CHRO: Little v. Clark et al., Memorandum of Decision

Little v. Clark et al., Memorandum of Decision
Little v. Clark et al., Memorandum of Decision

CHRO No. 9810387

Commission on Human Rights and Opportunities ex rel. Ronald Little, Complainant
v.
Stephen Clark, by himself or through his mother, Diane Clark; and Luke Bauer, by himself or through his mother, Sandra Bauer, Respondents 1

August 2, 2000

MEMORANDUM OF DECISION

PROCEDURAL BACKGROUND

On January 23, 1998, Ronald Little ("the complainant") filed a complaint affidavit with the Commission on Human Rights and Opportunities ("the commission"), alleging that four teenage boys, Luke Bauer, Stephen Clark, Justin Louis, and Douglas Braley, harassed him and damaged his real property because of his disability, in violation of General Statutes §46a-58(a). (Exhibit ["Ex."] C-1) The complaint was amended on May 8, 1998, eliminating the claims against Braley, and again on November 5, 1998, alleging violations of General Statutes §§46a-58(a) and 46a-64c(a)(6) and (a)(9), and 42 U.S.C. §§3604(f) and 3617. (Exs. C-2, C-3) (The second amended complaint is hereinafter referred to as "the complaint." Hereinafter, the respondents are referred to simply by their surnames except where the context calls for the collective term "respondents.")

The commission investigated the charges of the complaint pursuant to General Statutes §46a-83, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified to public hearing on January 25, 1999, in accordance with General Statutes §46a-84(a). (Ex. C-4)

Due notice of the public hearing was given to all parties of record on February 5, 1999, in accordance with General Statutes §46a-84(b) and §46a-54-90 of the Regulations of Connecticut State Agencies ("the regulations"). (Ex. C-5)

On or about July 29, 1999, respondent Clark filed a motion to dismiss this action as it pertains to him, because the commission investigator had found no reasonable cause as to him. (Ex. C-12)

Nevertheless, because the entire complaint, and not merely portions thereof, had been certified to hearing, I denied the motion. (Ex. C-14)

On or about March 6, 2000, the complainant accepted an undisclosed settlement from Justin Louis, and he withdrew this action as it pertained to Louis. (See written withdrawal dated March 3, 2000 and filed March 6, 2000.)

I conducted a public hearing on March 6, 7, and 15, 2000. Thereafter the parties filed post-hearing briefs and the record closed on June 2, 2000.

All statutory and procedural requisites to the holding of the public hearing have been satisfied and this complaint is properly before me for adjudication. (Exs. C-1, C-2, C-3, C-4, C-5)

FINDINGS OF FACT

  1. The complainant, who lives with his wife at 271 Quail Run Road in Suffield, Connecticut, has suffered from Parkinson’s disease since 1983. In late 1996 he became totally disabled and unable to work; since then he has received Social Security disability benefits. His symptoms have generally been progressive since the onset of the disease, and, at the time of the hearing, he was in an advanced stage of the disease. The disease causes, among other things, movement difficulties and a lack of coordination. The complainant has difficulty speaking and performing small manipulative tasks such as lacing shoes or doing buttons. He sometimes has trouble driving. To some extent, his symptoms were worse and more noticeable in 1996 and 1997 than they are now, due to recent surgery which has, at least for the time being, ameliorated some of the symptoms. (Ex. C-28; Transcript ["Tr."] 48-49, 92, 206)
  2. The complainant takes medication for his Parkinson’s disease every two and one-half hours. One of the side effects of his medication is dyskinesia, a condition characterized by involuntary movements such as moving around, falling, walking pigeon-toed, holding his arms behind his back, and leaning forward. Because of his dyskinesia, the complainant takes longer than other people to perform most tasks. His disorder is readily visible to others. (Ex. C-28; Tr. 48-52, 92, 228, 268)
  3. Luke Bauer and his mother, Sandra Bauer, have lived next door to the complainant since the early 1990s. (Tr. 54) Prior to September 1996, the complainant had a friendly relationship with the Bauers. He lent them tools, helped Bauer fix his snowblower, and assisted him with math work and a school science project. (Tr. 65-67, 226)
  4. Bauer was aware of the complainant’s physical impairments, although he did not know precisely from what the complainant suffered. (Tr. 145-46, 235)
  5. In 1996 and 1997, the Bauers’ house was sometimes a gathering point for several teenage boys. Tim Fiore regularly spent time with Bauer. Justin Louis and Stephen Clark would often join Bauer, but not as regularly as Fiore. Douglas Braley occasionally spent time with Bauer and the other boys. (Tr. 137, 180, 227, 235).
  6. In April or May 1996, while the complainant was mowing his lawn, a group of teenage boys gathered on the street by the complainant’s yard; one of them asked the complainant what was wrong with his arm. The complainant felt threatened by the boys and told them there was nothing wrong. (Tr. 52-54)
  7. Sometimes after school and on weekends, a group of boys would congregate in front of the complainant’s house or on the Bauer’s driveway and simply stare at the complainant. This made him uncomfortable but, because he was afraid of a confrontation, he said nothing to them. (Tr. 54-56) This conduct occurred frequently throughout the fall of 1996 and the winter of 1996/1997.
  8. The complainant sometimes received "hang-up" telephone calls and had his doorbell rung late at night. (Tr. 56, 205) On one occasion, someone threw feces in his barbecue grill; the complainant threw away the grill. (Tr. 56, 97) Another time, someone threw gravel all over his front yard and on the deck in his back yard. (Tr. 63)
  9. The Bauers had a movable basketball hoop set up in their driveway, approximately twenty-five feet from the side of the complainant’s house. The hoop was oriented toward the Bauers’ house, with the back of the backboard toward the complainant’s house. (Tr. 62-63, 343) A group of boys, including Bauer and sometimes Clark, often played basketball at the Bauers’ house. (Tr. 68-69)
  10. In early September, 1996, the complainant and his wife heard something being thrown repeatedly against the side of their attached garage. When the complainant spoke with Bauer’s mother, she apologized and sent Bauer to the complainant’s house to apologize. (Tr. 61-62, 67) A few days later, when a group of boys (including Bauer) were playing basketball, this happened again and lasted for a longer period of time. The garage wall was hit so hard that objects hanging on the inside of the garage fell to the floor. The complainant later observed marks on the vinyl siding on the north side of his garage, the side closest to the Bauers’ house. They appeared to him to have been made by a basketball. (Tr. 58-59, 61-62, 68)
  11. After seeing the damage, the complainant called the Suffield police. When Officer Taylor arrived at the complainant’s house he observed the impact marks on the side of the garage. (Tr. 63; Ex. C-23) Taylor spoke to Bauer’s grandmother, who also lived with Bauer and his mother (Ex. C-23), and for several weeks thereafter no basketball hit the complainant’s house. However, the incidents shortly resumed and the complainant himself spoke to Bauer’s mother or grandmother. His complaints were in vain, as the incidents continued to occur. (Tr. 60-61, 65, 67)
  12. On the same day that Taylor responded to the complainant’s call, someone wrote "Ron the Retard" with chalk in large block letters, six to eight inches high, on the street in front of the complainant’s mailbox. (Tr. 64, 101, 335; Ex. C-29) The complainant was upset and humiliated by this message. He felt particularly humiliated because his mental capacity, unlike his physical abilities, had not been affected by his Parkinson’s disease. (Tr. 205, 310; Ex. C-28)
  13. In his written answer to the complaint, Justin Louis (as to whom the complaint was later withdrawn) stated under oath that Bauer was "responsible" for writing "Ron the Retard."Louis’s answer also indicated that Bauer sometimes intentionally threw basketballs at the complainant’s house. (Tr. 142-44)
  14. One day in March 1997, the complainant heard a noise outside of his house. When he investigated the next day he saw that his gutter downspout had been damaged. Later that month he discovered that the garage siding was broken and cracked. He was "stunned" by what he saw and frustrated with the ongoing problems. He contacted the Suffield police; when Officer Eric Rocheleau came to his house, the complainant showed him the impact marks (which appeared to be made by a basketball), the broken siding, and the crushed downspout. (Tr. 56-59, 263, 270; Ex. C-24)
  15. Rocheleau spoke to Bauer and his mother that same night and asked them to reorient the hoop. (Tr. 273-74) The basketball hoop was not moved. (Tr. 343)
  16. The doorbell ringing and hang-up telephone calls continued after March 1997, and the group of boys continued to congregate at the complainant’s curb several times a week, smoking cigarettes and leaving trash on his property. On at least one occasion, one of the boys made a noise like a chicken, mocking the spasmodic movements associated with dyskenisia. The complainant felt so helpless and threatened when the boys were there that he did not go outdoors and he changed his yardwork schedule to avoid confrontations. (Tr. 70-72, 93, 308)
  17. The boys did not congregate near any other house in the neighborhood. (Tr. 71, 94)
  18. In June 1997, Bauer’s mother told the complainant she would have his siding repaired. However, although Bauer subsequently told the complainant he was still trying to find the right type of siding, the Bauers took no further corrective actions. (Tr. 69-70)
  19. On August 27, 1997, Bauer, Clark, Louis, Fraley, and Fiore were "hanging out" at Bauer’s house—on the driveway and in the garage—playing basketball and smoking marijuana. (Tr. 149, 161; Exs. C-21, C-29) At approximately 3:00 PM, while Heather Neiweem was visiting her parents’ house across the street from the complainant’s house, she heard a loud and constant banging noise. After about five to ten minutes, she looked out of the window and saw a boy repeatedly throwing something against the side of the complainant’s house. A few moments later she saw the same boy banging on a downspout with a baseball bat or similar implement. She also saw another boy go to a window screen in the front of the complainant’s house and move his hand as if slitting the screen. Neiweem called for her father, Brian Lamkins, who was elsewhere in the house. Neiweem then went outside and yelled, and the boys ran toward Bauer’s house. (Tr. 10-13) Neiweem was unable to identify the boys. (Tr. 17)
  20. After the boys left, Neiweem noticed a hole in the vinyl siding of the complainant’s house, a dented downspout, and a slit screen in a front window. (Tr. 15; see Ex. C-30)
  21. Neiweem then called the Suffield police while her father went to the Bauer’s house, where he spoke with a group of about five boys. (Tr. 13-14)
  22. When Officer Michael Lewandowski arrived to investigate the call, he observed the damage to the siding, the downspout, and the window screen. He spoke with Lamkins, who identified two of the boys as Clark and Fiore. (Tr. 14, 20-22, 26; Exs. C-15)
  23. Lewandowski later spoke with Clark’s and Fiore’s parents, who agreed to make restitution to the complainant for the damage. (Tr. 24-27; Ex. C-15) The Fiores told Lewandowski that Bauer, Braley, and Louis were also involved in the August 27, 1997 incident. (Tr. 29-30, 86; Ex. C-18)3 Fiore eventually admitted damaging the screen in the front of the house and he paid to have it repaired. He or his parents also gave the complainant $300 toward the repair of the siding. (Tr. 85-86)
  24. The damage to the siding was caused by Fiore, Louis, Bauer, and Braley, who were throwing a screwdriver at the house in attempts to penetrate the siding. (Tr. 155-57; Ex. C-29)4 According to Louis’ sworn statement dated November 12, 1997, Bauer had also damaged the complainant’s house "a lot" prior to this incident. (Ex. C-29; see also Tr. 144)
  25. According to Louis’ testimony, Braley hit the downspout with a pole and Fiore cut the window screen in the front of the house. (Tr. 157) Clark and Bauer both testified that Braley hit the downspout with a pole and that Fiore and Braley threw the screwdriver. (Tr. 187, 253-55) Braley admitted throwing a broomstick at the complainant’s house. (Ex. C-21)
  26. A screen in the back of the garage had also been slashed, and a recently-purchased tree, not yet planted, had been destroyed. (Tr. 73-74, 97; Ex. C-31)
  27. As a result of the August 27, 1997 incident, the siding on the north side of the house was damaged beyond repair and needed to be replaced. (Tr. 79, 82, 202) The complainant obtained an estimate from one contractor who quoted a price of $1,770. (Ex. C-19) Another contractor gave the complainant an estimate of $1,015 to replace the siding and replace the downspout. (Tr. 87-89; Ex. C-20) The complainant had the work performed by the latter contractor. (Tr. 96; Ex. C-26)
  28. Braley eventually acknowledged responsibility for participating in the August 27, 1997 incident and gave the complainant $1,500 toward the property damage and his legal fees. Braley also wrote a letter to the parents of the four other boys asking them to help pay for the complainant’s damages. Braley’s letter indicated that the group of boys had been involved in prior vandalism and taunting.5 (Ex. C-21; Tr. 90-91)
  29. The complainant became so frustrated and frightened by the ongoing incidents that he could not sleep well. He worried constantly about his inability to protect himself and his wife and he began to keep a shotgun beside his bed. (Tr. 69, 74, 209-10, 306-07, 316) Although he liked working outside in the yard, one of the few physical activities he could still perform, he often stayed inside due to his fear of the boys. (Tr. 199) He did not share all of his worries with his wife and their relationship became strained. (Tr. 74-75) The ongoing stress exacerbated the physical symptoms of his Parkinson’s Disease as well as intensified his feelings of vulnerability. (Tr. 75; Ex. C-28) He felt particularly helpless when his conversations with Mrs. Bauer and the Suffield police did not end the boys’ conduct. (Tr. 20-24, 60, Ex. C-28)
  30. Kenneth M. Selig, M.D., J.D.6, a forensic psychiatrist, reviewed the complainant’s medical records back to 1983 and conducted several evaluations of the complainant (as well as one of the complainant’s wife) to determine the nature and extent of emotional damages the complainant suffered as a result of the actions of the respondents and their friends. (Tr. 300-02; Ex. C-28) According to Selig’s unchallenged February 7, 2000 letter to David M. Teed, Assistant Attorney General (and reiterated in his testimony):
  31. As a result of being victimized . . . Mr. Little has sustained considerable emotional distress. He had already been dealing with the physical and emotional detrimental effects of his Parkinson’s Disease, including his reduced capacity to engage in both recreational and productive activity as well as the deep embarrassment and humiliation that he felt over the movement disorders which were such an obvious part of this illness. Being made fun of, harassed, taunted, and physically terrorized as a result of this illness considerably intensified his sense of humiliation and his sense of helplessness at being [un]able to stop what was going on. He became increasingly more frightened and lost a great deal of sleep as a result of eighteen months of this terrorization. He recalls nights dozing on the floor of his spare bedroom with a shotgun trying to stay awake in order to protect his home. He was quite anxious about what they would do and this anxiety considerably increased when the police involvement proved ineffective. He experienced considerable rage that he was being treated so badly because of an illness about which he could do nothing and which was itself something that he obviously preferred to not have. It was humiliating to him to be concerned that he might not have the wherewithal, the courage, or the strength to protect his own home or to protect his wife. He lost a great deal of sleep over this and himself said "I felt as though we were under a terrorist attack." He was of course deeply offended when he found written in chalk on the street next to his mailbox "Ron’s a retard." [sic] In part, this was the natural response to a personal insult but it was particularly intensified by the fact that his intellectual capacities were one of the few capacities unscathed by the Parkinson’s Disease and one of the things about which he was most proud.

    . . . At times he felt like a prisoner in his own home because he was concerned that  if he went outside that he would be subjected to additional harassment. He no longer felt safe in his own home and couldn’t go outside without being harassed and made fun of.  Ex. C-28; see also Tr. 306-12.

  32. The complainant incurred costs in the amount of $2,400 for the services rendered by Dr. Selig and an additional $800 for Selig’s appearance at this hearing. (Ex. C-33) He also claims $16,770 in legal fees and $29.50 for the cost of obtaining copies of medical records. (Ex. C-34)

APPLICABLE STATUTES

According to 42 U.S.C. §3604(f), it is unlawful

  1. To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of
    1. that buyer or renter,
    2. a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available . . .
  2. 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 with such dwelling, because of a handicap of –
    1. that person; or
    2. a person residing in or intending to reside in that dwelling after it is so sold . . .

42 U.S.C. §3617 provides, in pertinent part, that

[i]t shall be unlawful to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.

The applicable Connecticut statutes were modeled on the above federal fair housing laws. General Statutes §46a-64c(a)(6), like 42 U.S.C. §3604(f), makes it a discriminatory housing practice

  1. To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a learning disability or physical or mental disability of: (i) Such buyer or renter; (ii) a person residing in or intending to reside in such dwelling after it is so sold, rented, or made available . . .
  2. 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 with such dwelling, because of a learning disability or physical or mental disability of: (I) Such person; or (ii) a person residing in or intending to reside in such dwelling after it is so sold, rented, or made available . . .

Section 46a-64c(a)(9) makes it a discriminatory practice

[t]o coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [§46a-64c].

DISCUSSION AND CONCLUSIONS

The Connecticut Supreme Court has held that in addressing claims under the state’s fair housing statutes, one may look to guidance from the case law interpreting the federal fair housing statutes. Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350, 358 (1986) The United States Supreme Court has stated that the Fair Housing Act, 42 U.S.C. §3601 et seq. ("Title VIII") is "a comprehensive open housing law." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968). In order to achieve its purpose, its provisions must be construed broadly. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211-12 (1972); Cabrera v. Jakabovitz, 24 F.3d 372, 388 (2nd Cir. 1994); Ohana v. 180 Prospect Place Realty Corp., 996 F.Supp. 238, 240 (E.D.N.Y. 1998) (citing to Trafficante). The same liberal interpretation holds true for the anti-discriminatory housing provisions in the state statutes, General Statutes §§46a-64b and 46a-64c. Accordingly, except where there are significant differences between the state and federal statutes, I will address the two laws together.7

At the outset, I first need to dispel any doubts that the federal and state statutes apply to the circumstances before me, for, indeed, the statutes’ literal language would suggest that they concern only discrimination involving the sale or rental of housing accommodations and those persons involved in such transactions. Yet several courts, liberally construing Title VIII, have disagreed with such narrow reading. For example, in Schroeder v. DeBertolo, 879 F.Supp. 173 (D. Puerto Rico 1995), the federal District Court stated,

The language of [§3604(f)] does not lend itself to such a narrow interpretation. The phrase ‘to otherwise make unavailable or deny’ sweeps activities which go beyond the initial sale or rental transaction under the scope of the section. Once [the plaintiff] became the owner of the unit, her housing rights did not terminate. She had the continuing right to quiet enjoyment and use of her condominium unit and common areas in the building. Her right to obtain a dwelling free from discriminatory conduct of others encompassed the right to maintain that dwelling. Id. at 176-77. See also Evans v. Tubbe, 657 F.2d 661 (5th Cir. 1981) (recognizing cause of action under §§3604 and 3617 against neighbors who interfere with continuing right to use and enjoy one’s home).

According to a recent Connecticut Superior Court decision addressing a condominium owner’s claim of ongoing harassment by the condominium association, §46a-64c, which parallels §3604(f), "not only protects people seeking housing, but it also protects people from discrimination while living in their place of residence." Gomes v. Casagmo Condominium Association, Inc., No. 331907, superior court, Judicial District of Danbury (Memorandum of Decision on Motion to Strike, July 23, 1999, pp. 4-5), citing to Schroeder v. DeBertolo. Although many years have passed since the complainant purchased his home, he continues to be protected by the federal and state fair housing statutes.

Furthermore, the protection of Title VIII (and thus those of its state counterpart) not only extends beyond the time of sale or rental but also prohibits individuals not involved in the sale, rental or other control of the property (e.g., neighbors) from interfering with one’s continuing right to use and enjoy his or her rented or purchased property. See, e.g., Sofarelli v, Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991); Evans v. Tubbe, supra, 657 F.2d 663 fn.3; Wilstein v. San Tropai Condominium, supra, 1999 WL 262145 *11; Ohana v. 180 Prospect Place Realty Corp., supra, 996 F.Supp 242-43; Schroeder v. DeBartolo, supra, 879 F.Supp. 177; Seaphus v. Lilly, 691 F.Supp. 127 (N.D. Ill. 1988); Riedel v. Human Relations Commission of the City of Reading, 559 Pa. 34, 43 n.2 (1999) (Saylor, J., concurring).

The principal issue before me, then, is whether, under the circumstances of this case, the federal and state fair housing laws prohibit harassment relating to the complainant’s handicap or disability.8 Although both Title VIII and §46a-64c prohibit housing discrimination based on disability, neither statute explicitly identifies harassment as a form of prohibited discrimination. However, other forms of harassment, notably sexual harassment, have been deemed unlawful discrimination under Title VIII. Moreover, complaints of disability-related harassment in the workplace have been recognized as actionable under state and federal anti-discrimination statutes, and they have been analyzed in the same way as sexual harassment claims in the workplace. The same logic and parallel analyses used in those cases should apply to the present circumstances.

As a starting point in the analogy, both Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII") and General Statutes §46a-60(a) prohibit discrimination in employment on the basis of the employee’s sex. The Connecticut statutes also explicitly prohibit sexual harassment (see § 46a-60(a)(8)) and, although the federal statutes do not explicitly proscribe such harassment, the U.S. Supreme Court has unequivocally declared that sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). Because Title VII shares the same purpose as Title VIII—to end bias and prejudice—sexual harassment should be actionable under Title VIII and its Connecticut counterparts. See, e.g., Reeves v. Carrollsburg Condominium Owners Assoc., Fair Housing-Fair Lending Rptr., No. 96-2495, p.16,250.5 (D.D.C. 1997); New York ex rel. Abrams v. Merlino, 694 F.Supp. 1101, 1104 (S.D.N.Y. 1988).

Indeed, federal courts have held that sexual harassment in the housing context is a form of sex discrimination prohibited by 42 U.S.C. §§3604(a) and (b). Like employment-related sexual harassment actions under Title VII, a violation of Title VIII may be established by demonstrating either "quid pro quo" harassment or a hostile environment. DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1088-90 (10th Cir. 1993); Williams v. Poretsky Management, Inc., 955 F.Supp. 490, 494-96 (D.Maryland 1996); Beliveau v. Caras, 873 F.Supp. 1393, 1397 (C.D. California 1995). Several state courts have also interpreted their housing statutes to allow a cause of action to redress sexual harassment. See, e.g., Szkoda v. Illinois Human Rights Commission, 302 Ill. App.3d 532 (1998); Brown v. Smith, 55 Cal. App. 4th 767 (1997); Gnerre v. Commission Against Discrimination, 402 Mass. 502 (1988). To establish a prima facie case of hostile housing environment due to sexual harassment, a plaintiff must show (1) that the conduct was unwelcome; (2) that the conduct was based on the plaintiff’s sex; (3) that the conduct was sufficiently severe or pervasive to alter the plaintiff’s living conditions and create an abusive environment; and (4) that the defendant knew or should have known of the harassment, yet took no action to correct the situation. Reeves v. Carrollsburg Condominium, supra, 16,250.6; Williams v. Poretsky Mgmt., supra, 955 F.Supp. 496.

To take the analysis one step further, although the court in Reeves cited to Williams, a sexual harassment action, for the appropriate prima facie case, it notably articulated the second criterion as "[the conduct] was based on the sex or other protected characteristic of the plaintiff." (Emphasis added.). Accordingly, the court went on to hold that both sexual and racial harassment claims may proceed under the hostile housing environment theory.9 Reeves v. Carrollsburg Condominium, supra, 16,250.6 n. 10. By implication, therefore, this premise should extend to other protected classes as well. Indeed, in Wilstein v. San Tropai Condominium Master Association, 1999 WL 262145 *11 (N.D. Ill.), the federal district court, without articulating a specific prima facie model, followed DiCenso and Reeves in finding that the plaintiff set forth a cause of action under Title VIII by alleging that certain residents of his condominium complex created a hostile housing environment because of his handicap and his religion. See also Schroeder v. DeBertolo, 879 F.Supp. 173 (D. Puerto Rico 1995) (defendants harassed mentally ill plaintiff and thus interfered with free exercise of her housing rights in violation of §3604 and §3617).

Before addressing what the complainant must prove to succeed in a hostile housing environment claim based on disability, it is important to recognize that hostile work environment claims based on an individual’s disability are unquestionably actionable under both the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., and the Connecticut Fair Employment Practices Act ("FEPA"), General Statutes §§46a-51 et seq. In the employment context, analysis of such claims parallels that used in Title VII sexual harassment cases. See, e.g., Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999); Hendler v. Intelcom USA, Inc., 963 F.Supp. 200, 207-08 (E.D.N.Y. 1997). To establish a prima facie case for harassment based on an individual’s disability, the complainant must demonstrate that (1) he is disabled under the applicable statutes; (2) he was the subject of harassment; (3) the harassment was based on his disability; and (4) the harassment affected a term, condition, or privilege of his employment. Cosgrove v. Sears Roebuck & Co., 9 F.3d 1033, 1042 (2nd Cir. 1993); Zale v. Sikorsky Aircraft Corp., No. 3:97 CV00125, Conn. L. Trib., Vol. 25, No. 47, col. 1388 (D.Conn, Nov. 29, 1999); Pomilio v. Wachtell Lipton Rosen & Katz, 1999 WL 9843 *5 (S.D.N.Y.); Commission on Human Rights and Opportunities ex rel. Secondo v. The Hartford Housing Authority, CHRO No. 9710713, pp. 34-35 (June 9, 2000).

In any discrimination claim, the elements of the prima facie case are flexible and will vary depending on the nature of the case. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 n.6 (1981); Reeves v. Carrollsburg Condominium, supra, p.16,250.6 n.10. Thus, the formulae for hostile work environment based on disability and hostile housing environment based on sex should be adapted to situations involving hostile housing environment based on disability. Relying on such formulae, I therefore conclude that in the present case the complainant must initially demonstrate that (1) he has a disability or handicap; (2) he was the subject of unwelcome harassment; (3) the harassment was based on his disability or handicap; and (4) the harassment was sufficiently severe or pervasive to alter the complainant’s living conditions and to create an abusive environment. In instances where vicarious liability is asserted, a complainant must also demonstrate that the harasser’s conduct should be imputed to the respondent.11 See, e.g., Williams v. Poretsky Mgmt., supra, 955 F.Supp. 496 n.2 (D. Maryland 1996) (hostile housing environment due to sexual harassment); Szkoda v. Illinois Human Rights Commission, supra, 302 Ill. App. 3d 540 (hostile housing environment due to sexual harassment); Reeves v. Carrollsburg Condominium Owners Assoc., supra, 16,250.6 (hostile housing environment based on both sex and race).

In order to find that the respondents have created an environment that is hostile or abusive, I must consider all of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, rather than merely offensive; and whether it unreasonably interferes with the complainant’s use and enjoyment of his home. DiCenso v. Cisneros, supra, 96 F.3d 1008; Honce v. Vigil, supra, 1 F.3d 1090; Wilstein v. San Tropai Condominium, supra, 1999 WL 262145 *11; see also Brown v. Smith, supra, 55 Cal. App.4th 784. To determine whether the harassment was sufficiently severe and pervasive, I must examine the facts both from an objective perspective (i.e., that of a reasonable person) and from the point of view of the complainant. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (in sexual harassment context under Title VII); Williams v. Poretsky Management, Inc., supra, 955 F.Supp. 497.

Whether the complainant is disabled (or handicapped) is the threshold issue in the prima facie case. According to Title VIII, the term "handicap" means, with respect to a person, "(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment . . . ." 42 U.S.C. §3602(h). The record amply demonstrates, without challenge by the respondents, that the complainant suffers from Parkinson’s disease, a physical impairment which substantially limits his ability to engage in major life activities such as caring for himself, performing manual tasks, and working. Thus, the complainant is handicapped and entitled to the protections afforded by §§3604(f) and 3617 of Title VIII.12

According to General Statutes §46a-64b(8), the term "physical disability" includes, but is not limited to, "physical disability, as defined in subdivision (15) of section 46a-51 and also includes, but is not limited to, persons who have a handicap as that term is defined in the federal Fair Housing Act." According to §46a-51(15), the term "physically disabled" refers to "any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness . . ." Because the complainant suffers from a chronic, progressive disease he is physically disabled under state law.

On the record before me, there can be no debate that the complainant was subject to unwelcome and deliberate harassment by several teenage boys, including Bauer and, to a lesser extent, Clark. Moreover, the complainant has provided sufficient evidence to demonstrate that the harassment was based on his disability. Bauer and his friends stared at the complainant as he struggled to perform manual tasks in his yard, made chicken-like noises to mock the complainant’s awkward and jerky movements, and at least one boy, referring to the complainant’s physical difficulty, specifically asked him what was wrong with him. The graffiti written in front of the complainant’s house—"Ron the Retard"—pointedly indicates not only that the complainant was specifically targeted, but that he was singled out because of his condition (mistakenly and maliciously perceived as retardation). As long as the boys had some awareness of his condition, the fact that they never knew the name or exact nature of the complainant’s disease does not shield them from liability. See Zale v. Sikorsky Aircraft Corp., supra, Conn. L. Trib., Vol. 25, No. 47, col. 1388 (coworkers were aware that plaintiff suffered from a mental disorder, but did not know that it was post-traumatic stress disorder). It is unlikely that the boys’ conduct would have occurred if the complainant were a healthy, able-bodied individual. The boys harassed the complainant because of his vulnerable condition, viewing him as easy prey who could be bullied with impunity.

Cases have consistently held that isolated remarks or occasional episodes of harassment will not merit relief; the incidents must occur in concert or with a regularity that can reasonably be termed pervasive. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2nd Cir. 1998) (hostile work environment claim under ADA); DiCenso v. Cisneros, supra, 96 F.3d 1008 (sexual harassment claim under Title VIII); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n.5 (2nd Cir. 1995) (sexual harassment case under Title VII); Honce v. Vigil, supra, 1 F.3d 1090 (sexual harassment claim under Title VIII). Although the most offensive and violent incidents occurred months apart (September 1996, March 1997, August 1997), the numerous, less-egregious activities persisted on a more-frequent basis despite the complainant’s pleas both to the Bauers and to the police, and they ensured that throughout the lengthy ordeal the complainant could never let down his guard. The complainant has unequivocally shown that the harassment was pervasive.

For well over a year, the complainant had to endure vandalism to his home, as well as the persistent indignities of hostile stares, mocking behavior, and cruel and insensitive graffiti blatantly displayed in front of his house for others to see. Even to a reasonable, able-bodied person, such conduct would be sufficiently egregious to create an objectively hostile housing environment. But the complainant was not able-bodied. He suffered from a progressive disease, his medication had noticeable side effects on his motor skills, and his vulnerability made him that much more of an easy target for the predatory boys. Their behavior was clearly severe enough to cause considerable emotional harm. The complainant, his wife, and Dr. Selig all provided credible, consistent, and unimpeachable testimony that the boys’ actions humiliated and threatened the complainant to the point that he could not sleep well, ceased performing daily tasks that would expose him to their presence, and felt so helpless that he kept a gun at his bedside.

The complainant has easily met his burden of proving his prima facie case. The respondents, in their own defense, have offered little or no evidence to contradict that of the complainant. Instead, they have categorically denied the incidents, conveniently blamed the boys who were not at the hearing, or—in an implicit admission by Bauer—cavalierly attributed the incidents to youthful indiscretion. The demeanor of Bauer in particular casts doubt on the his version of the events. For example, I find it utterly implausible that basketball shots missing the hoop or backboard could damage the siding four to six feet up the side of a house twenty-five feet away; only a ball thrown deliberately could cause such damage. Additionally, Bauer’s denial of writing "Ron the Retard" is doubtful, especially given other testimony to the contrary. In light of the respondents’ defensive posturing, finger-pointing, and equivocal testimony, I find their versions of the facts generally to be far less credible than that of the complainant. The complainant has proven by a preponderance of the evidence that the respondents have discriminated against him in violation of 42 U.S.C. §§ 3604(f) and 3617, and General Statutes §§46a-64c(a)(6) and (9).

DAMAGES

The broad authority to award damages under General Statutes §46a-86(c) has been construed to includes the authority to award damages for emotional distress or other non-economic harm. Commission on Human Rights and Opportunities ex rel. Peoples v. Estate of Eva Belinsky, 1988 WL 492460 *5 (Conn. Super, November 8, 1988); Commission on Human Rights and Opportunities ex rel. McNeal-Morris v. Gnat, CHRO No. 9950108, p. 7 (January 4, 2000); Commission on Human Rights and Opportunities ex rel. Harrison v. Greco, CHRO No. 7930433, pp. 12-14 (June 13, 1985). Such awards must be limited to compensatory, rather than punitive, amounts. Chestnut Realty, Inc. v. Commission on Human Rights and Opportunities, 201 Conn. 350, 366 (1986).

Criteria to be considered when awarding damages for emotional distress include: (1) the subjective internal emotional reaction of the complainant; (2) whether the discrimination occurred in front of other people; and (3) the degree of offensiveness of the discrimination. Commission ex rel. Peoples v. Belinsky, supra, 1988 WL 492460 *6; Commission on Human Rights and Opportunities ex rel. Aguiar v. Frenzilli, CHRO No. 9850105, pp. 9-15 (January 14, 2000); Commission on Human Rights and Opportunities ex rel. Harrison v. Greco, supra, 6-7.

The offensiveness of the respondents’ conduct is apparent, and the catalog of incidents set forth above needs no further reiteration here. For more than a year, they callously preyed upon a helpless and frightened disabled individual, profoundly affecting his life. The fact that the respondents and their friends were only fourteen or fifteen years old at the time does not temper the egregiousness of their actions.

A complainant need not present expert medical testimony to establish his internal, emotional response to the harassment; his own testimony, or that of friends or family members, may suffice. Blackburn v. Martin, 982 F.2d 125, 132 (4th Cir. 1992); Johnson v. Hale, 940 F.2d 1192, 1193 (9th Cir. 1991); Commission ex rel. Thomas v. Mills, supra, 6-7. However, medical testimony may strengthen a case. Busche v. Burkee, 649 F.2d 509, 519 n. 12 (7th Cir. 1981). In the present case, the credible testimony of the complainant, his wife, and Dr. Selig, the forensic psychiatrist who evaluated the complainant, convincingly demonstrates that the complainant was profoundly distressed by the boys’ vandalism and repeated instances of intimidation and harassment. See Commission ex rel. McNeal-Morris v. Gnat, supra, 7.

When discriminatory actions occur in front of other people, the victim may be further humiliated and thus deserving of a higher award for emotional distress. Indeed, this was a critical factor in justifying the relatively large awards in several cases; see, e.g., Commission ex rel. Thomas v. Mills, supra, 7-8 (see discussion below); Commission on Human Rights and Opportunities ex rel. Planas v. Bierko, CHRO No. 9420599 (February 8, 1995) (see n.12); see also Commission ex rel. Peoples v. Belinsky, supra, *7 (the absence of such public display led to an award of $3,500, lower than the $5,000 requested.); Commission ex rel. McNeal-Morris v. Gnat, supra, *7-8 (the absence of a public display of discrimination militates against a substantial award).

One of the most humiliating acts was Bauer’s writing "Ron the Retard" in large letters in front of the complainant’s house. In fact, this is the most direct evidence of Bauer’s discriminatory animus. Given their location, the words easily could have been observed by passersby on foot or in vehicles, all the more humiliating to the complainant. However, there is no evidence of how long the words remained before they were cleaned away. The time of day or the day of the week might be relevant as well, but the record is silent on these matters. Thus, I can only speculate how "public" this particular conduct was.

On this record, there is no evidence that anyone observed the less-egregious incidents involving the respondents and their friends gathering on the street, staring at the complainant, and making comments about his condition. Other conduct occurred at night, under cover of darkness, and likewise was not likely witnessed by any member of the public.

Much of the actual vandalism occurred during the day and thus could have been observed by neighbors on the street or from their windows, although it is difficult to imagine that any observer would have remained silent upon witnessing the vandals in action. The evidence here reveals only that Heather Neiweem heard and observed some of what transpired on August 27, 1997 and that her father, Brian Lamkins, observed the immediate aftermath. Nothing, however, could lead either of them to perceive the acts as motivated by or related to the complainant’s disability. Because the complainant was not home at the time, and because the boys’ actions were directed toward the complainant’s house, rather than directly toward him, he is hard-pressed to demonstrate that he was publicly humiliated by a discriminatory act.

Until the complainant had the damage repaired, the physical destruction itself may have remained visible from the street or from neighbors’ houses. However, the respondents and their friends left no telltale signs to suggest that a discriminatory motive lay behind the damage. To an observer, the damage would at most appear to be the result of abhorrent acts of vandalism, but with an unknown motive.

The complainant seeks an award of at least $75,000 and cites to two specific commission decisions, one awarding $25,000 and another, relying on two federal cases, awarding $75,000.

I agree with the commission that the harassment in this case warrants a meaningful, indeed substantial, award, but disagree with the amount requested. An award of $75,000 is far out of line with the majority of awards ordered by this tribunal.

As early as 1988, the Connecticut Superior Court noted that "CHRO hearing officers have been awarding more substantial sums for emotional distress. In CHRO ex rel. Harris vs. Tamburo et al., #80220257, dated 10/17/83, a hearing officer awarded $2,500 in emotional distress damages for the denial of an apartment based upon race and color." Commission ex rel. Peoples v. Belinsky, supra *6. In the 1985 decision of Commission ex rel. Harrison v. Greco, also cited in Belinsky, the complainant, who was denied rental housing because of race and color, was awarded $4,500.13 In light of typical hearing officer awards in the mid-to-late 1980s, the court in Belinsky awarded $3,500 to a plaintiff who was denied an apartment because of his race and color and consequently was quite "upset," was inconvenienced in his traveling sales position, and was forced to sleep on a sofa at his sister’s home for about three months. (As noted above, absent a public display of the discrimination, the court declined to award the full amount requested.)

By the 1990s, the size of emotional distress awards by commission hearing officers was clearly increasing, particularly in cases where discriminatory actions occurred in public. In Commission on Human Rights and Opportunities ex rel. Northerlington v. Mondo, CHRO No. 86202225 (June 22, 1990), the hearing officer awarded emotional distress damages of $5,000, a figure justified by the respondent’s refusal to rent to complainant and her fiancee because they were black, the respondent’s public comments about his preference for tenants based on their race, and the traumatic, well-documented impact the entire incident had on the complainant’s emotional health.

In Commission on Human Rights and Opportunities ex rel. Gonzalez v. Murphy, CHRO No. 9210241 (December 30, 1992), the named complainant had telephoned the respondent regarding several advertised apartment vacancies. Upon learning the Hispanic surnames of the named complainant and her roommate (the co-complainant), the respondent stated that there were no longer any vacancies. Subsequently, "testers" with non-Hispanic surnames were told that there were still vacancies. Apprised of this, the named complainant became angry, humiliated, and anxious, suffered sleep disturbances, and so obsessively dwelled on the incident that it affected her personal relationships with non-Hispanic friends. The co-complainant likewise was angry and humiliated, and "became more guarded with non-Hispanics." Although, like the present case, there was no public display of discrimination, the hearing officer nonetheless awarded the complainant $15,000 in emotional distress damages and the co-complainant $7,500.

In Commission on Human Rights and Opportunties ex rel. Cohen v. Menillo, CHRO no. 9420047 (June 21, 1995), the commission hearing officer awarded a black couple $7,500 each for emotional distress because the respondent landlord refused to rent to them and, in the presence of others, made disparaging remarks about their race.

In 1998, the hearing officer in Commission ex rel. Thomas v. Mills, supra, noted that, other than the $75,000 awarded in the seemingly anomalous Bierko14 decision, Connecticut decisions "have as their high water mark the $15,000 award for emotional distress damages in the Murphy case." Id. at 9.15 Surpassing this limit, the hearing officer awarded the complainant $25,000 for the respondent’s outlandish conduct, which included, over the course of several months, intense and repeated taunts and threats, verbal abuse, and harassment of the complainant, all relating to her disability and sexual orientation. Furthermore, these actions occurred in a public place in front of many people, exacerbating her humiliation. According to the decision, the complainant continued to live "in fear that the Respondent [would] return and seriously hurt her."

Commission ex rel. Thomas v. Mills, although not a housing discrimination case, helpfully articulates the criteria a decision maker must consider, but, using Mills as a benchmark, I cannot reasonably justify an emotional distress award of $75,000 as requested in the present matter. Like the situation in Mills, the harassment was egregious and had profound effects on the complainant. However, in Mills, the offensive conduct was directed at the complainant herself in a public setting. Here, the more egregious incidents occurred when the complainant was not present; furthermore, those incidents, even if occurring in public, bore no earmarks of discrimination per se. To any observer, they would appear to be wanton vandalism, but not discrimination based on the complainant’s disability. Cases such as Belinsky, Northerlington, Murphy, and Menillo, where not all of the pertinent factors existed or the circumstances were less offensive than Mills, provide a more realistic framework for assessing damages here. The trend toward higher awards during the last decade merits damages greater than, say, Belinsky, but the evidence before me certainly warrants an award less than the $75,000 in Bierko or even the $25,000 in Mills.

In light of the foregoing, I conclude that an emotional distress award of $20,000 is fair and reasonable.

Pursuant to General Statutes §46a-86(c), the complainant seeks attorney’s fees in the amount of $16,770, an amount which, according to the affidavit of Attorney Judith Meyer, represents 83.85 hours at $200 per hour. (Ex. C-34) This amount is not supported by the attorney’s own calculations. Attorney Meyer states in her affidavit that she charged $175 per hour for her services through December 1999. In January 2000, she increased her billing rate to $200 per hour. As stated in the attorney’s well-documented billing records accompanying her affidavit, she worked only 33.35 hours in 2000. Only those hours should be billed at $200 per hour. The remainder of the work, 50.50 hours, was performed in 1999 and that portion of the complainant’s claim must therefore be based on the rate of $175 per hour. Thus, the complainant is entitled to recover the following attorney’s fees:

50.50 hours @ $175 per hour…..$ 8,837.50
33.35 hours @ $200 per hour…….6,670.00
TOTAL ………………………..$15,507.50

The complainant is also entitled, as a matter of law, to recover the costs of his expert witness, Dr. Selig ($3,200), and the costs of obtaining copies of medical records ($29.50). General Statutes §46a-86(c). He has also proven that he incurred costs of $1,015 to repair the damage to the siding and the downspout, as evidenced by the cancelled check made payable to the contractor who performed the repairs. To make the complainant whole, he shall recover this amount as well. However, he has not provided sufficient evidence to establish a dollar value for any other alleged property damage and, therefore, I decline to award additional compensation.

The complainant received the sum of $300 from Fiore and $1,500 from Braley as restitution for his damages. The damage award must be offset by these amounts. The complainant also received an undisclosed sum from Louis in settlement of the claim against him. That amount, once determined, must further offset the award.

APPORTIONMENT

The inconsistency of the evidence against the respondents is unsurprising under the circumstances of this case. At least five boys were involved in the ongoing harassment of the complainant and each had a different and, in the case of the respondents, self-serving view of the events. However, among the letters, affidavits, police reports, and testimony there is, with few exceptions, one pervasive theme: denial of significant involvement coupled with implication of others not in a position to defend themselves on the record. When all is said and done, however, one can reasonably conclude that responsibility for many of the less egregious group activities—for example, congregating in front of the complainant’s house and intimidating him—should be borne equally by all. However, the more offensive actions, the ones which warrant a significant award of damages, have been specifically linked to named individuals who, in turn, should bear a larger share of the liability. Because the complainant settled his claims with Fiore prior to instituting this action, and with Braley and Louis during the pendency of this action, Clark and Bauer must bear the burden of any liability determined here. However, the evidence dictates that Bauer should bear a larger share of the damages.

Because he lived next door to the complainant, Bauer had ready access to his yard, his doorbell, and his driveway at any time of day. Furthermore, because of Bauer’s proximity, his house was the point of origin from which the harassing activities were initiated. It would not be surprising that Bauer, who was the boy most familiar with the complainant’s disability, was the one who generated the discriminatory attitudes in the first place.

The evidence specifically links Bauer to certain incidents. The sworn statements of others demonstrate not only that Bauer deliberately threw a basketball at the complainant’s house on many occasions, but that he took a turn wielding the screwdriver in the August 27 incident. Furthermore, the evidence points directly at Bauer as the writer of "Ron the Retard."

Clark did not spend as much time with the group as did the others. He was out of town during the summers and sometimes worked after school. Nevertheless, he was sometimes among the boys congregating by the complainant’s house, and he thus contributed to their generally menacing presence.

Although there is no evidence that Clark participated in the wanton destruction on August 27, he sat passively in the Bauers’ garage while several of the boys viciously attacked the complainant’s house with a broomstick, a screwdriver, and a knife. He was aware of what his friends were doing and did nothing to stop them. It is not too much to expect of a teenage boy to know right from wrong, and to speak up when he sees his friends wilfully harassing another or destroying someone’s property. This, too, warrants some measure of liability.

FINAL DECISION AND ORDER

  1. The respondents shall pay to the complainant damages in the amount of thirty-seven thousand, nine-hundred and fifty-two dollars ($37, 952), based on the following:

Property damage ……………...     $ 1,015.00
Miscellaneous costs ……………            29.50
Attorney’s fees ………………...     15,507.50
Cost of expert witness ……..…..       3,200.00
Emotional distress damages ……     20,000.00
SUBTOTAL …………………..   $39,752.00
(Offset …………………………... -1,800.00)
TOTAL ………………………    $37, 952.00

Ten percent (10%) of this monetary award shall be paid to the complainant by respondent Stephen Clark. Ninety percent (90%) shall be paid by respondent Luke Bauer.

  1. Pursuant to General Statutes §37-3a, post-judgment simple interest shall accrue on the unpaid balance at the rate of 10% per annum, from the date of this decision.
  2. The respondents shall immediately cease and desist from any discriminatory or harassing conduct with respect to the complainant or his family.
  3. The respondents shall not retaliate against the complainant or any person who participated in this proceeding.

It is so ordered this ____ day of ___________________, 2000.

____________________________

David S. Knishkowy
Human Rights Referee

c: R. Little
D. Teed
K. Turekian
J. Meyer
L. Bauer
S. Bauer
S. Clark
D. Clark
R. Pech

PARTY LIST

Parties

Ronald Little
271 Quail Run Road 
Suffield, CT 06078 

Represented by
Judith Meyer, Esq.
152 Simsbury Road
PO Box 451
Avon, CT 06001-0451

Stephen Clark [Pro se]
19 Pheasant Lane
Suffield, CT 06078

Luke Bauer [Pro se]
281 Quail Run Road
Suffield, CT 06078

Commission on Human Rights And Opportunities
21 Grand Street
Hartford, CT 06106

Represented by
David M. Teed, Esq. 
Karla A. Turekian, Esq.
Office of the Attorney General
55 Elm Street
Hartford, CT 06141-0120

ENDNOTES

1At the time of the incidents described herein, Stephen Clark and Luke Bauer were both minors, hence the caption in this case. As of the date of the public hearing, Bauer and Clark were at least eighteen years old.

2 Louis testified evasively that when he had previously said that Bauer was "responsible" he did not necessarily mean Bauer wrote it; however, he did not indicate what else he might have meant. Louis indeed was in a predicament on the stand, with his friend Bauer sitting in the hearing room. Torn between the demand of his oath and loyalty to his friend, Louis was unable to provide a consistent picture of what transpired that day. While much of his testimony was equivocal, and thus not credible, under the circumstances, the reluctant testimony against his friends is more believable than the glib testimony favoring them.

3 The presence of these five boys was confirmed under oath by Justin Louis. (Tr. 147)

4 Clark testified that he had been sitting in the garage throughout this incident and he only saw Fiore and Braley throwing the screwdriver. I find it unsurprising that Clark would identify the two boys who have moved out of state rather than the two others (Bauer and Louis) in the hearing room. In fact, Clark testified that he did not see Louis throw the screwdriver, even though Louis admitted doing so. (See Tr. 183-85)

5 The complainant did not offer this letter into evidence.

6 Selig is a forensic psychiatrist who has been licensed to practice medicine in Connecticut since 1981 and Board certified in adult psychiatry since 1982. (Tr. 297; Ex. C-27)

7 While this tribunal is generally guided by federal law in interpreting state anti-discrimination statutes, there are places where distinct differences exist between the two. The Connecticut Supreme Court has found such differences to be purposeful and meaningful—in particular where the provisions of state law are more protective than their federal counterpart—and thus has departed from federal precedent. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 35 n.5 (1978).

8 Title VIII prohibits discrimination based on a person’s "handicap," a term defined in 42 U.S.C. §3602. General Statutes §46a-64c prohibits housing discrimination against one who has a "physical or mental disability," the definition of which includes, but is not limited to, persons with a handicap as that term is defined in Title VIII. (See §46a-64b.) Other than where the differences in the two terms are meaningful for the purposes of this decision, I will simply use the term "disability" as a shorthand reference to both.

9 Race discrimination is explicitly prohibited by Title VIII. 42 U.S.C. §3604(a),(b) and §3617. The ruling in Reeves simply recognizes that harassment based on race is a form of prohibited race discrimination. Like Reeves, the present case is based on §3604 (here §3604(f)) and §3617.

10 See footnote 8 above.

11 Proof of this is not needed under the circumstances of this case, where the respondents themselves are the alleged harassers.

12 Furthermore, the Title VIII definition of handicap is substantially the same as the definition of a handicapped individual in the Rehabilitation Act of 1973, as amended, 29 U.S.C. 706(8)(a) and that of a disabled individual in the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12102(2)(A). It is well established that case law construing federal civil rights statutes provides guidance in construction of comparable provisions of the others. See, e.g., Silk v. City of Chicago, supra, 194 F.3d 798 n.7 (analysis of hostile work environment under Title VII guides similar analysis under ADA); Woodman v. Runyon, 132 F.3d 1330, 1339 n.8 (10th Cir. 1997)( judicial interpretation of the Rehabilitation Act is applicable to cases brought under the ADA and vice versa); Honce v. Vigil, supra, 1 F.3d 1088-90 (interpretation of sexual harassment under Title VII a model for sexual harassment under Title VIII.) At least one federal Court of Appeals has recognized Parkinson’s disease to be a "handicap" within the meaning of the Rehabilitation Act. Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. 1991).

13 According to the decision, $2,000 and $3,500 emotional distress awards were considered to be "significant" at that time. Commission ex rel. Harrison v. Greco, supra, 12.

14 After a default hearing, the hearing officer awarded emotional distress damages of $75,000 to a Puerto Rican complainant who was constantly harassed over a period of three years. Commission ex rel. Planas v. Bierko, supra. According to the decision, the respondent "has harassed the Complainant in many different ways, including but not limited to, shouting racial [sic] slurs, sending racial slurs to the Complainant and her family by mail, placing signs with racial slurs on them pointed at and/or directed to the Complainant’s property and making negative comments to the Complainant’s neighbors and her parish priest." Id. at 2. As a result of the "severe harassment," the complainant sold her house, changed parish churches, and suffered "extreme emotional distress." Id.

15 Subsequent to Mills, another commission hearing officer, with little explanation, awarded $15,000 in emotional distress damages where the respondent landlord charged the black complainant higher rent than his white tenants and referred to the complainant’s children as "niggers" in front of the complainant and her friend. Commission on Human Rights and Opportunities ex rel. Nelson v. Malinguaggio, CHRO No. 9740155 (June 10, 1999).





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