Gregory and Judy Gerity v. Pat and Mel Gitler

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
GREGORY J. GERITY AND
JUDY A. GERITY
Complainants 	Complaint #7932
(TOL) H2011796 (20685) 031196
and 	HUD #: 05-96-0690-8
PAT GITLER AND MEL GITLER D/B/A
PEACEFUL ACRES MOBILE PARK
Respondents
HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
BETTY D. MONTGOMERY
ATTORNEY GENERAL
Sharon D. Tassie, Esq. 	Rex. H. Huffman, Esq.
Assistant Attorney General 	Spitler, Vogtsberger & Huffman
Civil Rights Section 	932 Dixie Highway
State Office Building, 12th Floor 	Rossford, OH 	43460
615 West Superior Avenue 	(419) 666-7130
Cleveland, OH 	44113-1899
(216) 787-3453 	Counsel for Complainants
Counsel for the Commission
Gregory J. Gerity 	Pat Gilter
Judy A. Gerity 	Mel Gitler
1650 Alloway Drive 	1024 Norwich
Delton, Fl 	32725 	Troy, MI 48084
Complainants 	Respondents
HEARING EXAMINER'S REPORT BY:
Todd W. Evans, Esq.
Hearing Examiner
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 	43205-1379
(614) 466-6684

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INTRODUCTION AND PROCEDURAL HISTORY
Gregory J. Gerity and Judy A. Gerity (Complainants) filed a sworn
charge affidavit with the Ohio Civil Rights Commission (Commission) on
March 11, 1996.
The Commission investigated and found probable cause to believe that
that Pat Gitler and Mel Gitler d/b/a Peaceful Acres Mobile Home Park
(Respondents) engaged in unlawful discriminatory practices in violation of
Section 4112.02(H)(12) of the Revised Code (R.C.).
The Commission issued a Complaint, Notice of Hearing, and Notice of
Right of Election on February 20, 1997. 	The public hearing was held in
abeyance pending the Commission’s conciliation efforts.
The Complaint alleges that Respondents harassed Complainants and
threatened 	to 	evict 	them 	in 	retaliation 	for 	filing 	a 	previous 	charge 	of
discrimination. Respondents did not file an Answer to the Complaint.

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A public hearing was held on November 25, 1997 at One Government
Center in Toledo, Ohio. Respondents did not appear at the hearing.
The Record consists of the previously described pleadings, a transcript
consisting of 63 pages of testimony, exhibits admitted into evidence at the
hearing, and post-hearing briefs filed by the Commission on January 23, 1998
and by Pat Gitler on February 13, 1998.
FINDINGS OF FACT
The following findings are based, in part, upon the Hearing Examiner's
assessment of the credibility of the witnesses who testified before him in this
matter. 	The Hearing Examiner has applied the tests of worthiness of belief
used in current Ohio practice. 	For example, he considered each witness's
appearance and demeanor while testifying. He considered whether a witness
was evasive and whether his or her testimony appeared to consist of
subjective opinion rather than factual recitation. 	He further considered the
opportunity each witness had to observe and know the things discussed, each
witness's strength of memory, frankness or the lack of frankness, and the

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bias, prejudice, and interest of each witness. Finally, the Hearing Examiner
considered the extent to which each witness's testimony was supported or
contradicted by reliable documentary evidence.
1. Complainants filed a sworn charge affidavit with the Commission on
March 11, 1996.
2. 	The Commission determined on February 20, 1997 that it was
probable that Respondents engaged in unlawful discriminatory practices in
violation of R.C. § 4112.02(H)(12).
3. 	The Commission attempted and failed to eliminate the alleged
unlawful discriminatory practices by informal methods of conciliation.
4. 	Respondents are providers of housing accommodations. They own
Peaceful Acres Mobile Home Park (Peaceful Acres). 	Peaceful Acres is
located at 13555 Neapolis-Waterville Road in Lucas County, Ohio. 	Peaceful
Acres contains 60 lots for mobile homes and three apartments. (Comm.Ex. 1)

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5. 	Complainants are married. 	They reside with their three children.
Complainants and their children lived in a mobile home and rented a lot at
Peaceful Acres from September 1989 to June 1996.
6. 	On July 12, 1993, Gregory Gerity filed a charge of discrimination
against Peaceful Acres. 	Id., at p. 3. In this charge, he alleged that Peaceful
Acres charged him an additional rental fee because of his familial status.
7. 	Following this charge, Ms. Gitler 	“verbally abused . . . [Gregory
Gerity] and his family, and threatened to evict them.” 	Id., at 6. 	Ms. Gitler told
Greg Gerity “on numerous occasions” that his charge was “bullshit” and he
and his family should “get the fuck out.” 	Id.
8. 	On August 5, 1993, Ms. Gitler informed tenants via letter that she
had to increase rent to offset her legal expenses caused by “the activities of
tenants during the last two months.” 	Id., at 22. 	Ms. Gitler increased the rent
at Peaceful Acres on September 1, 1993. 	Id., at p. 7.

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9. 	The 	Commission 	investigated 	Gregory 	Gerity’s 	charge 	of
discrimination and found probable cause to believe that Peaceful Acres had
engaged in unlawful discriminatory practices. The Commission subsequently
issued a Complaint (#6892), Notice of Hearing, and Right of Election on
November 24, 1993. 	The public hearing was held in abeyance pending the
Commission’s conciliation efforts.
10. 	Franklin A. Martens, Chief Hearing Examiner, conducted a public
hearing 	in 	this 	matter 	on 	December 	2, 	1994. 	Following 	the 	hearing,
Complainants returned to their mobile home and found several eviction
notices from Ms. Gitler.
11. 	Chief Hearing Examiner Martens issued his Findings of Fact,
Conclusions of Law, and Recommendation (Hearing Examiner’s Report) in
Complaint #6892 on August 31, 1995. 	On the merits, he found that:
• 	Peaceful Acres equally applied its policy of charging tenants an
additional rental fee of $2.00 per month for each occupant over two;
• 	The Commission failed to prove that this policy had a disparate
impact on families with children; and

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• 	Ms. Gitler engaged in unlawful retaliation.1
Ms. Gitler sent Complainants another eviction notice approximately three
weeks after the Hearing Examiner’s Report was issued. 	(Comm.Ex. 3)
12. 	On October 26, 1995, the Commission adopted the Hearing
Examiner’s Report, but remanded the case for determination of damages.2
Chief Hearing Examiner Martens issued an Addendum to the Hearing
Examiner’s Report on November 30, 1995. 	(Comm.Ex. 2) 	The Addendum
recommended that Gregory Gerity be awarded $1,500 in actual damages;
Peaceful 	Acres 	be 	assessed 	$3,500 	in 	punitive 	damages; 	and 	the
Commission receive reasonable attorney’s fees. 	Id.
13. On January 5, 1996, Ms. Gitler sent Complainants another eviction
notice. 	(Comm.Ex. 4) 	Later that month, Ms. Gitler filed an eviction action
against Complainants in Maumee Municipal Court. 	(Comm.Ex. 5) 	Ms. Gitler
1 Chief Hearing Examiner Martens amended Complaint #6892 to conform to the
evidence presented at the hearing. (Comm.Ex. 1, at pp. 9-12)
2 The Commission also adopted the Objections of the Commission Attorney. See
Commission’s Minutes, October 26, 1995, p. 330. The Commission Attorney argued that
the Commission had the authority under R.C. § 4112.02(H)(12) to assess damages and
attorney’s fees against Peaceful Acres for Ms. Gitler’s retaliatory conduct.

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indicated in the eviction action that Complainants were in default for payment
of rent and utilities from October 1, 1993 to December 1, 1993, and 	they
attempted to extort money from her “through frivolous court cases.” 	Id. 	In a
lengthy brief to the court, Ms. Gitler wrote that Complainants conspired to put
her out of business “by increasing . . . [her] legal fees, by legally extorting big
judgments against . . . [her] through FREE Civil Rights Cases, and Court
Cases . . . .”3 Id. 	The court dismissed the eviction action in early February
1996 based on res judicata. 	(Comm.Ex. 11)
14. 	During the last three years of Complainants’ tenancy at Peaceful
Acres, Ms. Gitler repeatedly threatened and verbally harassed Complainants
and their children. 	Ms. Gitler’s behavior toward them became “worse” during
that period. (Tr. 29) Complainants left Peaceful Acres in June 1996 because
of Ms. Gitler’s conduct toward their family.
3 Ms. Gitler made several similar statements throughout her 35-page brief.

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CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. To the extent that the proposed findings and
conclusions submitted by the parties and the arguments made by them are in
accordance with the findings, conclusions, and views stated herein, they have
been accepted; to the extent they are inconsistent therewith, they have been
rejected. 	Certain proposed findings and conclusions have been omitted as
not relevant or as not necessary to a proper determination of the material
issues presented.
1. 	The 	Commission 	alleges 	in 	its 	Complaint 	that 	Respondents
harassed Complainants and threatened to evict them in retaliation for filing a
previous charge of discrimination.
2. 	This allegation, if proven, would constitute a violation of R.C. §
4112.02, which provides, in pertinent part, that:

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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(E) and (G).
4. 	Federal case law applies to alleged violations of R.C. Chapter 4112.
Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm., (1991), 61 Ohio
St.3d 607. 	Therefore, reliable, probative, and substantial evidence means
evidence sufficient to support a finding of unlawful discrimination under the
federal Fair Housing Act of 1968 (Title VIII), as amended.4
4 Section 367 of the Fair Housing Act is substantially the same as R.C. §
4112.02(H)(12). 	See 42 U.S.C. § 3617.

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5. 	The same standards of proof that apply to employment discrim-
ination cases generally apply to housing discrimination cases.5 Normally,
these standards require the Commission to first prove a prima facie case of
discrimination. 	McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP
Cases 965 (1973). 	This burden is not onerous; it is simply part of an
evidentiary scheme “intended progressively to sharpen the inquiry into the
elusive 	factual 	question 	of 	intentional 	discrimination.” 	Texas 	Dept. 	of
Community Affairs v. Burdine, 450 U.S. 248, 254, 25 FEP Cases 113, 116, n.8
(1981).
6. 	The proof required to establish a prima facie case may vary on a
case-by-case basis. McDonnell Douglas Corp., supra at 802, 5 FEP Cases at
969, n.13. 	In this case, the Commission may establish a prima facie case by
showing that:
(1) 	Complainants engaged in activity protected by R.C. Chapter
4112;
(2) 	Respondents took an adverse action against Complainants;
and
5 Although the Supreme Court has never addressed the issue, “. . . lower courts
have generally assumed that . . . precedents from the employment discrimination field
should be followed in interpreting Title VIII.” R. Schwemm, Housing Disc., 1996 Ed. at 10-
3.

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(3) 	A causal connection exists between the protected activity and
the adverse action taken by Respondents.
HUD 	v. 	Krueger, 	P-H: 	Fair 	Housing-Fair 	Lending 	Rptr.
¶25,119 at p. 26,026 	(HUD ALJ 1996), aff’d, 115 F.3d 487
(7th Cir. 1997).
7. In applying these elements to this case, the Commission established
the first element of a prima facie case. Gregory Gerity engaged in protected
activity 	by 	filing 	a 	previous 	charge 	of 	discrimination 	with 	the
Commission. 	Judy Gerity is also protected under the statute because her
husband filed a previous charge. 	Cf., Kent v. R.J. Reynolds Tobacco Co., 27
FEP Cases 1628, 1633 (E.D. La. 1982) (employer violated Title VII when it
retaliated against an employee whose relative engaged in protected activity
under Section 704(a)).
8. 	The Commission established the second element of a prima facie
case. 	Complainants’ testified that Ms. Gitler sent them numerous eviction
notices and otherwise interfered with the quiet enjoyment of their residence at
Peaceful Acres by threatening and verbally harassing them. 	Further, the

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evidence shows that Ms. Gitler filed an eviction action against Complainants
in January 1996. (Comm.Ex. 5)
9. The Commission established the third element of a prima facie case.
The evidence presented at the hearing showed that:
• 	Complainants 	returned 	from 	a 	public 	hearing 	of 	the
Commission to find eviction notices from Ms. Gitler;
• 	Ms. 	Gitler 	sent 	an 	eviction 	notice 	to 	Complainants
approximately 	three 	weeks 	after 	the 	Hearing 	Examiner’s
Report in Complaint #6892 was issued;
• 	Ms. 	Gitler filed an eviction action against Complainants in
January 1996 alleging that they attempted to extort money
from her “through frivolous court cases” (Comm.Ex. 5); and
• 	Ms. Gitler alleged in a brief to the court that Complainant’s
conspired to put her out of business “by increasing . . . [her]
legal fees, by legally exhorting big judgments against . . . [her]
through FREE Civil Rights Cases . . . .” 	Id.; and
• 	Joyce Dubiel, a Commission Investigator, testified that Ms.
Gitler that told her that Complainants’ charge was an attempt
to “legally extort money from her.” (Tr. 43) 	Dubiel further
testified that Ms. Gitler “always” referred back to Gregory
Gerity’s 	previous 	charge 	during 	her 	investigation 	of
Complainants’ charge. 	Id.
In light of this evidence, it is reasonable to infer that a causal connection
existed between Ms. Gitler’s actions and Gregory Gerity’s filing of a previous
charge of discrimination.

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10. The Commission having established a prima facie case, the burden
of 	production 	shifted 	to 	Respondents 	to 	“articulate 	some 	legitimate,
nondiscriminatory reason” for their actions. 	McDonnell Douglas, supra at
802, 5 FEP Cases at 969. To meet this burden of production, Respondents
must:
“. . . clearly set forth, through the introduction of admissible
evidence,” reasons for . . . [their] actions which, if believed by the
trier of fact, would support a finding that unlawful discrimination
was not the cause of . . . [their actions].
St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747, 62 FEP
Cases 96, 99 (1993), quoting Burdine, supra at 254-255, 25 FEP
Cases at 116.
11. 	Respondents did not attend the hearing in this matter. They failed
to articulate legitimate, nondiscriminatory reasons for the adverse actions
taken against Complainants. 	Therefore, Respondents failed to meet their
burden of production. 	Respondents’ failure to rebut the presumption of
unlawful retaliation created by the Commission’s prima facie case, coupled
with the Hearing Examiner's belief of the Commission's evidence, entitles
Complainants to relief as a matter of law:6
6 In addition to being entitled to relief under the McDonnell Douglas analysis,
Complainants are also entitled to relief because Respondents failed to file an answer in this
case. Respondent did not attempt to show good cause for their failure to file an answer.

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Establishment 	of 	a 	prima 	facie 	case 	in 	effect 	creates 	a
presumption that the . . . [defendant] unlawfully discriminated
against the . . . [plaintiff]. If the trier of fact believes the plaintiff's
evidence, and if the . . . [defendant] is silent in the face of the
presumption, the court must enter judgment for the plaintiff
because no issue of fact remains in the case.
Burdine, supra at 254, 25 FEP Cases at 116 (emphasis added
and footnote omitted).
DAMAGES
12. 	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
13. 	The purpose of an award of actual damages in a fair housing case,
as in employment discrimination cases, “is to put the plaintiff in the same
Therefore, Respondents are deemed in default pursuant to Ohio Administrative Code §
4112-3-06. There are no equitable terms or conditions to set aside Respondents’ default.

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position, so far as money can do it, as . . . [the plaintiff] would have been had
there been no injury or breach of duty . . . .” 	Lee v. Southern Home Sites
Corp., 429 F.2d 290, 293 (5th Cir. 1970) (citations omitted). 	To that end,
victims of housing discrimination may recover damages for tangible injuries
such 	as 	economic 	loss 	and 	intangible 	injuries 	such 	as 	humiliation,
embarrassment, and emotional distress. 	See Steele v. Title Realty Co., 478
F.2d 380 (10th Cir. 1973) (actual damages of $1,000 awarded to plaintiff
consisting of $13.25 in telephone expenses, $125.00 in moving and storage
expenses, and $861.75 for emotional distress and humiliation). Damages for
intangible injuries may be established by testimony or inferred from the
circumstances.7 Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir.
1974).
14. 	In this case, the Commission did not present any evidence that Ms.
Gitler’s retaliatory conduct caused Complainants economic loss. 	However,
7 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 p. 25,393 (HUD ALJ
1992) , citing Block v. R. H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir. 1983) (other citations
omitted). 	The determination of actual damages from such injuries “lies in the sound
discretion of the Court and is essentially intuitive.” 	Lauden v. Loos, 694 F.Supp. 253, 255
(E.D. Mich. 1988).

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Complainants testified about the emotional distress they suffered from Ms.
Gitler’s 	retaliatory 	conduct. 	Gregory 	Gerity 	testified 	that 	Ms. 	Gitler’s
retaliatory conduct made his and his family’s residence at Peaceful Acres
“deplorable” and “a living hell.” 	(Tr. 28) 	Judy 	Gerity 	testified 	that 	her
family was “always in an upheaval” and she “just couldn’t mentally take it.”
(Tr. 54) 	Both testified that Ms. Gitler took actions that upset their children.
Both testified that they moved to another state because of Ms. Gitler’s
behavior toward their family.
15. The Hearing Examiner credited Complainants’ testimony their
emotional distress caused by Ms. Gitler’s retaliatory conduct. 	In light of
Complainants’ testimony and the totality of the circumstances surrounding Ms.
Gitler’s 	retaliatory 	conduct, 	the 	Hearing 	Examiner 	recommends 	that
Complainants be awarded $7,500 each for their emotional distress.
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 Admin. Code § 4112-6-02.

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Thus, punitive damages are appropriate “as a deterrent measure” even when
there is no proof of actual malice. 	Schoenfelt 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. The amount of punitive damages depends on a number of factors,
including:
• 	The nature of Respondents’ conduct;
• 	Respondents’ prior history of discrimination;
• 	Respondents’ size and profitability;
• 	Respondents’ cooperation or lack of cooperation during the
investigation of the charge; and
• 	The effect Respondents’ actions had upon Complainants.8
Ohio Admin. Code § 4112-6-01.
18. 	Applying the foregoing criteria to this case:
• 	Ms. Gitler’s retaliatory conduct was repetitive, blatant, and
intentional. She acted maliciously with wanton disregard for
Gregory Gerity’s right to file a charge of discrimination under
8 This criteria is more appropriately considered when determining actual damages.

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R.C. § 4112.02. Such retaliation must be highly deterred to
prevent a chilling effect on the exercise of fair housing rights;
• 	This violation was Respondents’ second violation during the
five-year period immediately preceding February 20, 1997,
the date the Commission issued Complaint #7932. 	Under
such circumstances, the Commission may award up to
$25,000 to deter repeat offenders. 	R.C. § 4112.05(G)(1)(b);
• 	Peaceful Acres is a large mobile home park containing 60
lots and three apartments. The Commission did not present
any evidence about Peaceful Acres’ profitability ; and
• 	Dubiel testified that Ms. Gitler refused to cooperate with the
Commission during its investigation. Dubiel testified that Ms.
Gitler ignored telephone calls and written correspondence.
Ms. Gitler’s refusal to cooperate forced the Commission to
issue a subpoena to compel her presence.
19. 	Based 	on 	the 	foregoing 	discussion, 	the 	Hearing 	Examiner
recommends that Respondent be assessed punitive damages in the amount
of $25,000.
ATTORNEY'S FEES
20. 	When the Commission finds that a housing provider has violated
R.C. § 4112.02(H), the Commission must require the discriminating housing
provider to pay reasonable attorney’s fees. 	R.C. § 4112.05(G)(1). 	If the

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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 Cuyahoga County,
Ohio regarding the reasonable and customary hourly fees they charge in
housing discrimination cases. 	Also, a 	detailed 	accounting 	of 	the 	time
spent on this case must 	be 	provided 	and 	served 	upon Respondents.
Respondents may respond with counter-affidavits and other arguments
regarding the amount of attorney's fees in this case.
22. 	If the Commission adopts the Hearing Examiner'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 Hearing
Examiner's 	Report 	is 	adopted. 	Respondents 	may 	respond 	to 	the
Commission's Application for Attorney's fees within 30 days from their receipt
of the Commission's Application for Attorney's Fees.
23. 	Meanwhile, any objections to this report should be filed pursuant to
the Ohio Administrative Code. 	Any objections to the recommendation of

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attorney's 	fees 	can 	be 	filed 	after 	the 	Hearing 	Examiner 	makes 	his
Supplemental Recommendation to the Commission regarding attorney's fees.

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RECOMMENDATIONS
For all of the foregoing reasons, it is recommended in Complaint #7932
that:
1. 	The Commission order Respondents to cease and desist from all
discriminatory practices in violation of R.C. Chapter 4112;
2. 	The Commission order Respondents to pay Complainants $15,000
in actual damages; and
3. The Commission order Respondents to pay Complainants $25,000 in
punitive damages.
TODD W. EVANS
HEARING EXAMINER
March 9, 1998