Before the

Missouri Commission on Human Rights

State of Missouri

 

 

 

STATE OF MISSOURI ex rel. SHAWNA            )

GOELLER, THOMAS FLOTTEMESCH,             )

and TRUDY FLOTTEMESCH,                             )

                                                                              )

                                    Plaintiff,                              )

                                                                              )

            vs.                                                              )                 No. 05-0004 HRC

                                                                              )

OAK RIDGE APARTMENTS,                             )

LELAND C. AND CHERYL A. RUBLE,             )

and MARVIN BELLINGHAUSEN,                      )

                                                                              )

                                    Respondents.                      )

 

 

RECOMMENDED DECISION

 

            The Hearing Examiner recommends that the Missouri Commission on Human Rights (“the MCHR”) deny Plaintiff’s complaint pursuant to § 213.075.11.[1]  Plaintiff failed to show that Shawna Goeller’s familial status was a factor in Respondents failing to rent or negotiate to rent an apartment to her.

Procedure

            Goeller filed a complaint with the MCHR against Oak Ridge Apartments (“Oak Ridge”), Leland C. and Cheryl A. Ruble (“the Rubles”), and Marvin Bellinghausen (“Bellinghausen”) (collectively “Respondents”).  Goeller filed the complaint within 180 days of the alleged act of

 

 

 

discrimination.  On December 21, 2004, the MCHR entered a finding of probable cause.  The MCHR’s executive director filed an affidavit that conciliation had failed.

            The MCHR appointed the Administrative Hearing Commission (“the AHC”) as the Hearing Examiner.  On October 31, 2005, Plaintiff filed a corrected amended complaint.  On

June 24, 2005, Goeller filed a motion to intervene, which we granted by order dated June 28, 2005.  On December 15, 2005, June Striegel Doughty, Commissioner of the AHC, held the hearing.  Assistant Attorney General Cyrus Dashtaki represented Plaintiff.  J. Eric Mitchell, with Johns, Lilleston & Mitchell, represented Respondents.

            At the beginning of the hearing, Dashtaki requested a continuance because Goeller had informed him that morning that she would be unable to attend the hearing due to an anxiety attack.[2]  Dashtaki stated that he had stressed to her the importance of this hearing.  Respondents objected to the motion, arguing that they were prepared to proceed as scheduled.  We denied the motion for continuance.  Goeller was allowed to appear and testify by telephone, but she made no further motions in the case.[3]  The matter became ready for decision on April 28, 2006, the date the last brief was filed.

Findings of Fact

1.            Goeller has two minor children, Thomas and Trudy Flottemesch.  At the relevant times, Thomas was seven years old and Trudy was five years old.

2.            The Rubles own Oak Ridge, a 14-unit apartment complex located in Laurie, Missouri.  The Rubles live in Indianola, Iowa. 

3.            Bellinghausen is an on-site caretaker at Oak Ridge and lives in one of the apartments.


 

 

4.            The rental agreement that is required in order to rent an apartment at Oak Ridge asks the prospective tenant to list the ages of any children.

5.            On January 20, 2004, Dan Rogers signed a rental agreement.  He listed four children, ages seven, six, three and two.  The rental agreement contains a written notation, “Not responsible for accidents.”[4]  Bellinghausen added this provision because Rogers had young children and he rented a two-story apartment.[5]  Rogers and his family moved into an apartment at Oak Ridge.

6.            On or about March 13, 2004, Erika Storment filled out a rental agreement.  She listed one child, age eight weeks.[6]  Storment and her family moved into an apartment at Oak Ridge.

7.            On April 17, 2004, Cassie Coker filled out a rental agreement.  She listed that she was expecting twins to be born in June or July.  She moved into an apartment at Oak Ridge.

8.            On May 25, 2004, Travis Brown signed a rental agreement.  He placed a deposit on an apartment and moved into it several days later.  Brown did not have children.  The agreement contains a written notation, “OK to hold.”[7]

9.            On May 26, 2004, there was a “For Rent” sign at Oak Ridge.  On that date, Goeller filled out a rental agreement and listed the ages of her two children.  Goeller indicated on the agreement under “Present Landlord” that she had lived two months with her mother, Trudy Wilson.  The agreement contains a written notation, “None open.”[8]

10.        Bellinghausen told Goeller that there were no apartments available.  At that time there was one vacant apartment (“the Hemlich apartment”), but it was not available because the


 

 

prior elderly occupant had left it in such terrible condition.  There was urine and feces on the floors.  The dishwasher did not work, and there were plumbing and drywall problems.  Bellinghausen had just begun to clean the Hemlich apartment when Goeller filled out the rental agreement.

11.        Goeller returned on June 1, 2004, and asked if there were any apartments available, and Bellinghausen told her that there were not.  She did not inquire again.

12.        On June 5, 2004, Ronald Pinkley filled out a rental agreement at Oak Ridge.  He needed an apartment because his house had burned down the week before.  He moved into the Hemlich apartment after agreeing to assist in cleaning it.  Pinkley and Bellinghausen worked on the Hemlich apartment for over a week, with Pinkley assisting in the evening after work.  Repairs included fixing holes in the drywall and working on the plumbing and dishwasher.  Pinkley did not have minor children living with him.

13.        On June 7, 2004, Barb Turner filled out a rental agreement at Oak Ridge and later moved into an apartment (“the Gibbs apartment”).  In 2003, Turner had contacted Bellinghausen to ask about a ground-level apartment that might be available in the Spring of 2004, and asked him to contact her if one became available.  Turner renewed her request for an apartment in March 2004.  Turner had not paid a deposit to rent an apartment.

14.        Gibbs was sent to jail, and Bellinghausen had not known that the apartment would be available until late May.  Bellinghausen did not call Goeller about the apartment because he considered Turner’s prior request for a ground-level apartment.  Turner did not have minor children living with her.

15.        Storment and her family moved out of Oak Ridge on July 22, 2004.  Bellinghausen did not offer this apartment to Goeller.

 

 

 

16.        Goeller lived with her mother between May and November 2004.  Goeller paid her mother some money and incurred $113.00 in storage expenses with Creeco, a storage facility.  Goeller looked at other apartments in the area, but they either had no vacancies or the rent was too high.

17.        On July 27, 2004, Randy Birch signed a rental agreement.  He listed one child,

age 13.  Birch and his family moved into an apartment at Oak Ridge.

18.        Several tenants at Oak Ridge throughout the years had minor children living with them.  During the time the Rubles owned Oak Ridge, of the 55 apartments rented, at least 22 were rented to tenants with minor children.  The Rubles had no policies in place and had not instructed Bellinghausen concerning renting to people with children.

19.        At the time of the hearing, Goeller was taking anxiety medication because she became overstressed.

Conclusions of Law

            The MCHR has jurisdiction over this complaint.[9]  Section 213.040 states:

            1.  It shall be an unlawful housing practice:

 

            (1) To refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, to deny or otherwise make unavailable, a dwelling to any person because of race, color, religion, national origin, ancestry, sex, disability, or familial status;

 

            (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 therewith, because of race, color, religion, national origin, ancestry, sex, disability, or familial status;

 

            (3) To make, print, or publish, or cause to be made printed, or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference,

 

 

 

limitation, or discrimination based on race, color, religion, national origin, ancestry, sex, disability, or familial status, or an intention to make any such preference, limitation, or discrimination[.]

 

Section 213.010(6) defines a dwelling as:

any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof[.]

 

            To determine liability, we apply the analysis set forth in Biggs v. Missouri Comm’n on Human Rights, 830 S.W.2d 512 (Mo. App., E.D. 1992):

In order to prevail on a claim of discrimination in violation of § 213.040(1), a complainant is required to establish a prima facie case by showing:  (1) complainant is protected by the statute; (2) a landlord refused to rent . . . ; and (3) complainant’s [familial status] was a factor in the landlord’s decision not to rent to complainant.  Once the complainant has established a prima facie case, the burden shifts to the landlord to set forth a legitimate, nondiscriminatory reason for the refusal to rent.  If the landlord articulates such a reason, the complainant must then demonstrate the articulated reason is merely a pretext for discrimination.

 

Id. at 517 (citations omitted).  The burden of proof is a preponderance of the evidence.[10] 

I.  Witness Credibility

            The trier of fact may judge the credibility of witnesses and has the discretion to believe all, part, or none of the testimony of any witness.[11]  The findings of fact reflect the Hearing Examiner determination that Goeller is not a credible witness.

            Goeller testified that Bellinghausen showed her an apartment on May 26, 2004.  Bellinghausen testified that he did not show her an apartment on that date because there were no apartments available to show.  He testified:[12]

 

 

 

            Q:  Okay, sir.  And when you received an application from Ms. Goeller, had you spoken with her earlier that day on May 26th?

 

            A:  On May 26th she came to get an application to fill out.  I spoke with her then.

 

            Q:  Okay.  And do you recall the substance of your conversation with Ms. Goeller on May 26th, 2004?

 

            A:  She asked me about apartments there and I told her, I said there is none available at this time, there -- no, none available.  And then she took the application.

 

            I said, “You can fill out the application and bring it back to me and if there would be down the road sometime, maybe an apartment” -- but back then and there we didn’t have any apartments ready.

 

            Q:  Okay.  And did you show Ms. Goeller an apartment?

 

            A:  No, I did not.

 

            Q:  Was there an apartment next to you that was vacant?

 

            A:  It was not exactly vacant.  It was not presentable to show to her because of the mess it was in.  I wouldn’t have showed nobody [sic] that apartment.

 

            Q:  But there was a vacancy?

 

            A:  At that time, yes.

 

            Q:  Did you tell Ms. Goeller that there was a vacancy?

 

            A:  No, I didn’t.

 

            Q:  Why not?

 

            A:  Because it wasn’t exactly vacant because it wasn’t ready for anybody to move into.

 

(Emphasis added.)  Bellinghausen’s account of the condition of the apartment is supported by Pinkley’s testimony.  Bellinghausen’s testimony that he would not have shown the apartment to anyone in that condition is credible.  Goeller’s testimony is not.

 

 

            Goeller testified that she returned to Oak Ridge to take pictures[13] on June 1, 2004, and noticed that there were three apartments that appeared to be available.[14]  We believe Bellinghausen’s testimony that there were no apartments available on that date.  The one empty apartment was still unavailable to rent because of its condition, and it did not become available until Pinkley moved in and assisted in cleaning it.  Bellinghausen did not learn of another available apartment until late May of 2004, but considered this one already taken because of Turner’s prior request.

            At the hearing, Goeller admitted that she had lied about the time she had lived with her mother before the date she filled out the application.[15]  It is unclear when she lied – when she stated on her application for the apartment that she had lived with her mother for two months or when she testified at the hearing that she had only lived with her mother for two days before filling out the application.

            Respondents offered evidence of a check Goeller wrote to her mother on May 5, 2004, in the amount of $125.[16]  Goeller had no explanation for the May 5 check other than that she might have been visiting her mother.  She testified:[17]

            Q:  If you visit your mother, do you pay her for visiting?

 

            A:  Yes, I do because I’m using her electricity.  Yes, I do.  I always pay.  Yes, I do.  My mom’s on a low income.  She’s very poor.  Yes, I do.

 

            Q:  Ma’am, I’m marking now what’s Respondents’ J.  And on Respondents’ J, which was provided to me by Mr. Dashtaki, is check number 1525 payable to Trudy Wilson in the amount of $125.  Do you know what that would have been for?

 

            A:  Probably rent or some utilities.  I’m not sure.

 

 

 

            Q:  Okay.  Now --

 

            A:  I’d have to see it to know it and I can’t see it.

 

            Q:  I understand that.  But you’ve -- you’ve actually written a check to her before, right?

 

            A:  Yeah, but with my memory, I might -- I’m not sure which one it is.

 

            Q:  Ma’am, on the -- are you saying you have a poor memory?

 

            A:  Well, when I do take this medicine, yes, I do.  I have a hard time.  I get very dehydrated, I can’t drive and I get very sleepy.

 

            Q:  Ma’am, you provided this check to your mother on May the 5th of 2004 according to this document.  And from the bank statement, it has a date of 5/10/2004.  Would that be the date it cleared the bank?

 

            A:  I guess I wrote it, so it went for something.  I’m not sure.  It could have been for electric, it could have been for visiting, I’m not sure.  It was for something to pay her.  Because I always pay her some kind of money.  I have to.  I have to pay my bills.  I just have to.

 

(Emphasis added.[18])  The fact that she paid her mother a similar amount to what she is able to substantiate through checks in later months – and calls rent – is consistent with her statement on the application that she had been living with her mother for a few months.  Therefore, her testimony at the hearing is not credible on this point.

            Goeller testified as to cash payments to her mother, a storage company, and church members that she was unable to substantiate.  She testified:[19]

            Q:  How much are you currently paying for -- how much did you pay for rent between May and November before you moved?

 

 

 

            A:  You mean at my mom’s?

 

            Q:  Yes, at your mother’s.

 

            A:  I paid -- she said 350 so I just randomly gave her money.

 

            Q:  Okay,  And are those --

 

            A:  And I had to give her money for utilities so that was about 200.

 

            HEARING OFFICER DOUGHTY:  I didn’t -- I didn’t hear that.  Say that again, please.

 

            THE WITNESS:  Then I had to give her money for utilities so I would just give her 200 because she was my mom, so I just gave it to her.

 

            HEARING OFFICER DOUGHTY:  Okay.  So I -- I don’t understand the answer to your question.  Did you pay your mother rent?

 

            THE WITNESS:  Yes.

 

            HEARING OFFICER DOUGHTY:  And how much did you pay her?

 

            THE WITNESS:  350.

 

            HEARING OFFICER DOUGHTY:  Okay.  What did you mean by you just randomly gave her money?

 

            THE WITNESS:  Well, I -- on the first I would give her some of the amount and then on the 15th -- I went by my pay days because I get paid twice a month so I went by my pay days.

 

            HEARING OFFICER DOUGHTY:  So you paid your mother somewhere in the neighborhood of $550 a month while you were there?

 

            THE WITNESS:  I’d say about, yeah, close to it.

 

 

 

 

 

            Plaintiff offered evidence of four checks from Goeller to her mother in the following amounts:  $125, $150, $65, $350.[20]  She offered evidence of four checks that she wrote to Creeco in the following amounts:  $23, $30, $30, $30.[21]  Goeller’s claim that she paid her mother a total of $550 per month in cash is simply not credible.  She did not explain how she was able to afford this, but turned down another apartment that rented for $600 per month.[22] 

            Goeller claims as damages the $800 she testified she spent as moving expenses when she moved from her mother’s house to her new residence.[23]  She testified that she gave money to “guys at the church” and that she placed money in a church offering.[24]  She testified:[25]

            Q:  Ma’am, you also alluded to moving expenses that you incurred; is that correct?

 

            A:  Yes.

 

            Q:  You stated that you just randomly paid people cash?

 

            A:  Yes.

 

            Q:  Who did you randomly pay?

 

            A:  People at my church.

 

            Q:  Who are they?

 

            A:  They’re just guys at the church.  One was the pastor.  I told him I would put it in the offering because he said,  “No, put it in the offering.”  We do everything with the offering.

 

            Q:  Ma’am, my question to you is who did you pay cash to?

 

            A:  Guys at the church.  I don’t even -- there was one, Jim.  I don’t even know if he’s there still.  I know one was Jim.


 

 

 

            Q:  How much money did you pay Jim?

 

            A:  I can’t recall offhand right now.  And that’s honestly, I can’t recall.

 

            Q:  So you’re saying that the moving expenses that you’re asking this -- as damages today is money that you offered to your church; is that correct?

 

            A:  They told me to put it there instead because it would go there and it would be better to give it to God than to them.

 

            Q:  Over what period of time did you give a thousand dollars in cash in offering to your church?

 

            A:  Randomly I did.

 

            Q:  It wasn’t on -- on or about June 1st of 2004 when you claim you moved?

 

            A:  No.

 

            Q:  Was it on October 27th or November 1st of 2004?

 

            A:  I know it was some in August, end of August I put some in.

 

            Q:  How much did you put in in August?

 

            A:  Well, one time I put $200 in.  Not two hundred-dollar bills, just $200 went in.

 

            Q:  And what was that for?

 

            A:  That was for the offering for the moving.

 

            Goeller’s testimony is not corroborated by any other testimony, such as that of her husband,[26] her mother, or her pastor.  Each could have provided some support to at least portions of her testimony.  Goeller’s account of the conversations with Bellinghausen differ significantly


 

 

from his account.  Plaintiff offers no other testimony in support of its position that Respondents committed discriminatory conduct.

            Plaintiff attempted to impeach Bellinghausen through MCHR investigator Sandra Herring.  Herring testified that Bellinghausen told her that he had no way of contacting Goeller about an apartment, but that she had been able to contact Goeller using the telephone number on the application.  Herring testified that she contacted Goeller’s mother and that her mother “got ahold of her for” Herring.[27]  Herring’s ability to contact Goeller through her mother does not affect Bellinghausen’s credibility.  Bellinghausen did not remember some of the specific dates, but we find that he is the more credible witness.  We also find Mr. Ruble to be a credible witness.

II.  Protected Class

            Plaintiff argues that Goeller was discriminated against because of her familial status as defined in § 213.010:

            (10) “Familial status”, one or more individuals who have not attained the age of eighteen years being domiciled with:

 

            (a) A parent or another person having legal custody of such individual[.]

 

Goeller is an individual with minor children who are domiciled with her.  She is protected under the statute.

III.  Application

            Plaintiff argues that Oakridge’s application is discriminatory because it requests the ages of applicants’ children.  Plaintiff cites no law for or cases supporting this proposition.  In Laurenti v. Water’s Edge Habitat, Inc., 837 F. Supp. 507 (E.D.N.Y. 1993), the court looked at


 

 

an application that required applicants to list the ages of children.  Instead of finding this a per se violation, the court used it to find that the claimant in a familial discrimination case had lied on the application.  Id. at 511. 

            In addition, Respondent offered a sensible, nondiscriminatory reason for requesting the ages of the children.  In case of emergency, it is important to know if a child is 15 months or 15 years old.

            Oakridge’s application is not a statement of preference based on familial status in violation of § 213.040.1(3).

IV.  Refusal to Rent/Negotiate

            Plaintiff argues that it established that the Rubles and Bellinghausen refused to rent to or refused to negotiate the rental to Goeller of one of their properties at Oak Ridge because of her familial status.

A.  Refusal to Rent

            Respondents did not refuse to rent to Goeller.  The one empty apartment on May 26, 2004, was in no shape to be rented at that time.  This was still true when Goeller called back on June 1, 2004.  Bellinghausen did not deny Goeller’s application to rent an apartment, but kept it on file.

B.  Refusal to Negotiate

            Plaintiff argues that Respondents failed to negotiate with Goeller for an apartment.  To establish a case based on a failure to negotiate, an offer and refusal to rent is not required.[28]  “The false statement of an owner that a dwelling is no longer available is a refusal to negotiate under discriminatory housing acts.”[29]


 

 

            Plaintiff argues that even if there were no apartments available when Goeller applied, Bellinghausen was under a duty to negotiate rental with her.  Plaintiff cites Joplin v. Missouri Comm’n on Human Rights, 642 S.W.2d 370 (Mo. App., S.D. 1982).  In that case, the MCHR found that a woman was discriminated against on the basis of race when she was told that a house was already rented.  It was no defense that the house was actually rented at that moment when the landlord knew that the tenant was leaving and rented it the same day to another person.  The Joplin court stated:  “Respondent had a duty to at least discuss the rental with Johnson to see if she was qualified and not to mislead her as to the availability of the house.”[30]

            This case is distinguishable from Joplin.  Bellinghausen did not mislead Goeller about the availability of an apartment.  As noted above, the one empty apartment on May 26, 2004, was in no shape to be rented at the time.  This was still true when Goeller called back on June 1, 2004.  Even with the help of the person who later rented the apartment, it was several weeks before the apartment was clean.  Respondents did not rent to another person on the same day as in the Joplin case.  Plaintiff cites no cases and we can find none that would require Bellinghausen to take affirmative steps to contact Goeller when other apartments became available, especially as we note in our discussion below, when he had what he considered better candidates based on non-discriminatory reasons.

C.  Familial Status

            We find that Goeller’s familial status was not a factor in Bellinghausen’s decisions.  Bellinghausen rented to other people after Goeller applied to rent an apartment.  But this alone is not enough to find discrimination.  Discounting Goeller’s self-serving statements as to what Bellinghausen said, there is simply no evidence that Bellinghausen made the decisions to rent to


 

 

other people based on the fact that Goeller had children.  Bellinghausen articulated other legitimate reasons for his decisions.  Pinkley was willing to work with Bellinghausen to make the apartment habitable again.  Turner had previously requested a ground-level apartment, and Bellinghausen considered her request as one made prior to Goeller’s application.  Even if Bellinghausen did not tell Goeller that an apartment might be available in the future and did not call her about later apartments, there is no affirmative duty that he do so.  He did not base his actions on her familial or other protected status.  He provided non-discriminatory reasons, such as better candidates for his limited number of apartments.[31]

            Respondents argue that they rent to other tenants who have children.  The Joplin court dealt with the argument that the landlord rented to others of the same race as the complainant:  “Respondent could refuse to negotiate for the rental of a house to a black while owning other houses which were rented to blacks.”[32]  However, we note that one of the people to whom Bellinghausen rented in late July after Goeller applied had a child.  While this fact does not destroy Goeller’s claim, it is some evidence to support our finding that her familial status was not a factor in Bellinghausen’s decisions.

            Plaintiff has failed to make its case that Goeller was discriminated against based on her familial status.

Summary

            Plaintiff failed to show that Goeller’s familial status was a factor in the decision whether to rent to her.


 

 

            Pursuant to the MCHR’s Regulation 8 CSR 60-2.200(1), the parties may file exceptions within ten days of this recommended decision.

            SO RECOMMENDED on July 18, 2006.

 

 

                                                                              ________________________________

                                                                              JUNE STRIEGEL DOUGHTY

                                                                              Hearing Examiner

 



                [1]Statutory references, unless otherwise noted, are to the 2000 Revised Statutes of Missouri.

                [2]Tr. at 8.

                [3]Id. at 143.

                [4]Resp. Ex. B.

                [5]Tr. at 245-46.

                [6]Resp. Ex. C.

                [7]Resp. Ex. E.

                [8]Pet’r Ex. 1.

                [9]Section 213.075.5. 

                [10]Midstate Oil Co. v. Missouri Comm’n on Human Rights, 679 S.W.2d 842, 845 (Mo. 1984) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)).

                [11]Barnes Hospital v. Missouri Comm’n on Human Rights, 661 S.W.2d 534, 537 (Mo. banc 1983).

                [12]Tr. at 198-200.

                [13]Plaintiff offered no pictures as evidence.

                [14]Tr. at 93.

                [15]Id. at 113.

                [16]Resp. Ex. J.

                [17]Tr. at 127-29.

                [18]As emphasized above, Goeller made excuses for the discrepancies and gaps in her testimony.  These excuses, including her medication and difficulty in hearing the questions, were brought forth during cross-examination, not during her direct examination.

                [19]Tr. at 97-98.

                [20]Pet’r Ex. 5.

                [21]Id.

                [22]Tr. at 139.

                [23]Id. at 140.

                [24]Id. at 124.

                [25]Id. at 123-25.

                [26]Goeller testified that her husband was “outside” when she filled out the application on May 26, 2004.  (Tr. at 77-78.)  She claims that she and her husband and children returned in the evening to drive around the complex.  (Tr. at 85.)  Because we do not find Goeller a credible witness, we have not made findings of fact based on this testimony.

                [27]Tr. at 43-44.

                [28]Van den Berk v. Comm’n on Human Rights, 26 S.W.3d 406, 412 (Mo. App., E.D. 2000).

                [29]Joplin v. Missouri Comm’n on Human Rights, 642 S.W.2d 370, 373 (Mo. App., S.D. 1982).

                [30]Joplin, 642 S.W.2d at 373.

                [31]See Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081 (7th Circ. 1982) (refusal to rent was based not on race, but on the fact that applicant acted in belligerent manner).

                [32]Joplin, 642 S.W.2d at 373.