee or employees may, if sufficiently patterned or
pervasive, compromise an illegal condition of employment under Title VII.”).
11. 	The Supreme Court of Ohio and the Sixth Circuit (the federal Court
of Appeals where decisions from lower federal courts in Ohio are appealed),
have both recently ruled that incidents constituting sexual harassment need
not be sexual in nature, but need merely to be gender-based. 	The Supreme
Court of Ohio stated:
[A]ctions that are simply abusive, with no sexual element, can
support a claim for sexual harassment if they are directed at an
employee because of his or her sex. 	Simply put, “[h]arassment
alleged to be because of sex need not be explicitly sexual in
nature.”
Hampel v. Food Ingredients Specialties, Inc., (2000) 89 Ohio
St.3d 169, 179 (quoting Carter v. Chrysler Corp., (8th Cir. 1999),

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173 F.3d 693, 701.
See also Bowman v. Shawnee State University (6th Cir. 2000), 220 F.3d 456,
463 (“Non-sexual conduct may be illegally sex-based and properly considered
in a hostile environment analysis where it can be shown that but for the
employee’s sex, he would not have been the object of harassment.”); Williams
v. General Motors Corp., (6th Cir. 1999), 187 F.3d 553 at 565 (“Contrary to the
dissent’s vehement assertion, the law recognizes that non-sexual conduct
may be illegally sex-based where it evinces ‘anti-female animus, and therefore
could be found to have contributed significantly to the hostile environment.’”).
12. 	Based on the foregoing discussion, the relevant inquiry is: Was the
harassment, though not sexual in nature, based on Complainant’s gender?
There is overwhelming evidence that Complainant was harassed after she
returned from a date on February 5, 1999. 	Respondent’s decision to attempt
to evict her was clearly not a business decision. 	It was an emotional
decision. The reasons that were stated in the eviction notices were either false
reasons or reasons that would not lead a reasonable landlord to evict a tenant
under the circumstances.

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13. 	The first reason set out in the eviction notice was Complainant’s
failure to remit the balance of the security deposit. 	This reason is suspect
because there was no prior arrangement as to when the security deposit
balance 	would 	have 	to 	be 	paid 	off, 	and 	there 	was 	no 	payment
schedule.
Furthermore, there was no demand for payment in full prior to the eviction
notice.
14. The second reason set out in the eviction notice was the failure to
pay a past-due utility bill that was sent to the landlord before Complainant put
the utilities in her name. 	Again, the evidence showed that there was no
meaningful opportunity given to Complainant to pay the past-due utility
bill before the eviction action.
15. The allegation in the eviction notices that Complainant committed
disorderly conduct was never explained. 	It may have been a reference to the
February 5, 1999 incident which is discussed infra.
16. 	The allegation that Complainant violated the no-smoking clause

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was correct. 	However, Respondent had given Complainant permission to
smoke in her apartment and never warned her that he was going to begin
enforcing the clause again in February 1999.6
17. Respondent’s request that the refrigerator be returned to him was
also harassment. There was never any agreement that the refrigerator was to
be paid for at some time in the future. 	There was never any discussion about
the refrigerator until the February 5, 1999 incident and the subsequent notice
of eviction.
18. 	After Complainant cured some of the alleged grounds for eviction,
Respondent came up with new grounds. 	The new grounds also had no
basis in fact or would not lead a reasonable landlord to evict a tenant under
the circumstances. 	The allegation that Complainant repeatedly removed
trash was partially true, but not cause for eviction. The trash was located next
to Complainant’s apartment. 	Complainant put the trash out for pick-up on the
days that it was supposed to be picked up. 	On one occasion, it was not
6 Complainant used to smoke on her porch. 	Respondent told her that since she
took such good care of her place, he did not mind if she smoked in there once in a while.
(Tr. 131) 	Respondent also saw Complainant’s father smoking in the apartment and never
said anything to her about it. 	(Tr. 131)

picked
22

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up when it was supposed to be, so Complainant put it in the back of the
premises until the next pick up. 	(Tr. 139)
19. 	Another ground, “laundry room vandalism”, was not vandalism at
all. Instead it was accidental damage caused by young children who were
playing in the laundry room. 	Complainant’s child was not the only one who
caused the damage. 	(Tr. 221-222) 	Likewise, the alleged tool room break-in
was not really a break-in and was another incident that involved children. 	(Tr.
140)
20. 	The “threatening act” allegation was the result of an argument
Complainant had with Kelly Strayer after Complainant accidentally locked
herself out of her apartment in July 1999. 	When this occurs, Respondent
routinely uses his spare key to let the tenants back in their apartments.
When Complainant asked Kelly Strayer to open the door to her apartment,
she heard Respondent tell Strayer to tell Complainant to call a locksmith.
Complainant could not afford to call a locksmith. 	Instead, she pushed in
the window air conditioner, lifted one of her children through the opening,
and had them unlock the door. 	(Tr. 144) 	Strayer came around the corner

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and began laughing at Complainant. 	There was an exchange. 	Complainant
was upset and told Strayer she needed to get out of her face or she
was “going to go off” on her. 	(Tr. 144) 	Subsequently, Strayer filed a criminal
complaint in Municipal Court about this incident. Ultimately, Complainant was
found guilty of disorderly conduct because she “alarmed” Kelly Strayer.
(Tr. 173)
21. 	In 	addition 	to 	harassing 	Complainant 	about 	these 	issues,
Respondent also harassed her in other ways. 	He shut off her water for one
week, allegedly because she was intentionally letting the water run. 	There
was no evidence she was doing this. 	The only evidence regarding water
usage was evidence that the toilet was running because Respondent had
delayed repairing the toilet. The toilet was not repaired until the Court ordered
Respondent to repair it in September 1999. 	Locking Complainant out of the
laundry room was additional evidence of harassment.
22. 	Therefore, while it is clear that Respondent was trying to evict
Complainant and harassing her, the Commission cannot prevail unless
Respondent’s behavior was based on her sex. 	I believe there is ample

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circumstantial evidence from which to conclude that the harassment and the
attempted 	eviction 	were 	sex-based. 	First, 	there 	was 	testimony 	that
Respondent took a special interest in his female tenants. 	(Tr. 22) 	Some of
these tenants believe that Respondent took adverse actions against them
because they would not have a relationship with him.7 (Tr. 21, 50-53) 	This
evidence tends to support the Commission’s argument that Respondent’s
reaction on February 5, 1999 was sex-based.
23. 	The incident on February 5, 1999 arose when Complainant went on
her 	first 	date 	since 	moving 	into 	Respondent’s 	apartments. 	When
Complainant returned with Steve Keene, she went right into her apartment.
He did not go in with her. 	He merely walked her up to the door and left.
Respondent was upset and angry. 	This incident caused him to file the
eviction one week later. (Tr. 87, 203, 208, 209, 263)
7 This evidence was, for the most part, hearsay evidence. 	Respondent’s ex-wife
testified. There is no question there was a lot of animosity between the parties; however, I
still found her testimony credible. She was not anxious to come forward with this evidence.
She did not even want to be in the same room with Respondent. 	Therefore, I find that in
spite of the animosity between the parties, her testimony about Respondent’s overtures
toward a female tenant was credible. Her testimony was consistent with the testimony of
Respondent’s former bookkeeper, who, while also having some disagreement with
Respondent about a failed business deal, testified credibly about instances where other
female tenants told her that Respondent made overtures toward them. 	She also testified
about occasions where these tenants believed Respondent was looking into their
apartments through the windows or through peepholes. (Tr. 50-53) I found her testimony
credible. 	There was also credible testimony about Respondent’s efforts to evict female

tenants because they had relationships with males. (Tr. 96, 98, 288)

26

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24. 	Respondent testified that the decision to evict Complainant was
based on all of the reasons given in the eviction notices and was triggered by
Complainant’s conduct on February 5, 1999. 	Respondent testified that the
males who were waiting for Keene to return were being disruptive.8 He
testified that when Complainant returned with Keene, his male friends were
trying to carry a case of beer into the apartment. 	He testified that he caught
one of them urinating on his property and that another one of them was
vomiting near the street by the car. 	His testimony was not credible. 	I
believe Complainant’s testimony that there was nothing unusual occurring
when she returned with Keene and that no one went beyond the sidewalk
except Keene, and no one entered her apartment or attempted to enter her
apartment. 	The evidence showed that another tenant was having a party that
night. Complainant was not the one having the party.
8 The testimony about the number of males in the car was unclear. 	Respondent
testified about a car with four males in it. 	(Tr. 261) 	He testified about a second car with
one or two males in it. 	(Tr. 262) 	He testified there could have been 3 males in the first
car. 	(Tr. 262) 	Complainant could only recall one car and the exchange of keys between
Keene and his friend.

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25. 	After a careful review of the entire record, the Hearing Examiner
does not believe that Respondent’s articulated reasons for Complainant’s
eviction were good faith business decisions. Instead, the Hearing Examiner
concludes that they are more likely than not a pretext for unlawful sex
discrimination.9 The Hearing Examiner concludes that Respondent was
motivated by Complainant’s rejection of his repeated attempts to have their
relationship evolve into a romantic one. 	When Respondent saw what he
perceived as the beginning of a relationship with other males, he became
enraged and decided to evict Complainant. 	Thus, his attempts to evict her
were sex-based. 	In addition, he also began to harass her. The harassment
was sex-based and pervasive. 	It created a hostile housing environment.
9 Normally, the Commission cannot second guess a landlord’s reasonable business
decision, however erroneous or illogical it may appear to be. 	However, it is within the
province of the fact-finder to conclude that the landlord’s business decision was so lacking
in merit that it was not genuine.
The distinction lies between a poor business decision and a reason
manufactured to avoid liability. 	Thus, facts may exist from which a
reasonable jury could conclude that the employer’s business decision was so
lacking in merit as to call into question its genuineness.
Hartsel v. Keys, 72 FEP Cases 951, 955 (6th Cir. 1996) (citations and
quotation marks omitted).

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26. 	For all the foregoing reasons, the Commission and Complainants
are entitled to relief. Relief includes actual damages, punitive damages, and
other appropriate relief. 10
ACTUAL DAMAGES
27. 	In fair housing cases, the purpose of an award of actual damages
is 	to 	place 	the 	Complainant 	“in 	the 	same 	position, 	so 	far 	as 	money
can do it, as . . . [the Complainant] would have been had there been no injury
or breach of duty . . . .” 	Lee v. Southern Home Sites Corp., 429 F.2d 290,
293 (5th Cir. 1970) (citations omitted). 	To that end, victims of housing
discrimination may recover damages for tangible injuries such as economic
loss 	and 	intangible 	injuries 	such 	as 	humiliation, 	embarrassment, 	and
emotional distress. Steele v. Title Realty Co., 478 F.2d 380 (10th Cir. 1973).
Damages for intangible injuries may be established by testimony or inferred
from the circumstances. 	Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636
(7th Cir. 1974).
10 References to “Complainants” refer to Ms. Ross’ children.

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28. 	The Commission contends that Complainant suffered economic
loss from Respondent’s violation of R.C. 4112.02(H). 	The Commission
argues that Complainant is entitled to actual damages for babysitting costs
when she had to go to court to defend herself in the eviction action, laundry
costs when she was denied the use of Respondent’s laundry facilities, and
moving costs. However, the Commission did not provide any evidence
concerning the amounts that were expended. 	Therefore, I will recommend a
nominal amount, $200, for economic damages.
29. 	The 	Commission 	also 	contends 	that 	Complainant 	suffered
emotional distress. 	Although emotional injuries are difficult to quantify,
“courts have awarded 	damages 	for 	emotional 	harm 	without 	requiring
proof 	of 	the actual value of the injury.” 	HUD v. Paradise Gardens, Fair
Housing-Fair Lending (P-H), ¶25,037 at 25,393 (HUD ALJ 1992), citing Block
v. R. H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir. 1983) (other citations
omitted). 	The determination of actual damages from such injuries “lies
in the sound discretion of the Court and is essentially intuitive.” 	Lauden v.
Loos, 694 F.Supp. 253, 255 (E.D. Mich. 1988).

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30. 	Complainant 	testified 	that 	Respondent’s 	actions 	made 	her
extremely upset and upset her children. 	Her testimony was credible. 	In light
of 	her 	testimony 	and 	the 	totality 	of 	the 	circumstances 	surrounding
Respondent’s 	actions, 	the 	Hearing 	Examiner 	recommends 	that 	the
Commission award Complainants $6,000 for emotional distress.
PUNITIVE DAMAGES
31. 	One purpose of an award of punitive damages, pursuant to R.C.
4112.05(G), is to deter future illegal conduct. 	Ohio Adm.Code 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. Right Comm.
(1995), 105 Ohio App.3d 379, 385, citing and quoting, Marr v. Rife, 503 F.2d
735, 744 (6th Cir. 1974).
32. 	Another purpose is to punish the wrongdoer for his outrageous,
willful, and wanton conduct. 	Marr v. Rife, 503 F.2d 735, 744 (6th Cir. 1974).

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33. 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 Complainants.11
Ohio Adm.Code 4112-6-02.
34. 	Applying the foregoing factors to this case:
• 	Respondent’s 	actions 	were 	intentional 	and 	they 	were
extreme;
• 	There is no evidence that there had been previous findings of
unlawful discrimination against Respondent;
• 	Respondent owned at least one rental property – the five
units where he and Complainant resided, and apparently
owned some additional property. 	Neither the Commission
nor Respondent presented evidence about the profitability of
the units; and
11 This factor is more appropriately considered when determining actual damages.

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• 	The Commission argued that Respondent did not cooperate
in these proceedings because he was unruly, interrupted the
proceedings, 	and 	made 	editorial 	comments 	during 	the
proceedings. 	However, the standard for punitive damages
relates to Respondent’s cooperation or lack of cooperation
during the investigation. 	There was no testimony from the
investigator about this issue.
35. 	Based 	on 	the 	foregoing 	discussion, 	the 	Hearing 	Examiner
recommends that the Commission assess Respondent $5,000 in punitive
damages to be shared equally by Complainants.
ATTORNEY'S FEES
36. 	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.
37. 	To create a record regarding attorney's fees, the Commission's
counsel should file affidavits from plaintiffs' attorneys in Knox County, Ohio
regarding the reasonable and customary hourly fees that they charge in

34
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.
38. If the Commission adopts the Hearing Examiner'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 Hearing
Examiner's 	Report 	is 	adopted. 	Respondent 	may 	respond 	to 	the
Commission's Application for Attorney's fees within 30 days from their receipt
of the Commission's Application for Attorney's Fees.
39. 	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 Hearing Examiner issues a supplemental
recommendation regarding attorney's fees.

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OTHER RELIEF
40. 	In its brief Respondent’s counsel maintains that Respondent is
no longer a housing provider. 	However, should this be in error, or should
Respondent become a housing provider in the future in Ohio, he must report
that fact to the Commission. 	The Hearing Examiner also recommends that
Respondent be ordered to attend a class on fair housing practices given by a
fair housing agency and that he post a fair housing poster in a conspicuous
place where it can be viewed by all of his tenants.
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint #8696
that:
1. The Commission order Respondent to pay Complainants $6,200 in
actual damages;
2. 	The Commission order Respondent to pay Complainants $5,000 in
punitive damages;

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3. 	The Commission order Respondent to pay attorney’s fees (to be
determined at a later date); and
4. 	The Commission order Respondent to display the fair housing logo
and take a class on fair housing law.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
September 20, 2001

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
BOBBIE ROSS, ET AL.
Complainant 	Complaint #8696
(AKR) H3022499 (23624) 040599
and 	HUD #: 05 – 99 – 0701 – 8
RUBIN SZERLIP
Respondent
ADDENDUM TO THE HEARING EXAMINER’S RECOMMENDATIONS
RE: THE COMMISSION’S APPLICATION FOR ATTORNEY’S FEES
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Judith B. Goldstein, Esq. 	John S. Dilts, Esq.
Assistant Attorney General 	Barrington One Building
Civil Rights Section 	13 Park Avenue West, Suite 607
State Office Tower, 15th Floor 	Mansfield, OH 	44902
30 East Broad Street 	(419) 525-0777
Columbus, OH 	43215-3428
(614) 466-7900 	Counsel for Respondent
Counsel for the Commission
Laura Mann, Esq. 	Bobbie Ross
Southeastern Ohio Legal Services 	707 East Burgess Street
12 West Locust Street 	Mt. Vernon, OH 	43050
Newark, OH 	43055
Complainant
Counsel for Complainant
HEARING EXAMINER'S REPORT BY:
Franklin A. Martens, Esq.
Chief Hearing Examiner
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
(614) 466-6684

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PROCEDURAL HISTORY
This matter is before the Hearing Examiner on the Commission’s
Application for Attorney’s Fees. 	The Hearing Examiner issued Findings of
Fact, Conclusions of Law, and Recommendations (Hearing Examiner’s
Report) on liability and damages in Complaint #8641 on September 29, 2001.
Besides 	a 	Cease 	and 	Desist 	Order, 	the 	Hearing 	Examiner’s 	Report
recommended that the Commission award Complainant $6,200 in actual
damages and assess Respondent $5,000 in punitive damages.
The 	Commission 	adopted 	the 	Hearing 	Examiner’s 	Report 	on
November 8, 2001. 	The Commission’s counsel filed an Application for
Attorney’s 	Fees on December 5, 2001 and a Supplemental Application on
December 7, 2001. 	Respondent did not file a reply.

2
CONCLUSIONS OF LAW AND DISCUSSION
1. 	When the Commission finds that a housing provider has violated
R.C. 4112.02(H), the Commission must require the discriminating housing
provider to pay reasonable attorney’s fees.
If the commission finds a violation of division (H) of section
4112.02 of the Revised Code, the commission additionally shall
require the respondent to pay actual damages and reasonable
attorney’s fees . . . . 	(Emphasis added.)
Such attorney’s fees may be paid directly to the Commission’s counsel, the
Office of the Ohio Attorney General, pursuant to R.C. 109.11. 	Shoenfelt v.
Ohio Civ. Rights Comm. (1995), 105 Ohio App.3d 379, 385-86.
2. 	In determining what constitutes reasonable attorney’s fees in a
particular 	case, 	the 	usual 	starting 	point 	and 	presumptively 	reasonable
amount is the lodestar calculation, e.g., the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate. 	Blum v.
Stenson, 465 U.S. 886, 897, 34 FEP Cases 417, 421 (1984). 	As the fee
applicant, the Commission must provide evidence documenting the time
expended on the case. 	Hensley v. Eckerhart, 461 U.S. 424, 433, 31 FEP
Cases 1169, 1174 (1983). 	The Commission is not required to record the

3
time expended 	“in 	great 	detail”, 	but 	it 	should 	at 	least 	identify 	the
“general subject matter” of such expenditures. 	Id., at 437, 31 FEP Cases at
1174, 	n.12. 	Overall, 	the 	Commission’s 	counsel 	must 	exercise 	“billing
judgment” in excluding hours that are excessive, redundant, or otherwise
unnecessary. Id., at 434, 31 FEP Cases at 1173.
3. 	The Commission also has the burden of providing evidence that
supports 	the 	requested 	hourly 	rate. 	Id. 	Besides 	an 	affidavit 	from 	its
counsel, the Commission must provide other evidence showing that the
requested 	hourly 	rate 	is 	comparable 	to 	the 	prevailing 	market 	rate 	for
similar work performed in the community. 	In other words, the Commission
must 	show 	that 	the 	requested 	hourly 	rate 	is 	“in 	line 	with 	those
prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” 	Blum, 	supra 	at 895-96,
34 FEP Cases at 421, n.11.
4. 	Although 	the 	lodestar 	calculation 	is 	presumed 	reasonable,
there may be circumstances where that calculation “results in a fee that
is either unreasonably low or unreasonably high.” 	Id., at 897, 34 FEP

4
Cases at 421. 	In such cases, the Hearing Examiner may adjust the
lodestar amount upward or downward, 	at 	his 	discretion, 	in light of the
factors 	listed 	in 	Disciplinary 	Rule 2-106(B). 	Bittner v. Tri-County Toyota
(1991), 58 Ohio St.3d 143, 145-46. 	These factors include:
The time and labor involved in maintaining the litigation; the
novelty and difficulty of the questions involved; the professional
skill 	required 	to 	perform 	the 	necessary 	legal 	services; 	the
attorney’s inability to accept other cases; the fee customarily
charged; the amount involved and the results obtained; any
necessary 	time 	limitations; 	the 	nature 	and 	length 	of 	the
attorney/client relationship; the experience, reputation, and ability
of the attorney; and whether the fee is fixed or contingent.1
5. 	In weighing these factors, the most important factor is the results
obtained. 	Hensley, 	supra 	at 	434, 	31 	FEP 	Cases at 	1173. 	To 	be
upheld, a fee award must be “reasonable in relation to the results obtained.”
Id., at 440, 31 FEP Cases at 1176.
1 	Since several of these factors are subsumed within the lodestar calculation, the
factfinder should avoid considering a factor twice. 	Cf. Hensley, supra at 434, 31 FEP
Cases at 1173, n.9.

5
6. 	The Commission satisfied its burden of documenting the time
expended in this case. 	The Commission provided a billing log containing the
subject matter of the work performed, the dates the work was performed, and
the time spent on each activity. 	The billing log indicates that counsel spent
82 hours on legally-related work.2
7. 	The Commission also satisfied its burden of providing evidence in
support of the requested hourly rate ($150). 	The Commission provided
affidavits 	from Alexander Spater and Joshua J. Morrow who represent
plaintiffs 	in civil 	rights 	cases 	in 	the 	Columbus 	area. 	Attorney Spater
stated 	that the rate of $150 an hour for legal work is quite reasonable
for 	work 	in 	Franklin 	County, Ohio 	for 	attorneys 	with 	Ms. 	Goldstein’s
background and experience.
2 Two hours were spent organizing the file. 	This is not legally-related work and,
therefore, not fee-generating. 	The four and one half hours spent on travel time is
addressed in ¶ 9.

6
8. 	After reviewing the billing log and the affidavits provided by the
Commission, the Hearing Examiner found the number of hours claimed
and 	the 	requested 	hourly 	rate 	reasonable. 	Therefore, the lodestar
amount in this case is 	$150 	x 	82 	hours. 	Having considered the results
obtained by the Commission, the Hearing Examiner concludes that the
lodestar amount is reasonable in relation to these results. Therefore, the
Commission is entitled to $12,300 in attorney’s fees for time expended
on all issues.
9. 	The Commission also requested compensation for 5.0 hours of
travel time, including time spent waiting for Respondent to appear for a
deposition. 	The rate of compensation for travel time is less than the
rate 	of compensation 	for 	legal 	work. 	A 	reasonable 	rate 	of
compensation for 	travel 	time 	is 	$25 	per 	hour. 	Therefore, 	the 	Hearing
Examiner will recommend an award of $50.00 for travel time ($25 x 2
hours).3
3 Two hours for travel from Columbus to Mt. Vernon is reasonable. 	See
Expedia.com.

7
10. 	Counsel for the Commission also requested reimbursement for
court reporter fees of $42.00 and attorney’s fees for waiting time for a
deposition where Respondent failed to appear. 	This request must be denied
because the Commission does not have statutory authority to award costs
under R.C. 4112.04(G)(1). 	This section refers to “reasonable attorney’s
fees,” not costs. 	Costs related to the failure of a party to appear for a
deposition can only be awarded pursuant to an Order issued pursuant to Civ.
R. 37(D).
RECOMMENDATIONS
For all of the foregoing reasons, the Hearing Examiner recommends that
the Commission’s Final Order in Complaint #8696 include an Order requiring
Respondent to pay $12,350 in attorney’s fees to the Office of the Ohio
Attorney General.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER

January 9, 2002
8