Rosalyn Greene v. Hellena Villemain and Villemain Realty

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
ROSALYN M. GREENE
Complainant Complaint #8915
(AKR) H3102799 (24509) 020400
and HUD #: 05 –00 –0146 –8
HELLENA VILLEMAIN AND
VILLEMAIN REALTY, INC.
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Marilyn Tobocman Jonathan D. Tucker, Esq.
Assistant Attorney General 7 West Bowery Street, Suite 604
Civil Rights Section Akron, OH 44308
State Office Building, 11th Floor (330) 762-9191
615 West Superior Avenue
Cleveland, OH 44113-1899 Counsel for Respondent
(216) 787-3030
Counsel for the Commission
Andrew L. Margolius, Esq. Rosalyn M. Greene
1600 Illuminating Building 1520 Superior Avenue
55 Public Square Akron, OH 44307
Cleveland, OH 44113
(216) 621-6214 Complainant
Counsel for Complainant
ALJ’SREPORTBY:
Denise M. Johnson
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
Rosalyn M. Greene (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on February 4, 2000.
The Commission investigated and found probable cause that unlawful
discriminatory practices had been engaged in by Hellena Villemain and
Villemain Realty, Inc. (Respondent) 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 October 26, 2000. The Commission subsequently
attempted conciliation. The matter was scheduled for public hearing after
conciliation efforts failed.
The Complaint alleges that Respondent denied Complainant equal
opportunity to purchase a lot on Skylark Street, because of her race.

2
Respondent filed a timely Answer to the Complaint on November 30,
2000, admitting certain factual allegations, but denying that it engaged in any
unlawful discriminatory practices, in addition to pleading affirmative defenses.
A public hearing was held on February 26-27, 2002 and September 24,
2002 at Ocasek Government Building in Akron, Ohio.
The record consists of the previously described pleadings, a transcript
consisting of 509 pages of testimony, exhibits admitted into evidence at the
hearing, and the post-hearing briefs filed by the Commission on November 7,
2002;byRespondentonDecember31,2002;t	heCommi	ssi	on’	sr	epl	ybr	i	ef	,
f	i	l	edonJanuar	y10,2003;andCompl	ai	nant	’	samicus brief, filed January 9,
2003.1
1 Compl	ai	nant	’	scounselr	equest	edl	eavet	of	i	l	eanamicus brief. The Administrative
Law Judge (ALJ) granted leave, pursuant to O.A.C. 4112-3-7(C)(4).

3
FINDINGS OF FACT
The following findings are based, in part, upon the Administrative Law
Judge’	s(	ALJ)assessmentoft	hecr	edi	bi	l	i	t	yoft	hewi	t	nesseswhot	est	i	f	i	ed
before the ALJ in this matter. The ALJ applied the tests of worthiness of
belief used in current Ohio practice. She considered whether a witness was
evasive and whether his or her testimony appeared to consist of subjective
opinion rather than factual recitation. She 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 ALJ considered the
extent to which each witness's testimony was supported or contradicted by
reliable documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission on
February 4, 2000.
2. The Commission determined on October 26, 2000 that it was
probable that unlawful discriminatory practices had been engaged in by
Respondent in violation of R.C. 4112.02(H).

4
3. The Commission attempted and failed to eliminate the alleged
unlawful discriminatory practices by informal methods of conciliation.
4. Respondent is a provider of housing accommodations at Skylark
Street in Akron, Summit County, Ohio.
5. Respondent Hellena Villemain is a white person.
6. Complainant is a black person.
7. Complainant has been employed by the Summit County Board of
Mental Retardation since 1994.
8. Complainant has one biological child and is a caregiver for three
foster children. The foster children that Complainant cares for are classified
as therapeutic, which means that they have difficult behavioral issues.
9. At the time that Complainant was looking for a new residence, she
resided at 287 Theodore Street in Akron, Ohio. Complainant and her mother
shar	edt	her	esi	dence. TheTheodor	eSt	r	eetr	esi	dencewasCompl	ai	nant	’	s
childhood home.

5
10. Compl	ai	nant	’	sannuali	ncomef	r	om t	heSummi	tCount	yBoar	dof
Mental Retardation was $29,300. She also received between $48,000 -
$49,000 annually for foster care.
11. In 1999 Complainant was looking for an existing home or a lot in a
“	ni	cear	eat	hat	wasconduci	v	et	or	ai	si	ngchi	l	dr	en”	.Shewasl	ook	i	ngf	oraqui	et
neighborhood in a good school district.
12. On Sunday, October 24, 1999, Complainant was driving through
north Akron looking at real estate. She was specifically driving on Cuyahoga
Street and turned into a street named Sackett Hills.
13. She saw a house listed for sale and noticed t	hatt	heowner	’	sname
was Mrs. Zampelli. She recognized the name as that of a person with whom
she had attended the same high school
14. Complainant was able to talk with Mrs. Zampelli and told her that
she was looking for lots. Mrs. Zampelli told Complainant that there were lots
available on Skylark Drive.

6
15. Complainant was looking for lots in the price range from $30,000 -
$60,000.
16. After Complainant entered the Skylark Drive development, she saw
a map to the left. It was a large map of the development with an outline of
eight (8) lots. The map was shaped in the same manner as the development.
17.Themaphada“	ForSal	e”si	gnoni	twi	t	hRespondent	’	snameand
telephone number. The map did not indicate which lots were for sale.
18. Complainant liked the lots on Skylark Drive because they met part
of the criteria that she was looking for: they were in a secluded cul-de-sac
which Complainant felt would be quiet and conducive to raising children.
19. That same day Complainant telephoned Celeste Tolbert, a black
person, who is a Century 21 agent. Complainant asked Ms. Tolbert to
contact Respondent and make an appointment to see the property.
20. Complainant became acquainted with Ms. Tolbert because she is
friends wi	t	hMs.Tol	ber	t	’	sbr	ot	her	.Compl	ai	nantandMs.Tol	ber	tal	soat	t	end
the same church.

7
21. On Monday, Complainant had not heard from Ms. Tolbert regarding
her request for an appointment to view the Skylark Drive property.
22. Complainant called the number that was listed on the map.
23. The person who answered the telephone identified herself as the
Respondent, Hellena Villemain.
24. Respondent agreed to meet Complainant at the lot on Wednesday,
at 5:00 p.m.
25. During the conversation Respondent indicated that Lot #8 (eight)
was the only lot available.
26. When Complainant arrived, Respondent was in the vicinity of Lots
#7 (seven) and #8. Complainant was accompanied by her fiancé, Scott
Caldwell. They got out of the car and went up to Respondent and introduced
themselves.

8
27. Respondent stated that Lot #7 had sold the previous day, and she
was going to build a spec house on Lot #8. (Tr. 27) Shortly thereafter a
young male and female, both white, who were already parked in a cul-de-sac
in the development, drove over to where Complainant and Respondent were
standing. They got out of their car.
28. Respondent indicated the young man was the person that she had
sold the lot to the day before.
29. The next day Complainant went to Fair Housing Contact Services
(FHCS) and filed a complaint.
30. On October 28, 1999, an African-American female tester employed
by FHCS called Respondent to express an interest in purchasing a lot on
Skylark Drive.
31. During the one-minute telephone conversation, Respondent told
the tester that the lots were sold and the conversation ended.

9
32. On October 30, 1999 and November 9, 1999, a Caucasian female
tester employed by FHCS called Respondent and left messages on both
dates expressing an interest in purchasing a lot on Skylark Drive.
33.OnNov	ember9,1999,Respondentl	ef	tamessageont	het	est	er	’	s
voicemail stating that there were still lots available and for the tester to call
back if she was still interested.
34. On November 11, 1999, the tester called back and left a message
stating that she was still interested. The tester never received a call back
from Respondent.

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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 Commission alleges in the Complaint that Respondent denied
Complainant equal opportunity to purchase a lot on Skylark Street, because of
her race.
2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides in pertinent part, that:

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It shall be an unlawful discriminatory practice:
(H) For any person to:
(1) Refuse to . . . negotiate for the sale, . . . of housing
accommodations, . . . or otherwise deny or make unavail-
able housing accommodations because of race, . . .2
(Emphasis added.)
3. 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).
4. Federal case law applies to alleged violations of R.C. Chapter 4112.
Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm., (1991), 61 Ohio
St.3d 607. 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 R.C. 4112.02(H)(1) applies to the availability of housing. This provision reaches
"every practice which has the effect of making housing more difficult to obtain on prohibited
grounds", including denying a prospective tenant equal opportunity to rent housing
accommodations. United States v. City of Parma, Ohio, 494 F.Supp. 1049, 1053 (N.D.
Ohio 1980, aff'd. as modified, 661 F.2d 562 (6th Cir. 1981).

12
5. The same standards of proof that apply to employment discrimination
cases generally apply to housing discrimination cases.3 Normally, these
standards require the Commission to first prove a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP
Cases 965 (1973). The proof required to establish a prima facie case may
vary on a case-by-case basis. Id., at 802, 5 FEP Cases at 969, n.13. In this
case, the Commission may establish a prima facie case of housing
discrimination by proving that:
(1) Complainant is a member of a protected class;
(2) Complainant expressed interest in viewing available housing
accommodations; and
(3) After she expressed interest in viewing housing accom-
modations, Respondent subjected Complainant to disparate
treatment under circumstances which give rise to an inference
of unlawful discrimination.
3 Al	t	hought	heSupr	emeCour	thasneveraddr	essedt	hei	ssue,“	...l	owercour	t	s
have generally assumed that . . . precedents from the employment discrimination field
should be followed in interpreting Title VIII." R. Schwemm, Housing Disc., 1996 Ed. at
10-2.

13
6. The Commission proved a prima facie case of race discrimination.4
The Commission established the first element of a prima facie case because
Complainant, a black person, is a member of a protected class.
7. The Commission established the second element when Complainant
testified that she saw an available lot and contacted Respondent at the
number listed on the sign advertising lots for sale. Complainant saw the sign
on a Sunday, contacted Respondent on Monday, and was told that Lot #8 was
for sale. Respondent and Complainant scheduled an appointment to meet at
the development two days later, on Wednesday, at which time Respondent
told Complaint that Lot #7 had sold on Tuesday, and she intended to use Lot
#8 for a spec house. (Tr. 27) Respondent did not offer to show Complainant
any other lot in the Skylark Drive development or any other properties which
she had available for sale.
4 The burden of establishing a prima facie case of discrimination is not onerous.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 25 FEP Cases 113, 116
(1981). It is simply part of an evidentiary scheme "intended progressively to sharpen the
inquiry into the elusive factual question of intentional discrimination." Id., at n.8.

14
8. The Commission established the third element of a prima facie case
through the testimony of the testers and through the cross-examination of
Respondent. The following evidence supports the finding that Respondent
subjected Complainant to disparate treatment under circumstances which give
rise to an inference of housing discrimination:
(1) The person (a white male) that Respondent testified she took
an offer from the day before her appointment with
Complainant lived in her condominium complex. He was
also the son of an acquaintance of Respondent.
Respondent	’	s t	est	i	monyr	egar	di	ngt	heav	ai	l	abi	l	i	t	yof other
lots and why those lots were not shown to Complainant
was not credible. Respondent testified that she did not show
Complainant other lots because Complainant did not ask to
see any other lots.5 Respondent, being a savvy business
5 Ondi	rectexami	nat	i	on,Respondent	’	st	est	i	monyregardi	nghermeet	i	ngwi	t	hCompl	ai	nant(Tr.
331):
Q. Okay. Can you walk me through step-by-step your initial contact with Ms. Greene whenever you
first saw her?
A. Well, from what I recall, I was there first. And Mrs. Greene and the gentleman came driving up
and they parked, you know, close to lot 8 where I was standing. As they came up I introduced
mysel	fandt	ol	dt	hem whoIwas.AndIdi	dn’	tgi	vehermycardatt	hatt	i	me.WhatIdi	dwasIt	ol	d
herI	’	m really sorry, but the lot that we were talking about is not available now. I said I—I feel we
had an offer—we had an offer yesterday, it looks—it looks good; the only thing we could possibly
do would be make a backup offer. But I said that there would be a spec home that would be
available. And she asked me about the price of the home that was at the top of the hill and also
what the spec home—what price it would be (Tr. 333), (. . .) and then I gave her my card and I
said, well there are other lots available. I said if you want–I said give me a call here and I said
maybe we can find something else. And at that Mrs. Green departed and so did (sic) . . .
On cross examination Respondent testified in regard to her reasons for not contacting Complainant regarding
other available properties (Tr. 391):
Q. Okay. So—but you made no effort to follow up on her interest that she expressed; is that
correct?
A. No,becauseIf	el	tt	hatshewasn’	treal	l	yi	nt	erest	edbecauseof–
Q. She only—

15
person with the goal to sell property for a profit could have
offered to sell Lot #8, the lot on which she subsequently built
a spec house, or any other lot that was available.
Compl	ai	nant	’	st	est	i	monyr	egar	di	ngRespondent	’	sf	ai	l	ur	et	o
offer to show her other available lots is more credible. A
reasonable inference can be drawn that Respondent did not
want to engage Complainant as a potential buyer of any
housing accommodations in the Skylark Drive development.
Addi	t	i	onal	l	y	, Respondent	’	s t	est	i	mony r	egar	di	ng t	he
submission of the paperwork for the offer/sale transaction with
the purchaser of Lot #7 was fraught with vague recollections
and inconsistencies;
(2) The first tester who called Respondent after Complainant
filed a charge of discrimination was told that there were no
properties available. The first tester is African-American, and
A. Thef	actshedi	dn’	tconversewi	t	h me.
Q. She only asked two questions?
A. Yes.Idi	dn’	t–felt that –andt	herewasn’	tanyt	hi	ngdi	rect	l	yt	heret	hatIcoul	ddof	orheratt	hatt	i	me,
so I just gave her my card. (. . .)
Q I mean, I really thought from your testimony your purpose of meeting with her even though the lot
was sold was to see if you could do more business with her . . .
A. It was.
Q. But you did not take her number?
A.No,Idi	dn’	tt	ake---Idi	dn’	tt	akehernumber.
Q.Now,i	sn’	ti	tcorrectt	hatt	hel	otyoui	nt	endedt	oshow her that day, lot eight, was not sold?
A. Well, it was sold to me.

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(3) The second tester who called Respondent after Complainant
filed a charge of discrimination did not make contact with
Respondentbutl	ef	tamessageonRespondent	’	sv	oi	cemai	l
regarding her interest in purchasing a lot in the Skylark Drive
development. Respondent left a message saying that there
were available lots. The second tester is white.6
9. The Commission having established a prima facie case, the burden
of production shifted to Respondent to "articulate some legitimate, non-
discriminatory reason" for her actions. McDonnell Douglas, supra at 802, 5
FEP Cases at 969. To meet this burden of production, Respondent must:
". . . clearly set forth, through the introduction of admissible
evidence," reasons for . . .[her] actions which, if believed by the
trier of fact, would support a finding that unlawful discrimination
was not the cause of . . . [her actions].
St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747, 62 FEP
Cases 96, 99 (1993), quoting Burdine, supra at 254-255, 25 FEP
Cases at 116.
6 At least one court has recognized that the race of the speaker can be determined
by the listener over a phone conversation based on clues from diction and demographics.
Bullen v. Thanasouras, DP-H: Fair Housing-Fair Lending Rptr. 155,897 (N.D. Ill. 1994),
1994 U.S. Dist. LEXIS 115. Celeste Tolbert, a black person, called Respondent after
Complainant was told Lot #8 in the Skylark Drive development was sold. Ms. Tolbert was
t	ol	dt	hatl	ot	swer	eavai	l	abl	ei	nt	heSkyl	ar	kDr	i	vedevel	opment	. Ms.Tol	ber	t	’	shear	i	ng
testimony supports the factual determination that she speaks standard English. The
average person listening to her speak would be unable to detect any diction or cultural
clues that would identify her race.

17
10. Res	pondent	‘	sar	t	i	c	ul	at	edr	eas	onwast	hat	anof	f	erhadal	r	eadybeen
made on the lot a day before the scheduled appointment with Complainant.
As stated above, the record suppor	t	saf	i	ndi	ngt	hatRespondent	’	sact	i	onsi	n
refusing to negotiate for the sale of available housing accommodations were
more likely than not motivated by a discriminatory animus.
11. The Commission's establishment of a prima facie case, coupled
with t	heALJ’	sbel	i	efoft	heCommi	ssi	on'	sev	i	dence,ent	i	t	l	esCompl	ai	nantt	o
relief as a matter of law.
DAMAGES
1. When there is a violation of R.C. 4112.02(H), the statute requires an
award of actual damages shown to have resulted from the discriminatory
act	i	on,aswel	lasr	easonabl	eat	t	or	ney	’	sf	ees. R.	C.4112.	05(	G)	(	1)	. The
statute also provides that the Commission, in its discretion, may award
punitive damages.

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ACTUAL DAMAGES
2. The purpose of an award of actual damages in a fair housing case,
as in employment discrimination cases, "is to put the plaintiff in the same
position, so far as money can do it, as . . . [the plaintiff] 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. See Steele v. Title Realty Co., 478 F.2d 380 (10th Cir.
1973) (actual damages of $1,000 awarded to plaintiff consisting of $13.25 in
telephone expenses, $125.00 in moving and storage expenses, and $861.75
for emotional distress and humiliation). Damages for intangible injuries may
be established by testimony or inferred from the circumstances.7 Seaton v.
Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir. 1974).
7 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, P-H: Fair Housing-Fair Lending Rptr. ¶25,037, 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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3. In this case, the Commission did not present evidence that
Respondent's discriminatory actions caused Complainant economic loss.
4. The Commission presented evidence that Respondent's
discriminatory actions humiliated Complainant and caused her emotional
distress. Complainant testified that the affect that Respondent's discrim-
inatory actions had on her wer	e “	dev	ast	at	i	ng”	. (	Tr	.78)	. I	n l	i	ghtof
Compl	ai	nant	’	s t	est	i	mony and t	he t	ot	al	i	t	yoft	he ci	r	cumst	ances,t	he ALJ
recommends that Complainant be awarded $4,000.00 for humiliation and
emotional distress.
PUNITIVE DAMAGES
5. 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. Schoenfelt v. Ohio Civil Right Comm., (1995),
105 Ohio App.3d 379, 385, citing and quoting, Marr v. Rife, 503 F.2d 735, 744
(6th Cir. 1974).

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6. 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.8
O.A.C. 4112-6-01.
7. Applying the foregoing criteria to this case:
 Respondent's actions were intentional. Respondent intended
to deny a black person (prospective homebuyer) the
opportunity to negotiate for the purchase of available lots at
the Skylark Drive development.
 The Commission did not present evidence that there have
been previous findings of unlawful discrimination against
Respondent.
 The Commission did not present evidence at the hearing
aboutt	hesi	zeofRespondent	’	shousi	ngaccommodat	i	onsor
its profitability.
8 This criteria is more appropriately considered when determining actual damages.

21
 Neither the Commission nor Respondent presented any
ev	i	dence r	egar	di	ng Respondent	’	s cooper	at	i	on orl	ack of
cooperation during the investigation.
8. Based on the foregoing discussion, the ALJ recommends that
Respondent be assessed punitive damages in the amount of $6,000.00.
ATTORNEY'S FEES
9. The Commission is entitled to attorney's fees. R.C. 4112.05(G)(1);
Schoenfelt, 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.
10. In order to create a record regarding attorney's fees, the
Commission's counsel should file affidavits from plaintiffs' attorneys in Summit
County, Ohio regarding the reasonable and customary hourly fees 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.

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11. I	ft	he Commi	ssi	on adopt	st	he ALJ’	sReport and the parties
cannot agree on the amount of attorney's fees, the Commission should
file an Application for Attorney's Fees within thirty (30) days after the
ALJ’	sRepor	ti	sadopt	ed.Respondentmayr	espondt	ot	heCommi	ssion's
Application for Attorney's fees within thirty (30) days from receipt of the
Commission's Application for Attorney's Fees.
12. 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.

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RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint #8915
that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of Chapter 4112 of the Revised Code;
2. The Commission order Respondent, within ten (10) days of receipt of
t	he Commi	ssi	on’	s Fi	nalOr	der	,t	o payCompl	ai	nant $4,000.00 in actual
damages; and
3. The Commission order Respondent, within ten (10) days of receipt of
t	heCommi	ssi	on’	sFi	nalOr	der	,t	opayCompl	ai	nant$6,	000.	00i	npuni	t	i	v	e
damages.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
November 3, 2003

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
ROSALYN M. GREENE
Complainant Complaint No. 8915
(AKR) H3102799 (24509) 020400
and HUD #: 05 –00 –0146 –8
HELLENA VILLEMAIN AND
VILLEMAIN REALTY, INC.
Respondent
ADDENDUM TO CHIEF ADMINISTRATIVE LAW JUDGE'S RECOMMENDATIONS
RE:THECOMMI	SSI	ON’	SAPPLI	CATI	ON FOR ATTORNEY’	SFEES
JIM PETRO
ATTORNEY GENERAL
Marilyn Tobocman Jonathan D. Tucker, Esq.
Principle Assistant Attorney General 7 West Bowery Street, Suite 604
Civil Rights Section Akron, OH 44308
State Office Building, 11th Floor (330) 762-9191
615 West Superior Avenue
Cleveland, OH 44113-1899 Counsel for Respondent
(216) 787-3030
Counsel for the Commission
Andrew L. Margolius, Esq. Rosalyn M. Greene
1100 Illuminating Building 1520 Superior Avenue
55 Public Square Akron, OH 44307
Cleveland, OH 44113-1901
(216) 621-6214 Complainant
Counsel for Complainant
ALJ’SREPORTBY:
Denise M. Johnson
Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

1
PROCEDURAL HISTORY
On November 3, 2003, the ALJ issued Findings of Fact, Conclusions
ofLaw,and Recommendat	i	ons(	ALJ’	sRepor	t	)onl	i	abi	l	i	t	yanddamages
i	nCompl	ai	nt	No.	8915. Besi	desaCeaseandDesi	st	Or	der	,	t	heALJ’	sRepor	t
recommended the Commission award Complainant Rosalyn M. Greene
$4,000.00 in actual damages and assess Respondent $6,000.00 in
punitive damages.
The Commi	ssi	on adopt	ed t	he ALJ’	s Repor	ton Januar	y 8,2004.
Counsel for the Commission filed an Application f	orAt	t	or	ney	’	s Feeson
February 23, 2004.1
1 Respondentdi	dnotf	i	l	ear	epl	yt	ot	heAppl	i	cat	i	onf	orAt	t	or	ney’	sFees.

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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	’	sf	ees.
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
at	t	or	ney’	sf	ees. . . . (Emphasis added.)
Such attorney’	sf	eesmaybepai	ddi	r	ect	l	yt	ot	heCommi	ssi	on’	scounsel	,t	he
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. I	ndet	er	mi	ni	ngwhatconst	i	t	ut	esr	easonabl	eat	t	or	ney	’	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

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t	i	meex	pended “	i	n gr	eatdet	ai	l	”	,buti	tshoul	d atl	easti	dent	i	f	y t	he
“	gener	al	subj	ectmat	t	er	”ofsuchex	pendi	t	ur	es.Id., at 437, 31 FEP Cases at
1174,n.	12.Ov	er	al	l	,t	he Commi	ssi	on’	s counselmustex	er	ci	se “	bi	l	l	i	ng
j	udgment	”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 r	equest	ed hour	l	y r	at	e i	s “	i	n l	i	ne wi	t	h t	hose
prevailing in the community for similar services by lawyers of reasonably
compar	abl	eski	l	l	,ex	per	i	ence,andr	eput	at	i	on.	” Blum, supra at 895-96, 34
FEP Cases at 421, n.11.
4. Although the lodestar calculation is presumed reasonable, there
maybe ci	r	cumst	ances wher	e t	hatcal	cul	at	i	on “	r	esul	t	s i	n a f	ee t	hati	s
ei	t	herunr	easonabl	y l	ow orunr	easonabl	y hi	gh.	” Id., at 897, 34 FEP

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Cases at 421. In such cases, the ALJ may adjust the lodestar amount
upward or downward, at her 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
at	t	or	ney	’	si	nabi	l	i	t	yt	o acceptot	hercases;t	he f	ee cust	omarily
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.2
5. In weighing these factors, the most important factor is the results
obtained. Hensley, supra at 434, 31 FEP Cases at 1173. To be
uphel	d,af	eeawar	dmustbe“	r	easonabl	ei	nr	el	at	i	ont	ot	her	esul	t	sobt	ai	ned.	”
Id., at 440, 31 FEP Cases at 1176.
2 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.

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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 62.1 hours on legally-related work.
7. The Commission also satisfied its burden of providing evidence in
support of the requested hourly rate ($200.00). The Commission provided an
affidavit from Brian J. Williams and Andrew L. Margolius, both of whom
are attorneys who represent plaintiffs in civil rights cases in the Akron
area. Williams stated his hourly fee is $195.00 and that this rate is
quite reasonable for legal work in the Summit County area.
Additionally, Margolius stated his hourly fee is $245.00 and that an
hour	l	yr	at	e of$170.	00 t	o $200.	00 perhouri	s“	v	er	yr	easonabl	e,and i	s
consi	st	entwi	t	h [	Ms.Tobocman’	s]experience and the prevailing market
r	at	ei	nt	heAkr	on,Ohi	oar	ea.	”

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8. After reviewing the billing log and the affidavits provided by the
Commission, the ALJ found the number of hours claimed and the
requested hourly rate reasonable.
9. Having considered the results obtained by the Commission, the
ALJ concludes that the requested fee is reasonable in relation to the
r	esul	t	s. Ther	ef	or	e,t	heCommi	ssi	oni	sent	i	t	l	edt	o $12,420.	00 i	nat	t	or	ney	’	s
fees for time expended on legally-related work.
10. The Commission also requested compensation for 8.5 hours of
travel time. 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 ALJ recommends an
award of $212. 50 for travel time.

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RECOMMENDATIONS
For all of the foregoing reasons, the ALJ recommends that the
Commi	ssi	on’	sFi	nalOr	deri	nCompl	ai	ntNo.8915i	ncl	udeanOr	der requiring
Respondentt	opay $12,	632.	50 i	nat	t	or	ney	’	sf	eest	ot	heOf	f	i	ceoft	heOhi	o
Attorney General.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
April 26, 2004