Michael Ward of the D.C. Commission on Human Rights. (Washington Blade photo by Michael Key)
In a little noticed action, the D.C. Commission on Human Rights ruled last April that the president and board of directors of a cooperative apartment building on Connecticut Avenue violated the city’s Human Rights Act by twice refusing to allow a gay couple to buy an apartment.
The case is unusual because the commission’s decision came more than 15 years after Thad S. Kemp and his then partner William L. Houston filed a discrimination complaint with the city’s Office of Human Rights against 2101 Connecticut Avenue Cooperative Apartments, Inc.
The complaint charged the upscale building, located across the street from the Chinese Embassy, with using a series of pretexts to deny the couple’s application to buy an apartment in the building on two separate occasions in 1997 because of their sexual orientation and their status as a mixed race couple. Kemp is white and Houston is black.
The building has appealed the commission’s decision before the D.C. Court of Appeals, arguing, among other things, that the commission’s recommended decision was made by an administrative law judge who did not preside over a three-day hearing in which key witnesses testified.
Attorney Stephen Horvath, who is representing 2101 Connecticut Avenue Co-op, notes in an appeal brief that the original chief hearing examiner who presided over the case, Cornelius Alexander, died in 2007 before reaching a decision. Horvath argues the administrative law judge for the commission who handed down the decision, Dianne Harris, wasn’t present at the hearing to see the witnesses testify and assess their credibility.
Harris states in her recommended decision that she carefully read the transcript of all testimony viewed and studied the exhibits and documents entered into evidence and obtained a full and impartial picture of the case. She disputes claims by Horvath that past court rulings require that a hearing examiner or judge be present during testimony by witnesses in order to issue a ruling on a civil case.
Harris noted that while she was not present during testimony in the 2003 evidentiary hearing to determine whether the co-op board and its president, John Rodler, were liable for the alleged discrimination, she did preside over a separate hearing to assess what the damages and penalty for the co-op should be.
The commission’s final decision and order, handed down on April 23, 2012, shows that then commissioners Christopher Dyer and Nkechi Jaifa voted to approve Harris’s recommended decision that the co-op and Rodler engaged in discrimination based on sexual orientation and racial discrimination against Kempt and Houston.
The third commissioner assigned to the case, gay attorney Michael Ward, dissented from the majority, saying he agreed with the co-op’s attorney that Harris should not have ruled on the case without having personally attended the hearing in question.
“Although I believe that there is adequate testimony from which the commission might infer liability, I believe that those inferences require assessment of credibility and that respondents cannot therefore be held liable absent a de novo [new] hearing at which the administrative law judge can make credibility determinations and propose a decision to the commission that reflects those determinations,” Ward wrote in his dissenting statement.
Dyer, the D.C. gay activist and former director of the Mayor’s office of GLBT Affairs, and Jaifa did not submit a statement explaining why they voted to approve Harris’s proposed decision.
Richard Salzman, the attorney representing Kemp and Houston, called the commission’s decision “fair and measured,” noting that it did not agree to all of the Kemp and Houston’s specific requests for damages. He noted that the commission denied Kemp’s request that the co-op pay him the amount of equity he would have accrued as the value of the two apartments he attempted to buy rose significantly in the 15 years since the co-op denied his application to buy the apartments.
“The evidence was overwhelming that the discrimination took place,” Salzman said. “It is clear to anyone who looks at the evidence presented.”
Under D.C. law, the D.C. Solicitor General, who is part of the Office of the D.C. Attorney General, is responsible for defending the Commission on Human Rights decision in the appeals court phase of the case.
A spokesperson for the Solicitor General said the office is scheduled to file its response to 2101 Connecticut Ave. Co-op’s appeal brief on Feb. 11.
In its April 23 decision, the D.C. Commission on Human Rights ordered the co-op to “cease and desist” from engaging in further discrimination against people who apply to buy an apartment in the building and who are covered under the D.C. Human Rights Act.
The decision also calls on the co-op building to pay Kemp $90,000 for the amount he paid ($515,000) for an apartment he bought in another building in excess of what he would have paid ($415,000) for one of the apartments he was prevented from buying in the co-op building.
In addition, the decision orders the co-op to pay Kemp $35,000 for “humiliation, embarrassment and indignity” he suffered due to the co-op’s discriminatory action against him. It calls for the co-op to award Houston $17,500 in damages for also suffering “humiliation, embarrassment and indignity.”
The co-op is also required to pay for Kemp and Houston’s attorney’s fees and to reimburse the city $6,458 in court reporting and transcription costs related to the case.
Why did this case take so long to go from the complaint to a decision by the commission?
David Simmons, chief administrative law judge for the Commission on Human Rights, told the Blade on Wednesday that one of the reasons Kemp and Houston’s discrimination case took 15 years to advance from the complaint to the commission’s decision last April was a lack of a sufficient number of hearing examiners and support staff for the commission.
He said more hearing examiners and support staff have been hired in recent years, but during the years that Alexander served as chief administrative law judge, the staffing was a “travesty,” he said. According to Simmons, at the time Alexander presided over the Kemp-Houston case, he was the only hearing examiner the commission had, forcing him to preside over all of the cases.
“I knew Cornelius Alexander, and he was hard-working and an excellent attorney,” he said. “In my view, the city killed him. They worked him to death.”
