BEFORE THE IOWA CIVIL RIGHTS COMMISSION

DARRELL HARVEY, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

SANDY CALDWELL, Respondent.

FINDINGS OF FACT:

A. Jurisdictional and Procedural Facts:

1. The Respondent and the Commission stipulated that the components necessary to arrive at a contested case hearing have been met in this case. (Tr. at 5).

B. Background:

2. Complainant Darrell Harvey, a male, lived at Apartment # 3 on the third floor of the building located at 2508 Olive Street in Cedar Falls, Iowa from June 1, 1989 to approximately June 1, 1990 on a one year lease. (Answer; CP. EX. A; Tr. at 8, 10). He and a second male, Mark Warren, his cotenant, were roommates during the school year. (C. EX. A; Tr. at 10, 49). A third male, Brian Barnes, sublet the apartment, in place of Mark Warren, during the summer of 1989. (Tr. at 12).

3. Respondent Sandra Caldwell and her husband, Dr. Kenneth Caldwell, own this building and another on College Street. Both buildings are former single family homes converted into apartments. (Tr. at 12, 166, 381-82). There are three floors in the Olive Street building, with each floor constituting a separate apartment. There is a common entrance way, facing Olive Street. (Tr. at 12, 168). The College Street site had three apartment units and a business front from 1988 through June of 1990. Then the business expanded into unit # 2, reducing this to a two apartment building. (R. EX. # 63; Tr. at 168, 188-89).

4. Sandra Caldwell is the primary person to show the apartments, have contact with the tenants, collect rents, and take care of the apartments. (Tr. at 167, 382). Dr. Caldwell does the computer and bookwork for the apartments. (Tr. at 167).

C. The Preponderance of the Evidence Supports the Allegation That Sandra Caldwell Indicated She Preferred to Rent to Women, to Darrell Harvey and Mark Warren Prior to Renting the Apartment to Them:

5. Darrell Harvey's complaint states, in part, "I moved in to this apt. on June 1, 1989 and the owner, Sandy Caldwell, told me that she preferred renting to girls but since she had none inquiring about the apt., she would rent to me. . ." (Complaint). Complainant Harvey did not testify with respect to this allegation at hearing.

6. Mark Warren credibly testified that, when Sandra Caldwell showed them the apartment, she stated something "to the effect that its nicer maybe--its nicer maybe with girls living there. That's--it wasn't you know--that's what she said, something to that effect. It wasn't--." (Tr. at 357). He thought this comment indicated "something to the effect that she would possibly prefer girls." (Tr. at 370). According to Warren, this was a passing remark. Sandra Caldwell did not discourage either Warren or Harvey from renting the apartment. This was the only statement by Mrs. Caldwell during Warren's entire tenancy which indicated she preferred female tenants. (Tr. at 357-58).

7. Sandra Caldwell denied making any comment at that time to the effect that she was interested in renting only or primarily to females. (Tr at 182). Her testimony is not credible. The Complainant and the Commission have shown by sufficiently probative direct evidence that Mrs. Caldwell made a statement indicating that she preferred female tenants either at the time she showed or leased apartment # 3 to Complainant Harvey and Mark Warren. In the absence of any affirmative defense, the Commission and the Complainant have established that Respondent Caldwell discriminated against Complainant Harvey on the basis of sex by indicating, on or about June 1, 1989, that she preferred to rent to females.

D. The Preponderance of the Evidence Supports the Allegation That on March 27, 1990, Respondent Caldwell Told Complainant Harvey That She Would Not Renew the Lease Because She "Would Like to Get Girls in the Building":

Events Leading Up to March 27th Conversation Between Sandra Caldwell and Darrell Harvey:

8. On or about February 16, 1990, Respondent Caldwell mailed notices to tenants stating "would you please call me and let me know your rental plans for summer and fall, [b]ecause I am beginning to get inquiries from people wanting apartments for summer and fall. Thank you. Sandra A. Caldwell." (R. EX. # 28, 29, 30; Tr. at 193-94, 199). Although such a notice was mailed to the unit occupied by Darrell Harvey and Mark Warren, it was never delivered. (Tr. at 15, 128, 194, 360-61). Mark Warren had, however, told Sandra Caldwell, in December of 1989, that he did not intend to stay beyond the end of the lease as he intended to and did live elsewhere for the following summer and fall. (Tr. at 95, 359-60, 361-62).

9. Respondent Caldwell would usually receive a response to these notices on or about March 1st, when rent was paid. If she did not receive a reply within 30 days, she assumed the tenants did not intend to remain and the apartment was available for showing. (Tr. at 196).

10. Before March 1990, Darrell Harvey and Brian Barnes, who had sublet together during the prior summer, had decided to get an apartment together for the next school year. (Tr. at 12, 14, 53, 54). They looked around for a better apartment than the one on Olive Street, and would have moved if they had been able to find a better apartment in the same price range. (Tr. at 14, 53-54). Complainant Harvey planned to inform Sandra Caldwell that he and Barnes would like to rent the apartment on April 1, 1990, when he paid the rent. (Tr. at 53).

Telephone Conversation of March 27, 1990 Between Darrell Harvey and Sandra Caldwell:

11. On March 26th and 27th, Respondent Caldwell telephoned Harvey and Warren's apartment to inform them that she would be showing the apartment on the 28th. The call on the 27th was made to change the time of the showing from 6:00 p.m. to 6:30 p.m. On both occasions, she had received permission to show the apartment. (Tr. at 202-03, 206, 291). Her calendar for March 1990 shows "6:00" crossed out, followed by "6:30." (R. EX. # 28). Caldwell could not recall who, Harvey or Warren, she spoke with on either occasion. (Tr. at 203). Mark Warren could not recall if he answered either of the phone calls, but he knew in advance that the showing of the apartments was going to happen. (Tr. at 358- 59).

12. Complainant Harvey answered Caldwell's call on March 27th. He was informed by her that she would be showing the apartment the next day to prospective tenants. (Tr. at 15-16).

13. During their telephone conversation on March 27th, Harvey told Respondent Caldwell that he would like to continue to rent the apartment, with Brian Barnes as his roommate and cotenant. She replied she still wished to show the apartment. Respondent Caldwell told Harvey she "would like to get girls in the building, but if--and she wasn't going to advertise the apartment, and if she wasn't able to rent it, I could stay the next year." When Complainant Harvey asked Respondent Caldwell why she wanted females in the building, she said that girls cause less wear and tear on the apartments. There was no further conversation at that time. (Tr. at 15-16).

14. There were no witnesses to this telephone conversation other than Caldwell and Harvey. (Tr. at 17). There were, however, signed written statements made by J.D. Tonn and Stacy L. Borchers, which were given to Complainant Harvey by those individuals. These documents are credible and verify that Mrs. Caldwell made statements in the presence of these individuals to the effect that she preferred female tenants. (C. EX. B, C; Tr. at 30-31). Respondent Caldwell's denial that she made such statements is not credible. (Tr. at 257-58).

15. Complainant Harvey's credibility is enhanced by the conformity of his testimony with these documents, i.e. both his testimony and the documents indicate that Respondent Caldwell made such statements. In addition, Complainant Harvey's testimony is credible because it is plausible, i.e. it would have made sense for Complainant Harvey to tell Sandra Caldwell that he wished to renew his lease when she informed him that she was going to show the apartment. It is certainly undisputed that he did inform her of his wish to renew his lease the next day. Complainant Harvey and the Commission have proven by sufficiently probative direct evidence that Respondent Caldwell did indicate to Harvey on March 27, 1990 that she was going to continue to show the apartment because she would prefer to have women in the apartments. In the absence of any affirmative defense, the Commission and the Complainant have established that Respondent Caldwell discriminated against Complainant Harvey on the basis of sex by indicating, on March 27, 1990,that she preferred to rent to females and would rent to him only if no females were available.

E. The Greater Weight of the Evidence Indicates Jeff Ruge Was Present In Harvey's Apartment On March 28, 1990:

Showing of Apartment # 3 on March 28, 1990:

16. On March 28th, Sandra Caldwell met with three young women at 2508 Olive Street for the purpose of showing them apartment # 3, the third floor apartment leased by Darrell Harvey and Mark Warren. (R. EX. # 28; Tr. at 182, 204, 278- 79, 329-30, 346-47). These women included Chris White, Sara Moody and Cindy Hesse. (Tr. at 207, 331-32). The group entered the building through the front door. They went into the apartment after Mrs. Caldwell unlocked the door. Neither Harvey nor Warren were there. (Tr. at 206, 334, 348). Darrell Harvey arrived at the apartment while Mrs. Caldwell and the three young women were still there. (Tr. at 19, 212, 215, 335, 348).

The Question of Whether Jeff Ruge Was Present In Harvey's Apartment On March 28, 1990:

17. At this point, there arises a major conflict between the testimony of Respondent Caldwell, her daughter Amy Caldwell, and Chris White on the one hand, and that of Complainant Harvey and Jeff Ruge on the other. The Caldwells and Ms. White's testimony indicates Jeff Ruge was never at the apartment while either Mrs. Caldwell or the women viewing the apartment were there. (Tr. at 219-20, 296, 336-37, 348- 49). Harvey's and Ruge's testimony indicates he was there. (Tr. at 20, 22, 58, 69-71, 138-141, 147-49, 153-55). This issue is important because Ruge's testimony corroborates Harvey's assertions that, on March 28th, (a) Harvey, not Caldwell, initiated a discussion with Caldwell concerning window damage while the three women viewing the apartment were still there, and (b) Caldwell reiterated her position that she was not renewing his lease because she preferred female tenants. (Tr. at 139-40, 154).

18. Complainant Harvey and Jeff Ruge credibly testified that, after Harvey arrived at the apartment, Ruge was phoned by Harvey, was asked to come over to the apartment immediately, and did so. (Tr. at 20, 147-49). Harvey had made a prior arrangement with Ruge to come over at his call so Ruge would witness his conversation with Respondent Caldwell. (Tr. at 57, 119, 138, 144-45, 146-47).

19. Harvey credibly testified that, after his telephone conversation with Caldwell on the 27th, he contacted the Department of Housing and Urban Development (HUD) and related his account of that conversation. He asserted that the HUD representative asked him if he had a witness to the telephone conversation with Caldwell. This made him aware of the importance of having such a witness. (Tr. at 16-19).

20. Therefore, Harvey contacted Ruge as he intended to ask Caldwell again about her reasons for not renewing his lease, while Ruge witnessed the conversation. (Tr. at 57-58, 119, 138, 392-93), According to both Ruge and Harvey, Mrs. Caldwell and the three women were still present when Ruge arrived. (Tr. at 58, 69-70, 138-39, 141, 149-50, 152-155). Ruge indicated that they would have seen him. (Tr. at 152- 53). According to Ruge, he had entered the building through the front door. (Tr. at 147-48).

21. Respondent Caldwell, however, testified that, during the entire time she was at apartment # 3 on March 28th, there was nobody there other than her, the three women, and Darrell Harvey. She specifically denied that Jeff Ruge was there and denied ever meeting him. (Tr. at 219-20, 236).

22. Mrs. Caldwell's testimony was supported by her then 14 year old daughter, Amy Caldwell, who was waiting outside in the car parked on Olive Street. (Tr. at 345-46, 350) She was in a position to see the front door, was looking at the house most of the time, and saw no one, other than Darrell Harvey, enter the building from the time Sandra Caldwell and the three young women entered it until the time they had all left. (Tr. at 348-49).

23. Chris White was one of the three women who were shown the apartment. (Tr. at 207, 331-32). Unlike every other nonparty witness at hearing, including Jeff Ruge, Mark Warren, Amy Caldwell and Ken Caldwell, there is no evidence in the record which would indicate Ms. White is a friend, roommate, or relative of either of the parties. (Tr. at 10, 52, 117, 141, 166, 345, 381). She was an independent witness who was present only for the purpose of being shown the apartment. (Tr. at 204-07, 329-330).

24. Ms. White's testimony clearly indicates that no one other than her, Mrs. Caldwell, the other two women being shown the apartment, and Darrell Harvey were present during the time she and the other two women were there. (Tr. at 336). According to her, although Harvey did make a phone call telling an unidentified person "She's here. She's showing the apartment," no one ever did come. Jeff Ruge, in other words, was never there. (Tr. at 335-337). In addition, she testified that she had talked to one of the other women who had been present at the apartment, Cindy Hesse, who also did not recall anyone else being there other than Harvey, Caldwell, and the women viewing the apartment. (Tr. at 336-37).

25. Since Ms. White had no motive for lying, the probable explanation for her testimony concerning the absence of Mr. Ruge, other than truthfulness and accuracy, is that she simply did not notice him or forgot he was there. This is implicitly suggested by Darrell Harvey's testimony indicating that Mr. Ruge, once he arrived, remained in Harvey's bedroom most of the time. This was done in order to maintain a low profile and to thereby provide an atmosphere where Mrs. Caldwell would feel she could speak freely. (Tr. at 68-69, 392-93). It is more likely than not that Ms. White and Cindy Hesse either forgot that Mr. Ruge was present or did not notice him as they were busy conducting their own business, i.e. viewing the apartment. Mrs. Caldwell's testimony, on the other hand, to the effect that Ruge was not there is either willfully false or she too did not notice Ruge's presence. Amy Caldwell's testimony is not credible. She was either not paying attention when Ruge entered the apartment or has forgotten that he entered the apartment. The greater weight of the credible evidence indicates that Jeff Ruge was present in Darrell' Harvey's apartment, on March 28, 1990, while either Mrs. Caldwell or the three women viewing the apartment were present.

F. Respondent Caldwell Was Aware of Window Damage Prior to Complainant Harvey's Coming to the Apartment:

Awareness of Window Damage:

26. On March 28th, prior to Darrell Harvey's entrance into apartment # 3, Sandra Caldwell became aware for the first time that windows in Harvey's bedroom had been broken by BB gun fire. (Tr. at 204-05, 208). When she entered the bedroom while showing the apartment to the women, she pointed out the damage to them and indicated to the women that the windows would be replaced. (Tr. at 206, 208, 209, 333, 342- 423). She noticed that the exterior storm windows had holes and were cracked, while the interior windows were unharmed. There were BBs and pellets in the sills. (Tr. at 115, 208). There were several BB or pellet holes where projectiles had penetrated two storm windows in Harvey's room. (R. EX. # 40; Tr. at 21, 113-15).

27. After Complainant Harvey entered the apartment, he and Respondent Caldwell became engaged in a conversation wherein she asked him to explain the damage to his bedroom window. (Tr. at 213, 335, 343-44). Harvey indicated to her that he believed that some men living across the street had shot it out. (Tr. at 213, 224, 297-98, 336). She asked Harvey if he had reported it to the police. (Tr. at 22, 66, 213, 335).

28. Chris White observed and overheard this conversation as set forth above, but could not recall how Harvey had responded when asked if he had reported the damage to the police. Her testimony confirms (a) that Caldwell was aware of the window damage prior to Harvey's entrance, and (b) that Caldwell initiated the conversation concerning the windows. (Tr. at 335-36, 343-44). Although this would appear to contradict Harvey's and Ruge's testimony to the effect (a) that Harvey pointed out the window damage to Caldwell and the women in order to discourage the women from renting in the hope that Caldwell would still renew his lease despite her alleged preference for women, (b) that Caldwell was not aware of the damage prior to being informed of it by Harvey, and (c) that Harvey initiated the discussion of window damage, it is more likely than not White is mistaken with respect to whether Caldwell initiated the conversation with Harvey. (Tr. at 21-22, 61-62, 65, 139-40, 152). Of course, Harvey could have initiated the conversation with Caldwell regardless of whether or not Caldwell had prior knowledge of the BB gun damage. Since Harvey would not know of Caldwell's prior knowledge, it may have appeared to him that she did not have such prior knowledge.

29. Darrell Harvey responded that he did not report the damage to the police. (Tr. at 66). He had also not reported the damage to the Caldwells, although he had been aware of it since approximately November of 1989. (Tr. at 25-26, 63-64).

What Harvey Knew About the Window Damage:

30. At that time, Harvey had seen a man, whom he knew lived in a house across the street, fire a BB gun which hit the side of the house Harvey lived in. He checked the windows later and found no damage. A few days later, however, he found the windows were damaged. He did not see the shooting which resulted in the window damage. (Tr. at 25-26, 62-63, 374-76).

31. Three months later, in February, 1990, Harvey also saw two of the men from across the street carrying a gun and looking up at telephone poles in someone's yard. He then saw them in the alley. Shortly after that, he found that one of his car headlights was out due to a small hole, but he did not know if it was caused by a BB. Harvey did not see these men shoot anything on that occasion. (Tr. at 27-38).

G. The Preponderance of the Evidence Supports the Allegation That on March 28, 1990, Sandra Caldwell Stated That She Would Not Renew the Lease Because She "Has Some Girls That Want to Rent":

32. After the young women who were looking at the apartment left, Complainant Harvey asked Sandra Caldwell if he could renew his lease. (Tr. at 70, 204, 215-16, 233, 253, 305-06). At that time, Respondent Caldwell indicated that she would not renew the lease either because she preferred women tenants, because women did not impose the wear and tear on property that were caused by men, or because women were better housekeepers. (Tr. at 22-23, 70, 141-42, 154). The denial of these allegations by Respondent Caldwell is not credible. (Tr. at 217-18, 319). Complainant Harvey and the Commission have proven by sufficiently probative direct evidence that Respondent Caldwell did indicate to Harvey on March 28, 1990 that she would not renew the lease because she would prefer to have women in the apartments. In the absence of any affirmative defense, the Commission and the Complainant have established that Respondent Caldwell discriminated against Complainant Harvey on the basis of sex by this statement.