Opinion
DOCKET NO. A-0213-11T3
03-11-2013
BILAL WHITEST, Appellant, v. PENWAL MANAGEMENT, and PARAMUS AFFORDABLE HOUSING, Respondents.
Bilal Whitest, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beverley A. Lapsley, Deputy Attorney General, on the brief). Law Offices of John L. Schettino, L.L.C., attorney for respondents Penwal Management and Paramus Affordable Housing (Louis M. Flora, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Department of Law and Public Safety, Division of Civil Rights, Docket No. HB60RW-62211.
Bilal Whitest, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beverley A. Lapsley, Deputy Attorney General, on the brief).
Law Offices of John L. Schettino, L.L.C., attorney for respondents Penwal Management and Paramus Affordable Housing (Louis M. Flora, on the brief). PER CURIAM
Appellant, an African-American tenant of a multi-unit apartment building, appeals from an August 1, 2011 final agency determination by the Acting Director of the New Jersey Division of Civil Rights (Division) finding no probable cause to substantiate his allegations that Paramus Affordable Housing (PAH) and Penwal Management (PM) engaged in housing discrimination, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm.
PAH owns a forty-six unit apartment building. PM manages the apartment complex. In 2006, appellant leased an apartment from PAH for $1037 per month. Appellant qualified for public assistance and received a Section 8 voucher which paid PAH $934 per month.
In March 2011, appellant filed a complaint with the United States Department of Housing and Urban Development (HUD). Appellant attached to the complaint a March 29, 2011 letter outlining various incidents which he contended constituted housing discrimination based on his race and Section 8 status. In April 2011, HUD forwarded appellant's complaint to the Division for an investigation and resolution.
In May 2011, appellant filed with the Division a verified complaint against defendants. He alleged that PAH and PM subjected him to differential treatment because he is African-American and a Section 8 recipient, as prohibited by N.J.S.A. 10:5-12(g)(2) of the LAD. In his verified complaint, he asserted that Marge Knudsen, an assistant manager for PAH, "asked him questions about his rent subsidy in a loud voice and in the presence of other tenants." The Division then undertook the investigation.
The incidents appellant referenced in his March 2011 letter were time-barred by N.J.A.C. 13:4-2.5 (imposing a 180-day limitations period to file a complaint with the Division) and 24 C.F.R. § 103.35 (2013) (establishing a one-year time limitation for filing a complaint with the HUD).
The Division's investigator interviewed four people who witnessed the incident involving Knudsen: appellant, Knudsen, Linda Marrero (a PAH receptionist), and Ronisha Vannoy (an African-American tenant). Appellant and Knudsen also submitted written statements.
Appellant indicated that on March 31, 2011, he accompanied Vannoy to PAH's office and asked Knudsen if she received his monthly rental payment. He asserted that Knudsen checked her records and stated in a loud voice, in the presence of Vannoy and Marrero, "check number 134 in the amount of $127.00 cleared his account." Appellant maintained that Knudsen's response "had the effect of informing [those present] that [he] was a rent subsidy recipient."
In May 2011, Vannoy filed an unrelated complaint against defendants.
Knudsen remembered the incident differently. She stated that she did not announce the amount of the check. Knudsen explained that she brought appellant into a conference room where the rent records are located, showed him a copy of his rental check, and verified that PAH received it. Vannoy verified that Knudsen met with appellant in the back room. Marrero corroborated Knudsen's statements to the investigator.
During the investigation, appellant informed the investigator about an incident, not referenced in his verified complaint, involving Todd Babcock, PAH's superintendent. Appellant asserted that Babcock disclosed appellant's personal information about his rent subsidy to other tenants. Appellant indicated to the investigator that he and Babcock were friendly and socialized together until Babcock made an offensive remark about appellant's wife. Babcock prepared a written statement and denied treating appellant differently, and he maintained that he had no knowledge of appellant's Section 8 status.
The investigator issued a written report, recommended that appellant's case be closed, and stated that
[the i]nformation obtained during the investigation was shared with [appellant]. [He] was offered the opportunity to rebut this information, but [he] did not provide any additional relevant evidence or information which refuted [PAH and PM's] position.The Division then determined "that there is no probable cause to credit [appellant's] allegations," and closed appellant's case. This appeal followed.
. . . .
[T]he investigation did not substantiate [appellant's] claim that [PAH and PM] subjected him to differential treatment and harassment because of his race and/or rent subsidy. During the investigation, [appellant] raised only one incident which
occurred within the statute of limitations of the Division and HUD. Based on the evidence collected during the Division's investigation, the incident did not constitute differential treatment or harassment, and was unrelated to [appellant's] race and/or rent subsidy.
On appeal, appellant argues that the Division performed an inadequate investigation. He contends that the Division failed to question other African-American tenants "who received the same differential treatment and harassment based on race."
Appellant contends in his reply brief that he did not see various items contained in PAH and PM's statement of items comprising the record. We have focused on that part of the record the investigator considered during his investigation, which consists of appellant's March 2011 letter, and the statements from appellant, Vannoy, Knudsen, and Babcock.
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Our review of an administrative agency decision is limited. Clowes v. Terminex Int'l, Inc., 109 N.J. 575, 587 (1988). "The court must survey the record to determine whether there is sufficient credible competent evidence in the record to support the agency head's conclusions." Ibid. We must defer to a final agency decision unless it is arbitrary, capricious, unsupported by substantial, credible evidence in the record, or in violation of express or implicit legislative policy. In re Taylor, 158 N.J. 644, 656-57 (1999). If we find sufficient, credible evidence in the record to support the agency's conclusions, then we must affirm even if we would have reached a different result. Clowes, supra, 109 N.J. at 588.
The Legislature created the Division to administer and enforce the State's civil rights laws. See N.J.S.A. 10:5-6. The Division has recognized expertise in investigating and determining the presence or absence of violations of the LAD. See, e.g., Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 503-05 (App. Div.), certif. denied, 91 N.J. 573 (1982); Sprague v. Glassboro State Coll., 161 N.J. Super. 218, 225 (App. Div. 1978). By filing his complaint with the Division rather than with the Superior Court, appellant elected a forum in which his claims would be examined, taking advantage of the more expeditious administrative process. Hermann, supra, 183 N.J. Super. at 504. The agency's delegated functions include determining if there is probable cause "strong enough . . . to warrant a cautious person in the belief that the [LAD] has been violated." N.J.A.C. 13:4-10.2(b).
The investigation focused on appellant's allegation that PAH and PM subjected him to differential treatment when Knudsen answered appellant's question regarding whether PAH received his rent check. In determining whether there is probable cause, the Division must consider the nature and proof of the alleged LAD violation. Ibid. The court will sustain the Division's finding of probable cause where the differential treatment or discrimination is "fully supported by the record." Cf. Jackson v. Concord Co., 101 N.J. Super. 126, 130 (App. Div. 1968) (upholding the Division's finding of LAD violation by prospective tenant against apartment owners where court agreed with the Division that the tenant had been "subjected to all kinds" of differential treatment), modified on other grounds, 54 N.J. 113 (1969). Here, there is no documented proof that appellant suffered from differential treatment or adverse action as a result of the check incident.
We have carefully reviewed appellant's arguments and the controlling law and conclude that the record amply supports the Division's determination that there is no probable cause to substantiate the allegations in appellant's verified complaint. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION