RICHARD DUDE, Complainant

DAVID THOMPSON, Respondent A
JANICE THOMPSON, Respondent B

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 18, 1990. Complainant filed a timely petition for review of the Administrative Law Judge's decision. Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

1. Respondents Janice and David Thompson are the owners of a four-unit apartment building located at 3101 West Iona Terrace in Milwaukee. They have owned the property since 1986, when they acquired it from the Wasielewskis, Janice Thompson's parents. The Wasielewskis have continued to act as managers of the apartment building for the Thompsons.

2. In all of the time the Thompsons have owned the building, and for some years prior thereto when the Wasielewskis were the owners, the tenants had all been either single persons occupying an apartment alone or married couples. There had been no same-sex roommates or unmarried couples occupying any of the apartments. One single person occupying an apartment alone had married while a tenant there and his new wife was allowed to move in as an additional tenant.

3. The Thompsons used a standard rental contract for their tenants. This contract had been used as well by the Wasielewskis when they owned the property. It contained a clause relating to the number of residents, in which the number of adults to be occupying the apartment could be entered, and following which it recited that no boarders or roomers would be permitted before consulting the lessors. It also contained provisions that if any other person than those listed occupied the apartment without the written consent of lessor that lessee would pay an additional rental of $25 for each overnight stay, and that no guest could occupy the apartment in the absence of lessee without the written consent of lessor.

4. Complainant Richard Dude, a single person, entered into a rental contract on April 23, 1989 with Mrs. Wasielewski as manager of the property. The occupancy clause of the lease had the number "1" entered in the space for specifying the number of adults that would occupy the apartment, and the words "no other" were inserted before the phrase, "no boarders or roomers permitted before consulting us." The rent specified in the agreement was $387 per month plus a $5 per month charge for a parking space, and the tenancy was to commence on May 3, 1989. The tenancy created was to be on a month-to-month basis.

5. Dude has a clothes dryer and a freezer. When he moved in he asked if gas and electric connections could be put in so he could use these appliances. The Wasielewskis agreed to have a gas connection installed. Dude agreed to have the electrical connections put in himself. On May 17, 1989, the Wasielewskis gave Dude written permission to have an electrical connection put in "providing care is taken and done according to code and license electrician (sic)." The gas connection was installed. However, Dude did not have an electrical connection installed; instead, he used a heavy-duty extension cord. Over the course of the next month, the Thompsons and the Wasielewskis instructed Dude to stop using the extension cord on a number of occasions, contending that it violated building codes, but Dude, who disagreed that it violated building codes, refused to stop using it. This led to bad feelings between them.

6. Concurrently with the development of the dispute over the electrical connection, Dude began trying to obtain permission to have a roommate. On June 7, 1989, Dude asked Mrs. Wasielewski if he could share his apartment with a roommate. Wasielewski, referring to the provision in the rental contract concerning the number of adults who could occupy the apartment, refused to grant permission for Dude to have a roommate. Dude repeated his request on a number of other occasions over the following weeks, asking both the Wasielewskis and the Thompsons, but they continued to deny him permission.

7. Marital status was a factor in Respondents' refusal to grant Dude permission to share the apartment with a roommate, in that if Dude had married he would have been allowed to share the apartment with his new wife.

8. The Thompsons were not familiar with the effect of the law against marital status discrimination in housing on their practices and decisions in respect to allowing persons to share apartments with roommates.

9. At the time he made the request to be allowed to have a roommate, and continuing to the date of the hearing, Dude did not know of anyone who was ready, willing and able to share the apartment (and the expenses for the apartment) with him as a roommate. Furthermore, Dude would not necessarily have agreed to share the apartment with another person, even if that other person had been ready, willing and able to do so, unless Dude was satisfied that the other person was satisfactory to him according to certain standards he would apply. Thus, the Thompsons' refusal to allow Dude to have a roommate did not deprive him of any actual opportunity which existed at the time or thereafter to reduce his housing expenses by sharing the expenses of the apartment with a roommate.

Based on the Findings of Fact made above, the Commission now makes the following:

1. Respondents David and Janice Thompson are providers of housing within the meaning of the Wisconsin Open Housing Law, sec. 101.22, Stats.

2. David and Janice Thompson discriminated against Richard Dude because of marital status, in violation of the Wisconsin Open Housing Law, in connection with their refusal to grant Dude permission to share his apartment with a roommate.

3. The Thompsons' violation of the Wisconsin Open Housing Law was not wilful, within the meaning of sec. 101.22(6), Stats.

4. Dude has failed to establish by a preponderance of the evidence that he suffered any financial loss as a consequence of the Thompsons' violation of the Wisconsin Open Housing Law.

Based on the Findings of Fact and Conclusions of Law made above, the Commission now makes the following:

1. That David and Janice Thompson cease and desist from refusing to grant Mr. Dude permission to have a roommate because of marital status.

2. That David and Janice Thompson pay the sum of $995.50 as reasonable attorney's fees and costs in this matter. This sum shall be paid by a check made payable jointly to Mr. Dude and to Attorney Jeffrey Van Groll and delivered to Mr. Van Groll.

Dated and mailed November 16, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

Respondents did not file a petition for review in this matter. Complainant filed a petition for review objecting to the Administrative Law Judge's refusal to grant a monetary remedy (apart from attorney's fees).

The filing of a petition for review by any party vests the Commission with jurisdiction to review the entire decision. However, the commission will generally not be inclined to exercise that jurisdiction to address issues that are neither expressly nor implicitly raised by a petition for review. For this reason, the Commission will not reexamine the findings and conclusions of the Administrative Law Judge to the effect that the Respondents' refusal to grant Complainant permission to have a roommate involved a violation of the Wisconsin Open Housing Law.

With respect to the Complainant's objection, that the Administrative Law Judge erred in denying him a monetary remedy on the grounds of failure to mitigate damages, the Commission agrees that the Administrative Law Judge's rationale was faulty. How the Complainant treated the Respondents at the hearing (and the Commission finds no basis in the record on which to agree with the Administrative Law Judge, that the Complainant treated the Respondents with "disdain") is completely irrelevant to the question of "mitigation of damages." Whether the Complainant could have acted more cooperatively with respect to the matter of the electrical connection and thus maintained a better relationship with the Respondents so that they might have been more disposed to grant his request, is similarly irrelevant to the issue of "mitigation of damages." The question of mitigation of damages is simply whether, after a legal wrong has been committed causing damage to another party, that party makes reasonable efforts to avoid or lessen the damage. The only factor identified by the Administrative Law Judge as a basis for his denial of a monetary remedy, which is even arguably connected with the concept of "mitigation of damages," is the failure of the Complainant to move to another apartment after it became apparent that his request for permission to take on a roommate would be denied. However, the Commission concludes that the duty to mitigate damages does not require a housing tenant who has been subjected to discriminatory conditions of rental to abandon the housing in question. A tenant who was discriminatorily subjected to a rent increase greater than that imposed on other tenants, for example, would not be obliged to move out and find a cheaper apartment in order to "mitigate his damages," any more than an employe who was discriminatorily subjected to a cut in wages would be required to quit his job and find another job paying more in order to "mitigate his damages."

Notwithstanding its conclusion that the Administrative Law Judge's rationale was faulty, the Commission arrives at the same ultimate result, i.e., the denial of a monetary remedy, for another reason. That reason is that the Complainant simply failed to present adequate proof that he suffered a monetary loss.

The rent on the apartment, including the parking charge, was $392 a month. At the hearing, the Administrative Law Judge asked the Complainant to state how much he claimed he could have saved by having a roommate. In response, after some general reference to the fact that there were gas, electric, and telephone bills, the Complainant estimated that with a roommate paying 50% of the total expenses of the apartment, he could have saved $300 per month. Since the rent was $392 a month, the Complainant's "estimate" asks the finder of fact to believe that gas, electric, and telephone bills would amount, on an average, annualized basis, to $208 a month. (This would yield total expense of $600 per month which, divided by 2, would be $300 per month per roommate.) The Commission considers this "estimate" to be patently absurd. Even assuming as much as $50 a month for a telephone hookup, the Commission finds it unreasonable to believe that an annualized average gas and electric expense for what is apparently no more than a two-bedroom apartment could be anywhere near $158 a month. For this to be the annualized average would mean that heat and electricity in the winter months would be in the range of $200 to $300 per month. This estimate is so absurdly high that it raises doubts about the good faith of the Complainant in making it, and this, in turn, raises doubts as to his credibility. The Complainant could, had he so chosen, have brought to the hearing copies of the bills showing what his gas, electric, and telephone expenses had in fact been in the period between June 1989 and the hearing in December 1989. His failure to do so, when he obviously intended to make a claim for a monetary remedy based on his inability to share those expenses, causes the Commission to suspect that the expenses were nowhere near as high as claimed, and that the Complainant was simply trying to "pad" his damages.

Uncertainty as to the question of monetary damages is also created by questions as to whether the rent would have remained the same if Complainant had been allowed to have a roommate. Nothing was put into the record with respect to how much the Respondents charged the married couple who had one of the units in the building, and specifically, there was no evidence that they were charged the same level of rent as Complainant, i.e., $387 per month. The lease agree ments which the Respondents used contained provisions for additional charges relating to additional persons in the apartment, and this suggests that rent was adjusted for the number of tenants. This is also suggested by the Respondents' testimony that their main concern with respect to taking on roommates was whether or not the roommates met certain financial criteria; if the rent was going to remain the same even if a roommate was added, the Respondents would hardly have had any reason to be concerned about a new roommate's ability to pay, since they were presumably already satisfied that the existing tenant had the ability to pay.

Most importantly, the Commission is satisfied that the Complainant never had anyone ready, willing, and able to pay him $300 a month for the privilege of sharing this apartment. The Administrative Law Judge specifically asked the Complainant whether he had someone who, had he been allowed to, was ready, willing, and able to share the apartment with the Complainant on the basis of splitting the rent and expenses, and the Complainant answered, "No, I planned on advertising for it." When the Complainant was later called as a witness on rebuttal he asserted that, while he had no one lined up as a roommate the second time he asked to be allowed to have a roommate, prior to that someone had been available. This was, of course, flatly inconsistent with the Complainant's earlier testimony. He attempted to explain this inconsistency by asserting that he believed that the Administrative Law Judge's earlier question had referred to the second occasion on which he requested to be allowed to have a roommate. However, as the Administrative Law Judge pointed out correctly at that time, his initial question to the Complainant on this point had not been "time specific."

The Complainant's testimony with respect to the person he had in mind as a roommate was vague. He testified that he had just met him on one occasion, that he was "a friend of a friend," and that he knew only his first but not his last name. He was forced to concede, on cross-examination, that before he would have agreed to allow this person to move in with him he would have had to "check him out" and that the person would have had to meet certain "standards" which he had not met at that point.

Complainant has argued that any indefiniteness in the availability of a roommate is irrelevant, because the very opportunity to have one was foreclosed by the Respondents. While this is a valid argument with respect to the question of whether a violation of law occurred, the situation is otherwise concerning the question of whether a monetary loss was suffered because of that violation. Given the Complainant's absurdly high claim with respect to the amount of money he believed he was going to obtain from a roommate, questions are presented as to whether he could have actually found anyone. Complainant can only be considered to have suffered a monetary loss if there was genuine, realistic opportunity for contribution to rent and expenses which was foreclosed. Here, not only does the amount of damages appear to be speculative, but the fact that damage even occurred at all also rests on speculation. The Commission therefore considers that it is not appropriate to grant the requested damages.

NOTE: As noted above, the Commission has restricted its review in this matter to the only issue raised, that being the denial of the monetary remedy sought by Complainant. It has rewritten the Administrative Law Judge's decision in the interests of clarity and of correcting not only the error of law with respect to "mitigation of damages" but also the suggestion raised by the Administrative Law Judge's Conclusions of Law, that there was no violation of the Open Housing Law's prohibition on enacting different terms for lease of housing but only of the Law's protection against interference with the exercise or enjoyment of rights granted under the Law. Where there is a finding and conclusion that a provider of rental housing has, in the course of an ongoing rental relationship, made some kind of decision with respect to the terms of that rental relationship which is based on a protected category, the conclusion of law that should follow is that there has been discrimination as prohibited by the Act, specifically in sec. 101.22, Stats. The Act's prohibition on coercion, intimidation, threatening or interference with the exercise or enjoyment of rights, contained sec. 101.22(4m), Stats., is considered by the Commission to be more in the nature of an anti-retaliation provision. Where there has been a direct violation of the anti-discrimination provision of the Act, there is no need to invoke sec. 101.22(4m), Stats., to explain why a violation has been found.

The Commission has made the same remedial orders as the Administrative Law Judge, but it has done so simply as a reflection of the fact that it arrived at the same result as the Administrative Law Judge. The file reflects that the affirmative order with respect to attorney's fees has been complied with, and Respondents have filed a compliance report indicating that they are no longer the owners of the property, thus eliminating any continuing significance in the cease and desist order. As a practical matter, therefore, nothing further is required of Respondents, and the filing of a compliance report with the Commission is therefore not necessary.

110

Appealed to Circuit Court.  Affirmed August 8, 1991. Appealed to the Court of Appeals.  Affirmed  April 13, 1993 (unpublished).

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