A Citizen, Pro Se

Evidence Omitted from Case File, FIR, TEAPOTS (Dec 6 2007)

MEMORANDUM

TO: Christine C. Cde Baca, Deputy Director, Indiana Civil Rights Commission (ICRC)
FROM: ‘Anne E. Citizen’
DATE: December 6 2007

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

SUBJECT: Evidence Omitted from Case File, FIR, TEAPOTS

Upon reviewing the materials included in the copy of my case file I received from ICRC, I have found significant gaps in the evidentiary record. It appears that almost all the documents I submitted in response to the defenses raised by the ICRC Investigator have been omitted from the case file, the Final Investigative Report (FIR), and/or the TEAPOTS database. Other documents, although included in the case file, have not been referenced or recorded in the FIR and/or TEAPOTS. There are also plain errors of fact in the FIR, TEAPOTS, and the Notice of Finding. The single occurance of a statement by the Complainant in the FIR and TEAPOTS (May 1 interview) contains two significant errors of fact.

The omission of these documents (and other records of contact) from the case file, FIR and/or TEAPOTS raises concerns about the evidentiary basis of the Notice of Finding, which is required to be based on all available facts in the case. The language of the Notice of Finding appears to be based entirely on the incomplete and inaccurate information contained in the FIR and TEAPOTS, and makes no reference to the omitted Complainant’s evidence listed below.

A Notice of Finding based on a record that omits the Complainant’s responses to the Investigator would necessarily be flawed by the omission of the facts contained in those responses. The Commissioners’ decision in the upcoming appeals review will be similarly flawed, if based on such an incomplete and inaccurate record.

In its current incomplete state, the Final Investigative Report (FIR) does not meet the standards established by 24 CFR 103.230(a) and by Section (1)(E)(4) of Attachment A, Criteria for Processing, of ICRC’s Cooperative Agreement with HUD. However, according to 24 CFR 103.230(b), the FIR can be amended at any time.

To avoid providing the Commissioners with an incomplete and erroneous case file, I suggest that the time scheduled on the Commissioners’ docket for the appeals review on this case be used instead for consideration of an Order by Default based on the Respondents’ failure to defend. That will allow ICRC time to review the records they are maintaining relevant to this case and to correct the case file, FIR and TEAPOTS by including the missing documents in the record.

If ICRC prefers to go forward with the appeals process without taking this opportunity to correct the record, I can provide the Commissioners with a copy of this memo (and all relevant documents in my control) as part of my materials to be submitted for the appeals review.

[Notes on the list below: This list covers the time period from April 18 (HUD referral of the case to ICRC) and October 10 (Notice of Finding). ‘TOC’ refers to the Table of Contents sent to me in the packet containing the copy of the case file. All dates are 2007 unless otherwise indicated.]

A. Documents Omitted from Case File and FIR

  1. April 20 – May 4 (10-day response time) — No evidence exists of Respondent’s signed, sworn ‘answer to complaint’ as required by 24 CFR 103.203(a) and by 910 IAC 2-6-2 (i), (j) and (l); lack of response is deemed ‘failure to defend’ and should lead to an ‘Order by Default’ by the Commission. (See Deputy Director’s April 20 letter to Respondents.)
  2. May 16 – Letter from Complainant’s attorney – cover letter for packet containing signed complaint, Amended Complaint, etc. Attorney’s cover letter not in case file or FIR, should be considered substantive portion of complaint. Materials sent with complaint include (1) Respondent’s March 19 letter stating that failure to sign attached 5-page service animal contract (plus Permit) within 5 days “shall constitute a default permitting termination of the Lease Agreement.”; (2) Complainant’s April 23 2007 and August 8 2006 letters responding to service animal contracts.
  3. June 15 – Complainant responds to defenses raised by Investigator by quoting HUD Handbook 4350.3 2-44E (damages) and both HUD Directive 01-2 and HUD MultiFamily Mailbox (standard lease requirements govern service animals)
  4. June 17 – Complainant replies to Respondent’s June 7 letter (item B. 3. below). Complainant describes Respondent’s explicit requirement of two additional contracts as evidence of a ‘pattern and practice’ of imposing ‘conditions on residency’ for disabled tenants who require reasonable accommodation (service animal).
  5. June 26 – ‘Cover letter’ email with attachments (6/15, 6/17, and 6/26.) documenting 6/26 phone call re: conciliation, damages/liability, and bases for complaint. All three attachments have beenomitted from case file, FIR, and TEAPOTS.
  6. July 22 – memo in response to ‘100-day’ letter, expressing Complainant’s intent to pursue case diligently and to provide any needed information.
  7. July 24 – Pursuant to July 24 phone call (item C.5. below), Complainant requested opportunity to submit second Amended Complaint.
  8. July 27 – 30 email exchange with Investigator’s Supervisor, discussing proposed Amended Complaint; Supervisor sets a two-week deadline for second Amended Complaint.
  9. August 15 – Complainant requested that ICRC’s Deputy Director send information on the ADR (conciliation) process that had been omitted from the April 20 packet containing her complaint form.
  10. August 22 – Complainant’s memo citing HUD ALJ case ‘Sec v Country Manor’ as precedent supporting her complaint and her assertion that service animal contracts are direct ‘prima facie’ evidence of discrimination.

B. Documents in Case File but Omitted from FIR and TEAPOTS

  1. May 16 – Complainant’s Amended Complaint – in case file but not referred to in FIR or TEAPOTS; should be considered as having been received with original signed complaint.
  2. July 20 – Complainant’s July 2006 booklet of excerpts re: service animals from authoritative HUD documents; faxed by attorney
  3. June 7 – Ten-page fax containing Respondent’s letter stating ‘clerical error’ defense (‘obsolete’ contract delivered to Complainant). Respondent acknowledges: (1) Complainant’s rights to service animal; (2) Complainant’s animal is not, and has not been a nuisance or threat “to-date”( i.e., nearly seven years of residency). Letter is basis for Investigator’s 6/8 call to Complainant’s attorney (item C.2. below). Respondent states that all tenants with service animals are required to sign two service animal contracts. Fax packet contains (fax pg 10) Complainant’s May 18 reply to Henderson Court re: service animal contracts.
  4. August 8 – letter from Complainant’s attorney in response to Respondent’s June 7 letter stating that service animal contracts introduce new bases for termination and have not been approved by HUD. Accompanied second Amended Complaint. Omitted from FIR and TEAPOTS.
  5. August 8 – Complainant’s second Amended Complaint composed of 2-page letter and 7-page attachment prepared in answer to Investigator’s 7/24 questions. Should be considered as having been received with original signed complaint. Omitted from FIR and TEAPOTS.

C. Other Contacts Omitted from Case File and FIR

  1. May 1 – second phone call between Complainant and Investigator; Complainant will file an Amended Complaint.
  2. May 8 – phone call between Investigator and Complainant’s attorney re: Documents faxed to Investigator by Respondent (item B. 3. above) Investigator informs attorney that Respondent wants to replace 5-page contract with 2-page contract, raises questions re:safety of other tenants.
  3. May 15 – phone call between Complainant and Investigator; Complainant declined engagement in conciliation
  4. June 26 – phone call between Complainant and Investigator. Investigator pressed Complainant to engage in conciliation, raised questions of damages/liability, agreed that Complainant should email 6/15 and 6/17 memos; Complainant called 6/27 to confirm receipt.
  5. July 24 – phone call between Complainant and Investigator pursuant to ‘100-day’ letter. Complainant asks what additional information is needed. Investigator raises questions re: damages/liability, bases of complaint, agrees to Complainant’s offer to write a second Amended Complaint.
  6. July 25 – Investigator called Respondent requesting copies of signed service animal agreements (see Respondent’s July 25 fax cover letter)

D. Documents Listed in TOC but Not Identifiable in Case File

  1. TOC Item B6: ‘Complainant’s Augmented Complaint Document’; Complainant did not write or submit a document with this title; Dec 3 search by ICRC staff member did not locate this document; entry made in TEAPOTS and FIR by Investigator.
  2. TOC Item C2: ‘Respondent: Position Statement’; Complainant’s copy of case file did not contain a document fitting this description; Dec 3 search by ICRC staff member did not locate this document. No corresponding entry in FIR or TEAPOTS.

E. Errors of Fact in FIR/TEAPOTS and Notice of Finding

  1. May 1 – phone interview between Complainant and Investigator. Two errors of fact introduced into FIR and TEAPOTS. (1) Investigator incorrectly reports “Complainant reports the apartments have new management; however, old management knew of her disability and cat and had no problem with it. The problems began once the new management came.”. Facts re: 2006 events can be found in the Complainant’s documents of August 8 2006 (TOC item B3), May 16 2007 (TOC item B1), June 17 2007, June 26 2007. (2) This entry also misrepresents Complainant’s basis for complaint as concern about more frequent inspections, when the actual bases for the complaint are: discrimination in terms and conditions of rental due (a) to handicap and (b) to exercise of right to reasonable accommodation; coercion (using threat of eviction to coerce acceptance of discriminatory terms); interference, and ‘pattern and practice’ of interference, with right to reasonable accommodation; (see Complainant’s documents of May 16, June 17, June 26, July 24, August 8, and August 22.)
  2. ‘Respondent’s Defenses’ in FIR/TEAPOTS — There is no evidentiary basis for this entry in FIR/TEAPOTS. No evidence exists that Respondents filed legally valid defenses (valid defense is signed, sworn ‘answer to complaint’ as defined by 24 CFR 103.203(a) and by 910 IAC 2-6-2 (i), (j) and (l). See item A.1. above). Respondents failed to defend.
  3. TOC item C1 – ‘Respondent: ICRC Questionnaire’; Complainant’s copy of case file contains a blank questionnaire, indicating a lack of required response by Respondents. Not referenced in FIR or TEAPOTS.
  4. Oct 10 – Notice of Finding erroneously states that case was filed with ICRC; complaint was reported to HUD/HFEO Chicago office March 22, filed by HUD April 17, referred to ICRC April 18. Information is correct in TEAPOTS.
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