In re Accusation of Department of Fair Employment and Housing, 121812 CAFEHC, H-201011-Q-0101-00-ph

Docket Nº:H-201011-Q-0101-00-ph, C 11-12-010, 12-09
Opinion Judge:Caroline L. Hunt, Administrative Law Judge
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. J.W. SILVEIRA, Owner; and BARBARA SILVEIRA, Owner, individually and doing business as J.W. SILVEIRA CO., a sole proprietorship, Respondents. JEANNETTE ROGERS ROSS, Complainant.
Case Date:December 18, 2012
Court:Fair Employment and Housing Commission of California
 
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In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

v.

J.W. SILVEIRA, Owner; and BARBARA SILVEIRA, Owner, individually and doing business as J.W. SILVEIRA CO., a sole proprietorship, Respondents.

JEANNETTE ROGERS ROSS, Complainant.

Nos. H-201011-Q-0101-00-ph, C 11-12-010, 12-09

Fair Employment and Housing Commission of California

December 18, 2012

FINAL DECISION

Caroline L. Hunt, Administrative Law Judge

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.

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, respondents, and complainant.

Fair Employment and Housing Commission

Stuart Leviton

Chané e Franklin Minor

Danielle Nava

CONCURRENCE

While I concur in the Order to dismiss the accusation, I believe that the discussion regarding the interactive process should have more closely followed the guidance provided in the Commission's new disability employment discrimination regulations.

Dale Brodsky

PROPOSED DECISION

Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commissionon April 24 and May 15 to 16, 2012, in Oakland, California. Lindsey A. Urbina, Senior Staff Counsel, represented the Department of Fair Employment and Housing. John H. Patton, Esq., of Patton, Martin & Sullivan, LLC, represented respondents J.W. and Barbara Silveira, dba J.W. Silveira Co. Complainant Jeannette Rogers attended throughout the hearing. Nelson Chan, Chief Counsel, Department of Fair Employment and Housing, attended part of the proceedings on the first day of hearing. Respondents' representative, Marsha Norton, attended days two and three of the hearing.

After conclusion of the evidentiary hearing and receipt of the hearing transcripts, the parties' post-hearing briefs were timely filed, the last of which was received on August 20, 2012, and the matter was deemed submitted.

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 October 7, 2010, Jeannette Rogers Ross (Rogers or complainant) filed a housing discrimination complaint with the Department of Housing and Urban Development (HUD). On October 25, 2010, the complaint was filed with the Department of Fair Employment and Housing (DFEH). In her complaint, Rogers alleged that, in the preceding year, J.W. and Barbara Silveira, Owner/Management Company, refused to allow her to keep a companion animal that had been prescribed by her doctor as a reasonable accommodation for her disabilities.

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On October 24, 2011, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against J.W. Silveira, Owner, Barbara O. Silveira, Owner, individually and doing business as J.W. Silveira Co., a sole proprietorship. In its accusation, the DFEH alleged that, commencing in July 2009, respondents violated the Fair Employment and Housing Act, Government Code section 12900, et seq. (the Act or FEHA) by refusing to allow Rogers to keep a companion animal in her apartment. The DFEH alleged that Rogers had both physical and mental disabilities (mobility limitations and depression) and that her doctor, Hiroshi Terashima, M.D., had advised her to get a companion animal to help her with her disabilities. The DFEH further alleged that, once respondents learned about the dog, they demanded that Rogers get rid of the dog or move out, and ultimately served her with a 60-Day Notice. The DFEH alleged that respondents' conduct violated Government Code section 12955, subdivisions (a), (c), (d), and (k), and Civil Code sections 51 (the Unruh Civil Rights Act) and 51.2. 1

3. Barbara Silveira died prior to the commencement of the hearing. On April 24, 2012, the first day of hearing, DFEH dismissed the accusation as against her. 2

4. At all times relevant, J.W. Silveira Company was in the business of owning, renting, and managing over 200 commercial and residential real estate buildings, including numerous residential rental apartment buildings, in Oakland and other California cities. J.W. Silveira was the principal and owner of J.W. Silveira Company, a sole proprietorship, which maintained an office at 499 Embarcadero, Oakland, California. J.W. Silveira was married to Barbara O. Silveira. Since September 2007, Marsha Norton was the business manager for J.W. Silveira Company, charged with overseeing the rental properties.

5. One of the apartment buildings owned by J.W. Silveira Company was located at 285 Fairmount Avenue, Oakland, California (285 Fairmount). The apartment complex had 21 rental units and qualified as a " business establishment, " within the meaning of Civil Code section 51, subdivision (b).

Complainant's Relevant Medical History

6. Complainant's doctor, Hiroshi Terashima, M.D., was a general internist at Oakland Medical Group, Inc., 424 28th Street, Oakland. Dr. Terashima had been complainant's primary care physician for over 15 years.

7. In a car accident two decades ago, complainant sustained injuries to her back and neck. Since the late 1990's, Dr. Terashima treated complainant for her back and neck pain, diagnosing her with degenerative disc disease.

8. In about 2001, Dr. Terashima prescribed anti-depressant medication for complainant, after the death of her father. Complainant did not continue with the medication after 2001.

9. From 2007 to 2009, the time period at issue in this case, Dr. Terashima treated complainant for her back and neck pain resulting from her degenerative disc disease. Complainant experienced bouts of pain, which at times interfered with her ability to walk and go to work. Up to the date of the hearing, complainant took valium and ibuprofen to control the pain. In that same relevant time period, 2007 to 2009, Dr. Terashima did not diagnose or treat complainant for any symptoms of depression, nor did he refer her for therapy or counseling.

Complainant's Tenancy at 285 Fairmount

10. In April 1989, complainant Rogers moved into an unfurnished, one bedroom apartment at the 285 Fairmount apartments, apartment number 101, having signed a written lease agreement, under her name at the time, Jeannette Ross. The monthly rent was $425, with a $575 security deposit and a $15 key deposit. Under the terms of the lease, gas, garbage, and water were paid for by the landlord.

11. The lease for Rogers' apartment included a clause which read,

No birds, animals, or other pets shall be kept on the premises without the knowledge and written consent of the Landlord: any consent, so given may be withdrawn, if, in the opinion of the Landlord, such bird, animal, or other pet constitutes a nuisance, cause [sic] complaint from neighbors, or adversely affects the normal maintenance of the property.

12. Starting in the late 1990s, Rogers' parents lived nearby in Oakland, at 1833 Chestnut Street, up until complainant's father's death in 2001. In about 2003, complainant's mother, Clara Rodgers, 3 got a dog, a miniature pinscher (" min pin"), called " Ra." After the death of complainant's sister in 2005, Roger Rogers, their brother, drafted a letter for their mother so that she could travel by airplane...

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