DORENE POLTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.


FRANK ROMAN and JOHN ABELN, Respondents.

FINDINGS OF FACT

Jurisdictional and Procedural Facts:

1. The Complainant, Dorene Polton, filed her complaint CP # 01-90-19507 alleging race discrimination in housing, which is prohibited by Iowa Code section 601A.8, on December 29, 1989. The dates of alleged discrimination stated in the complaint are "on or about November 1989 and continuing." The first specific date mentioned in the complaint is November 20, 1989. Official Notice is taken that December 29, 1989 is thirty-nine days after November 20, 1989. Fairness to the parties does not require that they be given the opportunity to contest the facts noticed in Findings of Fact No. 1 and 2.

2. The complaint was amended on August 19,1990 to add Bernice Roman, Frank Roman's daughter, as a respondent. Official Notice is taken of the documents in the file which indicate that the Notice of Hearing sent by certified mail to Ms. Roman's former address was returned with markings on the envelope stating that she had been notified of the letter on two occasions, January 18th and 25th, 1991, but had not claimed the letter. Normally, this would be sufficient to show that Ms. Roman had constructive notice of the hearing. See Conclusions of Law Nos. 4-8. In this case, however, Ms. Roman credibly testified that the Postal Service had either failed to deliver or had otherwise mishandled her mail throughout the month of January 1991. She had moved in late December and did not receive notice of any certified mail. (Tr. at 27-29). Therefore, the case against Ms. Roman was dismissed without prejudice. (Tr. at 31).

3. This complaint was investigated. After probable cause was found, conciliation was attempted and failed. (Respondent's Exhibit A; Notice of Hearing). Notice of Hearing was issued on January 16, 1991. (Notice of Hearing).

Background:

4. Complainant Polton, a white female, occupied Apartment # 2 at 1852 "A" Avenue N.E. in Cedar Rapids, Iowa from on or about November 15, 1989 to on or about May 31, 1990. This apartment was rented to her for the use of her and her minor daughter, Brandy Polton, by Respondent Frank Roman, the owner. (Complaint; CP. EX. # 2, 7; Tr. at 36, 65, 71, 73, 76, 149). Throughout the entire period of her tenancy, the Building Manager was Respondent John Abeln. (Tr. at 154-55, 158).

5. Complainant Polton initiated the search which led to this apartment shortly after receiving notice from the City of Cedar Rapids Housing Authority that she could obtain housing assistance payments through the "leased housing" program. Ms. Polton's income at this time was through Aid to Dependent Children (ADC) payments. She had been on the waiting list for leased housing for four years. (CP. EX. # 2; Tr. at 66-67). She inspected the apartment on or about November 13,1989. (Tr. at 35). She moved in on or about November 15, 1989. (Tr. at 36, 71).

6. Respondent Frank Roman relied on Respondent Abeln and Bernice Roman to manage his properties for him. (Tr. at 150). Mr. Abeln was, therefore, an agent of Mr. Roman. Mr. Abeln's duties included, but were not limited to, taking applications for rentals and passing them on to Ms. Roman, maintaining the apartments, collecting rent, and keeping the driveways cleaned. (Tr. at 158). He also dealt with complaints from tenants and issued warnings and eviction notices. (CP. EX. # 3, 4, 5, 6; Tr. at 167, 169). Mr. Abeln was building manager from approximately July of 1989 to November of 1990. (Tr. at 155, 158).

7. The building at 1852 "A" Avenue N.E. is a four plex. The two apartments on the bottom floor were occupied by John Abeln (Apt. # 1) and Dorene Polton (Apt. # 2). (Tr. at 37, 173). The other two apartments are on the second floor and are located directly above the bottom apartments. Entrance into the apartment is through a security door which was to remain locked. There was no buzzer or similar system which could be used to notify tenants that visitors had arrived. (Tr. at 37).

Racial Discrimination Alleged in the Complaint:

8. In addition to his statement indicating that blacks were unwelcome as renters, the complaint provides several specific examples of racial harassment alleged to have been committed by John Abeln against Complainant Polton. Evidence on other such instances was introduced during the hearing.

9. Instances of harassment alleged included:

a. Complainant Polton being informed by John Abeln, on November 30, 1989, that if Jack High or any other visitor were in her apartment after 10:00 p.m., "he would run them off with a 12-gauge shotgun." Complainant Polton was told, in effect, that she could not have visitors after 10:00 P.M.

b. On that same date, Complainant Polton's sister-in-law, Sonia Polton, was informed by John Abeln, that for Jack High (a black male who was Brandy Polton's boyfriend) to visit the apartment was a violation of the lease and that Mr. Abeln did not want him there.

c. Complainant Polton being informed that she would have to get permission from Abeln if she wished to have any overnight guest in her apartment.

d. On December 12, 1989, Bernice Roman, upon giving Mrs. Polton a written notice indicating she was not complying with the terms of her lease, verbally informed her that they were watching her, and if there were any guests in her apartment after 11:00 p.m., she would be subject to eviction.

10. Evidence was introduced on additional instances of alleged racial harassment:

a. John Abeln gave Complainant Polton a warning because Jack High and Brandy requested permission to, and did, use his phone to call police because of trouble at Jack High's apartment two blocks away.

b. Dorene and Brandy Polton were repeatedly blamed by John Abeln for excessive noise when they did not generate excessive noise.

c. Dorene and Brandy Polton were repeatedly blamed by John Abeln for failure to lock the security door when they had not failed to lock the door.

d. John Abeln objected to Sonia Polton parking in the space designated for Dorene Polton's apartment.

e. Laundry rules were changed to limit the hours during which Complainant Polton could do her laundry. On more than one occasion, her laundry was taken out of the washer or dryer and placed on top of the machine prior to the washing or drying being concluded.

The allegations specifically mentioned in the complaint will be discussed first.

Respondent Abeln's Statement Indicating Blacks Were Unwelcome as Tenants:

11. When Complainant Polton and Sonia Polton arrived to view apartment # 2 on November 13, 1989, Mr. Abeln was working on the upstairs apartments. He met them and introduced himself as the building manager. (Tr. at 34, 69). When they discussed leased housing, Abeln urged Complainant Polton to get the lease set up with the agency as soon as possible as there had been "niggers" living in the apartment prior to her, he did not want to rent to them, and there were some blacks looking at the apartment at that time. (Tr. at 35, 70).

Respondent Abeln's Statements and Actions Concerning Complainant Polton's Visitors and Guests:

Complainant Polton's Visitors and Guests:

12. Complainant Polton's visitors included her brother, her sister-in-law, Sonia Polton (a white female); a friend, Melvin Malone (a white male); and Jack High, the boyfriend of the Complainant's daughter, Brandy. (Tr. at 38, 41, 42, 121). Jack High was black. (Tr. at 72). His father, Edward High, who was also black, helped the Complainant move in and would also stop by when he was looking for Jack. (Tr. at 36, 42, 72).

13. The most frequent visitors to Complainant Polton's apartment were Sonia Polton and Jack High. They visited the apartment an approximately equal number of times during Complainant Polton's tenancy. (Tr. at 42). Sonia Polton would visit from 9:00 A.M. until noon or 1:00 p.m. and from 3:00 p.m. to 4:00 p.m. She would also stop by to take Complainant Polton shopping or to appointments or lunch, as the Complainant owned no car. She was usually not at Complainant Polton's in the evening. (Tr. at 78-79).

14. On a typical day, Jack High would drive Brandy to school in the morning. (Tr. at 77, 131). After sleep and other activities, he would return to the apartment later in the day and visit with Dorene Polton until 3:30 p.m., when he would go to school and take Brandy to her home. (Tr. at 122, 131-32). Five days a week, he would visit at the apartment until he would leave for work at Night Hawk Security which began at 1 0:00 p.m. or 11:00 p.m.. (Tr. at 76, 77, 130-31). After he finished work at 5:00 a.m. or 6:00 a.m., he would go to the apartment to take Brandy to school at the appropriate time. (Tr. at 122, 131).

15. Melvin Malone, a white male friend of the Complainant's, would visit the complainant's apartment approximately three days a week. (Tr. at 41, 145, 147). At times, he would stay overnight, but would not stay three consecutive days. (Tr. at 41, 147-48).

Direct Evidence that Abeln's Statements and Actions Concerning Complainant Polton's Visitors Were Due to the Race of Jack High:

16. When Melvin Malone was visiting Dorene Polton, he met Respondent Abeln. (Tr. at 146). Abeln treated Malone well. (Tr. at 146-47). Malone, who drove 55 miles from Aurora to Cedar Rapids for regular medical treatments lasting from twenty minutes to one hour, informed Abeln that he was tired from the trip and the treatment and was going to take a nap. (Tr. at 146). Abeln replied, "You're welcome to stay here anytime you want to. I don't care if you stay here, you know, like once in a while, like if you're tired, but that nigger guy, I just can't stand them." (Tr. at 146). Mr. Malone's impression was that Abeln did not want to have black persons around. (Tr. at 147).

17. The construction of the apartment building is such that conversations near the back door, in the upstairs apartments, and in Abeln's apartment can sometimes be heard in the bedroom occupied by Brandy Polton. Conversations in Abeln's apartment could also be heard in the laundry. (CP. Ex 3; Tr. at 135,141-42). From these areas, Jack High overheard Respondent Abeln refer to him as "nigger"; to Brandy as a "nigger lover"; and to his (High's) father as a "pure fucking nigger," while Abeln was in his apartment or upstairs drinking and talking with the other tenants. (Tr. at 135). Respondent Roman was not aware of any of Respondent Abeln's statements concerning blacks. (Tr. at 151-52).

Respondent Abeln's Objections to Polton's Visitors:

18. on November 30, 1989, during the course of a discussion in which Respondent Abeln complained to Complainant Polton about guests being present after 10:00 p.m., Abeln stated that he was going to use a shotgun on anybody who came in the driveway after 10:00 p.m. (Tr. at 40, 79, 80). Complainant Polton explained that, if her mother came to visit, it would be after 10:00 p.m. She then asked whether Abeln's threat included her mother. He responded that, even if it were Complainant Polton's mother, he would take a 12 gauge shotgun to her. (Tr. at 80).

19. Respondent Abeln's threat to use a shotgun on Polton's mother left her in tears. (Tr. at 80). She walked to Sonia Polton's residence and informed her and an individual named Don (the father of Sonia Polton's children) about the shotgun threat. Sonia Polton and Don went back to Polton's apartment building in order to talk to John Abeln. (Tr. at 40, 80). When Sonia Polton asked Abeln whether there was a problem, he answered, "Well Jack can't be around here as much as he is." (Tr. at 40, 42).

20. Sonia Polton responded that, in accordance with the written rules posted in the building, Abeln could not dictate how long Jack High visited as long as he was quiet. (Tr. at 40). The rules at one time had stated, "No guest after the time of 10:00 p.m." Abeln had scratched out the word "No" and altered the rule to "Guest after the time of 10:00 p.m. are required to be quiet. No loud talking are (sic) any noise permitted." (CP. EX. # 1; Tr. at 40. 43-44). Respondent Abeln's reaction to this argument was, "Well, whether it's Jack or it's any of Dorene's relatives, I'll use a 12 gauge." (Tr. at 40). Don responded to this threat by stating, "if you're going to pull a 12 gauge, you better use it because otherwise it's going up your behind." (Tr. at 41).

21. Respondent Abeln told Jack High that he was tired of seeing him there twenty-four hours a day and that he did not want to see High's father there. High was also aware of the shotgun threat and that it was linked, at least in part, to his visits to the Poltons. (Tr. at 126). One or two days after Abeln's shotgun threat, Jack High and Brandy Polton saw, through the window of Abeln's apartment, Abeln carrying a shotgun in his kitchen. (Tr. at 129).

22. There is no evidence in the record to support the allegation that Respondent Abeln told Complainant Polton that she would have to obtain his permission if she wished to have any overnight guests in her apartment.

23. In addition to the shotgun incident, Complainant Polton and others were repeatedly informed that Respondent Abeln objected to there being too many visitors in general and to the presence of Jack High in particular. (Tr. at 41, 77-78, 124). There is, however, no evidence in the record to support the allegation that Bernice Roman told Complainant Roman that she was being watched and would be subject to eviction if visitors were there past 11:00 p.m.

24. Respondent Abeln asserted that Jack High was living at the Poltons' apartment. He demanded that High, who had an apartment located two blocks away from the Poltons, provide proof that he was not living with the Poltons. (Tr. at 42, 78, 126). High did so by showing Abeln a rental receipt. (42, 126). Abeln also falsely told the City of Cedar Rapids Housing Authority that Jack High was living at the Poltons' apartment. It was necessary for Complainant Polton to assure the Housing Authority and Abeln that he was not. (Tr. at 78). Complainant Polton was informed by the Housing Authority that Abeln repeatedly telephoned their office asking how he could justify evicting her from the apartment and what section of the lease he could use for that purpose. (Tr. at 94).

25. Given Respondent Abeln's previously quoted statements reflecting (a) his reluctance to let blacks rent the apartment; (b) his prejudice against Jack High due to his race and against the Poltons for associating with him; and (c) his willingness to let a white guest (Malone) visit while contemporaneously noting his antagonism toward black visitors, it is clear that his concerns with the Poltons having too many visitors, with having Jack High as a visitor, and with threatening the use of a 12 gauge shotgun against visitors after 10:00 p.m. are racially motivated. See Findings of Fact Nos. 15-17.

Respondents' Warning About Calling Police to the Apartments:

26. On December 7,1989, Brandy Polton was visiting Jack High at his apartment. His neighbor, who was inebriated and carrying a knife, began making some inappropriate comments. Therefore, Mr. High and Brandy Polton fled High's apartment and ran to the apartments where Brandy lived. (Tr. at 86,128). While there, they asked and received permission from Respondent Abeln to use his telephone to call the police so they could come to Complainant Polton's apartment and discuss the matter. (Jack High did not have a telephone at his apartment). (Tr. at 42, 86,128). The police did come to Complainant Polton's apartment and did discuss the matter. (Tr. at 87). The next day, Complainant Polton was verbally informed by Abeln that he did not give Jack High and Brandy Polton permission to call the police on his phone. Abeln's statement was false. She was warned that if the police were called again the lease would be terminated. (Tr. at 86-87, 129).

27. Complainant Polton also received a written warning, dated December 8, 1989 and signed by Respondent Abeln and Bernice Roman, which stated, in part:

This notice is to inform you that you are not complying to your Lease in Section M of your Lease.

Sec. M on Lease.

["]To conduct him/herself and cause other persons who are on the premises with his/ herself to conduct themself (sic) in a manner which will not interfere with nor diminish his/ her neighbors peaceful enjoyment of there (s;c) accommodations and which is conducive to maintaining the premises in a decent, safe, and sanitary condition.["]

On December 7th 1989 Brandy Polton and her boy friend Jack had trouble elsewhere. They brought these troubles back to 1852 A Ave. N.E. They called police from this apt. instead of where trouble started. This disturbed other tenants & neighbors about their safety and well being.

(C P. EX. # 3; Tr. at- 83).

28. The Respondents' rationale for the issuance of this warning is that, when Brandy Polton and Jack High reported potential criminal activity two blocks away to the police and discussed this with the police at the Poltons' apartment, they thereby (1) "brought ... troubles back to 1852 A Ave. N.E.", (2) "disturbed other tenants about their safety and well being," and (3) failed to act "in a manner which will not interfere with ... his/her neighbors peaceful enjoyment of there (sic) accommodations and which is conducive to maintaining the premises in a ... safe ... condition." The Respondents' position could be summarized as asserting that when a tenant calls the police to the premises to discuss potential criminal activity at a nearby location, the tenant thereby threatens other tenants' safety or well-being. This explanation for the warning is so idiosyncratic, questionable, and absurd as to be unworthy of belief. Given Abeln's previously noted expressions of racial animus, and this incredible explanation, it is more likely than not that these verbal and written warnings to Complainant Polton were actually motivated by racial prejudice.

Respondents' Warnings About Complainant Polton and Visitors to Her Apartment Generating Too Much Noise:

29. Respondent Abeln repeatedly complained to Complainant Polton about noise which he stated was coming from her apartment. (Tr. at 81). He also issued written warnings about noise which included a notice that the lease was being terminated. (CP. EX. # 4, 5, 6; Tr. at 88, 89, 91, 124,167,169). Mrs. Abeln made reference to Jack High's race, i.e. "I thought you was a mulatto," during the course of a discussion, initiated by Respondent Abeln, about Jack High visiting too much and about too much noise. Respondent Abeln, Mrs. Abeln, Complainant Polton, and Jack High were present at this discussion. (Tr. at 124, 125).

30. Complainant Polton received a written warning, dated December 13, 1989, written by Respondent Abeln, which stated:

December 13th 1989 to Dorene Polton. 11:08 p.m. at this date Brandy Malone Polton and Jack her boy friend disturbed my wife and I and tenenants (sic) at 1852 A Ave. N.E. by slamming doors at that time of night. House Rules states all tenants and guest will be quite (sic) at 10:00 p.m. Again violations of Section M have been violiated (sic) of section M under lease code. Also Section D of lease code M. Quote ("]to use the premises solely as a r)rivaty (sic) dwelling for lessee and lessee's (sic) as specified, and not to use or permit its use for any other purpose.["]

2nd Notice within 10 days. Lessee can't control her daughter.

(CP. EX. # 4; Tr. at 88) (emphasis added).

31. Paragraph 7 of the lease provides:

The Lessee agrees not to use or permit the use of the dwelling unit for any purpose other than as a private dwelling solely for Lessee and his/her family and/or dependents. This provision does not exclude reasonable accommodation of Lessee's guests or visitors whose visit is less than fifteen (15) days provided Lessor is provided written notice for such visits.

(CP. EX. # 2). Reference to the first sentence of this section of the lease was made by Respondent Roman in his testimony in attempting to explain the Respondents' concern with Jack High and others who visited the Poltons. (Tr. at 150).

32. In light of this written warning's reference to this lease provision, it is clear that the warning not only addresses the alleged noise problems, but again reflects Respondent Abeln's concern with visitors, and particularly with Jack High. (CP. EX. # 4). This is a concern which has already been found to be racially motivated. See Finding of Fact No. 25. The warning also makes reference to the December 8th warning ("2nd notice within 6 days.") which has already been found to be racially motivated. See Finding of Fact No. 28.

33. The warning, in effect, links the noise concern with Respondent Abeln's racial prejudice against Jack High and his presence as a visitor to the Poltons. High is specifically mentioned, along with Brandy Polton, as one of those involved in the alleged door slamming. The warning also identifies Jack High as Brandy Polton's boyfriend and concludes, "Lessee can't control her daughter." (CP. EX. # 4). I n light of Abeln's characterization of Brandy Polton as a "nigger lover," it is more likely than not that the reference to "control" expresses not only Respondent Abeln's surface concern with door slamming but also his underlying racially motivated opposition to Jack High's visits to Dorene and Brandy Polton. See Finding of Fact No. 17.

34. A written notice given to Complainant Polton, dated December 28, 1989 and signed by Respondent Abeln and Bernice Roman, indicated that the lease was being terminated effective February 1, 1990. The Notice states in part:

You as Lessee have violated your lease on numerous occasions.

#1 Section 1 1-M ["]To conduct him/herself and cause other persons who are on the premises with his/her consent to conduct themself (sic) in a manner which will not interfere with nor diminish his/her neighbor's peaceful enjoyment of their accommodations and which is conducive to maintaining the premises in a decent safe, and sanitary condition.["]

#2 Section 14-E ["]A Lessee (Tenant family) history of disturbance of neighbors.["] Other tenants have informed me they will not tolerate this anymore.

(Cp. EX. # 5).

35. When this notice of the termination of the lease was given to Complainant Polton, she was verbally informed by Bernice Roman that her lease was being terminated because of too much noise, not obeying the rules, and too much company. (Tr. at 89, 91). There is no evidence in the record of any specific instances of any of these alleged violations being given as reasons for this notice.

36. On January 1, 1990, the last written warning was given to Complainant Polton. This warning, also authored by Respondent Abeln, states, in part:

Again you violated your lease section M. At 1:40 A.M. I was disturbed from sleep by security door opening & closing by guest. at apt. 2 1852 A. Ave. N.E. Again the same night at around 2:30 a.m. I was disturbed of sleep by security door opening & closing. I got out of bed looked out of my window and you were getting into Century Cab # 13.... You again and still are violating apt. rules. This is harassment to me my wife & other tennants (sic) in this building.

(CP. EX. # 6). The portion of the warning dealing with noise is based, as it states, solely on the sound of the security door opening and closing on two occasions on the morning following New Years' Eve. No other sounds are mentioned. (CP. EX. # 6).

37. Complainant Polton did not open and close the security door in order to harass Respondent Abeln and his wife. Rather, she went to a Bingo Club that night and returned at approximately 2:15 a.m. She then left by cab at approximately 2:30 a.m. in response to a call indicating her father was ill and requesting her to deliver his paper route. (Tr. at 50). Respondent Abeln could have heard the security door opening and closing because of the close proximity of his bed to his apartment door, which is only six feet from the security door. (Tr. at 50).

38. Official notice is taken of the fact that New Year's Eve is a holiday which by custom is celebrated until the early morning hours. Fairness to the parties does not require that they be given the opportunity to contest this fact.

39. Given the reference to "a guest at apt. 2" opening and closing the security door at 1:40 a.m., it is reasonable to infer that this warning is, in part, due to the same racially based concern about visitors to the Poltons' apartment which resulted in other warnings.

40. Also, a warning based, in part, on the sound generated by the mere opening and closing of a door on two occasions, during the morning of a holiday which is traditionally celebrated until the wee hours, is so patently absurd that it is difficult to believe the noise generated reflects the true motive for the warning. Given the previously noted statements of Respondent Abeln, his hostility toward the Poltons because of their having Jack High as a guest in their home is the most likely motive for this warning.

41. The conclusion that these warnings concerning noise were motivated by racial animus is reinforced in light of the Poltons' actual conduct and of the response made to the Poltons' complaints about noise from other tenants. The Poltons were not noisy tenants. (Tr. at 102). When Jack High was not visiting, Complainant Polton and Brandy Polton were usually in bed by 10:00 p.m. (Tr. at 81). In any event, Complainant Polton was often in bed by 11:00 p.m. (Tr. at 91). At other times, Complainant Polton might be out playing bingo. On these occasions, Brandy Polton and Jack, High would also be gone. (Tr. at 102). When Brandy Polton and Jack High were there, they were directed by Complainant Polton to keep the television and radio down. (Tr. at 115). Complainant Polton, Brandy Polton, and Jack High did nothing to generate excessive noise. (Tr. at 125).

42. Complainant Polton informed Respondent Abeln and Bernice Roman that the noise was not coming from her apartment. (Tr. at 91). The noise came from other tenants and their visitors. Starting about 10:00 p.m., the upstairs tenants in Apartment # 4 would play their radios and stereos at full volume. (Tr. at 100, 115,125). They would stomp up and down the stairs and slam doors. (Tr. at 117, 125). The upstairs tenants would come home drunk and then drink and talk with Respondent Abeln. (Tr. at 125). It was not unusual for visitors to the upstairs apartments to pound on the door until Complainant Polton got tired of hearing it and answered the door. (Tr. at 39). At one time, a large man, who had apparently been drinking, came in at night. He began yelling for his friend and stomped upstairs. He then turned on the music and yelled for more friends. (Tr. at 117). Such events occurred throughout the week and during the weekend. (Tr. at 116-17).

43. Complainant Polton complained at least two times to Respondent Abeln about noise from the tenants upstairs. On one occasion, Abeln said he would go upstairs. (Tr. at 117). On another occasion, however, Complainant Polton complained to Abeln about a noise, made by the upstairs tenants, which was similar to the sound made by someone jumping on the floor. The noise woke Brandy Polton, who had been sleeping in her bedroom immediately below the sound. (Tr. at 115). When Abeln went upstairs and told the tenants about Polton's noise complaint, they started calling Complainant Polton names. Abeln responded by expressing his agreement with the epithets directed against Polton. (Tr. at 116).

44. This last incident may be the one mentioned in the written warning given to Complainant Polton on December 8,1989, which concludes:

Tenant Dorine (sic) apt. 2 complains of tenants running water and walking to (sic) hard above her. This was 9:P.M. 11/29/89. This is normal and building is not sound proof. This complaint was against tenants in apt. # 4 above her at 1852 A Ave. N.E.

(CP. EX. # 3).

Respondents' Warnings to Complainant Polton About Leaving the Security Door Unlocked:

45. Respondent Abeln repeatedly accused Complainant Polton and Jack High of leaving the security doors unlocked although he admittedly did not know who left them unlocked. (Tr. at 49, 127, 168). In fact, children of the upstairs tenants, in apartment # 3, and not Complainant Polton or Jack High, were usually to blame for leaving the door unlocked. (Tr. at 49, 163). The one exception reflected in the record may be the alleged failure of Complainant Polton to lock the security door on New Year's Eve which is mentioned in the January 1, 1990 warning, which states in part:

I got out of bed looked out of my window and you were getting into cab # 13. 1 dressed and opened the door to my apt. # 1. I found security door unlocked after you left.

(CP. EX. # 6).

46. This failure to lock the door, if it occurred, may be explained by Complainant Polton's hurry to respond to her father's call and deliver his paper route. The failure would be inadvertent and not the attempt to engage in "harassment to me, my wife & other tenants in this building" which is stated in Abeln's warning of January lst. (CP. EX. # 6; Tr. at 50, 57).

47. In any event, this one instance does not explain Respondent Abeln's ready willingness to believe that the Poltons and Jack High were to blame for the unlocked security doors in those instances when he had no reason to assign the blame to them. His explanation that the security doors were found unlocked on weekends when the upstairs tenants were usually gone is simply not believable in light of more credible evidence indicating that the upstairs tenants were not only present on weekends, but were generating substantial amounts of noise at that time. See Finding of Fact No. 42. In light of these circumstances, and Abeln's previously quoted expressions of racial animus towards Jack High, it is more likely than not that many, if not all, of the criticisms of Complainant Polton and Jack High concerning unlocked security doors were racially motivated.

Respondent Abeln's Objections to Sonia Polton Parking in the Space Designated for Complainant Polton's Apartment.

48. Complainant Polton had no car. (Tr. at 46). Therefore, she would often rely on Sonia Polton to drive her places. (Tr. at 34, 36). Sonia Polton would park in the parking space designated for the Complainant's apartment. Respondent Abeln objected to her parking there as the parking spaces were not to be used by anyone not actually living at the apartments. At one time, he threatened to tow her car away. (Tr. at 46-47).

49. The apartment rules state:

5. Only cars belonging to tenants or management are allowed in the parking lot. Violators will be towed away immediately at the violators own expense.

(CP. EX. # 1).

50. Sonia Polton attempted to draw a comparison between her treatment and the treatment of persons living at another apartment building next door, where tenants parked in the driveway without being towed away. (Tr. at 47). That apartment building, however, was not owned by Respondent Roman. (Tr. at 15253).

51. Jack High parked at the Complainant's building and encountered no problems. (Tr. at 130).

52. The complainant has failed to establish that Respondent Abeln's objection to Sonia Polton's parking in the space reserved for Complainant Polton's apartment was racially motivated. Given the parking rules, the treatment of Jack High, and the absence of evidence linking this treatment of Sonia Polton to Abeln's opposition to Jack High's visits to the Poltons, it must be concluded that these actions toward the Poltons were not based on race.

Respondent Abeln's Change of Laundry Rules:

53. Complainant Polton inadvertently left her clothes in the washer of the apartment laundry, which consists of one dryer and one washer, for an entire day due to an emergency. (Tr. at 54, 81). Because of this incident, Respondent Abeln informed her that he would have to change the laundry rules. (Tr. at 110). A few days later, there appeared a sign in the laundry indicating that persons who were not employed during the day would be expected to do their laundry between 9:00 a.m. and 5:00 p.m. (Tr. at 48, 81). This rule was established in order to ensure that everybody had a fair opportunity to use the washer and dryer. (Tr. at 54, 163).

54. At times, Complainant Polton's laundry was taken out of the washer or dryer and left, soaking wet, on top of one of the two machines. (Tr. at 48, 56, 81-83). There were no witnesses who saw who did this. Complainant Polton testified that she thought it was someone from upstairs who did this. (Tr. at 82). Respondent Abeln lived downstairs. (Tr. at 37).

55. Under these facts and circumstances, Complainant Polton has not shown that the change in laundry rules, or the removal of her laundry from her machines, was based on Abeln's racial prejudice against Jack High or against the Poltons for having him as a visitor.

Summary of Findings on Alleged Actions of Racial Harassment:

56. The greater weight of the evidence supported findings that Respondent Abeln's threat to run off persons visiting Complainant Polton after 10:00 p.m. with a shotgun, his complaints and warnings about the visits of Jack High and about there being too many visitors, the Respondents' verbal and written warnings of December 8, 1989 about calling the police to the apartment, Respondents' complaints about excessive noise (including the warning about slamming doors of December 13, 1989, the notice of termination of lease of December 28, 1989, and the warning about opening and closing security doors of January 1, 1990), and the Respondents' complaints about failing to lock security doors were all motivated by Respondent Abeln's racially based opposition to the visits that Jack High made to the Poltons.

57. The greater weight of the evidence did not support the allegations that Complainant Polton was informed she would have to get Abeln's permission if she wished to have an overnight guest, that Bernice Roman told Complainant Polton on December 12, 1989 that she was being watched and would be evicted if there were any visitors after 11:00 p.m., that Respondent Abeln's objection to Sonia Polton's parking in the space assigned to Apartment # 2 was racially motivated, and that the laundry rule changes and handling of her laundry were racially motivated acts of Respondent Abeln.

Constructive Eviction:

58. As previously noted, Respondents attempted to evict Complainant Polton from the apartment. See Findings of Fact Nos. 34-35. When a hearing was held on the eviction, the court ruled in favor.of Complainant Polton. (Tr. at 95). The strain from the shotgun threat and other racial harassment was so great on Complainant Polton, however, that she gave her own notice to Respondents that she was quitting the apartment effective May 30,1990. Complainant Polton was subjected to conditions that were so difficult and unpleasant that a reasonable person would feel compelled to vacate the premises. (CP. EX. # 7; Tr. at 91, 95, 1 00).

Credibility Findings:

59. Complainant Polton's demeanor, the internal consistency of her testimony, and the congruence of her testimony with the greater weight of the credible evidence demonstrates that she is a credible witness.

60. When their testimony is examined in the light of these factors, Sonia Polton, Melvin Malone, and Jack High are also found to be credible witnesses. Melvin Malone's testimony concerning racially derogatory statements made by John Abeln was especially credible because he had no conflicts with John Abeln, had been well treated by him, and considered him to be a "nice guy." (Tr. at 146-47).

61. Frank Roman was essentially a credible witness. In evaluating his testimony, however, it must be borne in mind that he often did not have direct knowledge of the facts and had to rely on John Abeln's reports of difficulties with the Romans.

62. John Abeln was not a credible witness. His testimony was often in conflict with that of Dorene Polton, Sonia Polton, Jack High and Melvin Malone, which constituted the greater weight of the credible evidence. For example, Abeln denied making racial remarks to Dorene Polton, although both Dorene and Sonia Polton testified that he referred to former black tenants as "niggers." (Tr. at 35, 70, 159) The conclusion that he did make such remarks to them is supported by evidence indicating that he made similar or worse remarks which were overheard by Jack High and made directly to Melvin Malone. (Tr. at 135, 146).

63. Also, Abeln's memory of the discussions concerning his threat to use a 12 gauge shotgun to scare off visitors after 10:00 p.m. is not as clear as that of other witnesses. (Tr. at 160-61). Also, some of the reasons offered for his actions against the Poltons are so absurd as to be unworthy of credence. See Findings of Fact Nos. 28, 40.

Damages for Increased Rental and Other Costs:

64. Under paragraphs 2 and 14(c) and (h) of the lease with the Romans, rent on Complainant Polton's apartment could not be increased until December 1, 1990. Under paragraph 3(b) of this Assisted Lease Agreement, the portion of the rent paid by Complainant Polton was $55.00 per month. Complainant Polton also paid gas and electric utilities. (CP. EX. # 2).

65. When Complainant Polton left the Respondents' apartments, she was unable to find subsidized housing and had to rent housing for approximately four months at the cost of $495.00 per month. (Tr. at 98, 99). Part of this sum was loaned to her by her brother-in-law. (Tr. at 98). Utilities were not included in the rent. (Tr. at 99).

66. At the end of this four month period, she was able to find leased housing. Her portion of the rent is $96.00 per month, which includes utilities. (Tr. at 99). Given that she separately paid gas and electric utilities at the Respondents' apartments, this is probably equivalent to the total rent and utilities she paid there. Therefore, her compensation for increased rental costs should be limited to compensation for the four month period during which her rent was $495.00 per month.

67. Complainant Polton's increased rental costs, therefore, are: ($495.00 per month - $55.00 per month) X 4 months = $1760.00.

68. Complainant Polton also sought an additional one thousand dollars ($1,000.00) for additional expenses associated with moving from the Respondent's apartments, i.e. utility deposits, security deposits with her new landlord, first and last month's rent, and U-Haul rent. (Tr. at 99- 100). However, the first and last month's rent are already accounted for above, and the security deposits and utility deposits would usually be returned. There is, in any event, no evidence in the record showing the specific cost of the utility and security deposits, the cleaning supplies, or the U-Haul rent. Under these circumstances, no damages for additional expenses should be awarded.

Damages for Emotional Distress:

69. The discrimination inflicted on Complainant Polton caused her severe emotional distress. Respondent Abeln's threat to use a 12 gauge shotgun on her mother or other visitors left her in tears. She worried about this threat. (Tr. at 53, 80). She never knew whether the threat was a real or idle one. At times, Complainant Polton became hysterical about this and would come to Sonia Polton's house where Sonia would try to calm her down. (Tr. at 53).

70. The complaints and warnings and other acts of discrimination against Complainant Polton by or on behalf of the Respondents often left her in tears from the strain. (Tr. at 80, 91, 95). She was constantly upset and could not sleep at night without taking medication. (Tr. at 91). The strain became so bad that she was forced to leave her apartment. (Tr. at 95). Even after she notified Respondents of her intention to leave, she was pressured by them to leave as soon as possible. (Tr. at 98). She still has nightmares about her experiences there. (Tr. at 1 00).

71. As set forth above, Complainant Polton suffered substantial economic loss from Respondents' discriminatory conduct in the form of increased rental payments. See Findings of Fact Nos. 64-68. She still has not been able to pay off her brother-in-law's loan of rent money. (Tr. at 100).

72. In light of the severity and duration of the emotional distress sustained by Complainant Polton, due to the racial harassment and the constructive eviction from her apartment, an award of ten thousand dollars ($10,000) would be full, reasonable, and appropriate compensation.