Juanita Carrillo v. Jerry and Pam Magers

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
JUANITA CARRILLO
Complainant 	Complaint #8138 	AMENDED
(TOL) H2071196 (21480) 111896
and 	HUD #: 05-97-0331-8
JERRY MAJERS
AND PAM MAJERS
Respondents
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Matthew D. Miko, Esq. 	Gary A. Reeve, Esq.
Assistant Attorney General 	Mowery & Youell
Civil Rights Section 	210 Cascade Corporate Center
State Office Tower, 15th Floor 	130 East Wilson Bridge Road
30 East Broad Street 	Worthington, OH 	43085-3428
Columbus, OH 	43215-3428 	(614) 888-1700
(614) 466-7900
Counsel for Respondents
Counsel for the Commission
Vincent B. Curry, Executive Director 	Juanita Carrillo
Fair Housing Advocates Assoc. 	1113 Vinal Street
520 South Main St., Suite 2541-J 	Toledo, OH 	43605
Akron, OH 44311-1010
(330) 253-2450 	Complainant
Complainant's Representative
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
Juanita Carrillo (Complainant) filed two sworn charge affidavits with the
Ohio Civil Rights Commission (Commission) on November 8, 1996. 	The
charge affidavits were amended on February 14, 1997. 	On September 15,
1997 the two charges were consolidated into a single charge.
The Commission investigated and found probable cause to believe that
unlawful discriminatory practices had been engaged in by Jerry and Pam
Majers (Respondents) 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 30, 1997.
The Complaint alleges that Respondents refused to rent to Complainant
because of her Mexican-American ancestry. 	Respondents filed a timely
Answer to the complaint.

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After the Commission issued its Complaint, the public hearing was held
in abeyance pending conciliation efforts. The Commission subsequently
attempted conciliation. 	Conciliation was unsuccessful. 	Therefore, the matter
was scheduled for public hearing.
A public hearing was held on September 29, 1998 at the Knox County
Courthouse in Mt. Vernon, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 137 pages of testimony; exhibits admitted into evidence at the
hearing; written stipulations of the parties, and the post-hearing briefs filed by
the Commission on January 4, 1999 and by Respondent on January 29, 1999.
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

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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
considered the extent to which each witness's testimony was supported or
contradicted by reliable documentary evidence.
1. 	Complainant filed two sworn charge affidavits with the Commission
on November 8, 1996. 	The charge affidavits were amended on February 14,
1997. 	On September 15, 1997 the two charges were consolidated into a
single charge.
2. 	The Commission determined on October 30, 1997 that it was
probable that unlawful discriminatory practices had been engaged in by
Respondent in violation of R.C. 4112.02(H).

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3. 	The Commission attempted to eliminate the alleged unlawful
discriminatory practices by conciliation.
4. 	Respondents are providers of housing accommodations. 	They own
a three-bedroom house at 308 Newark Road in Mt. Vernon, Ohio and another
three-bedroom house at 5 Riley Street in Mt. Vernon, Ohio. 	The house at 5
Riley Street is smaller than the house at 308 Newark Road. 	Respondent
Jerry Majers makes the final decision about renting each of the properties. He
is concerned about the number of persons occupying each property because
he believes that larger families cause more wear and tear on the property
creating more work for him.1
5. 	Complainant’s husband began looking for a house to rent in Mt.
Vernon in November 1995. 	In January 1996, Complainant, who is of
Mexican-American descent, began looking for a house to rent. 	She and her
husband were still looking for a house to rent in July 1996. 	The Newark Road
and Riley Street properties were both available for rent in July 1996.
1 Mr. Majers performs all of his own maintenance.

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6. 	Complainant made an appointment with Mr. Majers to see the
Newark Road property in July 1996. 	Complainant was allowed to tour the
house by herself, as was the Majers’ usual practice. When she was finished,
Complainant met with the Majers in the kitchen. 	She was given a lease
application to complete. 	Pursuant to their customary practice, the Majers told
Complainant to drop the application off or mail it back to them.
7. During the conversation, Jerry Majers, as was his normal practice,
asked Complainant the size of her family in order to ascertain how many
persons would be living in the house. 	Complainant replied that her family
consisted of herself, her husband, her two sons, her daughter, and her
granddaughter. 	During the conversation, she also told the Majers that her
family consisted of six persons. 	The Majers got the impression that six or
seven persons were going to occupy the property at Newark Road. 	This
exceeded the number of persons that Mr. Majers desired as tenants. 	He
believed that no more than five persons should occupy the house on Newark
Road.2
2 Apparently one of the three bedrooms is only large enough for one person.

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8. 	Subsequently, Complainant completed the rental application and her
husband mailed it to Respondents. 	Jerry Majers reviewed the application
and noted that there was only one wage earner in the family, Mr. Carrillo. He
preferred to rent to families which had more than one wage earner or more
than one source of income. 	Based on his impression that at least six persons
would be occupying the Newark Road Property and based on the information
contained in the rental application, Mr. Majers decided not to rent the Newark
Road property to Complainant.
9. After she did not hear from Mr. Majers for a few days, Complainant
concluded he had decided not to rent her the property on Newark Road.
Approximately two weeks later, Complainant’s husband called Mr. Majers
about the property on Riley Street. 	Mr. Majers told him he could view the
property when other couples were viewing it.
10. 	Complainant, accompanied by Christy Martinez, went to the Riley
Street property.3 When they arrived, Mr. Majers was standing outside talking
3 Christy Martinez was married to Complainant’s nephew. Complainant asked her
to accompany her to the property because a fair housing organization had advised her to
bring a witness with her when she looked at property. 	(Complainant testified that Christy
Martinez was not accompanying her as a witness; Complainant’s husband and Christy

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to a former tenant. 	He recognized her from a distance. 	Two other couples
were already inside the house when Complainant arrived. Mrs. Majers also
recognized Complainant and told her that the Riley Street property was
smaller than the Newark Road, but if Complainant wanted to look at the
house, she could do so.
11. Complainant and her niece briefly looked at the property and
Complainant confronted Mrs. Majers demanding she be given first chance to
rent the property because she had not been given the opportunity to rent the
Newark Road property. 	Mrs. Majers, who was already upset and angry
because her husband was not assisting her in showing the property and
because she was unable to do her college course work that evening, told
Complainant she would need to go outside and talk to Mr. Majers.
12. 	Complainant, who was upset, went outside and spoke with Jerry
Majers. 	She also told him she should be given the first chance to rent the
Riley Street property. 	He told her that her family size was too large to rent
either of the properties. 	Complainant told Mr. Majers that her family size had
Martinez testified that it was their understanding that a fair housing organization had told
Complainant to bring a witness with her.)

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been reduced by two persons within the last two weeks because she had
decided to have one son live elsewhere and the other son was going to stay in
Toledo. 	Thus, there would be only four persons operating the Riley Street
property.
13. 	Mr. Majers did not believe Complainant’s family had shrunk by two
persons in two weeks and was concerned about the number of persons who
would 	occupy 	the 	property 	if 	he 	were 	to 	rent 	it 	to 	Complainant. 	The
conversation ended after Complainant threatened to file a discrimination
complaint against the Majers.
14. Complainant and her husband rented a house in October or
November 1996 for one year. 	They moved back to Toledo about a year later.

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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. 	To the extent that the testimony of various witnesses is not in
accord with the findings herein, it is not credited. 4
1. 	The Commission alleged in its complaint that Respondent refused to
rent to Complainant because of her Mexican-American ancestry.
2. 	This allegation, if proven, would constitute a violation of R.C. §
4112.02, which provides in pertinent part that:
It shall be an unlawful discriminatory practice:
4 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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(H) For any person to:
(1) 	Refuse to . . . lease, . . ., or otherwise deny or make
unavailable housing accommodations because of . . .
ancestry, . . . of any prospective owner, occupant, or user of
the housing.
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. 	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.

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5. 	The same standards of proof that apply to employment discrim-
ination cases apply to housing discrimination cases.5
6. 	Normally, these standards of proof require the Commission to prove
a prima facie case of discrimination.
The plaintiff . . . possesses the ultimate burden of persuasion and
the intermediate burden of proving by a preponderance of the
evidence a prima facie case of discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 1093, 25 FEP Cases 113 (1981).
7. 	However, it is not necessary to follow the traditional allocation of the
burdens 	of 	proof, 	when, 	as 	here, 	Respondents 	responded 	to 	the
Commission's case in chief by offering a legitimate, nondiscriminatory reason
for her action. U.S. Postal Svc. Bd. of Governors v. Aikens, 103 S. Ct. 1478,
31 	FEP 	Cases 	609, 	611 	(1983). 	The 	articulation 	of 	a 	legitimate,
nondiscriminatory reason by Respondent removes any need to determine if
the Commission proved a prima facie case and the “factual inquiry proceeds
5 “All of the Courts of Appeals that have addressed the question have held that the
same evidentiary approach developed by the Supreme Court in Title VII ‘disparate
treatment’ cases should also be available in disparate treatment cases brought under the
Fair Housing Act.” 	(Citations omitted.) R. Schwemm, Housing Discrimination Law, 1996
Ed. at p.10-7, 10-8.

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to a new level of specificity”. Aikens, at 611; Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 116 (1981).6
8. Respondent Jerry Majers testified that he rejected Complainant as a
prospective tenant because of her family size. 	Mr. Majers also testified that
after he received the rental application in the mail, he noticed that there was
only one wage earner. 	This fact made Complainant’s application less
desirable because Mr. Majers preferred to rent to tenants with two wage
earners or two sources of income.
9. 	Respondent having met its burden of production, the Commission
must show by a preponderance of the evidence that Respondent’s articulated
reasons for not renting to Complainant were not the true reasons but were a
pretext for discrimination. 	Hicks, supra at 511, 62 FEP Cases at 100.
[A] reason cannot be proved to be a “pretext for discrimination”
unless 	it 	is 	shown 	both 	that 	the 	reason 	is 	false, 	and 	that
discrimination is the real reason.
Hicks, supra at 515, 62 FEP Cases at 102.
6 “Where the defendant has done everything that would be required of him if the
plaintiff has properly made out a prima facie case, whether the plaintiff really did so is no
longer relevant.” Aikens, 460 U.S. at 713, 31 FEP Cases at 611.

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10. 	Thus, even if the Commission proves that Respondent’s articulated
reasons are false or incomplete, the Commission does not automatically
succeed in meeting its burden of persuasion:
That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[Commission’s] proffered reason of race is correct. That remains
to the factfinder to answer . . .
Id., at 524, 62 FEP Cases at 106.
In other words,
nothing in law permit[s] . . . substitut[ion] for the required finding
that the . . . [landlord’s] action was the product of unlawful
discrimination, the much different (and much lesser) finding that
the . . . [landlord’s] explanation of its action was not believable.
Id., at 514-515, 62 FEP Cases at 102.
11. 	Although it is not enough to simply disbelieve Respondent’s
articulated reasons to infer intentional discrimination,
[t]he factfinder’s disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a suspicion
of mendacity) may, together with the elements of a prima facie
case, suffice to show intentional discrimination.7
Id., at 511, 62 FEP Cases at 100 (emphasis added).
7 Even 	though 	rejection 	of 	Respondent’s 	articulated 	reasons 	under 	these
circumstances is “enough at law to sustain a finding of discrimination, there must be a
finding of discrimination.” 	Hicks, supra at 511, 62 FEP Cases at 100, n.4.

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Ultimately, the factfinder must be convinced that Complainant was “the victim
of intentional discrimination.” Id., at 508, 62 FEP Cases at 99, quoting
Burdine, supra at 256, 25 FEP Cases at 116.
12. The Commission argued that Respondents’ legitimate, nondiscrim-
inatory reasons were not credible. 	I disagree. 	Considering all the
surrounding facts and circumstances, it is clear that once Complainant told
Jerry Majers that there were six or seven persons in her family, he made the
decision not to seriously consider her as a prospective tenant at the Newark
Road property.8
8 There was a conflict in the testimony regarding Complainant’s family size.
Complainant testified she told Jerry Majers that there were six persons in her family but
only five would be occupying the property because one of her sons would be living in
Toledo. Jerry Majers testified it was his understanding the family consisted of six persons.
When he asked Complainant how many persons were in her family, he testified she
responded there were six persons in the family. 	Logically, he assumed six persons would
be occupying the house. 	He did not recall anything being said about only five persons
occupying the property.
Since Complainant admitted that she told him there were six persons in her family,
I credited his testimony that he believed six persons would be occupying the property. 	I
also credited his testimony that he told Complainant he would not rent the Newark Road
property to her because of her family size. Complainant testified she did not remember the
Majers saying that her family was too large to live in the Newark Road house. However,
during her deposition, she responded to the question, “When you gave them the size of
your family, did they indicate to you at that point that there was a problem with that?”
Complainant responded, “Yes. They said my family was too big to live in that house.” 	(Tr.
78)

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He believed the property was too small to accommodate that many persons.
This is consistent with his belief that larger families create more wear and tear
on the property and increase the amount of maintenance that he has to
perform.
13. 	Subsequently, Complainant went to view the Riley Street property,
which was smaller than the property on Newark Road. 	Although Complainant
came away with the subjective impression that Respondents were treating her
less favorably than they were treating other persons who happened to be
viewing the property at the same time, her subjective impressions cannot
support an inference of discrimination.
14. 	Respondent Jerry Majers also adequately explained his reasoning
for refusing to rent the Riley Street property to Complainant, even after she
had told him her family size had decreased from six persons to four persons.
He simply did not believe her. 	He was concerned that if he rented the
property to her, her family size could increase afterwards, thereby exceeding
the maximum number he believed the property could accommodate.9
9 This is not a case of familial status discrimination. 	Apparently none of the
prospective tenants qualified for protection under the familial status portion of Chapter

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15. 	The Commission’s argument that there was no reason for Jerry
Majers to allow Complainant to look at the Riley Street property if she had
already been rejected as a tenant is not persuasive in this case. 	Persons
often act out of a sense of common courtesy or expediency when confronted
with a difficult situation. 	That is what happened here. 	Mrs. Majers’ response
indicated that Complainant could look at the smaller property on Riley Street if
she wanted to. 	However, Mrs. Majers’ response was not an enthusiastic one.
It was easier to allow Complainant to look at the property than to refuse
her request. 	If Complainant was denied the opportunity to look at the
property, the Commission would be arguing that this denial was evidence of
discrimination because she would have been treated differently than other
prospective tenants.
16. 	The Commission also argued that Mr. Majers testimony that he
would not have rented to Complainant and her husband because the family
had only one income was also a pretext for discrimination. 	The evidence
showed Respondent had rented to families with only one wage earner.
4112. Thus, Respondent was free to limit the number of occupants to whatever number he
believed was reasonable.

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However, the evidence showed that this was rare. 	(Comm.Ex. 2) 	Most of
these couples had other sources of income. 	Where there was only one
income, Mr. Majers had determined that the likelihood of that income being
lost 	was 	small, 	e.g. 	cases 	where 	the income consisted of retirement,
government benefits, or cases where the tenant had been working for a large
corporation for a long time. Thus, when all of the surrounding circumstances
are considered, the comparison between former tenants and Complainant’s
family does not support an inference that the second reason given by Mr.
Majers was either untrue or a pretext for unlawful discrimination.
17. 	In summary, the evidence showed that Complainant was trying to
find a house to rent in Mt. Vernon, Ohio and was frustrated and upset
because she and her husband had been looking for housing for nine months
and had
been rejected on numerous occasions. On one occasion, she had also been
subjected to racial and ethnic slurs.10
10 Prior to visiting the Riley Street property, Complainant visited a rental property on
Howard Street in Mt. Vernon. 	During the visit, the property owner made racial slurs about
African-Americans and derogatory comments about Mexican-Americans.

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18. This probably affected the way she interacted with the Majers and
her perceptions about their actions. 	In any event, after speaking with
Complainant, the Majers had the impression that six persons were going to be
occupying the house on Newark Road. 	Based on that impression, Jerry
Majers decided that Complainant was not a suitable tenant because of her
family size. 	His discussion with Complainant at the Riley Street property did
not alleviate his concerns.
19. 	Based on all of the surrounding facts and circumstances, it was
more likely Complainant was rejected as a tenant because of her family size
than it was that she was rejected as a tenant because of her Mexican-
American ancestry.

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RECOMMENDATION
For all the foregoing reasons, it is recommended that the Commission
issue a Dismissal Order in Complaint #8138.
FRANKLIN A. MARTENS
CHIEF HEARING EXAMINER
July 28, 1999