Ramofin.txt

HAWAI'I CIVIL RIGHTS COMMISSION

STATE OF HAWAI'I


WILLIAM D. HOSHIJO, ) Docket No. 99-001-H-D
Executive Director, on )
behalf of the complaint ) FINAL DECISION AND ORDER
filed by JERRY and MOANA )
P. RAMOS, )
)
vs. )
)
BERETANIA HALE, LTD. and )
MARY MAU LE CAVELIER, )
)
Respondents. )
_______________________________)



FINAL DECISION AND ORDER
The Commission heard oral argument on February 11, 2000, at
2:30 p.m. Present were Commissioners Harry Yee, Jack Law, Faye
Kennedy, Allicyn Hikida Tasaka, and June Motokawa. The case in
support of the complaint was presented by Enforcement Attorney Paul
Nahoa Lucas representing the Executive Director William D. Hoshijo,
who was present. Respondents Beretania Hale, Ltd., and Mary Mau Le
Cavelier were represented by Robert Nip. Complainant Moana Ramos
and Respondent Mary Mau Le Cavelier were also present. The
Commissioners considered the parties' exceptions and statements in
support, heard the oral argument, and considered portions of the
record cited by the parties.


I. RESPONDENTS' MOTION TO STRIKE EXECUTIVE DIRECTOR'S STATEMENT
IN
SUPPORT

The Executive Director filed Exceptions to the Hearings
Examiner's Proposed Findings of Fact, Conclusions of Law and
Recommended Order (Recommended Decision). Respondents did not file
Exceptions. The Executive Director and Respondents both filed
Statements in Support of the Recommended Decision. Respondents have
moved to strike the Executive Director's Statement in Support
because it was not filed in response to any Statement in Support and
contained additional legal argument taking exception to the
Recommended Decision.
H.A.R. sec. 12-46-54 provides, after the receipt of the written
exceptions, "any party may file ... a statement in support of the
written decision[.]" A statement in support is designed to respond
to a party's exceptions in order to present both sides of the
disputed factual or legal issues to help the Commissioners make the
Final Decision. See, Tseu v. Volcano Island Farms, Inc., at 2 n. 1,
Docket No. 94-003-E-R (February 8, 1995) ("Statement in Support
provide[s] an opportunity to respond to the other party's
Exceptions.") However, in Tseu v. Simich, at 2-3, Docket No. 95-
012-E-SH (October 29, 1996), the Commission authorized the Hearings
Examiner to accept for filing a Statement in Support even if the
opposing party did not file Exceptions but recognized the right of
the opposing party to file a motion to strike for good cause. A
Statement in Support should not contain legal arguments which are
essentially exceptions. In re Shirley Mae Smith, at 3-4, Docket No.
92-003-PA-R-S (November 9, 1993)(striking portions of statement in
support containing exceptions). Thus, the Commission grants the
Motion to Strike and will not consider the Executive Director's
Statement in Support or include it as part of the official record.
II. FINDINGS OF FACT
The Executive Director's Exceptions focused on the Conclusions
of Law rather than the Findings of Fact. The Commission hereby
adopts and incorporates the Proposed Findings of Fact in their
entirety. The Commission also adopts in its entirety the procedural
history of the case attached as Appendix A to the Recommended
Decision.
III. CONCLUSIONS OF LAW
The Commission adopts Conclusion of Law A, that there is
jurisdiction under Chapter 515 over Respondents Beretania Hale,
Inc., and Le Cavelier. The Commission adopts Conclusion of Law B,
1, which sets forth the elements of a prima facie case for failure
to make a reasonable accommodation and concludes in subsections a-c
that the Executive Director presented a prima facie case. "After
proof of a prima facie case, the burden of proof shifts to
respondent to prove that it acted for its proffered legitimate non-
discriminatory reasons." Tseu v. Treehouse Restaurant Inc., at 9,
Docket No. 95-002-E-A-D-RET (May 2, 1996)(footnote omitted.)
Although Respondents were notified that Mrs. Ramos had
requested a parking space as an accommodation for her disability,
they did not engage her in an interactive process to discuss her
request. Proposed Findings of Fact ("Fact") 24 and 25. The
Recommended Decision sets forth the important policy reasons why
owners or persons engaging in a real estate transaction should
participate in an interactive process with a disabled individual to
explore the need for possible accommodations. One of the purposes
of the interactive process is to encourage settlement of the
accommodation issue and possibly avoid litigation. In this case, if
Respondents had met with Mrs. Ramos and discussed the matter by
clarifying the cooperative's unique method of allocating parking
spaces the matter may have been settled without a complaint being
filed.[1] The Commission adopts Conclusion of Law B, 1, d, that
Respondents did not meet with Mrs. Ramos and refused to make the
requested accommodation.
"Whether an accommodation is 'reasonable' is a question of fact
determined by a close examination of the particular circumstances."
Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 896 (7th Cir.
1996)(citation omitted.) The Recommended Decision carefully
explored the "particular circumstances" of this case. With respect
to both Respondents, the Hearings Examiner concluded that providing
a parking space to Mrs. Ramos would cause an undue hardship or
burden making the requested accommodation unreasonable. Le Cavelier
owned five units with only one parking space.[2] The tenant using
the space would not have given it up. Fact 21. The Recommended
Decision concluded that Beretania Hale, Ltd., did not manage or
control any parking spaces, however, it was not clear until the
hearing that it had no control or management authority. The
Executive Director claims that part of the common area could have
been used for parking by obtaining a variance, especially in light
of the fact that another tenant had been allowed to park in the area
up until the time Mrs. Ramos made her request. The Recommended
Decision concluded that City and County of Honolulu regulations
would not have allowed parking in the area. Whether the City would
have granted a variance because of Mrs. Ramos' disability will never
be known because Beretania did not meet with her to explore this
possibility. This underscores the importance of the interactive
process. Although Beretania claims that obtaining a variance would
be costly, some of the cost or burden to obtain the variance could
have been borne by Mrs. Ramos which would have made the burden less
onerous to Beretania and possibly make the requested accommodation
reasonable. Under the circumstances, however, the Commission will
adopt Conclusion of Law B, 1, e, that providing the accommodation
would have caused an undue burden.
The Commission also adopts Conclusion of Law B, 2, that
Respondents' failure to engage in the interactive process does not
create per se liability under H.R.S. sec. 515-13(1). Although the
policies underlying the interactive process are undermined by a
party's failure to participate in the interactive process, the
Commission agrees with the Recommended Decision that there is no per
se liability in this particular housing case.[3] The record
supports the conclusion that providing a parking space to Mrs. Ramos
would have imposed an undue burden upon Respondents.
Despite our decision in this case, owners or persons engaging
in a real estate transaction should be cautious about not engaging
in the interactive process in hopes that after a hearing the
requested accommodation will be found to impose an undue burden.
Failure to participate in the interactive process is prima facie
proof that one may be acting in bad faith.[4] See, Fjellestad v.
Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir. 1999). Such
bad faith may be used to establish an element of a party's failure
to engage in an interactive process if "complainant could be
reasonably accommodated but for the respondent's lack of good
faith." Recommended Decision, at 30. "The interactive process
would have little meaning if it was interpreted to allow [an owner],
in the face of a request for accommodation, simply to sit back
passively, offer nothing, and then, in ... litigation, try to knock
down every specific accommodation as too burdensome." Fjellestad,
188 F.3d at 953. Thus, rather than try to justify the failure to
engage in an interactive process by proving that the accommodation
would be an undue burden, owners and persons engaging in a real
estate transaction should meet with the disabled tenant to discuss
the requested accommodation and do so in good faith.
The Commission adopts Conclusion of Law B, 3, regarding
harassment of Mr. and Mrs. Ramos, and Conclusion of Law C, on
liability.
IV. EXECUTIVE DIRECTOR'S REQUEST TO ADD ROSE LEW AND FRANCIS TOM
AS PARTIES

In the Exceptions, the Executive Director requests that, if the
Commission affirms the Recommended Decision, Rose Lew and Francis
Tom[5] should be added as parties and the case remanded back for
further proceedings. The request is denied because a motion to add
new parties should be filed during the contested case. H.A.R. sec. 12-
46-6.1.
IV. ORDER
The Commission adopts and affirms the Recommended Order that
Respondents Beretania Hale, Ltd., and Mary Mau Le Cavelier did not
violate H.R.S. sec. 515-3 and H.A.R. sec. 12-46-306 and dismisses the
complaint.

Dated: Honolulu, Hawaii


HARRY YEE, Chair




JACK LAW, Commissioner[6]




FAYE KENNEDY, Commissioner




ALLICYN HIKIDA TASAKA, Commissioner




JUNE MOTOKAWA, Commissioner


Notice: Under H.R.S. sec. 368-16(a), a complainant and a respondent
shall have a right of appeal from a final order of the Commission by
filing an appeal with the circuit court within thirty (30) days of
service of an appealable order of the Commission.


-----------------------------------------

footnotes:

1. Although Respondents claim that this case was brought
unfairly, there is no basis for the criticism. It is clear that
Respondents failed to engage Mrs. Ramos in an interactive process to
determine a possible accommodation after she made the request.
There was a good faith basis to claim that such failure constituted
a discriminatory practice for which a minimum of $500 in damages may
be assessed under H.R.S. sec. 515-13(7). Also Respondents' defense of
undue burden was not clearly established, and there was a good faith
basis to claim that the accommodation sought by Mrs. Ramos was
reasonable.

2. To help the Ramos family move in, Le Cavelier waived the
July 1995 rent. Fact 14. After the loss of the parking space, she
waived half of the May 1996 rent (for some plumbing work Mr. Ramos
had done) and the entire June 1996 rent. Fact 26.

3. Unlike our housing rules, the Commission's employment
discrimination rules provide: "[t]o determine the appropriate
reasonable accommodation, it shall be necessary for an employer or
other covered entity to initiate an interactive process, after a
request for an accommodation, with the qualified person with a
disability in need of the accommodation." H.A.R. sec. 12-46-187(b).

4. In addition, if there is a finding of bad faith it may be
used to establish that a respondent's conduct was malicious,
oppressive, or otherwise outrageous.

5. Tom owned several parking spaces and rented one to the
Ramos family. Lew managed the parking spaces and told Tom to take
back the space after arguments with Mrs. Ramos.

6. Prior to oral argument, Commissioner Law disclosed to
counsel that he knew an individual who was not a party to the case
but was a shareholder in Beretania Hale, Ltd. Commissioner Law
stated that he would be able to decide the case impartiality. The
Chair decided that there would be no conflict of interest if
Commissioner Law participated in the case.