A Citizen, Pro Se

ICRC’s Case (Mis-)Handling – The First Year

I sent the email below to Indiana Civil Rights Commission Director Gregory Kellam Scott on March 4, 2008 — nearly a year after I first made my Fair Housing Act civil rights complaint.  I CC’d the email to HUD Assistant Secretary Kim Kendrick, FHAP agency Enforcement officer Kenneth J. Carroll, FHEO Region V (Chicago) Director Barbara Knox, and FHEO/Section 504 officer Mauricce J. McGough.  I called the email a ‘One-Year Review’ —  I’ve often bitterly thought it could just as well be called ‘One Year of Obstruction of Justice By Those Paid to Enforce the Law’.

In late February 2008, I was surprised to receive a call from ICRC Investigator Michael Johnson, the man responsible for the outrageously irregular handling of the evidence in my case. He told me that he had been assigned to the re-investigation mandated by the ICRC Commissioners when they set aside the original determination of ‘no reasonable cause’ after their appeals review. Johnson called to try to get me to withdraw the case. I was outraged, both by the fact that he had been assigned to the re-investigation, and by his attempts to get me to withdraw. I called ICRC to talk to Deputy Director Christine Cde Baca, with whom I had communicated extensively during the period after the determination and before the appeals review. I learned that Ms Cde Baca was ‘no longer with the ICRC’. So I wrote this email to ICRC Director Gregory Kellam Scott —
TO: Gregory Kellam Scott, Director, Indiana Civil Rights Commission (ICRC)
CC: Kim Kendrick, Kenneth J. Carroll, Maurice J. McGough, Barbara M. Knox
FROM: ‘Anne E. Citizen’
DATE: March 4, 2008

RE: ‘Anne E. Citizen’ v Henderson Court
ICRC No: HOha07040187 — filed 4/18/07
HUD Fair Housing Act Case No: 05-07-0776-8 — filed 4/17/07
HUD Section 504 Case No: 05-07-0106-4
HUD Inquiry No: 229400 — complaint made 3/22/07


Director Scott, I am in receipt of the ‘Notice of Remand for Further Investigation’ (dated January 29, 2008) from the Indiana Civil Rights Commission (ICRC). Although this document is unsigned, it bears your name in the signature block, and was delivered to me by certified mail. I regret that the current state of my health has not allowed me to respond sooner to this Notice.

Having learned that the ICRC currently has no Deputy Director, I find that you, Director Scott, are the only person of authority in the ICRC to whom I can direct my concerns. I received a phone call on Tuesday, February 26 from ICRC Investigator Michael Johnson, and I ask that this email be included in my case file as my preliminary response to that call and to the Notice of Remand.

Given the troubled history of the handling of this case, I find I must assert my right to prepare and submit another Amended Complaint. I find that I must also request that you, Director Scott, request assistance on this case from HUD/FHEO pursuant to 24 CFR 103.110(a) and/or Item 8 of the Statement of Work (SOW) contained in the current Cooperative Agreement between ICRC and HUD/FHEO. Item 8 of the SOW states, in part, that:

“HUD intends to have substantial involvement in . . . all aspects of the work to be carried out . . . under this agreement.” (Item 8A). HUD’s “Substantial involvement shall include, but not be limited to . . . (1) Review and guidance . . . of case investigations; (2) Requests . . . to provide clarification or for completeness of a case investigation or file; . . . (6 )Provision of appropriate directives and guidance for case processing; and (7) . . . assistance in the investigation, . . . and/or enforcement of [dual-filed cases].” (Item 8B)

I regret that ICRC’s flawed handling of this case forces me to ask you to request assistance from HUD/FHEO. Your distinguished record, Director Scott, leads me to hope that your dedication to the Rule of Law and to civil rights will prevail over any lesser demands of mere institutional loyalty that might lead one to put the desire to protect an agency from the consequences of its actions above dedication to the law. I trust that you would not choose to sign your well-respected name to a Notice of Finding based on a flawed body of evidence, and that you will use your position of authority to correct the case record and bring it into compliance with the Fair Housing Act’s ‘substantial equivalency’ requirements.

Before discussing my forthcoming Amended Complaint, I wish to give a summary of the facts of this case, the flaws in the case’s handling, and my responses to the ICRC Investigator’s February 26 phone call.

All documents submitted by the Respondent in this case fit the definition of ‘direct evidence of prima facie discrimination’
established in the 2001 HUD ALJ case “Sec v Country Manor’. (See my Aug 22 07 memo ‘Service Animal Contracts as Direct Evidence of Prima Facie Discrimination’ (attached); a complete copy of the Country Manor case was submitted to ICRC in my appeals packet.). The documents submitted by the Respondent can be summarized as follows:

The three original documents which triggered this complaint were two Service Animal contracts (‘Policy’ and ‘Permit’) accompanied by a letter (dated March 19, 2007) threatening immediate eviction to coerce Complainant’s signature. Although duly notified, Respondent did not submit a signed, sworn ‘answer to complaint’ meeting the law’s requirements, and thus ‘failed to defend’. (Respondent’s failure to defend is acknowledged by ICRC ALJ Judge Lange in his January 16 2008 ‘Order Denying Motion for Order of Default’, Items 3 and 7.).

In lieu of a legally-valid defense, Respondent submitted a third Service Animal contract (‘Agreement’, intended to replace Policy), along with a letter describing the Respondent’s ‘pattern and practice’ of requiring a protected sub-class of tenants (all disabled tenants requiring service animals as a reasonable accommodation) to sign two Service Animal contracts (Agreement and Permit) in addition to the lease. Note that the Permit, required by the Respondent in conjunction with the Agreement, contains contractual language obligating the tenant to the terms of the Policy, even if the Policy is not signed. (See Respondent’s June 7 letter (in case file) and Complainant’s June 17 memo, ‘Reply to Townsend/Conditions of Residency’, (attached) for discussion of ‘pattern and practice’.).

On July 25, 2007, at the ICRC Investigator’s request, Respondent faxed copies of four sets of Service Animal contracts from the HUD Project-based Section 8 apartment complex where Complainant resides. These contracts were submitted to support a premise (introduced into the case record on July 25, 2007 by the ICRC Investigator) which became the basis for the ICRC’s finding that ‘reasonable cause’ did not exist because “Complainant was not treated differently, as all tenants with service animals were asked to sign the agreement.” (ICRC’s ‘Notice of Finding’, October 10, 2007, page 3). This premise, which can be re-stated as ‘it is not discriminatory to impose ‘terms and conditions of residency’ to a sub-class of disabled tenants,’ directly contradicts ‘Sec v Country Manor,’ which states: “A policy that explicitly subjects a protected class to treatment differing from that of non-members of the protected class is facially discriminatory.” (See Complainant’s August 22, 2007 memo, ‘Service Animal Contracts as Direct Evidence of Prima Facie Discrimination’, attached.) Also note that Respondent’s submission of these signed contracts further supports Respondent’s ‘pattern and practice’ of imposing discriminatory contracts on a sub-class of disabled tenants.

All documents submitted by Respondent — Policy, Permit, Agreement, March 19 and June 7 letters, and July 25 faxed contracts — are concrete documentary evidence of the Respondent’s pattern and practice of explicitly subjecting members of a protected class (disabled tenants requiring service animals) to treatment differing from that of non-members of the protected class. The documents submitted by the Respondent constitute a substantial body of direct evidence of prima facie discrimination, and should be evaluated in light of ‘Sec v Country Manor,’ which states: “Direct evidence of discrimination, if it constitutes a preponderance of the evidence as a whole, is sufficient to support a finding of discrimination.”

It is worthy of note that all of the Respondent’s documents mentioned above were omitted from both the TEAPOTS database and the Final Investigative Report (FIR). By law, the Notice of Finding must be based on the FIR. If this substantial body of direct evidence of prima facie discrimination had been included in the case record in compliance with 24 CFR and ICRC’s contractual obligations, the Respondent’s documents alone would have been “sufficient to support a finding of discrimination.”

It is gravely troubling that, in this case, the Indiana Civil Rights Commission has fallen far short of meeting the Fair Housing Act’s ‘substantial equivalency’ requirements, which it is contracted to maintain. It is even more troubling to consider that, if this case is an example of ICRC’s ‘standard operating procedure,’ then no Indiana citizen can hope to have a civil rights complaint investigated or enforced in accord with the definitions and standards set by the Fair Housing Act.

It has been noted above that the documents submitted by the Respondent were omitted from the TEAPOTS database and the Final Investigative Report (FIR). The Respondent failed to submit a legally valid signed, sworn ‘answer to complaint’, and neglected to fill out the questionnaires sent by ICRC. Yet the ICRC Investigator assigned to this case undertook what could be called a ‘defense by proxy,’ requiring the Complainant to provide answers to a myriad of spurious ‘defenses’ raised not by the Respondent, but by the Investigator. The Investigator then omitted Complainant’s responses from the case record.

Complainant diligently researched Federal and State law and regulations, HUD regulations, and other authoritative documents, and willingly provided substantive answers, both verbally and in writing, to the ‘defenses’ raised by the Investigator. By June 26, 2007, Complainant had provided substantive responses to the various ‘business necessity’ arguments raised by the Investigator. Nevertheless, the Investigator persistently continued to raise numerous ‘hypothetical’ defenses. Believing herself obligated to respond to these hypothetical defenses, Complainant submitted a second Amended Complaint (Aug 8, 2007; cover letter and ‘Responses to Questions Raised During ICRC Investigation’ (first four of seven total pages) attached.) Note that both of the Complainant’s Amended Complaints (May 16 and Aug 8, 2007) — which should have been treated as a part of the original complaint — were omitted from the case record by the Investigator. ICRC’s Investigator elicited responses from the Complainant, then omitted the Complainant’s responses from the case file, the TEAPOTS database, and/or the Final Investigative Report (FIR), thus excluding them from consideration in the determination of the Notice of Finding.

On December 6, 2007, Complainant sent ICRC’s former Deputy Director an email memo (‘Evidence Omitted from Case File, FIR, TEAPOTS,’ attached) which listed: (1) a minimum of twenty-three (23*) documents and/or other contacts which had been omitted from the case file, TEAPOTS, and/or the Final Investigative Report (FIR); and (2) a minimum of five (5) errors of fact in in FIR, TEAPOTS and the Notice of Finding. Complainant pointed out that, due to the omissions and misrepresentations in the case record, the neither the record nor the Notice of Finding met the evidentiary requirements set out in 24 CFR and in the “Criteria for Processing’ section of ICRC’s Cooperative Agreement with HUD/FHEO. Complainant referred ICRC to 24 CFR 103.230(a) and (b), which allows the FIR (on which the Finding must be based) to be amended at any time if additional (not necessarily new) evidence is discovered. (*Omitted documents listed in Dec 6 memo include (1) ten documents omitted from case file and FIR; (2) Six documents included in case file but omitted from FIR and TEAPOTS; (3) Six other contacts (calls) omitted from Case File and FIR; and (4) Two documents listed as present in the case file, but not identifiable by Complainant or ICRC staff, as present in case file.)

In her Dec 6 memo, Complainant pointed out that the flawed and inaccurate case record had necessarily led to a flawed Notice of Finding, and suggested that ICRC correct the case file before submitting such a flawed record to the Commissioners for the upcoming appeals review. ICRC chose to submit the incomplete, inaccurate case record to the Commissioners for review.

On December 13, 2007, Complainant faxed an eighty-five (85) page packet of materials (containing seventeen documents listed in Dec 13 ‘Complainant’s Additional Material for Appeal . . .’, fax cover sheet, attached) to ICRC’s former Deputy Director for use by the Commissioners in their appeals review. This packet included a copy of the Dec 6 memo (‘Omitted Evidence’) as well as copies of nine key documents which had been omitted from the case record. Included in the appeals packet was a document. ‘Complainant’s Analysis and Comments in Light of Evidence Omitted from Final Investigative Report’ (Dec 12, 2007, attached; hereafter ‘Analysis’).

In her ‘Analysis,’, Complainant provided a paragraph-by-paragraph analysis of ICRC’s Notice of Finding. The Analysis (1) re-introduced previously-omitted evidence into the case file, (2) offered substantive rebuttals of every ‘defense’ in the Finding, and (2) cited Federally-established performance standards (including 24 CFR’s ‘substantial equivalency’ requirements and some from the Cooperative Agreement) to demonstrate that the case record has been so fatally flawed by the exclusion of evidence that the Notice of Finding must be considered invalid. (“A determination based on less than the totality of evidence does not meet the legal requirements for a valid determination”.)

After review, the ICRC Commissioners chose to remand the case for further investigation, instead of simply overturning the finding of ‘no reasonable cause’ and directing that ICRC correct the case record. Under the Indiana Administrative Code governing this remand (910 IAC 10302(h)(4)), the case record can only be modified by the addition of “new” evidence uncovered by the second-phase investigation. However, the flaws in this case will not be remedied by the discovery of ‘new’ evidence; this case can only be remedied by including every piece of existing evidence — from both Respondent and Complainant — in the physical case file, the TEAPOTS database, and the Final Investigative Report. When the case record has been rectified so that it complies with the ‘substantial equivalency’ standards set forth in 24 CFR and other authoritative sources, then — and only then — can a valid determination, based on ‘the totality of factual information’ be reached.

A dispassionate review of the history of this case would lead an objective observer to the conclusion that, in this case, ICRC has failed to meet the legal standards established by 24 CFR and the contractual standards established by the Cooperative Agreement. For this reason, I ask that the ICRC Director request assistance from HUD/FHEO so that this case may be evaluated in accordance with the requirements of Fair Housing Act.

At 10:15am on Tuesday, February 26, 2008, I received a phone call from ICRC Investigator Michael Johnson, who has been assigned to this case since it was referred to ICRC in April 2007. Being indisposed, I asked Mr Johnson to call back in half an hour. Since he did not call back at the agreed time, I called him at around 12:20pm.

Mr Johnson told me that the purpose of his call was to inform me that the Respondent was now willing to withdraw the Service Animal contracts “altogether” if I would withdraw my complaint. I asked Mr Johnson to have the Respondent send me that statement in writing; Mr Johnson took umbrage at my request. I asked Mr Johnson to send me an email detailing his statements about the Respondent’s offer; Mr Johnson took further umbrage at this request. (See ‘Email as Reasonable Accommodation’ , below) When asked, Mr. Johnson stated that he had been assigned to conduct the second-phase investigation in accord with the Commissioner’s remand. I then asked Mr Johnson if any of the omitted evidence had yet been entered into the TEAPOTS database; he said “no,” stammered a moment, then said he would not respond to that question, and asked again if I would withdraw my complaint. I told Mr Johnson that, as a ‘reasonable accommodation’ to my disability, that I could no longer accept incoming phone contact from ICRC, and that his future contacts with me should be by email. He had become very argumentative, and kept trying to steer the conversation back to his request that I withdraw my complaint. Knowing from past experience that Mr Johnson could maintain this kind of verbal barrage for an hour or more, and needing to protect my health, I cut the conversation off at 12:30pm. I have received no follow-up emails or other contact from Mr Johnson.

My responses to this conversation are as follows:

Email-Only Contact from ICRC as an Established ‘Reasonable Accommodation’
(Or ‘reasonable modification of procedures’ in ADA language). In late October – early November 2007, through emails and phone calls, the ICRC’s former Deputy Director and I had established some ‘reasonable accommodations’ regarding my communications with ICRC. One element of this agreement was that all communication from ICRC to me would be in the form of emails, and that if a conversation was needed, I would call ICRC when my physical and cognitive abilites were strong enough. I consider this, and all other previously-established ‘reasonable accommodations’ to be still in effect, and I reserve the right to request further such accommodations as the fluctuations of my disabling conditions may demand.

Investigator’s Assignment to Remand Investigation
Given that this ICRC Investigator is the person chiefly responsible for the serious mis-handling of the case record to date, I am hard-pressed to understand the management decision that put him in charge of the second-phase investigation. However, it may be that the Investigator’s assertion of his role in the second-phase investigation is inaccurate. The Investigator’s Feb 26 statements about the Respondent’s purported offer may also be a inaccurate. I would appreciate a written explanation of this Investigator’s role in the remand investigation.

‘Withdraw Complaint, Gain Exemption from Service Animal Contracts’
The Investigator’s assertion that the Respondent is now willing to exempt me from the requirement of signing two Service Animal contracts if I withdraw my complaint undermines the central premise of the Notice of Finding and reduces the Finding to absurdity.

On July 25, 2007, the Investigator went to considerable effort to generate a paper trail supporting the premise, “Complainant was not treated differently, as all tenants with service animals were asked to sign the agreement.” (ICRC’s ‘Notice of Finding’, October 10, 2007, page 3). In order to support this premise, the Investigator called both HUD employee Shirley Lambert and the Respondent. The call to Lambert resulted in an Interview record and two (conflicting) entries in TEAPOTS and the FIR; the call to the Respondent resulted in the faxed set of signed service animal contracts from the Complainant’s neighbors, entered into the case file, TEAPOTS and FIR. From these phone calls the Investigator was able to construct several pieces of evidence which he inserted into the case record, thus supporting the premise which, in the Notice of Finding, became the basis for the finding of ‘no reasonable cause’.

Now — if I will only withdraw my case! — I will become the only service-animal-owning tenant in all of the Respondent’s over 2000 units in two states who does not have to sign two additional contracts as a condition of residency. Unfortunately, (according to the Notice of Finding’s flawed logic) the Respondent would then become guilty of discrimination, because he would no longer be requiring the contracts of “all tenants with service animals”.

Director Scott, I am deeply disappointed and troubled by the fact that, three months after my Dec 6 memo pointed out many of the omissions and defects in the case record, no attempt has been made to include the totality of evidence in the case records as required by 24 CFR and ICRC’s contractual agreements with HUD/FHEO. At some point, ICRC will be obliged to produce another Notice of Finding. If the Deputy Director’s position is still vacant, that Notice of Finding will likely bear your signature. I imagine that you would insist that any Notice of Finding bearing your name be supported by an impeccable case record containing the totality of evidence, as required by 24 CFR.

While preparing for the appeals process, I began preparing a Chronology Table incorporating every record in my files, my attorney’s files, and the case file I received from ICRC — in other words, my own version of what the TEAPOTS database should contain.. As of today, that document covers the dates from April 18 through August 6, 2007, and runs to twenty-five pages. This document, when completed, will form part of my next Amended Complaint. Although certain items will necessarily be lacking (such as Investigator’s phone calls), this document as it stands today is far more complete than the evidentiary record undergirding the Oct 10 2007 Notice of Finding.

I had intended to include a review of ICRC’s ‘Memorandum of Understanding’ (MOU) with HUD/FHEO, relative to ICRC’s performance standards, in the materials submitted for appeals review. While preparing for the review, I requested a copy of the MOU from ICRC. After a thorough search of the office, ICRC Staff Attorney Michael Healy was unable to locate a copy of the MOU, or even find anyone who was familiar with such a document. I request a copy of the current Memorandum of Understanding (or Interim Agreement, and any other such documents as defined by 24 CFR’s performance standards for case handling) so that I can include reference to the MOU in my forthcoming Amended Complaint.)

Director Scott, I will be glad to continue to cooperate with ICRC’s investigation of this case — bearing in mind the ‘contact from ICRC by email’ reasonable accommodation discussed above. I will not be satisfied until my case receives full, fair, objective treatment on the merits of all the evidence, as required by the Fair Housing Act. My case, and every case brought before the ICRC, deserves to be treated in full accordance with the requirements of the law. I hope you will not allow ICRC to settle for less.

With due respect,
‘Anne E. Citizen’

Attachments: Complainant’s Documents Previously Submitted to ICRC — All dates 2007
1. June 17 Reply to Respondent’s Jun7 letter – discusses ‘pattern and practice of discrimination
2. Aug 8 Cover letter to 2nd Amend Complaint and
3. Aug 8 Responses to Investigators Hypothetical Defenses (excerpted from 2nd Amended Complaint)
4. Aug 22 Service Animal Contracts as Direct Evidence of Prima Facie Discrimination (County Manor memo)
5. Dec 6 Omitted Evidence memo
6. Dec 12 Appeals fax cover sheet – partial list of omitted evidence
7. Dec 12 ‘Analysis and Comments’ on Notice of Finding


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