Opinion
DOCKET NO. A-1480-12T3
08-01-2014
DIANNA QUAMINA, Appellant, v. STELLA GARDENS APARTMENTS, Respondent.
Taylor R. Ward, attorney for appellant. Jeffrey R. Kuschner, attorney for respondent Stella Gardens Apartments (Mr. Kuschner and Steven J. Zweig, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Haas. On appeal from the New Jersey Division on Civil Rights, Department of Law and Public Safety, Docket No. HG14HW-62790. Taylor R. Ward, attorney for appellant. Jeffrey R. Kuschner, attorney for respondent Stella Gardens Apartments (Mr. Kuschner and Steven J. Zweig, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the brief). PER CURIAM
Pursuant to N.J.S.A. 10:5-21, plaintiff Dianna Quamina appeals from two October 18, 2012 letters of the New Jersey Division on Civil Rights (the DCR), and a September 28, 2012 finding of no probable cause issued by the Director of the DCR. The DCR's final decision stated that it had found no probable cause for Quamina's claim of disability discrimination by her former landlord, defendant Stella Gardens Apartments, and that the DCR was closing its file on her administrative complaint. Because of a procedural impropriety in the DCR's administering of the complaint, we remand to the DCR to permit Quamina to withdraw her complaint and, in the event that she does so, we direct the DCR to vacate its finding of no probable cause.
On February 16, 2012, Quamina signed and filed a complaint with the DCR alleging that defendant Stella Gardens Apartments failed to provide reasonable housing to accommodate her disability, in violation of N.J.S.A. 10:5-4. The complaint also declared that Quamina had not instituted a court action regarding the matter.
The DCR conducted an investigation, which developed certain undisputed facts, but the parties' appellate briefs hotly dispute other facts that are relevant to the disposition of the appeal.
Quamina was a resident at the Prince 2004 apartments, one of three adjacent apartment complexes in Newark known as Stella Gardens Apartments. Some of the apartments in the three sections are subsidized by the federal government. Quamina and her son moved into an upstairs, three-bedroom apartment in October 2005. Their apartment was not subsidized by the federal government, but Quamina received rental assistance from a State agency because she had been displaced from her prior apartment in Irvington. When her State subsidy ended after three-and-a-half years, Quamina became responsible to pay the entire rent, which was $1,254 at the time of the DCR's investigation in 2012.
Quamina has difficulty ascending and descending stairs because of long-term medical ailments — dislocated lower back discs, a right knee replacement, and foot reconstruction surgery. She has medical documents to verify her conditions. Defendant does not deny Quamina's disability.
According to Quamina's appellate brief, she began requesting a ground-floor apartment from defendant in 2005, but defendant did not accommodate her disability. The DCR's appellate brief, however, contends that Quamina requested a ground floor apartment in the fall of 2011. The DCR relies on Quamina's complaint, which alleges that defendant failed to accommodate her request for a ground-floor apartment as of October 1, 2011.
In the course of the investigation, defendant asserted that no multi-bedroom first-floor apartment was available when Quamina requested a transfer, and she was placed on a waiting list. Quamina asserts she was willing to take a ground-floor apartment of any size, and that she never demanded a two-bedroom apartment. Defendant and the DCR respond that, because Quamina lived with her sixteen-year-old son and requested a subsidized apartment, she was not eligible for a one-bedroom apartment.
Through discussions with the parties, the DCR attempted to resolve the dispute amicably. In June 2012, a subsidized two-bedroom, first-floor apartment became available, and defendant offered it to Quamina. Defendant claims that Quamina did not respond to its offer, and the apartment subsequently became unavailable because others were in need of housing. Quamina denies that she declined the apartment. She claims that defendant's manager refused to sign off on her application for rental subsidy because, in the meantime, a dispute arose between the parties regarding whether she was in arrears on rent.
Defendant claims that Quamina failed to pay her monthly rent in June 2012. Defendant filed a complaint for eviction in early August, and Quamina was evicted from her apartment in September 2012 by the landlord-tenant court, which determined that Quamina was $3,844 in arrears on her rent. Quamina claims that she attempted to pay the June rent on June 5, 2012, by means of three money orders totaling $1,298, but someone returned the money orders under her door. Quamina provides no further information regarding why she was not able to defend the eviction action in the landlord-tenant court.
Defendant's records indicate an additional charge of $44 added to Quamina's monthly rent of $1,254. The precise amount owed in June is not relevant to the issues on appeal.
On September 28, 2012, the DCR concluded its investigation and found no probable cause for Quamina's complaint alleging disability discrimination. The DCR concluded that a ground-floor apartment was not available when Quamina requested one and that defendant had accommodated her request by placing her on a waiting list and subsequently offering an apartment that became available. The DCR informed Quamina of the no probable cause finding and that it was closing the file on October 18, 2012.
During the course of the appeal before us, the DCR determined that Quamina's complaint had not been administered in accordance with all statutory requirements. Specifically, the DCR had not advised Quamina of her right to bring a court action instead of pursuing administrative remedies before the DCR, as required by N.J.S.A. 10:5-13. That statute provides that, upon receiving a discrimination complaint, the DCR:
shall notify the complainant on a form promulgated by the director of the [DCR] and approved by the Attorney General of the complainant's rights under this act, including the right to file a complaint in
the Superior Court to be heard before a jury; of the jurisdictional limitations of the [DCR]; and any other provisions of this act, without interpretation, that may apply to the complaint.
[Ibid.]
The DCR admitted it had not provided Quamina with its form notice entitled "Your Filing Rights" while the investigation was pending. The DCR moved before us to remand the matter so that it could rescind the finding of no probable cause and allow Quamina to pursue a court action. Defendant opposed the motion on the ground that Quamina knew she had a right to bring a court action but had not done so before the DCR concluded its investigation unfavorably to her. On August 29, 2013, we issued an order remanding the matter to the DCR for the purpose of determining whether Quamina was informed of her right to file an action in State Superior Court or had such knowledge from an independent source.
After our remand, the DCR submitted certifications from Quamina, the DCR investigator, and the Manager of the DCR's Housing Unit. In her certification, Quamina stated she did not learn she could file a court action until she was so advised by her private attorney in July 2013. The DCR investigator and manager had limited memory of the events and did not make any definite statements or produce documents to show that Quamina was provided the notice of rights or otherwise was aware of those rights. The investigator said he believed plaintiff had mentioned her intention to retain counsel and file a civil court action during the spring of 2012.
On December 5, 2013, the DCR filed a Supplemental Agency Finding on Remand, which stated that the results of the investigation into Quamina's knowledge of her filing rights were inconclusive. Because of the limited scope of the remand, the Director of the DCR did not take any action to vacate the finding of no probable cause.
The New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, prohibits discrimination in housing accommodation based on disability. N.J.S.A. 10:5-4. An aggrieved person has the option of seeking redress by filing a complaint in court to initiate a lawsuit or by filing an administrative charge of discrimination with the DCR. N.J.S.A. 10:5-13; Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652 (1996). A charge of discrimination with the DCR will not provide the same range of remedies as a lawsuit in the Superior Court, see Maczik v. Gilford Park Yacht Club, 271 N.J. Super. 439, 452-53 (App. Div.), certif. denied, 138 N.J. 263 (1994), but it may achieve faster results and be less expensive than a lawsuit, Wilson v. Wal-Mart Stores, 158 N.J. 263, 269-70 (1999); Sprague v. Glassboro State Coll., 161 N.J. Super. 218, 226 (App. Div. 1978).
The LAD, however, does not permit an aggrieved person to pursue remedies both before the DCR and in court. The election of remedies and exclusivity provision of the LAD states that the statutory administrative "procedure . . . shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned." N.J.S.A. 10:5-27. Thus, the filing of an administrative charge of discrimination before the DCR is an exclusive election of potential remedies that bars the filing of a lawsuit based on the same claims. Ibid.; Hernandez, supra, 146 N.J. at 652, 656.
Although a complainant may withdraw a DCR charge and pursue judicial remedies instead, Aldrich v. Manpower Temp. Servs., 277 N.J. Super. 500, 505 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995), the complainant may "switch forums only before a final determination has been rendered." Hernandez, supra, 146 N.J. at 656; accord Wilson, supra, 158 N.J. at 270.
An additional alternative for the complainant, after 180 days have passed from the date a DCR complaint was filed, is to pursue administrative remedies personally through a hearing before an Administrative Law Judge. N.J.S.A. 10:5-13. Like a court action, however, the complainant may not pursue administrative remedies privately once the DCR has made a no probable cause finding. Ibid.
In this case, because the DCR issued a final determination of no probable cause, Quamina may not file a lawsuit in State court alleging discrimination by defendant or pursue her administrative complaint with the aid of her privately retained attorney. Quamina's recourse from the adverse decision of the DCR was a right to appeal its final determination pursuant to N.J.S.A. 10:5-21, which Quamina has done.
On appeal before us, Quamina contends the DCR investigation was mishandled and the investigator was biased in favor of defendant. She requests that we vacate the finding of no probable cause and permit her to pursue a court action or an administrative hearing with the aid of private counsel. Defendant and the DCR contend there is ample evidential support for the finding of no probable cause. Defendant also repeats its contention that Quamina knew she had a right to pursue a court action instead of administrative remedies through the DCR because she was represented by Essex-Newark Legal Services during the DCR investigation and she told the investigator she intended to pursue court action. Defendant urges us not to require it to defend a complaint that lacks merit a second time.
We find defendant's proofs of Quamina's knowledge to be too tenuous for us to conclude that she was independently aware of her rights to bring a court action or pursue administrative remedies privately. Her alleged comment to the investigator was vague, and the two letters in our record on her behalf from a paralegal at Essex-Newark Legal Services do not demonstrate that she was aware of her right to pursue alternative judicial remedies.
Because the DCR admits its procedural error in failing to provide notice of Quamina's rights when she filed her complaint, the most equitable remedy is to place the parties back at the point where such notice should have been given. Quamina is now aware of her rights.
We remand the matter to the DCR to permit Quamina to withdraw her DCR complaint or to seek a hearing before an Administrative Law Judge with the aid of her privately retained counsel. If she does so, the DCR shall vacate its finding of no probable cause. If she does not file such a request with the DCR within thirty days of this decision, the finding of no probable cause shall stand.
We make no criticism of the merits of the DCR's finding of no probable cause. We do not determine here that the DCR did not conduct a proper investigation, that its investigator was biased, that defendant failed to accommodate Quamina's disability, or that defendant evicted Quamina in retaliation for her filing a discrimination complaint. With respect to that last allegation, we note that Quamina's tenancy matter was adjudicated in the landlord-tenant court, where she presumably had the opportunity to present her proofs that she tendered timely payment of her June rent. We merely stay the final decision of the DCR for thirty days and restore the parties to their status before the time of the final decision to correct the conceded procedural error in the proceedings.
Remanded to the Division on Civil Rights. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION