ROSEMARY T. LEWIS v. J.T. MANAGEMENT CO. LLC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5892-05T15892-05T1

ROSEMARY T. LEWIS,

Complainant-Appellant,

v.

J.T. MANAGEMENT CO. LLC,

Respondent-Respondent.

_________________________________________________

 

Submitted June 5, 2007 - Decided September 12, 2007

Before Judges Kestin and Payne.

On appeal from Final Decision of the

New Jersey Division on Civil Rights,

Docket No. HM07HW-05964.

Rosemary T. Lewis, appellant, filed a

pro se brief.

Stuart Rabner, Attorney General, attorney

for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brian O. Lipman, Deputy Attorney General, on the brief).

PER CURIAM

Complainant, Rosemary T. Lewis, appeals from a final agency decision of the New Jersey Division on Civil Rights finding, upon investigation, that there was no probable cause to credit the allegations of complainant's verified complaint of discrimination and that the Division's file would therefore be closed.

Complainant, who is disabled as the result of tarsal tunnel syndrome and receives general welfare assistance benefits, was authorized by the Middlesex Board of Social Services, in March 2004, to rent a two-bedroom apartment in a 152-unit complex from respondent, J.T. Management Company, at a monthly cost of $1,000 inclusive of utilities except electricity. Pursuant to an agreement with the Middlesex County Board, $209 of the monthly rental was paid by complaint from benefits to which she was entitled; the Middlesex County Board paid the remaining $791 as temporary rental assistance. In March 2005, complainant's rent was increased to $1,050, and in March 2006, her rent was increased to $1,075. Upon learning of the 2005 rental increase and that complainant's apartment was advertised as containing one bedroom and a den, on May 23, 2005, the Middlesex County Board notified complainant that her temporary rental assistance would be terminated, effective May 31, 2005, because the new rental was above the fair market value for a one-bedroom apartment in the county.

When the Middlesex County Board would not alter its position, on February 1, 2006, complainant filed a complaint with the United States Department of Housing and Urban Redevelopment (HUD) alleging discrimination by her landlord on the basis of physical disability. In her complaint, complainant alleged that the rental increase, which differed in amount from that of other residents, had been imposed after she had complained to the police of noise and vibrations from a downstairs neighbor's stereo that adversely affected her tarsal tunnel syndrome and after the neighbor had complained about her actions to the building's superintendent. Complainant also alleged that her daughter was kept awake by squirrels in the attic that the landlord had failed to remove, despite her complaint; that the landlord had misrepresented her apartment as a two-bedroom unit; that her apartment lacked carpeting and blinds existing in other apartments; that she was bothered by the noise and fumes of a plumbing truck - a matter that she had not reported; and that the landlord had disregarded her request that her actual address not be utilized when sending documents, because she and her daughter were victims of domestic violence.

HUD referred the matter to the New Jersey Division on Civil Rights (Division) pursuant to 42 U.S.C.A. 3610(f). In accordance with New Jersey regulations, N.J.A.C. 13:4-2.4, complainant then filed a verified complaint with the Division that alleged that J.T. Management Company had committed unlawful housing discrimination on the basis of complainant's disability in violation of N.J.S.A. 10:5-12g(1). She described the discrimination in the following terms:

Complainant alleges that Respondent retaliated against her based on her physical disability. Specifically, Complainant alleges that she contacted the police about noise from her neighbors which caused vibrations that [a]ffected her physical disability. Complainant alleges that the neighbors complained to Respondent's superintendent about her calling the police. Further Complainant alleges she was subsequently subjected to a rent increase by Respondent. Complainant alleges Respondent is aware of her physical disability.

Discovery and investigation, conducted by the Division, disclosed no knowledge on the landlord's part of complainant's noise complaint to the police regarding her downstairs neighbor, of police action, or of any subsequent complaint by the neighbor to the apartment's superintendent. The amount of complainant's rental increases and the relationship of those increases to those imposed on other tenants were explained as follows:

The Respondent establishes periodically a maximum rental amount for these units in the amount of $1,075.00 currently. All increases are on a yearly basis, are limited to $50.00 maximum and are less if the $50.00 increase would exceed the maximum limit placed on the units. Since tenants have entered the units at different times it is the norm that some tenants can absorb the maximum increase of $50.00 without exceeding the maximum limit of the unit while others pay a less[e]r amount so as not to exceed the maximum limit for the unit.

The landlord additionally explained that complainant's apartment was a legal two-bedroom dwelling, and it had been used as such by complainant. However, for marketing purposes, it was advertised as containing one bedroom and a den, since that description elicited more responses from prospective tenants. A letter from the zoning officer of the municipality confirmed that the International Property Maintenance Code permitted the apartment to be used as a two-bedroom unit or, alternatively, as one containing one bedroom with a den.

Upon determining that there was no evidence that indicated that complainant's rental increase "was anything other than a standard rent increase issued upon renewal of a lease agreement" and that no evidence of any other grounds for a claim of discrimination existed, the Division entered the final order from which the present appeal has been taken. We affirm.

To establish a claim of discrimination in housing pursuant to N.J.S.A. 10:5-12g(1), complainant was required, in accordance with the burden-shifting methodology of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668, 677-79 (1973), to offer prima facie evidence that she was disabled, her landlord knew of her disability, and its actions were motivated by that knowledge. Cf. Pasquince v. Brighton Arms Apts., 378 N.J. Super. 588, 599 (App. Div. 2005) (discussing prima facie evidence of housing discrimination in circumstances of a refusal to rent). If that modest burden is met, Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447-49 (2005), an inference of discrimination arises, id. at 449, and the burden of production shifts to the landlord to articulate a legitimate, nondiscriminatory reason for its action. Ibid.; Pasquince, supra, 378 N.J. Super. at 599. If that burden is, in turn, met, complainant then bears the further burden of proving that the landlord's articulated reason was a mere pretext for unlawful discrimination. Ibid. The shifting burdens of production and proof do not differ in connection with a claim of discrimination on the basis of source of income pursuant to N.J.S.A. 10:5-12g(4). Pasquince, supra, 378 N.J. Super. at 599-600 (claim based upon receipt of Section 8 housing assistance).

Our review of the record in this matter satisfies us that, even if we assume complainant's bare allegations to have provided prima facie evidence of discrimination, the landlord's explanation of its rental increase policy and its confirmation that complainant's apartment was a legal two-bedroom unit was sufficient to place upon complainant the further burden of establishing that the landlord's explanation was pretextual. That additional burden was not met in this case by any further evidence on the complainant's part. Although complainant alleges that the timing of communications from the Division precluded any response to the landlord's proofs before the Division's final order was issued, complainant did not seek reconsideration of the Division's decision on the basis of previously undisclosed evidence, and she has proffered no such evidence on appeal. We thus conclude that the Division's determination in the landlord's favor was proper. Our consideration of complainant's additional allegations of discrimination as set forth in her HUD complaint and on appeal does not change our conclusion in this regard, since we have been offered no evidence of a connection between them and either complainant's physical disability or source of income.

As we perceive it, the problem facing complainant arose from the determination by the Middlesex County Board in 2005 to re-classify complainant's apartment as a one-bedroom unit, and from its reliance upon rental payment guidelines applicable to that reduced space as grounds for denying complainant further rental assistance. The landlord played no role in that decision.

 
The final order of the Division on Civil Rights is thus affirmed.

As the result of complainant's additional allegations that the rental obligations of Section 8 housing recipients and others were treated differently, her complaint was also deemed by the Division to also include discrimination on the basis of her source of income in violation of N.J.S.A. 10:5-12g(4).

Complainant has alleged discrimination arising from the landlord's denial of authorization to store her unused car on premises, but has offered no competent proof that others were treated differently or that the denial was motivated by a discriminatory intent. She has also claimed to have been alarmed when a plumber entered her apartment through the kitchen door without knocking.

(continued)

(continued)

8

A-5892-05T1

September 12, 2007