DORIS B. GIBBS,
vs.
Case No. 19-1284
Respondent.
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Garnett W. Chisenhall of the Division of Administrative Hearings (“DOAH”), in Jacksonville, Florida, on August 2, 2019.
Whether Petitioner (“Doris Gibbs” or “Ms. Gibbs”) was the subject of discriminatory housing practices in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (2017).1/
Doris Gibbs filed a complaint with the Florida Commission on Human Relations (“the Commission”) on July 5, 2018, alleging that the Palatka Housing Authority (“the Housing Authority”) discriminated against her due to a disability. The substance of the complaint, as described by the Commission, was as follows:
Complainant Doris Gibbs possesses a mental and physical disability as defined by the Fair Housing Act. Therefore, Complainant belongs to a class of persons whom the Fair Housing Act (“the Act”) protects from unlawful discrimination by virtue of disability. Complainant rents the subject property located at . . . Palatka, FL 32177; which is owned by Respondent Palatka Housing Authority. Christine Bolden is a Palatka Housing Authority Commissioner.
Cleveland Hobbs is Palatka Housing Authority’s Director of Maintenance.
Aaron Robinson oversees Resident Services at the Palatka Housing Authority.
Complainant alleged that in October 2017, she returned to the subject property after a short trip and found mold in her apartment.
Complainant alleged she contacted Respondent Palatka Housing Authority about the mold and how this could affect her health due to her physical disability. On October 20, 2018, Complainant submitted a letter to Respondents from a medical provider detailing how mold could exacerbate her condition so it was best to have the subject property cleaned or move the Complainant to another location within the housing complex. Complainant alleged the mold problem in the subject property was resolved at the end of last year.
However, Complainant alleged Respondent’s maintenance staff made repairs to the subject properties but left holes and unpainted areas
and has requested this to be fixed to no avail.
On January 19, 2018, Complainant alleged that she contacted [the] Putnam Sheriff’s Office because [she] felt threatened by two neighbors, Juanita Carter who resides in apartment #103 and Christine Bolden who resides in apartment #201. Complainant alleged Respondent Robinson has been aware of ongoing harassment against her but has failed to resolve this situation so it [is] still taking place. On May 31, 2018, Complainant called [the] Putnam Sheriff’s Office due to harassment by Respondent Hobbs. Complainant alleged Respondent Hobbs told her in [a] very aggressive manner that she needed to clean her apartment and asked her to move items to the back. Complainant requires the use of a walker [due] to her physical disability.
Complainant stated Respondent’s reasoning for not repairing the subject property and continued harassment by two neighbors is pretext because of her disabilities. As such, complainant believes that Respondents have subjected her to [a] hostile living environment and discriminatory terms and conditions relating to [a] rental based on her disabilities.
Via a notice issued on February 21, 2019, the Commission determined there was no reasonable cause to conclude that a discriminatory housing practice had occurred.
Ms. Gibbs filed a Petition for Relief with the Commission on March 11, 2019, and the Commission referred this matter to DOAH on March 31, 2019, for a formal administrative hearing.
After granting one continuance, the final hearing was completed on August 2, 2019. Ms. Gibbs presented no witnesses other than herself. The Housing Authority presented testimony
from Cleveland Hobbs, the Housing Authority’s Director of Maintenance, and Aaron Robinson, the Housing Authority’s Director of Resident Services.
During the course of the final hearing, Ms. Gibbs offered a flash drive into evidence, and it was designated as Petitioner’s Exhibit 1. The aforementioned flash drive contained communications between Ms. Gibbs and her prior counsel.
However, Ms. Gibbs knowingly waived any attorney-client confidentiality because she wanted the communications to be considered. The flash drive also contained audio recordings of grievance meetings convened by the Housing Authority to consider removing Ms. Gibbs from her apartment. During the final hearing, the Housing Authority objected to the undersigned considering the audio recordings. However, because the Housing Authority cited the audio recordings in its proposed recommended order, the undersigned considers this objection to have been waived.
Ms. Gibbs attempted to move pictures into evidence, but those pictures were rejected because they were not of her apartment and were thus irrelevant. Nevertheless, they were designated as Petitioner’s Exhibit 2. Ms. Gibbs also attempted to move e-mails into evidence, but they were rejected because they were between herself and the Commission in May and July of 2019.
Exhibits 1 through 10 and 13 through 16 from the Housing Authority were accepted into evidence. Exhibit 12 is excluded from evidence because it is a police report pertaining to a criminal matter and amounted to uncorroborated hearsay.
Ms. Gibbs filed her proposed recommended order on August 7, 2019, and it was accompanied by a package of documents. On August 8, 2019, Ms. Gibbs filed additional documents. Because the undersigned did not leave the record open following completion of the final hearing on August 2, 2019, the aforementioned documents were given no consideration.
A two-volume transcript of the final hearing was filed on August 26, 2019.
The Housing Authority filed an untimely proposed recommended order on September 9, 2019. The Housing Authority noted in its proposed recommended order that the September 4, 2019, deadline for submitting proposed recommended orders “was extended due to the [Florida] Supreme Court’s tolling of deadlines due to the impact of Hurricane Dorian.” A review of administrative orders issued by the Florida Supreme Court during the days that Hurricane Dorian was approaching Florida indicates that the Court was tolling court deadlines. Because DOAH is an executive branch
agency rather than a court, the Court’s administrative orders had no impact on the instant case. Nevertheless, the undersigned exercised the discretion afforded by Florida Administrative Code
Rule 28-106.211 and considered the Housing Authority’s proposed recommended order in the preparation of this Recommended Order.
The Housing Authority is responsible for 440 public housing units. The Annie May Spells apartment complex (“the Spells community”) is one of the communities under the auspices of the Authority. It consists of 36 units, and four are “ADA compliant” in that they have showers with grab bars and alarms in the bathrooms and bedrooms that can be activated in emergencies.
In order to be a resident of the Spells community, one must be at least 55 years old. Many of the residents utilize walkers or wheelchairs.
The Housing Authority has a nondiscrimination policy stating that:
The Housing Authority shall not discriminate because of race, color, sex, religion, familial status (in non-elderly designated housing), disability, handicap or national origin in the leasing, rental, or other disposition of housing or related facilities.
As set forth in its lease, the Housing Authority agrees to repair and maintain the dwelling units, equipment, appliances, and the common areas. The residents agree to keep the grounds in a safe and sanitary condition. Also, the residents acknowledge that the Housing Authority has zero tolerance for any violent criminal activity that threatens other residents, guests,
visitors, or employees of the Housing Authority. Such actions will result in termination of a lease and eviction.
Ms. Gibbs was 61 years old when she filed a pre- application for public housing with the Housing Authority. While she did not disclose any disabilities on the pre- application, Ms. Gibbs asserts that she receives supplemental
security income and social security disability insurance. As for why she receives such payments, Ms. Gibbs states that she suffers from severe depression, anxiety, and problems with her neck and back. Also, Ms. Gibbs uses a walker on a daily basis.
The Housing Authority notified Ms. Gibbs via a letter dated July 25, 2016, that her pre-application had been approved and that she had been put on the waiting list for consideration to be placed in public housing.
Ms. Gibbs submitted additional documentation to the Housing Authority pertaining to her preferences, and there was no indication she had any disabilities.
Ms. Gibbs and her husband entered into a lease with the Housing Authority that took effect on January 18, 2017, and they moved into unit 104 of the Spells community.2/
On October 18, 2017, Ms. Gibbs returned home from a trip to Michigan and found mold and/or mildew in her apartment.
Ms. Gibbs claims to be allergic to mold and reported this problem in person to someone working the front desk of the Spells community’s management office.
Cleveland Hobbs, the Director of Maintenance for the Housing Authority, overheard the conversation and told Ms. Gibbs that she would not have a problem with mold and mildew if she kept her apartment clean. Ms. Gibbs was deeply offended by that comment because she and Mr. Hobbs had no prior acquaintance. From this point forward, Ms. Gibbs and Mr. Hobbs had a contentious relationship.
The Housing Authority responded to Ms. Gibbs’ complaint on October 24, 2017. The corresponding work order notes that mildew was cleaned from the washer and dryer, and that the ceiling and walls were sprayed with bleach. Nevertheless,
Ms. Gibbs was not satisfied with the cleaning efforts, and her dissatisfaction remained a sharp point of contention until she left the Spells community.
While addressing the mold/mildew issue on October 24, 2017, maintenance personnel notified Ms. Gibbs that she needed to remove non-patio furniture from the front of her apartment, and Ms. Gibbs ultimately disposed of the furniture. Approximately one week later, the Housing Authority told Ms. Gibbs to remove various items such as a grill, bicycles, and lawnmowers from her back porch.
On April 5, 2018, Ms. Gibbs received written notification from the Housing Authority that she faced termination of her lease if she failed to remove a trailer from the premises within seven days. The trailer in question was approximately four feet by eight feet and used for carrying cargo. Ms. Gibbs removed the trailer.
Ms. Gibbs believes that the forced removals were retaliation for her complaining about the mold and/or mildew in her unit.
On May 30, 2018, Ms. Gibbs was visiting a grocery store in close proximity to the Spells community and was allowed to borrow a shopping cart so that she could transport groceries to her apartment. The Housing Authority allows residents to bring shopping carts onto the premises, but they must be returned.
Ms. Gibbs left the cart on her front porch with the intention of returning it the next day.
Mr. Hobbs arrived at Ms. Gibbs apartment the next morning and told her that shopping carts were not allowed on the premises. Ms. Gibbs then asked Mr. Hobbs to enter her apartment and examine the work that had been done to address her complaints about the mold and/or mildew. She also wanted to bring his attention to a roach problem in her apartment.
Upon entering the apartment, Mr. Hobbs’ attention was drawn to the stove where burners had been removed, leaving wires
exposed. He also observed that air conditioning vents had been removed. Ms. Gibbs was very upset that Mr. Hobbs was not paying attention to the problems she asked him to examine and demanded that he leave her apartment.
After leaving the unit, Mr. Hobbs called the police to report that Ms. Gibbs had shoved him as he was leaving her apartment. After conferring with Mr. Hobbs, the officer who arrived on the scene moved to arrest Ms. Gibbs, but Mr. Hobbs notified the officer that he did not want to press charges.
Nevertheless, this incident led to the Housing Authority notifying Ms. Gibbs via a letter dated May 31, 2018, that she had violated her lease by shoving Mr. Hobbs. The letter stated the following:
On May 31, 2018 Management has received information that you did in fact shove a PHA employee in the back, Mr. Hobbs, out of your dwelling unit, after you did not agree with unauthorized conditions in the unit in which you reside being pointed out to you. Your action against a PHA employee is in direct violation of the dwelling lease . . . and therefore this agency moves to terminate your lease.
On July 10, 2018, the Housing Authority provided notice that it was terminating the lease, and Ms. Hobbs left the Spells community.3/
Ultimate Findings Regarding Ms. Gibbs’ Allegations
Ms. Gibbs was unsatisfied with the Housing Authority’s efforts to remove mold and/or mildew from her apartment. The parties do not dispute that Ms. Gibbs was told to remove non- patio furniture, a trailer, a shopping cart, and various other items from the outside of her apartment. Ms. Gibbs asserts that those directives were in retaliation for her complaining about mold and/or mildew.
There was no persuasive evidence demonstrating that the Housing Authority’s actions or indifference toward Ms. Gibbs were motivated by Ms. Gibbs’ physical or mental condition. In other words, there was no persuasive evidence indicating that residents with no perceptible disabilities received more favorable treatment from the Housing Authority.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat.
Florida’s Fair Housing Act, sections 760.20 through 760.37, Florida Statutes, makes it unlawful to
discriminate against persons in matters incidental to a dwelling on the basis of a person’s handicap. In that regard,
section 760.23(2), provides that:
It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling,
or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status or religion.
Section 760.23(8) provides, in pertinent part, that “[i]t is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of a handicap of: (a) That buyer or renter.”
The Florida Fair Housing Act is patterned after Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988, and discrimination covered under the Florida Fair Housing Act is the same discrimination prohibited
under the Federal Fair Housing Act. Savannah Club Worship Serv.
v. Savannah Club Homeowners’ Ass’n, 456 F. Supp. 2d 1223, 1224
(S.D. Fla. 2005); see also Loren v. Sasser, 309 F.3d 1296, 1299 (11th Cir. 2002). When “a Florida Statute is modeled after a federal law on the same subject, the Florida statute will take on the same constructions as placed on its federal prototype.”
Brand v. Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); see also Dornbach v. Holley, 854 So. 2d 211, 213 (Fla. 2d
DCA 2002); Fla. Dep’t of Cmty. Aff. v. Bryant, 586 So. 2d 1205,
1209 (Fla. 1st DCA 1991).
A petitioner has the burden of establishing that the Housing Authority violated the Florida Fair Housing Act.
§ 760.34(5), Fla. Stat.; Fla. Dep’t of Transp. v. J.W.C. Co., 396
So. 2d 778 (Fla. 1st DCA 1981).
Ms. Gibbs’ allegations amount to a claim of disparate treatment. In order to establish a prima facie case of disparate treatment, a petitioner, such as Ms. Gibbs, must present evidence that she was treated differently than similarly-situated tenants. Head v. Cornerstone Residential Mgmt., 2010 U.S. Dist. LEXIS
99379, at *21 (citing Schwarz v. City of Treasure Island, 544
3d 1201, 1216 (11th Cir. 2008); and Hallmark Dev., Inc. v. Fulton Cnty., 466 F.3d 1276, 1286 (11th Cir. 2006)).
In establishing that she was the victim of discrimination, a petitioner can either produce direct evidence of discrimination that motivated disparate treatment in the provision of services (or lack thereof) to her, or produce circumstantial evidence sufficient to allow the trier of fact to infer that discrimination was the cause of the disparate treatment. See King v. Auto, Truck, Indus. Parts & Supply, 21 F.
Supp. 2d 1370, 1381 (N.D. Fla. 1998).
Direct evidence is evidence that, if believed, would prove the existence of discriminatory intent without resort to inference or presumption. Denney v. City of Albany, 247 F.3d
1172, 1182 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). As to the nature of the evidence, “only the most blatant remarks, whose intent could be nothing other
than to discriminate . . . will constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir. 1999)(citations omitted).
Ms. Gibbs presented no direct evidence of discrimination by the Housing Authority related to or affecting the terms, conditions, or privileges of her tenancy in the Spells community, or in the provision of services or facilities in connection therewith. In other words, she has presented no statements or acts of any kind that could be construed as being related to her physical or mental condition.
When there is no direct evidence of discrimination, fair housing cases are subject to the three-part test set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Boykin Bank of Am. Corp., 162 Fed. Appx. 837, 838; 2005
U.S. App. LEXIS 28415 (11th Cir. 2005); see also Masaro v.
Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6
(11th Cir. 1993); Sec’y, U.S. Dep’t of Hous. and Urban Dev., on Behalf of Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir.
1990); Savannah Club Worship Serv. v. Savannah Club Homeowners’ Ass’n, 456 F. Supp. 2d at 1231-1232.
Under the three-part test, a petitioner has the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at
802; Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. at 252-253;
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). “The elements of a prima facie case are flexible and should be tailored, on a case-by-case basis, to differing factual circumstances.” Boykin v. Bank of Am. Corp., 162 Fed. Appx.
at 838-839 (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1123 (11th Cir. 1993)).
If a petitioner is able to prove a prima facie case by a preponderance of the evidence, then the burden shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its actions or omissions. Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. at 255; Dep’t of Corr. v. Chandler, 582 So. 2d
1183, 1186 (Fla. 1st DCA 1991). The respondent has the burden of production, not persuasion, to demonstrate that its actions or omissions as a landlord, upon which the complaint was made, was nondiscriminatory. Dep’t of Corr. v. Chandler, 582 So. 2d at
1186. This burden of production is “exceedingly light.” Holifield v. Reno, 115 F.3d at 1564; Turnes v. Amsouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994).
If the respondent produces evidence that the basis for its action or inaction was nondiscriminatory, then the petitioner must establish that the proffered reasons were not the true reason but merely a pretext for discrimination. St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 516-518 (1993). In order to
satisfy this final step of the process, the petitioner must “show[] directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief.” Dep’t of Corr. v. Chandler, 582 So. 2d at 1186 (citing
Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. at 252-256). Pretext can be shown by inconsistencies and/or contradictions in testimony. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000); Woodward v. Fanboy, L.L.C., 298 F.3d 1261, 1265
(11th Cir. 2002). The demonstration of pretext “merges with the plaintiff’s ultimate burden of showing that the defendant intentionally discriminated against the plaintiff.” Thomas v.
Dep’t of Corr., 377 Fed. Appx. 873, 880; 2010 U.S. App. LEXIS 9175 (11th Cir. 2005)(citing Holifield v. Reno, 115 F.3d at
1565).
The failure of a petitioner to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State,
666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996), aff’d, 679 So. 2d
1183 (Fla. 1996)(citing Arnold v. Burger Queen Systems, 509 So.
2d 958 (Fla. 2d DCA 1987).
In order to establish a prima facie case of disparate treatment based on a failure to provide services, a petitioner must show that she: (a) is a member of a protected class;
(b) that she requested services be performed on terms comparable to others living in the community; and (c) that, based on her disability, she was denied provision of services protected by the Fair Housing Act where were available to other tenants. See Miller v. Richman Prop. Servs., Laurel Oaks Apts., Case
No. 12-3237 (Fla. DOAH Dec. 27, 2012; Fla. FCHR March 11,
2013)(setting forth the elements of a prima facie disparate treatment claim based on race). The final element implies that the respondent was aware of the petitioner’s protected class status.
Ms. Gibbs has failed to present a prima facie case.
Even if it were assumed that Ms. Gibbs is sufficiently disabled to be a member of a protected class, that the Housing Authority was aware of her condition, and that she requested that services be performed on terms comparable to those received by other residents, there was no persuasive evidence that any actions or inactions by the Housing Authority were influenced by Ms. Gibbs’ physical or mental condition. In other words, there was no persuasive evidence indicating that residents with no perceptible disabilities received more favorable treatment from the Housing Authority.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human
Relations issue a final order dismissing Doris Gibbs’ Petition for Relief from a Discriminatory Housing Practice.
DONE AND ENTERED this 30th day of September, 2019, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2019.
1/ All statutory references will be to the 2017 version of the Florida Statutes.
2/ Ms. Gibbs’ testimony indicates that her husband lived with her in unit 104, but he had no involvement with this proceeding.
3/ In addition to alleging that the Housing Authority did not satisfy its obligation to keep her apartment in a safe and sanitary condition, Ms. Gibbs alleged that the Housing Authority did nothing to stop her neighbors from directing derogatory remarks toward her. According to the Housing Authority’s Director of Services, there was no possibility that Ms. Gibbs would be physically harmed. If the Housing Authority had believed that there was a realistic possibility that Ms. Gibbs was in danger, then the Housing Authority would have recommended that she seek police intervention.
Tammy S. Barton, Agency Clerk
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
