John Work v. Eaglewide Condo Association, et al.

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
JOHN WORK
Complainant
Complaint No. 9778
v. (CIN) H5012804 (30684) 020204
05 – 04 – 0455 – 8
EAGLES LAKE CONDOMINIUM
ASSOCIATION, MEMBERS AND
OFFICERS OF BOARD OF TRUSTEES,
AND FRANK BIRRI
Respondents
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
RICHARD CORDRAY
ATTORNEY GENERAL
Lori A. Anthony, Esq. C. J. Schmidt, Esq.
Chief, Civil Rights Section Wood & Lamping
State Office Tower, 15th Floor 600 Vine Street, Suite 2500
30 East Broad Street Cincinnati, OH 45202-2491
Columbus, OH 43215-3428 513 – 852 – 6000
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
Miriam H. Sheline, Esq. John Work
Pro Seniors, Inc. % Kathryn Work
7162 Reading Road, Suite 1150 5485 – I Michelle Oaks Court
Cincinnati, OH 45237 Cincinnati, OH 45248
513 – 458 – 5509
Complainant
Counsel for Complainant
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
State Office Tower, 5th Floor
30 East Broad Street
Columbus, OH 43215-3414
614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
John Work (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on February 2, 2004.
The Commission investigated and found probable cause that
unlawful discriminatory practices had been engaged in by Eagles Lake
Condominium Association, Carolyn Hohnstein, Joan Menchen, Joan
Schneider, Jim Searcy, Members and Officers of the Board of Trustees
for the Eagles Lake Condominium Association, and Frank Birri,
President of the Board of Trustees for the Eagles Lake Condominium
Association, individually and as representatives of all members of the
Eagles Lake Condominium Association and owners of units in the
Eagles Lake Condominium (Respondents) in violation of Revised Code
Section (R.C.) 4112.02(H).
The Commission issued a Complaint, Notice of Right of Election,
and Notice of Hearing on November 18, 2004. The Commission
subsequently attempted conciliation. The public hearing was held in

2
abeyance pending conciliation efforts. The matter was scheduled for
hearing after conciliation efforts failed.
The Complaint alleges that Respondents failed and refused to
permit Complainant to make reasonable modifications to the stairwell
and other common and public use areas of Respondents’ facilities
and property, and have denied to Complainant the full use and
enjoyment of the housing accommodations, for reasons not applied
equally to all without regard to their disability status.
Respondents filed a timely Answer to the Complaint admitting
certain factual allegations, but denied they engaged in any unlawful
discriminatory practices.
A public hearing was held on June 20, 2006 and October 25,
2006 at the Commission’s Cincinnati Regional office, 7162 Reading
Road, Cincinnati, Ohio. A trial deposition of Michael Boeckermann
was also taken on June 6, 2006, which is a part of the hearing record.

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The record consists of the previously described pleadings;
transcripts consisting of 310 pages of testimony; exhibits admitted into
evidence at the hearing; and the post-hearing briefs filed by the
Commission on March 5, 2008; by Complainant on April 11, 2008; by
Respondent on April 9, 2008; and the Commission’s Reply Brief, filed
April 28, 2008.1
1 There was a delay in briefing because of multiple crucial mistakes in the
transcript, i.e. grammar, punctuation, spelling and reversal of the questions and
responses by the attorneys. The transcript for the June 20, 2006 hearing was
received on July 24, 2006. The transcript for the October 25, 2006 hearing was
received October 29, 2007. For the above cited reasons, Counsel for the
Commission requested the transcript be returned and corrected. The transcript
was returned to the transcriber. When it was sent back to the Division of
Hearings several months later, the transcript had not been corrected. It was
returned to the transcriber a second time. The corrected transcript was received
January 20, 2008. Briefing was underway and was completed by April 28, 2008.

4
FINDINGS OF FACT
The following findings are based, in part, upon the ALJ's
assessment of the credibility of the witnesses who testified before her
in this matter. The ALJ has applied the tests of worthiness of belief
used in current Ohio practice. For example, she considered each
witness's appearance and demeanor while testifying. 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 2, 2004.

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2. The Commission determined on October 28, 2004 it was
probable that unlawful discriminatory practices had been engaged in
by Respondents in violation of R.C. 4112.02(H).
3. The Commission attempted and failed to eliminate the
alleged unlawful discriminatory practices by informal methods of
conciliation.
4. Respondents are providers of “housing accommodations” as
defined by Ohio Revised Code section 4112.01(A)(10), maintaining
such accommodations at 5150 Shoreview Run, Cincinnati, Hamilton
County, Ohio.
5. Complainant owned and resided in a housing unit located
within Respondents’ complex, Eagles Lake Condominiums, located at
5228 Foxridge, Cincinnati, Ohio.

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6. Complainant and his wife, Kathryn, purchased and moved
into a residential condominium unit within Respondents’ complex in
1994.
7. Respondents’ complex consists of 312 residential units.
It is located just outside of Cincinnati in Green Township.
(Vol. I, Tr. 21)
8. Complainant and his wife lived on the second floor of a
five-unit building. Complainant’s home was located in an area of the
condominium community where the windows in his condominium had
views of a wooded area. (Vol. I, Tr. 80)
9. They had to enter the building from the parking lot and
climb a flight of stairs to reach the door of their unit.
10. Complainant and all other condominium owners comprise
the Eagles Lake Condominium Association (the Association).
(Vol. I, Tr. 21)

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11. The Association’s rules and policies are contained in its
By-Laws and Declaration. (Vol. I, Tr. pp. 21-22; Comm. Exs. 8, 12)
12. The Board of Trustees (the Board) carries out the business
of the Association. (Vol. I, Tr. pp. 23-24)
13. The business of the Board is generally carried out by the
Board President, which includes making the agendas for the Board
meetings. (Vol. I, Tr. pp. 24-26)
14. Frank Birri (Respondent Birri) has been President of the
Eagles Lake Condominium Association Board of Trustees since
November of 2003. (Vol. I, Tr. 24)
15. Complainant’s medical conditions caused him to have
difficulty walking, and he could not climb the stairs to his unit without
assistance. (Vol. I, Tr. 70)
16. His conditions worsened to the point his kidney doctor
informed him that he would soon need dialysis. (Vol. I, Tr. pp. 70-71)

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17. Complainant was concerned that kidney dialysis would
make him even more fatigued to the point where he would not be able
to walk up and down the stairs to and from his unit.
18. Complainant saw a television advertisement about a
chairlift and called to inquire about the product. (Vol. I, Tr. 71)
19. Complainant received a brochure containing models of
several chairlifts.
20. Complainant called Respondent Birri and requested
permission to install a chairlift. (Vol. I, Tr. 31, 74)
21. Complainant sent copies of five or six brochures he had
obtained from various chairlift manufacturers in a letter to
Respondent Birri in November of 2003. (Vol. I, Tr. 33; Comm. Ex. 11)

9
22. In the letter he requested permission to install a chairlift
in the common stairwell in his condominium unit based on his health
and difficulty walking up and down the common stairwell.
(Vol. I, Tr. 77)
23. Respondent Birri sent Complainant a letter denying his
request based on the need for a minimum of twenty (20) inches of
clear width in the stairway. (Comm. Ex. 2)
24. Respondent Birri offered as an alternative to the
installation of a chairlift that Complainant purchase a condo-
minium unit with Eagles Lake stating:
However, if there are sufficient “Walk In” condominium
units available, as there are at Eagles Lake, then Eagles
Lake does not have to permit the installation of chair lifts in
the common stairwells.
(Comm. Ex. 2)
25. Thereafter, Complainant contacted the Green Township
Fire Department regarding safety issues with the installation of a
chairlift.

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26. Complainant then sent a second letter to the Board in
which he addressed safety concerns and again requested permission
to install a chairlift. Complainant also asked permission to appear at
the next Board meeting. (Comm. Ex. 3)
27. Based on the advice of Respondent Birri, Complainant
appeared before the Board of Trustees, and not at the Board meeting
which is attended by all of the residents.
28. Complainant and his family appeared before the Board of
Trustees prior to the January 28, 2004 Board meeting to explain why
Complainant needed a chairlift.
29. The trustees raised concerns about potential problems,
including the need for ground fault wiring, the blocking of the stairwell
for emergency personnel, blocking of another resident’s doorway,
the electricity going off, and the ability to replace the carpet (when the

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chairlift was removed) with matching carpeting in the other buildings.
(Vol. I, Tr. pp. 46-53; Comm. Ex. 17)
30. In a letter dated January 30, 2005, the Board denied
Complainant’s request. The Board provided Complainant a
generalized cost comparison between installing a chairlift and moving
into another condominium unit on the ground floor.
31. Because of the Respondents’ continued denials of
Complainant’s requests, Complainant determined he and his wife
needed to move to another condominium because of the advancement
of his failing health.
32. Complainant and his wife moved to a new third floor
condominium with an elevator. The new condominium is not located
in Eagles Lake Condominiums.

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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.2
2 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 alleges that Respondents failed and
refused to permit Complainant to make reasonable modifications to
the stairwell and other common and public use areas of Respondents’
facilities and property, and have denied to Complainant the full use
and enjoyment of the housing accommodations, for reasons not
applied equally to all without regard to their disability status.
2. This allegation, if proven, would constitute a violation of
R.C. 4112.02(H)(18)(a) and (19), which provides, in pertinent part,
that:
It shall be an unlawful discriminatory practice:
(H) For any person to:
(18)(a) Refuse to permit, at the expense of a person with
a disability, reasonable modifications of existing housing
accommodations that are occupied or to be occupied by the
person with a disability, if the modifications may be
necessary to afford the person with a disability full
enjoyment of the housing accommodations.
3. The landlord of housing accommodations can condition the
permission of proposed modifications by asking the disabled tenant to
do one or more of the following:

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(1) Providing a reasonable description of the proposed
modification and reasonable assurances that the
proposed modification will be made in a workmanlike
manner and that any required building permits will be
obtained prior to the commencement of the proposed
modification;
(2) Agreeing to restore at the end of the tenancy the
interior of the housing accommodations to the
condition they were in prior to the proposed
modification, but subject to reasonable wear and tear
during the period of occupancy, if it is reasonable for
the landlord to condition permission for the proposed
modification upon the agreement;
(3) Paying into an interest-bearing escrow account that is
in the landlord’s name, over a reasonable period of
time, a reasonable amount of money not to exceed the
projected costs at the end of the tenancy of the
restoration of the interior of the housing accom-
modations to the condition they were in prior to the
proposed modification, but subject to reasonable wear
and tear during the period of occupancy, if the
landlord finds the account reasonably necessary to
ensure the availability of funds for the restoration
work. The interest earned in connection with an
escrow account described in this division shall accrue
to the benefit of the disabled tenant who makes
payments into the account.
R.C. 4112.02(H)(18)(a)(i), (ii), and (iii).

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4. Further it is an unlawful discriminatory practice for any
person to:
refuse to make reasonable accommodations in rules,
policies, practices, or services when necessary to afford a
person with a disability equal opportunity to use and enjoy
a dwelling unit, including associated public and common
use areas.
R.C. 4112.02(H)(19).
5. 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(E) and (G).
6. 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.

16
7. The same standards of proof that apply to employment
discrimination cases generally apply to housing discrimination cases.3
8. 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).
9. 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 based on the individual’s disability by proving that:
(1) Complainant is disabled;
(2) that the Respondent knew or should reasonably be
expected to know of the disability;
(3) that accommodation of the disability may be
necessary to afford the disabled person an equal
opportunity to use and enjoy the dwelling;
3 Although the Supreme Court has never addressed the issue, “… lower
courts 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.

17
(4) that the accommodation is reasonable; and
(5) that Respondent refused to make the requested
accommodation.
Dubois v. Ass’n. of Apt. Owners, 453 F.3d 1175, 1179
(9th Cir. 2006).
10. Courts typically have found an accommodation to be
reasonable when it imposes no undue financial or administrative
burdens on the Respondent. Hubbard v. Samson Mgmt. Corp., 994
F. Supp. 187, 190 (S.D. N.Y. 1998).
11. Courts also recognize the denial of an accommodation
request that would pose a threat to the safety of the disabled
individuals and others is an affirmative defense. Howard v.
Beavercreek, 108 F. Supp. 2d 866, 875 (S.D. Ohio 2000), aff’d., 276
F. 3d 802 (6th Cir. 2002).
12. After the Commission establishes a prima facie case of
housing discrimination based on Complainant’s disability, the burden

18
shifts to Respondents to articulate a legitimate, nondiscriminatory
reason to rebut the presumption of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792(1973); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981).
13. If Respondents successfully articulate a legitimate, non-
discriminatory reason, the Commission must prove by a
preponderance of the evidence that Respondents’ articulated reason
is a pretext for discrimination. Id.
14. Pretext may be proven either by direct evidence or by
discrediting rebuttal evidence. Complainant is required to prove
pretext by a preponderance of the evidence. Plumbers v. Steamfitters
Joint Apprenticeship Committee v. Ohio Civil Rights Comm., 66 Ohio St.
2d 192, 198 (Ohio 1981).
15. First, the Commission must establish that Complainant is
disabled. R.C. 4112.01(A)(13) defines “disability” as:

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(…) a physical or mental impairment that substantially
limits one or more major life activities, including the
functions of caring for one’s self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working; a record of a physical or mental impairment; or
being regarded as having a physical or mental impairment.
16. R.C. 4112.01(16)(a) defines physical or mental impairment”
to include any of the following:
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive;
digestive; genito-urinary; hemic and lymphatic; skin;
and endocrine;
(…)
(ii) Diseases and conditions, including, but not limited to,
orthopedic, visual, speech, and hearing impairments,
cerebral palsy, autism, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes,
human immunodeficiency virus infection, mental
retardation, emotional illness, drug addiction, and
alcoholism.

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17. Complainant has diabetes, high blood pressure, eczema,
neuropathy, and emphysema and has had these conditions through-
out his residency at Eagles Lake Condominiums. (Vol. I, Tr. 68)
18. Complainant’s conditions cause him to have difficulty
walking, and he could not climb the stairs to his unit without
assistance. (Vol. I, Tr. 70)
19. Complainant spoke with Respondent Birri several times
seeking Board approval for the installation of a chairlift in the
common hallway of his condominium unit.
20. The first occasion was after Complainant received the first
denial letter (dated November 3, 2003) to his request to install a
chairlift due to his health conditions. (Vol. I, Tr. 62; Comm. Ex. 1)
21. Complainant specifically told Respondent Birri during that
conversation that he needed the chairlift because he would be going
on dialysis. (Vol. I, Tr. 63)

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22. Complainant then requested permission to appear before
the Board.
23. At the Board of Trustees meeting Complainant appeared
with his two daughters and his wife:
Ms. Anthony: Tell me about the board meeting that you
appeared.
Mr. Work: Myself, my two daughters, and wife. And
they took care of some of the regular stuff
and then they asked me to present what I
had to say.
Ms. Anthony: Who asked you, I am sorry?
Mr. Work: Mr. Birri.
Ms. Anthony: Okay.
Mr. Work: So I told them about the dialysis and that I
couldn’t make the steps anymore and I
know once the dialysis starts that is it.
Then my daughters got up they said their
little spiel and Mr. Birri said that he would
let us know.
Ms. Anthony: Did anyone from the board in that meeting,
did anyone from the board ask you to give
them any further information about your
medical conditions?

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Mr. Work: No.
(Vol. I, Tr. pp. 63-64)
24. Three factors should be considered when determining
whether an impairment substantially limits an individual's ability to
perform a major life activity:
(1) The nature and severity of the impairment;
(2) The duration or expected duration of the impairment;
and
(3) The permanent or long-term impact, or the expected
permanent or long-term impact of or resulting from
the impairment.
29 C.F.R. § 1630.2(j)(2).
25. At no time prior to denying Complainant’s request to install
a chairlift did Respondents question whether or not Complainant’s
conditions affected his ability to walk.

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26. Complainant, his wife and two daughters communicated to
the Board of Trustees how Complainant’s medical conditions affected
his ability to walk. (Tr. pp. 63-64)
27. Walking is a major life activity as defined by R.C.
4112.01(A)(13). Major life activities are “those basic activities that the
average person in the general population can perform with little or no
difficulty.” EEOC Interpretive Guidance, at § 1630.2(i).
28. Complainant’s doctor provided a letter dated January 1,
2004 that states Complainant “has multiple medical problems that
make it very difficult for him to walk any distances and especially up
and down stairs.” (Comm. Ex. 24)
29. Respondents were aware Complainant had a condition
which affected his kidneys and affected his ability to walk. The
existence of a (disability) does not depend upon appearance; it
depends upon physical condition. If Respondents were skeptical

24
about Complainant’s disabilities it was Respondents’ duty to request
documentation or open dialogue. Jankowski Lee & Associates v.
Cisneros, 91 F.3d 891, 897 (7th Cir. 1996).
30. The Commission also established the chairlift would have
been necessary to afford Complainant an equal opportunity to use and
enjoy his own dwelling.
Congress intended the FHAA to protect the right of
handicapped persons to live in the residence of their choice
in the community.
City of Edmonds v. Washington State Bldg. Code Council, 18
F.3d 802, 806 (9th Cir. 1994), aff'd, 115 S. Ct. 1776 (1995).
(…) the question (is) not whether any housing was made
available, but whether the housing the individual desired
was denied on impermissible grounds.
United States v. Badgett, 976 F.2d 1176, 1179 (8th Cir.
1992).
31. Complainant, his wife, and daughters gave credible
testimony about Complainant’s difficulties walking up and down the
stairs due to his medical conditions. The chairlift would have

25
eliminated those difficulties and given him the same opportunity to
enjoy his premises as non-disabled residents.
32. Respondents assert that installation of the chairlift in the
common stairwell would not be a reasonable accommodation because
it would create a safety hazard.
33. Respondents did not contact the Fire Department, ask for
building permits, or measure the stairs prior to making the decisions
on four (4) separate occasions to deny Complainant’s requests to
install a chairlift. (Vol. I, Tr. pp. 41, 44-45, 56, 213-214; Resps’
Admissions Nos. 7, 8)
34. Respondents’ denials were unconditional. Pursuant to R.C.
4112.02(H)(18)(a)(i), before denying a request to install the chairlift,
Respondents’ approval could have been conditioned upon
Complainant’s submission of building/installation plans, obtaining

26
final approval for his building/installation plans, and paying into a
reasonable escrow account.
35. Courts have interpreted analogous statutory provisions as
requiring housing providers to give conditional approval, reserving
final approval on the satisfactory fulfillment of conditions set forth
therein. Elliot v. Sherwood Manor Mobile Home Park, 947 F. Supp.
1574 (M.D. Fla. 1996).
36. Since Respondents chose not to condition approval upon
information set forth in the above mentioned statutory provision, it
needed to provide credible evidence to rebut the Commission’s
allegation of failure to provide reasonable accommodation by
providing credible evidence the chairlift would create a safety hazard.
37. The Commission established a prima facie case of housing
discrimination/failure to accommodate based on disability:

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(1) Complainant is disabled due to multiple medical
conditions which affect his ability to walk;
(2) Respondents knew Complainant was disabled because
Complainant and his family members communicated
to the trustees at the board meeting the affect that
his disability had on his ability to walk up and down
the steps to his condominium;
(3) Complainant and his family also communicated to the
trustees how the chairlift was necessary to afford
Complainant the opportunity to use and enjoy his
condominium;
(4) Gregory Nichols testified that the stairwell could be
modified to accommodate a stairlift that would be
building-code compliant; and
(5) Respondents on four (4) separate occasions refused to
make the requested accommodation.
38. Instead of providing its own expert to refute the testimony
of the Commission’s expert witness, Respondents attempted to
discredit the testimony of the Commission’s expert witnesses.
39. Officer Michael Boeckermann is a Fire Prevention Officer
for Green Township Fire Department whose primary responsibility is
the enforcement of the Fire Code. Officer Boeckermann testified that

28
if there was an issue that was impeding egress that dealt with the
building code, the Fire Code was subservient to the building code.
(Boeckermann Depo, Tr. 30)
40. Gregory Nicholls, the Commission’s expert witness,4 testified
it was possible to make alterations to the stairs by moving the handrail
in order to create the extra stairwell width to install a building-code
compliant chairlift. (Vol. II, Tr. pp. 18-19)
41. Probably the most persuasive evidence that Respondents’
failure to accommodate Complainant’s requests to install a chairlift
based on his disability was there was no attempt made to verify the
safety concerns prior to denying Complainant’s requests. (Resps’
Admissions Nos. 7-8).
4 Mr. Nicholls is the chief building official for the City of Mason, Ohio.
In this position Mr. Nicholls conducts building department reviews, plans, does
inspections and sees that life, safety and accessibility is provided for building
construction in the City of Mason. Mr. Nicholls is a registered architect in the
State of Ohio, a State certified plans examiner and a State certified residential and
commercial building instructor. Mr. Nicholls has been an architect for twenty-
four (24) years. (Vol. II, Tr. Pp. 5-6)

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42. Respondents have failed to rebut the presumption of
discrimination by demonstrating that Complainant’s proposed
modification is unreasonable, i.e., would create a safety hazard. See
United States v. Freer, 864 F. Supp. 324, 326.
43. Respondents’ conduct is a violation of R.C. 4112.02
(H)(18)(a) and (19).
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 action, as well as reasonable attorney’s fees. 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.5 Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636
(7th Cir. 1974).
5 Although emotional injuries are difficult to quantify, "courts have
awarded damages for emotional harm without requiring proof of the actual value

31
3. In this case, the Commission presented evidence that
Respondents’ discriminatory actions caused Complainant economic
loss.
4. Instead of continuing to live in property that they owned
without a mortgage Complainant had to acquire debt in order to secure
accessible housing.
5. After Complainant and his wife moved to 5485 Michelle
Oaks Drive until they were able to sell their Eagles Lake Condominium
they continued to pay Eagles Lake Condominium dues, as well as
property taxes, homeowners’ insurance and utilities until it was sold
at the end of April 2005. (Vol. I, Tr. pp. 129-132, 135; Comm. Ex. 35.)
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).

32
6. Complainant also replaced an awning at the Eagles Lake
property before they were able to sell it.
7. The Commission provided evidence of the following out-of-
pocket expenses incurred by Complainant as a result of relocating to
5485 Michelle Oaks Drive:
 $20,000.00: The difference in the selling price of the
Eagles Lake property and the purchase of the Michelle
Oaks property;
 $1,489.12: Closing costs for financing replace-ment
housing;
 $1,690.00: Payment of Eagles Lake Condominium
dues while residing at Michelle Oaks Drive from May
2004 through April 2005;
 $684.00: Payment of utilities at Eagles Lake
Condominium from May 2004 through June 2005;
 $360.00: Payment of moving expenses;
 $849.00: Tax consequences for cashing in savings
bonds; and
 $1,672.00: Payments on the personal loan.
Total: $24,691.50
(Comm. Ex. 29)

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8. Respondent Birri and Respondent Board of Trustees are
each assessed $12,345.75 of Complainant’s out-of-pocket actual
damages.
9. The Commission also presented evidence Respondents’
discriminatory actions humiliated Complainant and caused him
emotional distress.
10. Complainant’s wife and his daughter, Deborah Brenner,
testified that Complainant had a difficult time going up and down the
stairs, at times needing assistance. Complainant was humiliated
because of the continued need for assistance and his difficulty getting
up and down the stairs.
11. Complainant was humiliated after Respondent Birri asked
that he make his request before the Board of Directors and make yet
another request for an accommodation that he felt was not being
taken seriously by Respondents.

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12. Complainant was humiliated and suffered emotional
distress at the thought of having to move away from a condominium
unit that he loved because of the nice wooded views from his unit.
He also was humiliated by the ease with which Respondents
modified the rules for cats rather than giving serious consideration
to allowing him to alter the common stairwell to accommodate his
disability. (Vol. I, Tr. 74, 79)
13. Finally, Complainant suffered emotional distress when he
had to take on debt in order to find a place where he would be able to
enter and leave his home without the difficulty of walking up and down
stairs because of his disabilities.
14. The Commission also requested actual damages for
Complainant’s “loss of freedom”. HUD v. Twinbrook Village Apts.,
FH-FL § 26, 157 at 26,267 (HUD ALJ 11-9-01) (actual damages
awarded to disabled resident where failure to provide ramp and curb
cuts for two years virtually made her “a prisoner in her own home”).

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15. Complainant was still able to walk to and from his
condominium, albeit with difficulty, at the time he requested an
accommodation from Respondents. At the time he made the request
he was anticipating his need for kidney dialysis in the not-too-distant
future would further impede his ability to walk up and down steps.
16. Complainant was, therefore, not a prisoner in his home
and the awarding of damages for “loss of freedom” would be
inappropriate.
17. However, for Complainant’s pain and suffering and
humiliation, Respondent Frank Birri is assessed $7,500.00 and
Respondent Board of Trustees is assessed $7,500.00.
18. The total amount of actual damages awarded to
Complainant is $39,691.50.

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PUNITIVE DAMAGES
19. 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).
20. The amount of punitive damages depends on a number of
factors, including:
1. The nature of Respondent’s conduct;
2. Respondent's prior history of discrimination;
3. Respondent's size and profitability;
4. Respondent's cooperation or lack of cooperation
during the investigation of the charge; and
5. The effect Respondents’ actions had upon
Complainant.6
O.A.C. 4112-6-01.
6 This criteria is more appropriately considered when determining actual
damages.

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21. Applying the foregoing criteria to this case:
1. Respondent Birri as Board President and Respondent
board showed thoughtlessness and indifference
toward Complainant in refusing to condition the
accommodation request on the fulfillment on the
conditions set forth in R.C. 4112.02(H)(12);
2. There is no evidence in the record of Respondents’
having a prior history of discrimination; and
3. Although Respondents consist of 312 condominium
units there was no testimony regarding profitability.
22. Based on the foregoing discussion, the ALJ recommends
Respondent Birri be assessed punitive damages in the amount of
$10,000.00 for his conduct and Respondent Board of Trustees be
assessed punitive damages in the amount $10,000.00 for their
conduct.

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ATTORNEY'S FEES
23. 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.
24. In order to create a record regarding attorney's fees, the
Commission's counsel should file affidavits from plaintiffs' attorneys
in Hamilton 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. Respondents may respond
with counter-affidavits and other arguments regarding the amount of
attorney's fees in this case.
25. If the Commission adopts the ALJ's Report and the parties
cannot agree on the amount of attorney's fees, the Commission

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should file an Application for Attorney's Fees (Application) within 30
days after the ALJ's Report is adopted. Respondents may respond to
the Commission's Application within 30 days from its receipt of the
Application.
26. Meanwhile, any Objections to this report should be filed
pursuant to the O.A.C. 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 of the foregoing reasons, it is recommended in Complaint
No. 9778 that:
1. The Commission order Respondent to cease and desist from
all discriminatory practices in violation of Chapter 4112 of the Revised
Code;

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2. The Commission order Respondent Birri and Respondent
Board of Trustees within 10 days of the Commission’s Final Order to
each issue a certified check payable to Complainant for $19,845.75, in
actual damages (Total: $39,691.50);
3. The Commission order Respondent Birri and Respondent
Board of Trustees within 10 days of the Commission’s Final Order to
each issue a certified check payable to Complainant for $10,000.00 in
punitive damages (Total: $20,000.00);
4. Respondents must change their policy on how residents
request accommodations. The new policy shall state that Eagles Lake
Condominiums complies with the Ohio Laws Against Discrimination
and welcomes all people, including those with disabilities;
5. The new policy shall not require residents with disabilities
to make a request in writing and shall require Respondents to respond
to the disabled resident’s request within ten (10) business days;

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6. Respondents’ policy will reflect and acknowledge its duty to
engage in a good faith dialogue with a resident in an effort to
accommodate the resident’s request;
7. The new policy must be distributed to all current residents
within six (6) months of the date of the Commission’s Final Order and
to those who become residents in the future;
8. Respondents must agree that for the next five (5) years,
every resident serving on the Board of Trustees shall receive training
on state and federal fair housing laws within sixty (60) days of
assuming their office;
9. For five (5) years Respondents shall preserve all records
relating to receipt and processing of requests for reasonable
accommodations, including requests for reasonable accommodations
in rules, policies, practices, or services when necessary to afford a

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disabled person equal opportunity to use and enjoy a dwelling unit;
and
10. Upon reasonable notice to Respondents, the Commission
shall be permitted to inspect and copy any of Respondents’ records
relating to compliance with these terms, provided, however, that the
Commission shall endeavor to minimize any inconvenience and
administrative burden to Respondents from such inspections.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
December 2, 2009