Shwana Garner v. Barry Kirby

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
SHWANA N. GARNER
Complainant
Complaint #9361
and (CIN) H5061701 (29375) 082001
HUD #: 05 –01 –1181 –8
BARRY G. KIRBY
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. Bradford C. Weber, Esq.
Assistant Attorney General Anthony J. Iaciofano, Esq.
Civil Right Section Benjamin, Yocum & Heather
State Office Tower, 15th Floor 312 Elm Street, Suite 1850
30 East Broad Street Cincinnati, OH 45202-2740
Columbus, OH 43215-3428 (513) 721-5672
(614) 466-7900
Counsel for Respondent
Counsel for the Commission
Wendy Munich Shwana N. Garner
Housing Opportunities Made Equal 5025 Ridge Avenue, Apt. 7
2400 Reading Road, Suite 109 Cincinnati, OH 45209
Cincinnati, OH 45202
(513) 721-4663 Complainant
Complainant's Representative
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

1
INTRODUCTION AND PROCEDURAL HISTORY
Shwana N. Garner (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on August 20, 2001.
The Commission investigated and found probable cause that unlawful
discriminatory practices had been engaged in by Barry G. Kirby (Respondent)
in violation of Revised Code (R.C.) 4112.02(H)(4).
The Commission issued a Complaint, Notice of Hearing, and Notice of
Right of Election on August 1, 2002.
The Commission alleged that Respondent subjected Complainant to
unequal terms and conditions of rental because of her familial status.
Respondent filed an Answer to the Complaint, asserting denial of the
Commi	ssi	on’	sj	ur	i	sdi	ct	i	on,i	naddi	t	i	ont	opl	eadi	ngaf	f	i	r	mat	i	v	edef	enses.1
1 Respondent did not introduce evidence into the record regarding the
Commission’	sf	ai	l	ur	et	oat	t	emptconci	l	i	at	i	on.

2
A public hearingwashel	donFebr	uar	y13,2003att	heCommi	ssi	on’	s
Regional Office in Cincinnati, Ohio.
The record consists of the previously described pleadings; the transcript
consisting of 69 pages of testimony; exhibits admitted into evidence at the
hearing; and the post-hearing briefs filed by the Commission on May 2, 2003;
byRespondentonMay22,2003;andt	heCommi	ssi	on’	sr	epl	ybr	i	ef	,f	i	l	edon
May 29, 2003.
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 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

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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.
1. Complainant filed a sworn charge affidavit with the Commission on
August 20, 2001.
2. The Commission determined on August 1, 2002 that it was probable
that Respondent engaged in unlawful discriminatory practices in violation of
R.C. 4112.02(H)(4).
3. The Commission attempted to eliminate the alleged unlawful
discriminatory practices by conciliation.
4. Respondent is a provider of housing accommodations. Respondent
owns and operates a rental property at 3324 Hanna Avenue in Cincinnati,
Ohio.

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5. In June of 2001, Complainant, a 29 year old female, was seeking a
place to live. Complainant began her search in April of that year.
6. Complainant was pregnant, expecting her first child. The apartment
that she resided in at 2619 Ritchwell was a one-bedroom apartment.
Complainant needed more space for herself and the baby, preferably a two-
bedroom apartment.
7. Compl	ai	nant	’	sef	f	or	t	sent	ai	l	edsear	chi	ngt	henewspaper	,dr	i	v	i	ng
around through neighborhoods, and word-of-mouth.
8. Complainant liked the west side of town and focused on that area.
9. Complainant came across an advertisement for an apartment
on 3324 Hanna Avenue in The Cincinnati Inquirer dated Sunday, June 10,
2001.
10. The unit was described as a two-bedroom, equipped, $440.00,
plus deposit, no pets, listing the telephone number to call as 481-9043.

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11. Complainant circled the advertisement and called the number
later in the evening around 6:30 or 7:00 p.m.
12. Complainant received a recording. It described the apartment
and instructed the caller to leave a message if interested. The voice on the
recording was a male voice.
13. Complainant left her telephone number and her name, using her
mi	ddl	ename,“	Ni	col	e”	. Compl	ai	nant felt her middle name was easier for
people to pronounce than her first name.
14. Complainant did not receive a return call until one week later.
15. WhenRespondent	’	spr	oper	t	ymanager	,RamonRi	v	er	a,t	al	kedt	o
Complainant on Sunday, June 17, he explained that he had been out of town
and had just returned.
16. He asked Complainant if she was still interested in the apartment,
and she replied in the affirmative.

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17. Mr. Rivera asked Complainant why she needed a two-bedroom
apartment. She replied that she needed the additional space for her child.
18. Mr. Rivera told Complainant that he did not think the apartment
would be good for her because the walls were too thin. Mr. Rivera told
Complainant that he was not going to show her the apartment and that
he would show her another apartment.
19.Compl	ai	nant	’	sauntwaswi	t	hheratt	het	i	met	hatsher	ecei	v	edt	he
call. Complainant told her aunt about the conversation.
20. Complainant was very upset. The next day, June 18, 2001, she
called 721-HOME. She had heard about Housing Opportunities Made Equal
(HOME) through radio and television public service announcements.

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CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. To the extent that the proposed findings
and conclusions submitted by the parties and the arguments made by them
are in accordance with the findings, conclusions, and views stated herein,
they have been accepted; to the extent they are inconsistent therewith, they
have been rejected. Certain proposed findings and conclusions have
been omitted as not relevant or as not necessary to a proper determination of
the material issues presented. To the extent that the testimony of various
witnesses is not in accord with the findings herein, it is not credited.
1. The Commission alleged in the Complaint that Respondent
subjected Complainant to unequal terms and conditions of renting
because of her familial status.
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:
(4) Discriminate against any person in the terms or
conditions of . . . renting, . . . use of any housing
accommodations . . . because of . . . familial status, . . . .
3. R.C. 4112.01(A)(15) defines "familial status" as either:
(a) One or more individuals who are under eighteen years of
age and who are domiciled with a parent or guardian having
legal custody of the individual or domiciled, with the written
permission of the parent or guardian having legal custody,
with a designee of the parent or guardian; or
(b) Any person who is pregnant or in the process of securing
legal custody of any individual who is under eighteen years
of age.
4. 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).

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5. 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, as amended. 2
6. The same standards of proof that apply to employment discrim-
ination cases generally apply to housing discrimination cases.3 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). The proof required to establish a prima facie case may
vary on a case-by-case basis. Id., at 802, FEP Cases at 969, n. 13. In this
case, the Commission may establish a prima facie case of discrimination by
proving that:
2 The Fair Housing Amendments Act of 1988 amended the substantive provisions
of the Fair Housing Act of 1968 (Title VIII) to prohibit housing discrimination against
families with children. Section 3604(b) of the Fair Housing Act, as amended, makes it
unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale
or rental of a dwelling, or in the provisions of services or facilities in connection therewith,
because of . . . familial status, . . . ." 42 U.S.C. 3604(b).
3 Al	t	hought	heSupr	emeCour	thasneveraddr	essedt	hei	ssue,“	...l	owercour	t	s
have generally assumed that . . . precedents from the employment discrimination field
should be followed in i	nt	er	pr	et	i	ngTi	t	l	eVI	I	I	.	” R. Schwemm, Housing Disc., 1996 Ed. at 10-2.

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(1) Complainant is a member of a protected class.
(2) Complainant expressed interest in viewing available
housing accommodations; and
(3) Respondent subjected Complainant to disparate
treatment after she expressed interest in viewing
housing accommodations under circumstances which
give rise to an inference of unlawful discrimination.
7. The Commission established a prima facie case of familial status
discrimination.4 The Commission established the first element of a prima
facie case because Complainant was pregnant at the time she was seeking
housing accommodations.
8.TheCommi	s	s	i	ones	t	abl	i	s	hedt	hes	ec	ondel	ement	wi	t	hCompl	ai	nant	’	s
testimony. Complainant testified that she responded to an advertisement
Respondent placed in The Cincinnati Inquirer for rental of available housing
accommodations. Complainant called expressing an interest in the housing
accommodat	i	ons. Respondent	’	spr	oper	t	ymanager	,RamonRi	v	er	a,cal	l	ed
Complainant back and asked about her interest in renting the housing
accommodations.
4 The burden of establishing a prima facie case of discrimination is not onerous.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 25 FEP Cases
113,116(1981). It is simply part of an evidentiary scheme“	i	nt	endedpr	ogr	essi	vel	yt	o
shar	pent	hei	nqui	r	yi	nt	ot	heel	usi	vef	act	ualquest	i	onofi	nt	ent	i	onaldi	scr	i	mi	nat	i	on.	”

11
9. The Commission established the third element of a prima facie
case. Complainant testified that during the conversation with the property
manager he asked her why she needed a two-bedroom apartment.5
When Complainant stated that her child was the reason, the property
manager refused t	o show hert	he apar	t	mentbecause t	he “	wal	l	swer	e
t	oo t	hi	n”	. The pr	oper	t	y managerat	t	empt	ed t	o di	r	ecthert	o anot	her
apartment unit that he told Complainant would be more suitable.
10. Since the Commission established a prima facie case, the burden
ofpr	oduct	i	on shi	f	t	ed t	o Respondentt	o “	ar	t	i	cul	at	e some l	egi	t	i	mat	e,non-
di	scr	i	mi	nat	or	yr	eason”f	orhi	sact	i	ons. McDonnell Douglas, supra at 802,
5 FEP Cases at 969. To meet this burden of production, Respondent must:
“	...cl	early set forth, through the introduction of admissible
ev	i	dence,	”r	easonsf	or...[	hi	s]act	i	onswhi	ch,i	fbel	i	ev	edbyt	he
trier of fact, would support a finding that unlawful discrimination
was not the cause of . . . [his actions].
St	.Mar	y’	sHonorCent	er v. Hicks, 113 S. Ct. 2742, 2747, 62 FEP
Cases 96, 99 (1993), quoting Burdine, supra at 254-255, 25 FEP
Cases at 116.
5 Al	t	houghCompl	ai	nant	’	sst	at	ement	saboutherconver	sat	i	onwi	t	hMr	.Ri	ver	aar	e
hear	say,Compl	ai	nant	’	st	est	i	monywascr	edi	bl	e.Hear	sayi	sadmissible at a Commission
hearing. Mr. Rivera had been delegated the responsibility by Respondent to rent available
apartments. Mr. Rivera did not testify at the hearing.

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11. The owner of the housing accommodation, Barry G. Kirby, testified
that Complainant had not filled out an application for the apartment.
12. There was no need for Complainant to fill out an application if she
was not going to be shown the apartment that she was interested in renting.
Respondent	’	sr	ef	usalt	oshowt	heapar	t	mentt	oCompl	ai	nanti	st	hedeni	alof
the opportunity to rent the housing accommodation because of her familial
status.
DAMAGES
1. When the Commission has proven a violation of the statute,
Complainant is entitled to relief. Relief includes an award of actual damages
shown to have resulted from the discriminatory action. R.C. 4112.05(G)(1).
Relief may also include punitive damages.

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ACTUAL DAMAGES
2. 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
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.6 Seaton v.
Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir. 1974).
6 Although emotional injuries are difficult to quantify, "courts have awarded
damages for emotional harm without requiring proof of the actual value of the injury."
Paradise Gardens, supra, at 25,393, 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).

14
3. In this case, there was no evidence introduced by the Commission
that Complainant suffered any economic or tangible loss.
4. The Commission did introduce evidence regarding the humiliation
suffered by Complainant. Complainant testified that she was looking for an
apartment in an area that was quiet and clean with tree-lined streets.
Complainant ended up moving to 5025 Ride Avenue on the east side of town,
right off of I-71. Complainant described the area as noisy and industrial.
She did not want her son to play outside. For the humiliation suffered by
Complainant for the loss of opportunity to live in an area that she believed
would provide the environment in which she wanted to raise her child,
Complainant is awarded $5,000.

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PUNITIVE DAMAGES
5. The purpose of an award of punitive damages pursuant to R.C.
4112.05(G) is to deter future illegal conduct. Admin. Code 4112-6-02. 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).
6. 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 Complainant.
Admin. Code 4112-6-01.

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7. Applying the foregoing criteria to this case:
 Respondent	’	sconductwasi	nt	ent	i	onal	. WhenMr	.Ri	v	er	a,
Respondent	’	spr	oper	t	ymanager	,quest	i	onedCompl	ai	nant
about why she needed a larger apartment, he was screening
for the purposes of determining whether or not she had
chi	l	dr	en.Respondent	’	sr	esponsewasast	er	eot	y	pi	cr	eact	i	on
that families with children are going to create too much noise
and bother tenants who do not have children.
 There is no evidence that Respondent has been found to
have discriminated in any other forum.
 Respondent owns his personal residence and has an
ownership interest in property at seven different locations,
which have approximately thirty-four (34) rental units.
 The Commission presented evidence that Respondent
di	dnotcooper	at	ewi	t	ht	heCommi	ssi	on’	si	nv	est	i	gat	i	on. I	n
r	esponse t	o Compl	ai	nant	’	s char	ge of di	scr	i	mi	nat	i	on,
Respondent sent a letter to the Commission dated April 26,
2002, which reads as follows:
I am in receipt of your 4-23 letter. The claim made by Shwana
Garner is without substance or merit and is not worthy of my time
to investigate further. I will not be subject to extortion to settle this
case. If you need to communicate to me or need my time for
questions I will make myself available on the weekend. My billing
rate is $150.00 per hour and will require to be paid up front.
Otherwise, I will consider this matter closed.
(Commi	ssi	on’	sEx	hi	bi	t3,Tr	anscr	i	ptp. 27).
8. Based on the foregoing discussion, the ALJ recommends that
Respondent be assessed punitive damages in the amount of $10,000.

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ATTORNEY'S FEES
9. The Commission is entitled to attorney's fees. R.C. 4112.05(G)(1);
Schoenfelt, 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.
10. In order to create a record regarding attorney's fees, the
Commission's counsel should file affidavits from plaintiffs' attorneys in
Hamilton 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.
11.I	ft	heCommi	ssi	onadopt	st	heALJ’	sRepor	tandt	hepar	t	i	escannot
agree on the amount of attorney's fees, the Commission should file an
Application forAt	t	or	ney	'	sFeeswi	t	hi	n 30 day	saf	t	ert	he ALJ’	sRepor	ti	s
adopted. Respondent may respond to the Commission's Application for

18
Attorney's fees within 30 days from his receipt of the Commission's Application
for Attorney's Fees.
12. Meanwhile, any objections to this report should be filed pursuant to
the Ohio Administrative Code. Any objections to the recommendation of
at	t	or	ney	’	s f	ees can be f	i	l	ed af	t	er t	he ALJ makes her Suppl	ement	al
Recommendat	i	ont	ot	heCommi	ssi	onr	egar	di	ngat	t	or	ney	’	sf	ees.
ADDITIONAL RELIEF
13. R.C. 4112.05(G)(1) provides in pertinent part that the Commission,
i	fi	tf	i	ndsav	i	ol	at	i	onoft	hest	at	ut	e,mayor	derar	espondent“	t	ot	akeany...
af	f	i	r	mat	i	v	eorot	heract	i	ont	hatwi	l	lef	f	ect	uat	et	hepur	posesof	t	hi	schapt	er	.	”
In cases such as this, it is not uncommon to require respondents who have
violated the fair housing laws, to receive training on those laws from a non-
profit fair housing agency. Therefore, I am recommending that the
Commission order Respondent to receive such training at his expense.

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14. It is also not uncommon to ensure that future tenants are protected
from a landlord who has demonstrated a propensity to violate the fair housing
l	aws.Thus,t	heCommi	ssi	on’	sr	equestt	hatRespondenti	ncl	udean equal
housing opportunity statement in all advertisements, rental applications,
agreements, and other documents used by Respondent is not unreasonable.
In addition to the statement suggested by the Commission in its brief, I
recommend Respondent also include in boldface type at the end of that first
sentence a statement regarding the prohibition against retaliating against any
person who files a charge with the Commission or who participates in a
Commission investigation. (See Appendix A)
15. In addition, respondents who have demonstrated a propensity to
violate the fair housing law should be monitored. In this case, the
Respondent should notify the Commission every time Respondent
executes a new tenancy agreement for one of his units in which he has an
ownership interest. The Commission should be notified about the race, sex
and family composition of the new tenants, along with a list of the applicants
and pertinent information about those applicants so that the Commission can

20
make comparisons to ensure that the fair housing laws are not being violated
in the future by Respondent Kirby.
RECOMMENDATIONS
For all the foregoing reasons, it is recommended in Complaint #9361
that:
1. The Commission issue a Cease and Desist Order prohibiting
Respondent engaging in discriminatory conduct.
2. The Commission order Respondent, within ten (10) days of receipt
oft	heCommi	ssi	on’	sFi	nalOr	der	, to pay Complainant $15,000.
3. The Commission order Respondent, within ten (10) days of receipt
of the Commissi	on’	sFi	nal	Or	der	, to pay the Ohio Attorney General reasonable
at	t	or	ney	’	sf	eest	obedet	er	mi	nedi	nt	hef	ut	ur	e;

21
4. The Commission order Respondent, within ten (10) days of receipt of
t	heCommi	ssi	on’	sFi	nalOr	der	,t	omakear	r	angement	st	oat	t	endat	r	ai	ni	ng
course on fair housing law sponsored by a fair housing agency at his expense,
said training course to be taken within six (6) months from the date of the
Commi	ssi	on’	sFi	nalOr	der	.
5. The Commission order Respondent to use equal housing opportunity
notices similar to the one set out in Appendix A; and
6. TheCommi	ssi	onor	derRespondentt	or	epor	tt	ot	heCommi	ssi	on’	s
Compl	i	anceDepar	t	mentf	ort	henex	tt	hr	ee(	3)y	ear	sassetouti	nt	heALJ’	s
Report.
____________________________________________
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
September 19, 2003

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
SHWANA N. GARNER
Complainant
Complaint No. 9361
and (CIN) H5061701 (29375) 082001
HUD #: 05 –01 –1181 –8
BARRY G. KIRBY
Respondent
ADDENDUM TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATIONS
RE:THECOMMI	SSI	ON’	SAPPLI	CATI	ON FOR ATTORNEY’	SFEES
JIM PETRO
ATTORNEY GENERAL
Duffy Jamieson, Esq. Bradford C. Weber, Esq.
Deputy Attorney General Anthony J. Iaciofano, Esq.
Civil Right Section Benjamin, Yocum & Heather
State Office Tower, 15th Floor 312 Elm Street, Suite 1850
30 East Broad Street Cincinnati, OH 45202-2740
Columbus, OH 43215-3428 (513) 721-5672
(614) 466-7900
Counsel for Respondent
Counsel for the Commission
Wendy Munich Shwana N. Garner
Housing Opportunities Made Equal 3270 Bowling Green Court
2400 Reading Road, Suite 109 Cincinnati, OH 45225
Cincinnati, OH 45202
(513) 721-4663 Complainant
Complainant's Representative
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
(614) 466-6684

1
PROCEDURAL HISTORY
This matter is before the Administrative Law Judge (ALJ) upon the
Commi	ssi	on’	sAppl	i	cat	i	onf	orAt	t	or	ney	’	sFees,f	i	l	edonDecember3,2003.1
On September 19, 2003, the ALJ issued Findings of Fact, Conclusions
of Law, and Recommendat	i	ons(	ALJ’	s Repor	t	)onl	i	abi	l	i	t	yanddamagesi	n
Compl	ai	ntNo.9361.TheALJ’	sRepor	tf	oundt	hatRespondentv	i	ol	at	edR.	C.
4112.	02(	H)	(	1)and(	7)	.Besi	desaCeaseandDesi	stOr	der	,t	heALJ’	sRepor	t
recommended that the Commission award Complainant $5,000.00 in actual
damages and assess Respondent $10,000.00 in punitive damages. The
Commi	ssi	onadopt	edt	heALJ’	sRepor	tonNov	ember20,2003.
CONCLUSIONS OF LAW AND DISCUSSION
1. When the Commission finds that a housing provider has violated
R.C. 4112.02(H), the Commission must require the discriminating housing
pr	ov	i	dert	opayr	easonabl	eat	t	or	ney	’	sf	ees.
1 Respondentdi	dnotf	i	l	ear	epl	yt	ot	heAppl	i	cat	i	onf	orAt	t	or	ney’	sFees.

2
If the commission finds a violation of division (H) of section
4112.02 of the Revised Code, the commission additionally shall
require the respondent to pay actual damages and reasonable
at	t	or	ney’	sf	ees. . . . (Emphasis added.)
Suchat	t	or	ney	’	sf	eesmaybepai	ddi	r	ect	l	yt	ot	heCommi	ssi	on’	scounsel	,t	he
Office of the Ohio Attorney General, pursuant to R.C. 109.11. Shoenfelt v.
Ohio Civ. Rights Comm. (1995), 105 Ohio App.3d 379, 385-86.
2. I	ndet	er	mi	ni	ngwhatconst	i	t	ut	esr	easonabl	eat	t	or	ney	’	sf	eesi	na
particular case, the usual starting point and presumptively reasonable amount
is the lodestar calculation, i.e. the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate. Blum v. Stenson, 465
U.S. 886, 897, 34 FEP Cases 417, 421 (1984). As the fee applicant, the
Commission must provide evidence documenting the time expended on the
case. Hensley v. Eckerhart, 461 U.S. 424, 433, 31 FEP Cases 1169, 1174
(	1983)	.TheCommi	ssi	oni	snot	r	equi	r	edt	or	ecor	dt	het	i	meex	pended“	i	ngr	eat
det	ai	l	”	,buti	tshoul	datl	easti	dent	i	f	yt	he“	gener	alsubj	ectmat	t	er	”ofsuch
expenditures. Id., at 437, 31 FEP Cases at 1174, n.12. Overall, Counsel for
t	heCommi	ssi	onmustex	er	ci	se“	bi	l	l	i	ngj	udgment	”i	nex	cl	udi	nghour	st	hatar	e
excessive, redundant, or otherwise unnecessary. Id., at 434, 31 FEP Cases
at 1173.

3
3. The Commission also has the burden of providing evidence that
supports the requested hourly rate. Id. Usually, the Commission must
provide evidence showing that the requested hourly rate is comparable
to the prevailing market rate for similar work performed in the community
where the hearing was held. In other words, the Commission must show that
t	her	equest	edhour	l	yr	at	ei	s“	i	nl	i	newi	t	ht	hosepr	ev	ai	l	i	ngi	nt	hecommuni	t	yf	or
similar services by lawyers of reasonably comparable skill, experience, and
r	eput	at	i	on.	” Blum, supra at 895-96, 34 FEP Cases at 421, n.11.
4. Although the lodestar calculation is presumed reasonable, there
maybeci	r	cumst	anceswher	et	hatcal	cul	at	i	on“	r	esul	t	si	naf	eet	hati	sei	t	her
unr	easonabl	yl	oworunr	easonabl	yhi	gh.	” Id., at 897, 34 FEP Cases at 421.
In such cases, the ALJ may adjust the lodestar amount upward or downward,
at her discretion, in light of the factors listed in Disciplinary Rule 2-106(B).
Bittner v. Tri-County Toyota (1991), 58 Ohio St.3d 143, 145-46. These factors
include:

4
the time and labor involved in maintaining the litigation; the novelty
and difficulty of the questions involved; the professional skill
r	equi	r	edt	oper	f	or	m t	henecessar	yl	egalser	v	i	ces;t	heat	t	or	ney	’	s
inability to accept other cases; the fee customarily charged; the
amount involved and the results obtained; any necessary time
limitations; the nature and length of the attorney/client relationship;
the experience, reputation, and ability of the attorney; and whether
the fee is fixed or contingent.2
5. Of these factors, the most important is the results obtained.
Hensley, supra at 434, 31 FEP Cases at 1173. To be upheld, a fee award
mustbe“	r	easonabl	ei	nr	el	at	i	ont	ot	her	esul	t	sobt	ai	ned.	” Id., at 440, 31 FEP
Cases at 1176.
6. The Commission satisfied its burden of documenting the time
expended in this case. The Commission provided a billing log containing the
subject matter of the work performed, the dates of its performance, and the
time spent on each activity. In his memorandum in support of the fee
application, Counsel for the Commission stated that the billing log was
contemporaneously maintained. The billing log indicates that Counsel for the
Commission expended 38.00 hours on this case.
2 Since several of these factors are subsumed within the lodestar calculation, the
factfinder should avoid considering a factor twice. Hensley, supra at 434, 31 FEP Cases
at 1173, n.9.

5
7. The Commission provided an affidavit in support of the requested
hourly rat	e(	$170.	00)	. BasedonDeput	yAt	t	or	neyGener	al	Duf	f	yJami	eson’	s
level of skill and experience, the rate of $170.00 per hour is reasonable and
consistent with what an attorney practicing housing discrimination law in
Hamilton County would charge.
8. After reviewing the billing log, the ALJ found the hours claimed
were reasonable based on the actual work described and the outcome of the
case.
9. The Commission claimed eight hours for travel time.
Accordingly, 8.0 hours will be awarded for travel time at the rate of
$25.00 per hour, which is a reasonable amount when compared with the
$50.00 per hour requested by counsel for the Commission.
10. Based on the foregoing discussion, the Commission is entitled to
$6,	660.	00i	nat	t	or	ney	’	sf	eesand expenses.

6
RECOMMENDATION
For all of the foregoing reasons, the ALJ recommends that the
Commi	ssi	on’	sFi	nalOr	deri	nCompl	ai	ntNo.9361i	ncl	udeanOr	derr	equi	r	i	ng
Respondentt	opay$6,	660.	00i	nat	t	or	ney	’	sf	eest	ot	heOf	f	i	ceoft	heOhi	o
Attorney General.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
April 26, 2004

EQUAL HOUSING OPPORTUNITY
It is illegal to discriminate against any person because of race, color, religion,
sex, familial status (having one or more children), ancestry, disability, or
national origin. Anyone who feels he or she has been discriminated against
should contact:
Ohio Civil Rights Commission
Holiday Park
801 - B West 8th Street, 2nd Floor
Cincinnati, Ohio 45203
Voice - TTY: (513) 852-3344
Fax: (513) 852-3357
IT IS ALSO ILLEGAL TO RETALIATE AGAINST ANYONE
WHO FILES A CHARGE WITH THE OHIO CIVIL RIGHTS COMMISSION
OR PARTICIPATES IN A COMMISSION INVESTIGATION.
APPENDIX A