Dontia Owens v. Chad Trent and James Malone

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
DONTIA OWENS
Complainant 	Complaint No. 9190
(AKR) H3032000 (25607) 031901
and 	05 – 01 – 0743 – 8
CHAD TRENT & JAMES MALONE
Respondent
ADMINISTRATIVE LAW JUDGE’S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Marilyn Tobocman 	Chad Trent
Principal Assistant Attorney General 	3270 Maplegrove Road
Civil Rights Section 	Wooster, OH 	44691
State Office Tower, 11th Floor r
615 West Superior Avenue 	James Malone
Cleveland, OH 	44113-1899 	% Kristy Peyatt
216 - 787 - 3030 	1173 Rebecca Street, Apt. G
Wooster, OH 	44691
Counsel for the Commission
Respondents
Andrew L. Margolius, Esq. 	Dontia Owens
1600 Illuminating Building 	1855 Mechanicsburg Road, Apt. A - 1
55 Public Square 	Wooster, OH 	44691
Cleveland, OH 	44113
216 – 621 – 6214 	Complainant
Counsel for Complainant
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
Dontia Owens (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on March 19, 2001.
The Commission investigated and found probable cause that Chad
Trent and James Malone (Respondents) engaged in unlawful discriminatory
practices in violation of R.C. 4112.02(H)(4).
The Commission issued a Complaint, Notice of Hearing, and Notice of
Right of Election on November 8, 2001. 	Respondents did not file Answers.
The Commission filed a Motion for Default Hearing on March 5, 2003.1 The
public hearing was held on November 24, 2003. 	The delay in holding the
hearing was due to the imprisonment of Respondents and the Commission’s
identification of valid addresses upon which to serve Respondents after their
release from imprisonment.2 Respondents did not appear at the hearing.
1 The Commission’s Motion for Default Hearing was granted at the hearing.
2 James Malone pled guilty to ethnic intimidation and criminal damaging for which
he received a six-months sentence and a fine of $250.00. 	Chad Trent pled guilty to
escape, ethnic intimidation, and vandalism for which he received a two-year prison
sentence. 	(Comm. Ex. 2 and 3)

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The Record consists of the previously described pleadings, a transcript
consisting of 33 pages of testimony, exhibits admitted into evidence at the
hearing, and a post-hearing brief filed by the Commission on February 17,
2004. 	Respondents did not file post-hearing briefs.
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.

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1. Complainant filed a sworn charge affidavit with the Commission on
March 19, 2001.
2. The Commission determined on August 30, 2001 that it was probable
that Respondents engaged in unlawful discriminatory practices 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. 	Complainant is a black person (African-American), who resided
with her family at 1173 Rebecca Street, Apt. H, in Wooster, Ohio.
5. 	On or about March 20, 2000, Complainant discovered that
someone had vandalized her property, which included the spray painting of
“KKK”, swastikas, and “nigger, please” 	on the doors, in addition to other
racially derogatory words on the walls, doors, and other areas of the property,
and placed a burned cross in the backyard.

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6. 	Subsequent to the events of March 20, 2000, the Wooster Police
Department conducted a criminal investigation that showed or tended to show
that Respondents had engaged in the acts of vandalism.
7. 	As a result of the police investigation and subsequent criminal
proceedings, Respondents Chad Trent and James Malone entered into a plea
of guilty before the Wayne County Court of Common Pleas and were
convicted of ethnic intimidation and vandalism.
8. 	Respondents intimidated or attempted to intimidate Complainant
and her family and threatened and interfered with the exercise or enjoyment
of the rights of Complainant and her family in violation of Revised Code
4112.02(H)(12).

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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 Respondents
intimidated and threatened Complainant because she exercised and enjoyed
a right granted and protected by division (H) of R.C. 4112.02, the right to be
free of discrimination in the renting of a housing accommodation or otherwise
make unavailable housing accommodations because of race.
2. 	This allegation, if proven, would constitute a violation of R.C.
4112.02(H)(12), which provides that it is unlawful to coerce, intimidate,

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threaten, or interfere with any person in their enjoyment of a housing
opportunity.
3. 	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).
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.
5. 	In Virginia v. Black, 155 L. Ed. 2d 535 (2003), the court reviewed
the history of the use of the symbol, the swastika and the burnt cross, and the
message that is intended to be communicated to the recipient. 	The court
concluded their discussion by stating:

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In summary, while a burning cross does not inevitably convey a
message of intimidation, often the cross burner intends that the
recipients of the message fear for their lives. And when a cross
burning is used to intimidate, few if any messages are more
powerful.
Id. at 551.
6. 	The evidence in this case shows that Respondents’ actions toward
Complainant were motivated by her race.
7. 	Complainant and her children were the only black family living in
the apartment complex.
8. 	The 	racist symbols and graffiti, and the burning of the cross on
Complainant’s lawn were done with the intent and purpose of threatening and
intimidating Complainant and her children, thereby interfering with their right
to enjoy their housing accommodations.
9. 	When Complainant was asked how she was affected by the burnt
cross and the racially derogatory word “nigger” being painted on her door, she
replied:

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It affected me a lot. 	I couldn’t work for a while because I was
scared to go out because I didn’t know who had did it or who
theses people were. I didn’t want to talk to nobody. I just kept to
myself. I sent my kids away from home because I didn’t know if
they was going to come back and get us or what they was going
to do.
(Tr. 12)
10. 	When asked by Commission’s counsel how she felt now that
three years had passed since the event, Complainant responded:
I’m still terrified. I’m scared for my children. The worse—because
I don’t know what these people look like. I still don’t know. Like
they’re out now and I don’t know what’s going to happen. I’m just
really scared.
(Tr. 13)
DAMAGES
11. 	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
12. 	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. 	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.3 Seaton v. Sky Realty Co., Inc.,
491 F.2d 634, 636 (7th Cir. 1974).
3 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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13. 	In 	this 	case, 	the 	Commission 	presented 	evidence 	that
Respondents’ discriminatory actions caused Complainant emotional distress.
Complainant lost her composure during the hearing when giving testimony
about the affects that Respondents’ actions had on her and her family.
14. 	Complainant’s 	testimony 	about 	the 	emotional 	distress 	that
she 	suffered 	from 	Respondents’ 	discriminatory 	actions 	was 	credible.
Complainant’s show of emotion at the hearing was sincere. 	In light of
Complainant’s testimony and the totality of the circumstances surrounding
Respondents’ discriminatory actions, the Administrative Law Judge (ALJ)
recommends that Complainant be awarded $7,500 from each Respondent
for her emotional distress.
PUNITIVE DAMAGES
15. 	The purpose of an award of punitive damages pursuant to R.C.
4112.05(G) is to deter future illegal conduct. 	Ohio Admin. Code 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.,

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(1995), 105 Ohio App.3d 379, 385, citing and quoting, Marr v. Rife, 503 F.2d
735, 744 (6th Cir. 1974).
16. The amount of punitive damages depends on a number of factors,
including:
• 	The nature of Respondents’ conduct;
• 	Respondents’ prior history of discrimination ;
• 	Respondents’ cooperation or lack of cooperation during the
investigation of the charge; and
• 	The effect Respondents’ actions had upon Complainant.4
Ohio Admin. Code 4112-6-01.
17. 	Applying the foregoing criteria to this case:
• 	The actions of Respondents were egregious.
• 	Respondents did not participate in the investigation of 	the
Commission’s 	charge of discrimination. (Comm. Br., Ex. 1,
Conciliation Report)
• 	The Commission did not present any evidence that there
have 	been 	previous 	findings 	of 	unlawful 	discrimination
against Respondents.
4 This criteria is more appropriately considered when determining actual damages.

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• 	Complainant testified about the emotional distress that she
suffered as a result of Respondents’ conduct. 	Her testimony
was credible.
18. 	Based on the foregoing discussion, the ALJ recommends that
each 	Respondent 	be 	separately 	assessed 	punitive 	damages in the
amount of $10,000.
ATTORNEY'S FEES
19. 	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.
20. 	To create a record regarding attorney's fees, the Commission's
counsel should file affidavits from plaintiffs' attorneys in Cuyahoga County,
Ohio regarding the reasonable and customary hourly fees they charge in
housing discrimination cases. 	Also, a detailed accounting 	of 	the 	time
spent on 	this 	case 	must 	be 	provided 	and 	served 	upon 	Respondents.

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Respondents may respond with counter-affidavits and other arguments
regarding the amount of attorney's fees in this case.
21. 	If the Commission adopts the ALJ’s recommendations and the
parties cannot agree on the amount of attorney's fees, the Commission
should file an Application for Attorney's Fees within 30 days after the ALJ’s
Report 	is 	adopted. 	Respondents 	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.
22. 	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 No.
9190 that:
1. 	The Commission order Respondents to cease and desist from all
discriminatory practices in violation of Chapter 4112 of the Revised Code;
2. 	The Commission order each 	Respondent to pay Complainant
$7,500 in actual damages (for a combined total of $15,000); and
3. 	The Commission order each Respondent to pay Complainant
$10,000 in punitive damages (for a combined total of $20,000).
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
November 30, 2004