Do you think it is a Discrimination punishable with $76,500 if I, being a Landlord or a Realtor, simply wrote “I don’t like the French”?
I would think that this is speech protected by the 1st Amendment and not Discrimination unless a person from France can show that I denied her housing because she was from France and even then $76,500 seems way to excessive of a punishment for a 1st discriminatory offense.
However, the Boston “Fair” Housing Commission disagrees and the Federal Appeals Court for MA disagrees. They have ruled that just making that statement or just asking the question: “Are you from France? I have never been there but I would love to go there some day”, “Do you have a green card (which will authorize you to work in this country which will provide you with the income required to pay the rent)?” or “Where are you from?” is Discrimination based on national origin.
According to them just asking the question “Where are you from?” without actually denying housing to that person because of the answer, is Discrimination per se.
That’s right. They all agree that the person was not actually denied housing because of her national origin but because she had no credit – a completely legitimate reason. The only problem they have was that the question was asked (even though no one was hurt).
So, to summarize, if you are a landlord blogger like me and simply write:
“I don’t like the French” a prospective tenant can file a complaint with the MCAD or Housing Court or Boston Fair Housing Commission and win $76,500. They don’t even have to be French or prove that they were denied housing by you because they were French.
C’mon, Elmir, we live in America, that can’t be true. You are mistaken. America is the greatest country in the world where people who have not been injured by you in any way cannot sue you and win, where there is “due process” rights, etc, where there is the right to free speech…
Well, I did not believe it either so I went in person and met with the Realtor who was found liable and I also contacted the lawyer who represented the tenant. I wanted to hear both sides of the story. The Realtor told me his side of the story and the tenant’s lawyer emailed me all the actual decisions in writing by the BFHC. When I asked her how come her bill came to be close to $45,000 she said that there was a lot more to this case than just that one question that was asked by the Realtor. However,when I read the two decisions that she emailed me the truth is that there was basically nothing more. It was pretty much all about that one question. There were no other issues. I am publishing these decisions here:
BFHC Decision on Damages and Fees
The problem we have as landlords is when we tell the world that a landlord was made to pay $75,000 because he published an ad saying that one of his apartments had lead paint so it’s better for a child under 6 not to live in it but instead to rent something else people just don’t believe us and they say “Oh, that can’t be the whole story. I am sure the landlord did something else that justified this punishment.”
People are just too naive and too busy eating their fatburger from McFastPlace. They don’t understand what the Government is capable of. (And by the way as I am currently reading “Dirty Wars” by Jeremy Scahill, what happened here doesn’t even register on the scale of what the Government is really capable of doing AND DOING every day.)
So that’s why on this case I really wanted to dig deep and get all the facts.
Here is the story from what the Realtor told me and from the actual decisions of the Boston Fair Housing Commission:
In 2007, a tenant came to look for an apartment. After or while she was filling the application there was some small talk between her and the Real Estate Broker. He asked: “So Gladys, where are you from?” and she replied: “Venezuela” and that was that. She had no credit. Her husband, who was American, had credit. The Broker told me that he gave the application to the Landlord and the Landlord made the decision not to rent to this couple because one of them had no credit. Realtor did not mention to the landlord that the tenant was from Venezuela as that was completely unimportant and irrelevant to him. He was just having a small talk with the tenant as he noticed her accent. By the way BFHC agrees that the Landlord was never told about her country of origin. (See 24 and 25 from the BFHC Decision on Liability). BFHC agreed that the reason why she was denied housing was legitimate – lack of credit (see section 29) and BFHC also ruled that the question was not asked with any “discriminatory motive or animus” and that it was simply small talk (see 34 and 35 of the same document)
!!!
OK, let’s pause here for a second for a couple of points.
- Can a landlord refuse to rent an apartment if one of the prospective tenants does not have a credit report? The answer is yes. I do it all the time. It all depends on how I feel about the actual situation. Maybe the tenant with the good credit earns less than half of the income.
- I am from Bulgaria originally. I have an accent and people ask me all the time where I am from. I don’t make a Federal Case out of it and I think people who do are abusing the system.
- Even if the Landlord refused to rent because he hates people from Venezuela or in general people who were not born here, there was another plausible reason why the application was denied. As long as there is even one legitimate reason to deny the application, then discrimination cannot be proven and should not be even brought up at all. If, on the other hand, the landlord had NO OTHER legitimate reason to deny the application, then I would understand making a case out of this.
Ok, so the tenant left, the Realtor gave the application to the landlord and the application was denied. She later applied for the same apartment through another broker and the application was denied again. Duh! What part of “no” don’t you understand?
When the tenant filed a complaint with the Boston Fair Housing Commission, she claimed that the question caused her Emotional Distress. I guess she did not suffer for long because a month later she found an apartment (of course, not before filing another Complaint against another Broker and not before she filed a complaint against another Landlord!) where she lived happily ever after, I guess.
Realtor received a letter from Boston Fair Housing Commission but he thought it was just BS and he ignored it. (Of course it was BS but he should not have ignored it). He had 45 days to answer that letter. Because he ignored it, it defaulted to the Boston Fair Commission and he was precluded from going to a real court.
Ok, let’s pause again. What is the “Boston Fair Housing Commission”?
I got this from their web site:
“Historical note
Chapters 10 and 33 of the Ordinances of 1982 established a Commission known as the Boston Fair Housing Commission. The Fair Housing Commission works to eliminate discrimination and increase access to housing in Boston through investigation and enforcement, affirmative marketing, housing counseling, and interagency coordination. The BFHC also manages a computerized listing service of regional housing opportunities in an effort to provide low income households increased access to housing in 126 cities and towns of metropolitan Boston.”
Wait a minute! So basically the City of Boston created it. It’s not a court. At best it is a part of the Legislative or maybe Executive part of Government but it is certainly not a part of the Judicial Branch as the City of Boston simply does not have the Constitutional authority to create a Court, OK?
So this non-court writes a letter to the Realtor in which he has 45 days to respond, he ignores it but then goes there and when they ask him if he asked that question he freely admits to it not thinking anything about it. A slap on the wrist follows ($500 because this was his first offense sounds about right) and case closed, right?
Not even close.
Can he have committed Discrimination just by asking the question? The answer is that, yes, MGL 151B, the way it is currently written, could be interpreted in such a way by people who want to interpret it in such a way. The Law is like the Bible. Anyone can interpret it in any way they want to justify anything.
151B needs to be clarified that just asking a question like that is a paper injury, the tenant must prove that they were really denied housing because they belong to a protected class. It is absurd to fine people thousands and thousands of dollars just for having the information that the person in front of us who is applying for housing belongs to a protected category. Besides, in many cases we already possess that information. For example, we can see when someone is Black and not White, we can see the family has children with them, etc. My point is that asking a question like “Do you have children?” should not be considered Discrimination per se. It’s not the act of obtaining that information that should matter but what was done with that information should matter. The tenant needs to prove that they were denied housing because they had children. It should not be enough to just prove that the landlord knew that they had children because he had inquired about it. We need to raise the bar a little bit because otherwise these frivolous lawsuits are ruining our economy and de-moralizing businesses. Even in this case, the landlord already “possessed” the information that Gladys was most likely not from this country because of her accent which was undeniable. So he could have discriminated if he wanted to without even asking the question. The fact is and BFHC agrees with that fact that he and the Landlord DID NOT Discriminate this person. The only “crime” was that they asked the question and were given information that they ALREADY POSSESSED!
We all agree that Discrimination is bad and so if she was really denied housing because she was born in another country then we should not tolerate that. I think the law authorizes up to $10,000 fine for a first offense. But the problem I have with this case is that the Realtor testified that he did not tell the Landlord, who made the decision not to rent, that this tenant was from Venezuela so how could the Landlord discriminate on the basis of national origin then if he didn’t even know her national origin? In addition to that there were other factors that made her ineligible for the apartment – she had no credit. So the answer is that there was no clear proof that this tenant was discriminated against and that she was really injured. The Boston Fair Housing Commission and the tenant’s lawyer took the position that just asking that question was a Discrimination per se because that’s how they interpreted 151B and that the tenant was injured just because the question was asked.
When legislators wrote the anti-Discrimination laws their goal was to prevent people from being denied housing BECAUSE they belonged to a protected class, for example they were born in a different country. Just asking or being given the information that they are from another country is not enough (or should not be enough) to prove that they were denied housing BECAUSE they were from another country. To prove it a lot more is needed than just the fact that they were asked about it.
What are we trying to outlaw here – true Discrimination or small talk and simple human interaction and free speech?
I think all Judges, Justices, quasi-judicial organizations like the MCAD and BFHC, the Attorney General, the Legislature and anyone else that has anything to do with this need to take a deep breath and focus on extinguishing true Discrimination, not small talk or the First Amendment right to chat with another human being or even offend another human being. Just because I have called you the N-word (as bad as that word is) doesn’t mean that I Discriminated you. I don’t use that word and I don’t suggest anyone using it but I simply want to make a very clear point here. We have rights in this country and one of protected rights is to call someone a racial slur or to swear at them, etc. You can’t sue me for age Discrimination every time I call you a “dirty old man”. Or can you in MA?
All of that being said I may have been OK with the Boston Fair Housing Commission saying: “We think that just asking the question is Discrimination and we will fine you $500 and send you to an anti-discrimination class”. Ok, fine. It’s the puritanism, righteousness, overreaching and lack of proportionality that bothers me.
But that’s not what they did. What they did was pay several attorneys “to work” on this case (using tax payer money, of course, oh, and did I mention this is happening after the Realtor already admitted to asking the question). The tenant had a lawyer who was working on a contingency so the Realtor had to hire a lawyer too. So we have 2-3 lawyers against 1. While the tenant’s lawyer was free to the tenant, the Realtor’s lawyer was not free to the Realtor. He told me that he paid him “at least $10,000” to defend him.
Can anybody tell me why 2 or 3 lawyers are needed to prove that a question was asked when the landlord had already admitted to asking the question? (:
This bears repeating:
Can anybody tell me why 2 or 3 lawyers are needed to prove that a question was asked when the landlord had already admitted to asking the question? (:
It almost feels like we are not in America but instead this action is taking place in North Korea in one the Kangaroo Courts established by their Supreme Leader Kim Jong-Un.
The bill for the lawyers came to $44,268, the Realtor was fined $7,500 and ordered to pay it to the City of Boston (who happens to be the Creator and Employer of the BFHC !!!) and ordered to pay another $10,000 to the tenant who simply told the “court” that the question caused her Emotional Distress and she lost sleep. When you add the $10,000 (which was more likely $15,000) that the Realtor had to pay his lawyer to defend him, there you have it – about $76,500…for one question.
The Broker told me that he appealed this absurd case to the State Appeals Court. A single judge looked at it and maybe because it was summer, too hot and he didn’t want to get too involved issued a one paragraph decision siding with the Boston Fair Housing Commission.
The Broker then took this case to the Federal Appeals Court for MA and they issued a decision that only slightly reduced the $61,500. It is not clear by how much exactly but I read the case a couple of times and I am left with the impression that this amount will not be reduced by much when it gets back to the Boston Fair Housing Commission. It is NOT a real victory for the Realtor especially because they agreed with the BFHC that just asking the question was Discrimination.
You can read the Appellate Court decision here – Linder vs Boston Fair Housing Commission
The latest I heard was that the tenant’s lawyer has filed an Appeal to the Appeal. (:
We have gone way too far in MA with the anti-landlord legislation.
This is really outrageous and unfair.
We have lost all sense of proportionality in MA and I blame the Legislature and the Courts for that.
The above case demonstrates how we treat tenants in MA and the below case (I’ll be short) demonstrates how we treat landlords in MA.
Landlord Gets Physically Assaulted and Tenant Pays $75
I have been a landlord for 15 years and have had over 150 tenants come and go. Thankfully I have never been physically assaulted… except one time.
At 9am the Sheriff was scheduled to do a physical eviction on these tenants but they called me and told me that the apartment was 100% empty and they had moved out already and that I can get in. When I got in I saw the apartment was 100% vacant, no furniture, bare floors and they were gone. I called the Sheriff and cancelled the 9am appointment as it was no longer needed. I changed the locks.
Several hours later the ex-tenants showed up at the back door and wanted to get in. I told them that they have been evicted and they can’t get in. (The apartment was 100% empty, they had no business coming in except to start a fight). They pushed the door from the outside. I pushed back from the inside. At some point I thought they left so I opened the door and that’s when the male ex-tenant struck my underarm with a stick from a broom or something. The whole incident was caught on surveillance video.
Here is a picture of the way my arm looked. I was in pain for weeks.
I went to the Emergency Room and paid them my deductible $75 to see me. I went to the police and filed a report. They took pictures. The case was scheduled for a trial in Holyoke District Court.
The 1st trial date was cancelled the same day after I had already gotten very early and driven 1.5 hours to get to the Court. I had to travel another 1.5 to get back home.
The 2nd trial date was cancelled the same day after I had already gotten very early and driven 1.5 hours to get to the Court. I had to travel another 1.5 to get back home.
The 3rd trial date was cancelled the same day after I had already gotten very early and driven 1.5 hours to get to the Court. I had to travel another 1.5 to get back home.
Shortly after I called the so called “Victim Witness Advocate” and raised my voice to her over the phone to express my frustration at these late cancellations costing me sleep and time off work not to mention gas, etc, I received this letter in the mail:
“The Defendant in the above mentioned matter pleaded in the Holyoke District Court on (date). The sentence the judge imposed is as follows: Continuation without a finding for 6 months. He is ordered to pay you $75 in Restitution and Stay Away from you.”
The whole thing took about 1 year from the time I was assaulted to the time of this letter.
How much money do you think I would have been forced to pay as a landlord if I inflicted the same injury to a MA tenant?
Compare these two actual cases.
You have a tenant who causes physical pain to a landlord taking weeks of pain and recovery and the punishment is $75 and you have a case where a RE Broker (but it could have been a Landlord) asks one question (“Where are you from?”) where the tenant is not really injured (neither physically nor emotionally nor in any other way, the tenant was only injured on paper) and the punishment is 1,000 TIMES greater!
Is that what passes for Justice in MA these days?
By the way this same tenant sued another Realtor soon after they sued this Realtor and the other Realtor settled. (another $10,000 – $15,000 in her pocket?). She also filed a complaint against another Landlord.
One last thing,
The Boston Fair Housing Commission represents the Government
The most outrageous thing is when you start thinking about the fact the these inflated anti-discrimination awards come from no other but from the American Government – the Biggest Past and Current Discriminator Of All Times who has inflicted injuries not on paper but real, tangible injuries with all of its past and present Discriminatory Policies:
– Not allowing women to vote was a Discriminatory Policy. They were allowed to vote only 94 years ago. People were really injured because of that.
– Not Having Universal Health Care STILL is a Discriminatory Policy because it has adverse effect on minorities. People die every day because of that. How is that for injury?
– “The War on Drugs” was and STILL is a Discriminatory Policy adversely affecting minorities. People die every day because of this Discriminatory Policy. It’s a fact that there is no percentage difference in drug usage between Whites and Minorities yet disproportionally much higher percentage of Minorities end up in jail on trumped up drug charges. Once they get out they are in effect eliminated as a political force because they can’t find jobs, housing, can’t vote, etc. There should be no doubt by now that The War on Drugs is the new Jim Crow.
– Refusing to legalize Gay Marriage on a federal level and Employers being allowed to fire people just because they are gay was and STILL is a Discriminatory Policy with real financial and emotional injuries every day.
– Prostitution not being legal Discriminates against the Elderly and Physically and Mentally handicapped who are adversely affected. (say what you will but when your two legs have been amputated or when you are over a certain age, try finding sex the “normal” way. You should be allowed, if you wish so, to pay for sex). Clearly this policy is Discriminatory. Where are the lawsuits?
– Refusing to cover birth-control is discriminatory as this policy is blatantly anti-women.
– How about the ethnic cleansing of the whole Native Indian nation?
– How about slavery?
– How about blacks not being allowed to drink from the same water fountain as whites or eat at the same restaurants or go to the same schools until several decades ago !!!!!!!
– It’s a fact that guns kill more minorities than whites and since allowing to carry guns is the law of the land, Discrimination is built in right into the Constitution. How about that?
Should I fucking go on?
These examples were and some STILL ARE Discriminatory Policies with real victims and these policies were created and enforced by the same Government who is acting all righteous now and trying to point a finger at us just for asking the question “Where are you from?”
And where the fuck is the mainstream media in all of this? It is all silent trembling in their little booties that they would lose access to the powerful if they criticize too much and obsessing over Justin Bieber or Kim Kardashian. These blogs that I write go to 15 major newspapers and TV stations and to all 200 or so legislators in MA. The mainstream media is missing in action. The legislators are diddling their doodles all day. I represent the New Media but I do not yet have the readers or the viewers that the traditional media has and so some help would be appreciated.
This whole story is so outrageous that it’s like Bernie Madoff who stole about $15,000,000,000 being freed from prison and appointed a federal judge with the only mandate to put in prison anyone who is found to have stolen even $1 – his mandate being to give 10 years of mandatory prison sentence per each dollar stolen. Can you imagine Bernie Madoff punishing you for stealing money? Can you imagine the American Government punishing you for acting in a Discriminatory manner? Oh, wait….
Of course, the irony of it all is that if the Government was less Discriminatory and legalized prostitution, for example, I suspect we would be seeing a lot less of these angry self-righteous decisions because people who are getting enough sex are generally speaking less angry and self-righteous.
Kidding aside, what should be done?
First, MGL 151B needs to be clarified to stress that just asking a question about belonging to a protected class is not Discrimination per se unless the information was used to ACTUALLY discriminate against that person. You cannot legislate and penalize who I like and don’t like and forbid me from even saying it. That’s ridiculous and very un-American.
Second, the time clearly has come when the MA Legislature should evaluate the very existence of these non-court entities like the MCAD (“Massachusetts Commission Against Discrimination”) and the “Boston Fair Housing Commission”. They are not courts and only courts with real juries can evaluate facts and impose financial penalties like that. I think these agencies should be eliminated. They are clearly abusive.
PAUL LINDER[1] vs. BOSTON FAIR HOUSING COMMISSION & others.[2]
No. 12-P-1757.
Appeals Court of Massachusetts.
Entered: December 17, 2013.
By the Court (Fecteau, Brown, & Hines, JJ.)
Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Paul Linder, a licensed real estate broker, appeals from a Superior Court judgment affirming the Boston Fair Housing Commission’s (commission) decision finding him liable for a discriminatory inquiry into the national origin of Gladys Stokel, a prospective tenant, in violation of G. L. c. 151B, § 4(6)(c), and Boston Fair Housing Commission Amended Regulations § 1.04(i) (2001).[3] On appeal, Linder makes essentially three claims: (1) the Superior Court judge erred in upholding the commission’s award for emotional damages because it is not supported by substantial evidence,[4] (2) it was an error of law to award attorney’s fees and costs, as special circumstances existed rendering the award unjust, and (3) the hearing commissioner’s (commissioner) imposition of a $7,500 civil penalty was a gross abuse of discretion.[5] Because we agree with Linder’s first contention in part, we remand for further proceedings before the commission.
Discussion.
a. Emotional distress damages.
Linder first claims that there was not substantial evidence to support the commissioner’s finding that Mrs. Stokel suffered emotional distress from Linder’s inquiry.
The commission’s decisions are reviewed in accordance with the standards set forth in G. L. c. 30A, § 14(7). `In reviewing the action of the commission,’ [t]he judge had the limited task of examining whether there was substantial evidence in support of the commission’s decision. It was not for the court to substitute its judgment on questions of fact or exercise of discretion.” School Comm. of Brockton v. Civil Serv. Commn., 43 Mass. App. Ct. 486, 490 (1997), quoting from McIsaac v. Civil Serv. Commn., 38 Mass. App. Ct. 473, 476 (1995). `When considering the administrative determination, the court must’ give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Gauthier v. Director of the Office of Medicaid, 80 Mass. App. Ct. 777, 783 (2011), quoting from Springfield v. Department of Telecommunications & Cable, 457 Mass. 562, 567 (2010).
In making an award of emotional distress damages, the Supreme Judicial Court has held that an agency should consider the following factors: `(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm.’ Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004). Additionally, the Supreme Judicial Court has made clear that `emotional distress, to be compensable, must be proved by substantial evidence of the emotional suffering that occurred, as well as substantial evidence of a causal connection between the complainant’s emotional distress and the respondent’s unlawful act.’ DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 7 (2006). We note that the burden of proving emotional distress from discrimination is less stringent than the burden of establishing the tort of intentional or negligent infliction of emotional distress. See Bournewood Hosps., Inc. v. Massachusetts Commn. Against Discrimination, 371 Mass. 303, 317 n.11 (1976).
In awarding Mrs. Stokel damages for emotional distress, the commissioner found that Linder’s inquiry contributed to Mrs. Stokel’s `stress, fear and anxiety’ during two distinct periods of time. The first period was from July 25, 2007, the date Linder made the comment, to August 20, 2007, when the Stokels secured an apartment. The second time period ran from September, 2007, when the Stokels moved into the new apartment, to August, 2008, when the couple moved again.[6]
As to the first period of time, we agree that the commissioner’s finding that Mrs. Stokel suffered emotional distress is adequately supported by substantial evidence. The commissioner found that Mrs. Stokel `testified credibly and sincerely about her strong emotional reaction to Linder’s unlawful inquiry’ and that she was `reasonably afraid’ she and her husband would not be able to secure another apartment. The commissioner also properly found that Mrs. Stokel’s reaction was reasonable because Linder’s inquiry was made a short time after another realty company denied the Stokels an apartment due to Mrs. Stokel’s national origin and she was, therefore, `especially sensitive to the matter’ of her national origin.[7]
However, considering the entire record, we disagree that substantial evidence exists to support the claim of emotional distress during the second time period (September, 2007, to August,
2008). Although we recognize the deference owed to the commissioner’s findings, `[t]he factual basis for emotional distress damages awarded by the commission must be clear on the record, and a reviewing judge must set aside (or remit to an appropriate amount) awards that are not supported by substantial evidence.’ DeRoche, supra at 7. Emotional distress awards must be `fair and reasonable, and proportionate to the distress suffered.’ Stonehill College, supra at 576. `[W]e are not required to affirm the [commission] merely on a finding that the record contains evidence from which a rational mind might draw the desired inference. Our determination must be made upon consideration of the entire record.’ New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 466 (1981) (citation omitted).
Here, the record fails to support the commissioner’s finding that Linder’s single inquiry, made months previously, significantly contributed to anxiety and sleeplessness, which Mrs. Stokel also attributed to problems with her apartment’s heat as well as an ongoing suit against a completely separate realty company. While one factor in awarding emotional distress damages under Stonehill College, supra, is how long the complainant reasonably expects to suffer, `there must be limits to the scope or definition of reasonable foreseeability based on considerations of policy and pragmatic judgment.’ Herbert v. Enos, 60 Mass. App. Ct. 817, 821 (2004), quoting from Poskus v. Lombardo’s of Randolph, Inc., 423 Mass. 637, 640 (1996). Moreover, `emotional distress existing from circumstances other than the actions of the respondent, or from a condition existing prior to the unlawful act, is not compensable.’ Stonehill College, 441 Mass. at 576.
Although we defer to the commissioner’s credibility findings, a review of the entire record shows that Mrs. Stokel’s testimony that she thought Linder’s inquiry `made things worse for [her]’ and added stress to her life was the only other evidence that Linder’s inquiry significantly contributed to Mrs. Stokel’s distress after September, 2007. However, this testimony refers essentially to stress emanating from the ongoing litigation of the case against Linder, rather than his July 25 inquiry.[8] Indeed, the commissioner specifically credited Mr. Stokel’s testimony that his wife continued to suffer emotional distress after September 1, 2007, because she `always [had] to think about [the case] and deal with it.’ However, such testimony is irrelevant as it concerns Mrs. Stokel’s stress caused by the continuing litigation of the case, not Mr. Linder’s original inquiry. See DeRoche, 447 Mass. at 8-9. Moreover, the commissioner explicitly found that `without proof establishing a claim of intentional infliction of emotional distress, . . . Mrs. Stokel may not recover for any adverse emotional reaction from how Linder defended or litigated this case.’
Thus, Mrs. Stokel’s testimony that from September, 2007, to August, 2008, her encounter with Linder continued to add stress to her life is insufficient to overcome the other overwhelming evidence that the emotional distress she suffered during that period was related to how Linder defended the case, problems with her apartment’s heat, and her ongoing case against a separate realty company. See Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966), quoting from Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488 (1951) (‘[T]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight’). Consequently, the matter must be remanded for the commission to reconsider its award of damages for emotional distress.
b. Attorney’s fees.
Section 2.09(t)(5) of the commission’s amended regulations authorizes the commission to award reasonable attorney’s fees and costs to the `prevailing aggrieved party unless special circumstances make the recovery of such fees and costs unjust.’ See G. L. c. 151B, § 9. In spite of our conclusion on her emotional distress claim, Mrs. Stokel remains the prevailing party and, contrary to Linder’s contention, no special circumstances have been shown to mitigate against the award of such fees.[9] However, given our conclusion that the period of time for which she may recover damages for emotional distress must be limited to the period between July 25, 2007, and August 20, 2007, the commission must reconsider its award of attorney’s fees.[10]
c. Imposition of civil penalty.
The commission has the authority to assess a civil penalty against a respondent for discriminatory housing practices in an amount up to $10,000 for a first violation. St. 1994, c. 37, § 7. It is undisputed that Linder violated G. L. c. 151B, § 4(6)(c), and § 1.04(i) of the amended regulations by asking about Mrs. Stokel’s national origin, and that this was his first violation. However, we remand for the commission to reconsider whether the civil penalty, which is seventy-five percent of the maximum, is justified in light of Mrs. Stokel’s reduced emotional distress award.[11]
The judgment of the Superior Court is vacated. A new judgment is to enter affirming the commission’s conclusion that Gladys Stokel is entitled to an award for emotional distress for the period July 25, 2007, to August 20, 2007, and remanding the matter to the commission for further proceedings consistent with this memorandum and order.
[1] Doing business as Prestige Rental Solutions.
[2] Gladys Stokel and James Stokel, interveners.
[3] General Laws c. 151B, § 4(6)(c), and Boston Fair Housing Commission Amended Regulations § 1.04(i) (2001) make it illegal for any licensed real estate broker `to cause to be made any written or oral inquiry or record concerning . . . national origin.’
[4] It is undisputed that Linder violated G. L. c. 151B, § 4(6)(c), and § 1.04(i) of the commission’s amended regulations by inquiring into Mrs. Stokel’s national origin in connection with her and her husband’s application for a new apartment on July 25, 2007. While completing the application process to rent an apartment, Linder asked, `Gladys, where are you from?’ to which Mrs. Stokel responded that she was from Venezuela. The Stokels believed they were discriminated against on the basis of Mrs. Stokel’s national origin and found Linder’s question to be insulting and upsetting. Despite the fact that Linder’s comment was found to have no discriminatory animus and did not result in discrimination, his inquiry itself is a per se violation of the statute and the regulation. Therefore, on appeal Linder only challenges the amount of damages awarded.
[5] The commissioner awarded $10,000 in emotional distress damages to Mrs. Stokel, assessed a civil penalty in the amount of $7,500 against Linder, and awarded $31,793.97 in attorney’s fees and $12,473.92 in costs.
[6] Although Mrs. Stokel claimed to suffer three years of emotional distress (Linder’s 2007 inquiry up to the date of the hearing in April, 2010), the commissioner found a causal connection for a shorter period of time.
[7] Linder mistakenly relies on the cross-examination of Mrs. Stokel, in which she admitted that in a prior deposition, she stated she was not embarrassed, not humiliated, and not upset with regard to her conversation with
Linder. However, this deposition was not entered in evidence and in the segments of the deposition that were read at the hearing, Mrs. Stokel explained she was upset by Linder’s inquiry but she was not embarrassed to be from Venezuela. Specifically, Linder’s counsel read the following exchange from the deposition at the hearing: `Question: You weren’t embarrassed during that exchange [with Linder], were you? Answer: No. I’m from Venezuela. I’m very proud.’ Regardless, the commissioner explicitly credited Mrs. Stokel’s other testimony at the hearing that she felt upset and uncomfortable after Linder’s inquiry and that she cried for some nights after the inquiry because she feared her national origin prevented her and her husband from renting an apartment. Moreover, `[a] court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ Embers of Salisbury, Inc. v. Alcoholic Bevs. Control Commn., 401 Mass. 526, 529 (1988).
[8] Mrs. Stokel seemed particularly troubled by document requests from Linder’s counsel she received in November, 2008, after the end of the second time period. Additionally, during this time period the Stokels were concerned with their discrimination case against a separate realty company. Mrs. Stokel testified that she `didn’t need this case [against Linder] to add to my stress.’
[9] The commissioner explicitly found that `no special circumstances exist to find such an award unjust.’ The commission’s interpretation of its own regulations are entitled to deference, and it has not been made to appear that its view is unreasonable or unlawful; thus we discern no reason to overturn the commissioner’s decision. See Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 782 (1980).
[10] In awarding attorney’s fees the commissioner discounted the total fees by twenty percent because Mrs. Stokel had only prevailed on the emotional distress claims and not prevailed on a number of her other claims.
[11] The request by the commission and the Stokels for an award of appellate attorney’s fees and costs is denied.