In re Accusation of Department of Fair Employment and Housing, 020211 CAFEHC, H200809-W-0185-00-p
|Docket Nº:||H200809-W-0185-00-p, H200809-W-0185-01-p, H200809-W-0185-02-p, H200809-W-0185-04-p, C 09-10-058|
|Opinion Judge:||Joan Herrington, Administrative Law Judge.|
|Party Name:||In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. BELFORT ARMS APARTMENTS, INCORPORATED, a suspended California Corporation, as Owner; BELFORT ARMS APARTMENTS; DEBBIE GIBBS, as a Managing Agent and as an Individual; CAMERON RAZAVI, also known as KAMBIZ RAZAVI and CAMERON RAZEVI, as an Owner and as an Individual, Re|
|Case Date:||February 02, 2011|
|Court:||Fair Employment and Housing Commission of California|
The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.
The Commission, nunc pro tune , makes the following typographical corrections to the proposed decision: at page 17, paragraph 3, the text is amended by inserting " revoking" to read " Gibbs's and Razavi's contention that revoking the locked elevator policy ..." ; at page 21, paragraph 1 is amended from " ... loss of self-esteem that she experience ..." to read " ... loss of self-esteem that she experienced ..." , and at page 24, paragraph 3, the text is amended by inserting " Tisha DeSantis" to read " ... pay complainant Tisha DeSantis ..."
Any party adversely affected by this decision may seek judicial review of the decision under Government Code sections 11523 and 12987.1, Code of Civil Procedure section 1094.5, and California Code of Regulations, title 2, section 7437. Any petition for judicial review and related papers shall be served on the Department, the Commission, respondents, and complainant.
Fair Employment and Housing Commission
Administrative Law Judge Joan Herrington heard this matter on behalf of the Fair Employment and Housing Commission on August 17 to 18, 2010, and on September 21, 2010, in Sacramento, California. Megan Elsea, Staff Counsel, represented the Department of Fair Employment and Housing. A representative of Belfort Arms Apartments, Incorporated did not appear at the hearing, while respondents Cameron Razavi and Debra Gibbs appeared in pro per at the hearing. Complainant Tisha DeSantis attended throughout the hearing.
After the conclusion of the evidentiary hearing, the Department of Fair Employment and Housing and respondent Razavi made oral closing arguments. The Department of Fair Employment and Housing and respondents Razavi and Gibbs agreed not to file closing briefs. After receipt of the hearing transcripts on October 7, 2010, the matter was deemed submitted. (Cal. Code Regs., tit. 2, § 7432, subd. (b).)
After consideration of the entire record, the administrative law judge makes the following findings of fact, determination of issues, and order.
FINDINGS OF FACT
1. On June 9, 2009, Tisha DeSantis (DeSantis or complainant) filed written, verified complaints with the Department of Fair Employment and Housing (DFEH) against Belfort Arms Apartments; Belfort Arms, Inc., as an owner; and Debbie Gibbs, as a manager. In the complaints, DeSantis alleged that, within the preceding year, respondents Belfort Arms Apartments, Belfort Arms, Inc. and Gibbs failed to accommodate complainant's disability (mobility limitations) by denying her an elevator key to access her housing accommodation, in violation of the Fair Employment and Housing Act (the Act or FEHA). (Gov. Code, § 12900, et seq.)
2. On May 19, 2010, Tisha DeSantis filed written, verified complaints with the DFEH against Christina R. Suh (a.k.a. Christina Razavishu, Christina Uh, and Christina Suh), Cameron Razavi (a.k.a. Kambiz Razavi and Cameron Razevi), and Mojgan Nematollahi, as individuals. In these complaints, DeSantis alleged that, within the preceding year, respondents Suh, Razavi, and Nematollahi failed to accommodate complainant's disability (mobility limitations) by denying her an elevator key to access her housing accommodation, in violation of the FEHA.
3. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On May 26, 2010, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against Belfort Arms Apartments, Incorporated (BAA or the corporation), a suspended California corporation; Debbie Gibbs; Cameron Razavi; Christina R. Suh; and Mojgan Nematollahi; alleging that each was an " owner" within the meaning of Government Code sections 12927, subdivision (e), and 12955, subdivision (a), and a " person" within the meaning of Government Code sections 12927, subdivision (f), and 12955, subdivision (d).
4. In its accusation, the DFEH alleged that, commencing in January 2008, respondents discriminated against DeSantis based on her physical disabilities (mobility limitations from foot and lumbar spine injuries, and chronic pain at multiple sites) by refusing her reasonable accommodation of using the elevator at Belfort Arms Apartments to go to and from her third-floor apartment. The DFEH alleged that respondents' conduct violated Government Code section 12955, subdivision (a), and Civil Code section 51, the Unruh Civil Rights Act (Unruh Act), as incorporated into FEHA at Government Code section 12955, subdivision (d).
5. On May 26, 2010, the DFEH served the accusation and the accusation package by certified mail addressed to Cameron Razavi, both individually and as agent for service for BAA, at 60 Baccharis Place, Tiburon, California, 94920. Christina Suh, who has resided with Razavi for 20 years, acknowledged receipt of these documents by signing the certified mail return receipts.
6. On June 28, 2010, the DFEH served the Notice of Hearing in this case by certified mail addressed to Cameron Razavi, both individually and as agent for service for Belfort Arms Apartments, Incorporated, at 60 Baccharis Place, Tiburon, California, 94920.
7. On August 3, 2010, the DFEH filed a Notice of Withdrawal of Accusation for respondents Christina R. Suh and Mojgan Nematollahi.
8. On August 6, 2010, the DFEH moved for leave to amend the accusation to include the allegation that complainant had requested relocation to a ground floor apartment in February 2008 as an alternative form of reasonable accommodation. Leave to amend was tentatively granted, subject to respondents' further argument at the time of hearing.
9. On August 17, 2010, the first day of the hearing, respondents Gibbs and Razavi did not offer any further authority or argument in support of their opposition to the DFEH's motion for leave to amend. Further, Gibbs acknowledged notice of complainant's request for relocation in 2009. The undersigned administrative law judge granted leave to amend the accusation.
10. On August 24, 2010, the DFEH filed a First Amended Accusation adding the allegation that complainant had requested relocation to a ground floor apartment in February 2008 as an alternative form of accommodation, specifying the date on which complainant reminded Gibbs that she had provided medical documentation supporting her need for an elevator key, correcting grammatical and citation errors, and removing references to dismissed respondents Christina R. Suh and Mojgan Nematollahi, but otherwise realleging the allegations set forth in the original accusation. That same day, the DFEH served the First Amended Accusation, the accusation package, and Notice of Continued Hearing by certified mail addressed to Cameron Razavi, both individually and as agent for service for BAA, at 60 Baccharis Place, Tiburon, California 94920.
11. At all relevant times, Belfort Arms Apartments (Belfort Arms) was a three-story, 60-unit apartment complex located at 3541 Whitney Avenue, Sacramento, California. Belfort Arms was a " housing accommodation" within the meaning of Government Code sections 12927, subdivision (d), and 12955, subdivisions (a) and (d). Belfort Arms was also a " business establishment" within the meaning of the Unruh Act, as incorporated into FEHA at Government Code sections 12948 and 12955, subdivision (d).
12. In 2000, Razavi hired Gibbs to manage Belfort Arms. Gibbs worked from 9 a.m. to 5 p.m. in the office located in the lobby of Belfort Arms, and was also the resident manager of another apartment complex, Twin Gardens.
13. As part of her duties as manager of Belfort Arms, Gibbs showed prospective tenants available apartments, took requests for apartments and notified the applicant when an apartment became available, participated in the eviction of tenants, supervised the resident night manager/maintenance worker, James McClain, and organized any necessary repairs. Gibbs reported to Razavi by telephone several times each week regarding any issues at Belfort Arms. Although Razavi delegated most decision-making authority to Gibbs's discretion, he participated in some decisions regarding the management of Belfort Arms, such as evictions and costly repairs and maintenance.
14. On September 27, 2001, Nami Moshiri filed the Articles of Incorporation for BAA with the California Secretary of State, identifying Suh as its sole officer, and its 100,000 shares as common shares.
15. On November 2, 2001, Suh recorded a grant deed that transferred Belfort Arms Apartments from herself, as an individual, to BAA. Belfort Arms was BAA's sole asset. At a time unspecified in the record, BAA opened a bank account, and paid Gibbs's salary and suppliers of goods and services rendered to Belfort Arms with checks drawn on this account. BAA issued Gibbs's W2s.
16. On September 1...
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