Carolyn & Erica Dawkins v. Christi Emminger

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
CAROLYN DAWKINS AND
ERICA DAWKINS
Complainant Complaint No. 9745
(AKR) H3101903 (28274) 102703
v. 05 – 04 – 0073 – 8
CRISTI EMMINGER
Respondent
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
David A. Oppenheimer, Esq. Cristi Emminger
Associate Attorney General 1295 California Avenue
Civil Rights Section Akron, OH 44314
State Office Building, 11th Floor
615 West Superior Avenue Respondent's Representative
Cleveland, OH 44113-1899
216 – 787 – 3030
Counsel for the Commission
ALJ'S REPORT BY:
Carolyn Dawkins Denise M. Johnson
Erica Dawkins Chief Administrative Law Judge
1166 Jason Avenue Ohio Civil Rights Commission
Akron, OH 44314 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainants 614 – 466 – 6684

1
INTRODUCTION AND PROCEDURAL HISTORY
Carolyn and Erica Dawkins (Complainants) filed a sworn charge affidavit
with the Ohio Civil Rights Commission (Commission) on October 27, 2003.
The Commission investigated and found probable cause that Cristi
Emminger (Respondent) engaged in unlawful discriminatory practices in
violation of Revised Code Section (R.C.) 4112.02(H)(12).1
The Commission issued a Complaint, Notice of Hearing, and Notice of
Right of Election on August 12, 2004.
The Complaint alleged that Respondent intimidated Complainants by
subjecting them to unwelcome and unwanted acts of racially motivated
harassment, including but not limited to, the use of offensive epithets and
other forms of verbal harassment, that had the purpose or effect of creating a
racially offensive, intimidating, and hostile living environment.
1 The Commission’s Complaint alleged violations of R.C. 4112.02 (H)(4) and (12).
However, the evidence presented at the hearing by the Commission is consistent with
allegations of prohibited conduct under R.C. 4112.02(H)(12). Accordingly, the
Commission’s Complaint is amended to conform to the evidence, sua sponte.

2
The Complaint further alleged that Respondent’s actions had the
purpose or effect of denying to Complainants the full enjoyment of the
premises, and to otherwise deny or make housing accommodations
unavailable to them for reasons not applied equally to all persons without
regard to their race.
The Commission filed a Motion for Default on January 10, 2005.2
Thereafter, Respondent filed an Answer on February 18, 2005,
generally denying the allegations of the Complaint.3
A public hearing was held on July 5, 2005 at the Ocasek Government
Building in Akron, Ohio. Respondent did not appear at the hearing.
2 Complaint and Notice of Hearing No. 9745 was sent to Respondent by certified
mail dated August 17, 2004. The certified mail was returned unclaimed on September 9,
2004. Pursuant to O.A.C. 4112-3-06(A), the Answer was due in September of 2004.
3 The Commission’s Motion for Default was granted at the hearing.

3
The record consists of the previously described pleadings, a transcript
consisting of 68 pages, exhibits admitted into evidence at the hearing, and a
post-hearing brief filed by the Commission on November 30, 2005.
Respondent did not file a post-hearing brief.
FINDINGS OF FACT
The following findings are based, in part, upon the Administrative Law
Judge’s (ALJ) assessment of the credibility of the witnesses who testified
before her in this matter. The ALJ has applied the tests of worthiness of belief
used in current Ohio practice. For example, she considered each witness's
appearance and demeanor while testifying. She considered whether a witness
was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. She further considered the
opportunity each witness had to observe and know the things discussed; each
witness's strength of memory; frankness or the lack of frankness; and the bias,
prejudice, and interest of each witness. Finally, the ALJ considered the extent
to which each witness's testimony was supported or contradicted by reliable
documentary evidence.

4
1. Complainants filed a sworn charge affidavit with the Commission
on October 27, 2003.
2. The Commission determined on April 1, 2004 that it was probable
that Respondent engaged in unlawful discriminatory practices in violation of
R.C. 4112.02(H)(12).
3. The Commission attempted but failed to conciliate this matter by
informal methods of conciliation.4
4. Complainants are mother and daughter and are African- American.
5. Complainants moved to 1166 Jason Avenue in Akron. The
location is in a predominately Caucasian neighborhood. They felt that it was
better than the congested public housing unit they had previously lived in.5
4 Comm. Exs. 10-15.
5 Carolyn Dawkins (mother) received an Associate Degree in 1995 in Child
Development from the Adult Vocational College in Akron. Erica Dawkins received an
Associate Degree in Medical Assisting from the University of Akron in 1997.

5
6. The original landlord was Jason Wallenhurst (Wallenhurst). He
owned a total of ten units, consisting of five duplexes. Each duplex has a
downstairs unit with a porch and an upstairs unit with a balcony.
7. Complainants moved into a two-bedroom downstairs unit.
8. When Complainants first saw the unit there was no one living
upstairs over the unit they were interested in renting.
9. However, when they moved in, Respondent, who is Caucasian,
occupied the upstairs unit.
10. When Complainants moved in Respondent was standing in the
doorway. Both Complainants recall that Respondent was staring at them in
a “cold and dirty“ manner. (Tr. 5)
11. Respondent allowed her guests to park in spaces reserved for
Complainants. Respondent also stayed up late at night entertaining guests
who were constantly coming and going. Since Complainants were both
employed, this conduct was disruptive because it kept them awake during the
night.

6
12. Complainants attempted to approach Respondent to resolve the
matter but without success. They eventually spoke to Wallenhurst who said
he would talk to Respondent.
13. Instead of the situation improving, it worsened. Respondent
continued playing loud music all night, turning it off at 5:00 a.m. each morning
– the time Complainants got up to get ready for work.
14. Complainant Carolyn Dawkins talked to Wallenhurst again. The
situation would improve for a week or so, but then Respondent went back to
playing loud music all night.
15. In September 2002, Complainants called the police to complain
about the noise level.
16. The police came out and spoke to Respondent. After they left,
Respondent came out onto her balcony and shouted “Niggers, niggers,
niggers!” (Tr. 55-56)

7
17. The problems with loud music, the guests, and trash being thrown
in Complainants’ yard area continued. Respondent’s guests and boyfriend
began throwing beer cans onto Complainants’ porch. (Tr. 27-30)
18. On another occasion where Complainants heard loud noises in
Respondent’s apartment that sounded like a verbal and physical altercation
taking place, Complainants called the new landlord, Ryan Creed (Creed), to
complain.6
19. Thereafter, Complainants heard Respondent’s telephone ring.
After Respondent hung up the phone, she walked out onto her balcony and
yelled out, “Niggers, niggers, niggers!” (Tr. 26-27)
20. In October of 2003 the problems with the loud music and partying
intensified and complaints were responded to with racial slurs.7
6 Complainants also heard Respondent having a fight with her boyfriend, and
heard the boyfriend say that Respondent had cut him. Complainants saw the boyfriend run
out of the upstairs unit bleeding and holding a bloody towel. (Tr. 31-32)
7 Complainants’ also called the police after they contacted Creed. The police
came out regarding the noise complaint. After the police left Respondent began banging
on a table in her unit, shouting “Niggers!” over and over again. She then began jumping
up and down in a small hallway, yelling “Niggers!” Complainants called the police again
who came out once more to quiet Respondent. (Tr. 57-59)

8
21. Complainant Carolyn Dawkins called Creed and told him about
the continued obnoxious behavior. He said that the next day he would issue a
Three Day Notice to Vacate.
22. On October 19, 2003, Creed issued a Three Day Notice to Vacate
to Respondent.
23. After Creed handed the notice to Respondent she went out onto
the balcony and said that she could not “believe that you would take up for
those niggers!” (Tr. 33, 60-61)
24. Respondent continued her outburst on the porch yelling
“Niggers!” over and over again. She also went inside her apartment and
continued yelling “Niggers!” while banging on the ceiling of Complainants’
unit. (Tr. 34-35, 60-61)
25. Respondent also yelled that she was going to break the windows
in Complainants’ cars and in their apartment.

9
26. Complainant Carolyn Dawkins called the police again. The police
came out and tried to speak to Respondent, but she refused to open the door
for them. Complainant Carolyn Dawkins ended up filing an incident report
with the police. (Comm. Ex. 2)
27. On October 24, 2003 while Complainant Carolyn Dawkins was
asleep in the chair in her living room an object was hurled through the living
room window. Complainant Carolyn Dawkins opened up her door and saw
someone going up the steps to Respondent’s unit.
28. After the door to the upstairs unit slammed shut, Respondent
then began yelling profanities and racial epithets over and over again.
(Tr. 39-41)
29. The next day Complainants discovered that the back window of
Complainant Carolyn Dawkin’s car had been smashed. She filed two police
reports on October 25, 2003 regarding the car window and Respondent’s use
of racial slurs. After the police left, Respondent came outside and again

10
began yelling racial slurs at Complainants. Complainants again filed a
police report on this incident.8
30. Respondent vacated her unit soon after the last incident.
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.9
8 Complainant Carolyn Dawkins filed a lawsuit against Respondent seeking
protection from physical assaults to themselves by Respondent. The court granted a
temporary Protection Order on November 4, 2003, a permanent Protection Order on
December 3, 2003, and a Civil Protection Stalking Order on April 14, 2004.
9 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion
of Law may be deemed a Finding of Fact.

11
1. The Commission alleges in the Complaint that Respondent
intimidated Complainants, threatened them, and otherwise interfered with the
quiet enjoyment of their home on the basis of race.
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:
(H) For any person to:
(12) Coerce, intimidate, threaten, or interfere with any person in
the exercise or enjoyment of, or on account of that person's
having exercised or enjoyed or having aided or encouraged
any other person in the exercise or enjoyment of, any right
granted or protected by division (H) of this section.
3. The Commission has the burden of proof in cases brought under
R.C. Chapter 4112. The Commission must prove a violation of R.C.
4112.02(H) by a preponderance of reliable, probative, and substantial
evidence. R.C. 4112.05(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

12
Ohio St.3d 607. Therefore, reliable, probative, and substantial evidence
means evidence sufficient to support a finding of unlawful discrimination under
the federal Fair Housing Act of 1968 (Title VIII), as amended.10 It is also
appropriate to refer to the regulations of the Department of Housing and Urban
Development (HUD), the federal agency charged with enforcement of Title
VIII.
5. Like its federal counterpart, a broad range of activities can
constitute a violation of R.C. 4112.02(H)(12). Among other things, this
provision prohibits acts that threaten, intimidate, or interfere with persons
(and their associates) in their enjoyment of housing accommodations
because of their race. See HUD Regulations, 24 C.F.R. 100.400(c)(2).
6. The evidence in this case shows that Respondent engaged in a
campaign of intimidating and threatening behavior toward Complainants,
and otherwise interfered with the quiet enjoyment of their home because of
their race. (See Finding of Facts.) Complainants testified credibly about
events that occurred during their tenure at 1166 Jason Avenue.
10 Section 3617 of Title VIII is substantially the same as R.C. 4112.02(H)(12).
See 42 U.S.C. 3617.

13
7. In summary, Respondent threatened Complainants, intimidated
them, and otherwise interfered with the quiet enjoyment of their home.
Respondent’s actions, which were racially motivated, are a violation of R.C.
4112.02(H)(12). Therefore, Complainants are entitled to damages.
DAMAGES
8. When there is a violation of R.C. 4112.02(H), the statute requires
an award of actual damages shown to have resulted from the discriminatory
action, as well as reasonable attorney’s fees. R.C. 4112.05(G)(1). The
statute also provides that the Commission, in its discretion, may award
punitive damages.
ACTUAL DAMAGES
9. In fair housing cases, the purpose of an award of actual damages is
to place the Complainants “in the same position, so far as money can do it, as
… [the Complainants] would have been had there been no injury or breach of
duty …." Lee v. Southern Home Sites Corp., 429 F.2d 290, 293 (5th Cir.
1970) (citations omitted). To that end, victims of housing discrimination may

14
recover damages for tangible injuries such as economic loss and intangible
injuries such as humiliation, embarrassment, and emotional distress. Steele v.
Title Realty Co., 478 F.2d 380 (10th Cir. 1973). Damages for intangible
injuries may be established by testimony or inferred from the circumstances.11
Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir. 1974).
10. In this case, the evidence shows that Complainants suffered slight
out-of-pocket damages but heavy emotional distress from Respondent’s
on-going campaign of harassment, intimidation, and terror.
11. Complainant Carolyn Dawkins had to replace her car window at a
cost of $150.
11 Although emotional injuries are difficult to quantify, "courts have awarded
damages for emotional harm without requiring proof of the actual value of the injury." HUD
v. Paradise Gardens, P-H: Fair Housing-Fair Lending Rptr. ¶25,037 at ¶25,393 (HUD ALJ
1992), citing Block v. R. H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir. 1983) (other citations
omitted). The determination of actual damages from such injuries "lies in the sound
discretion of the Court and is essentially intuitive." Lauden v. Loos, 694 F.Supp. 253, 255
(E.D. Mich., 1988).

15
12. Both Complainants testified about their background of struggle to
educate themselves, begin rewarding careers, and leave the crowded
projects for a new life in what they believed would be a comfortable
neighborhood.
13. Complainant Carolyn Dawkins gave credible testimony about the
effect that Respondent’s conduct had on her. She began to distrust people.
She struggled to prevent the impact of the harassment from affecting her
attitude toward other people with whom she had contact. She is a deeply
religious person who constantly struggled with not letting Respondent’s
behavior affect her attitude toward the Caucasian children that she worked
with. She ultimately received counseling to help her deal with her feelings.
(Tr. 43-46)
14. Both Complainants testified about feeling physically unsafe
and unwanted. They lost sleep and experienced stress. Complainant
Carolyn Dawkins testified that she felt so unsafe that she was unable to sleep
until her neighbors agreed that they would keep an eye on her unit
in case Respondent tried to do something destructive. This feeling

16
went on months after Respondent had vacated the premises. (Tr. 43-46)
Complainant Carolyn Dawkins even sought civil protection and anti-stalking
orders because of Respondent’s actions.
15. The ALJ credited Complainants’ testimony and sincerity about
the emotional distress that they suffered because of Respondent’s actions.
In light of their testimony and the totality of the circumstances surrounding
Respondent’s actions, the ALJ recommends that the Commission award
Complainants $45,000 for actual damages.
PUNITIVE DAMAGES
16. The purpose of an award of punitive damages pursuant to R.C.
4112.05(G) is to deter future illegal conduct. Ohio Administrative Code
(O.A.C.) 4112-6-02. Thus, punitive damages are appropriate "as a deterrent
measure" even when there is no proof of actual malice. Shoenfelt v. Ohio Civil
Right Comm., (1995), 105 Ohio App.3d 379, 385, citing and quoting,
Marr v. Rife, 503 F.2d 735, 744 (6th Cir. 1974).

17
17. The amount of punitive damages depends on a number of factors,
including:
 The nature of Respondent’s conduct;
 Respondent’s prior history of discrimination;
 Respondent’s size and profitability;
 Respondent’s cooperation or lack of cooperation during the
investigation of the charge; and
 The effect Respondent’s actions had upon Complainants.12
O.A.C. 4112-6-01.
18. Applying the foregoing factors to this case:
 Respondent’s actions were intentional, malicious, and
racially motivated;
 The Commission did not present any evidence that there
have been previous findings of unlawful discrimination against
Respondent;
 Respondent is not a provider of housing accommodations.
Therefore, the factors relating to size of housing
accommodations and profitability are inapplicable in this case;
and
 There was no evidence introduced at the hearing about
Respondent’s cooperation or lack thereof.
12 This factor is more appropriately considered when determining actual damages.

18
19. Based on the foregoing discussion, the ALJ recommends that
Respondent be assessed $7,500 in punitive damages.
ATTORNEY'S FEES
20. The Commission’s counsel is entitled to attorney's fees. R.C.
4112.05(G)(1); Shoenfelt, supra at 386. If the parties cannot agree on the
amount of attorney's fees, the parties shall present evidence in the form of
affidavits.
21. To create a record regarding attorney's fees, the Commission's
counsel should file affidavits from plaintiffs' attorneys in Summit County, Ohio
regarding the reasonable and customary hourly fees they charge in housing
discrimination cases. Also, a detailed accounting of the time spent on this
case must be provided and served upon Respondent. Respondent may
respond with counter-affidavits and other arguments regarding the amount of
attorney's fees in this case.

19
22. If the Commission adopts the ALJ's Report and the parties cannot
agree on the amount of attorney's fees, the Commission should file an
Application for Attorney's Fees within 30 days after the ALJ’s Report is
adopted. Respondent may respond to the Commission's Application for
Attorney's fees within 30 days from her receipt of it.
23. Meanwhile, any Objections to this report should be filed pursuant
to the O.A.C. Any Objections to the recommendation of attorney's fees can
be filed after the ALJ makes her Supplemental Recommendation to the
Commission regarding attorney's fees.

20
RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint No.
9745 that:
1. The Commission order Respondent to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
2. The Commission order Respondent to pay the Complainants
$45,150 in actual damages; and
3. The Commission order Respondent to pay the Complainants
$7,500 in punitive damages.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
September 25, 2006