Kitten v. Department of Workforce Development

• Decision Date: 24 May 2002
• Docket Number: No. 00-3562.,00-3562.
• Citation: 644 N.W.2d 649,252 Wis.2d 561,2002 WI 54
• Parties: Donald R. KITTEN, Plaintiff-Appellant-Petitioner, v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Defendant-Respondent.
• Court: Wisconsin Supreme Court

252 Wis.2d 561

2002 WI 54

644 N.W.2d 649

Donald R. KITTEN, Plaintiff-Appellant-Petitioner,¹ v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Defendant-Respondent.

No. 00-3562.

Supreme Court of Wisconsin.

Oral argument February 4, 2002.

Decided May 24, 2002.

For the plaintiff-appellant-petitioner there were briefs by Phil Elliott, Jr., and Elliott, Elliott & Staskunas, West Allis, and oral argument by Phil Elliott, Jr.

For the defendant-respondent the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

An amicus curiae brief was filed by Mary Dianne Greenley, Michael Bachhuber, and Monica Murphy, Madison, on behalf of the Wisconsin Coalition for Advocacy, Inc.

¶ 1. JON P. WILCOX, J.

In this case, we review a court of appeals decision, Kitten v. DWD, 2001 WI App 218, 247 Wis. 2d 661, 634 N.W.2d 583, which affirmed the administrative ruling of Department of Workforce Development (DWD) hearing examiner Alice E. DeLaO. The hearing examiner concluded that Donald R. Kitten had violated the Wisconsin Open Housing Act (WOHA), Wis. Stat. § 106.04 (1997-98)², when he discriminated against the complainant, Spencer Cenname, on the basis of a perceived disability.

¶ 2. Cenname sought to rent an apartment from Kitten. When Kitten found out that Cenname had previously been hospitalized for the eating disorder bulimia nervosa, Kitten became concerned that Cenname would either attempt suicide or be rehospitalized and therefore unable to pay the rent. As a result, Kitten sought an advance payment of six months' rent from Cenname.

¶ 3. Cenname filed a complaint with the Equal Rights Division of the DWD claiming that Kitten had discriminated against him on the basis of disability. The hearing examiner determined that there was not enough evidence to conclude that Cenname had an actual disability under the WOHA, but that there was sufficient evidence to show that Kitten regarded Cenname's eating disorder as one that substantially limited Cenname's major life functions. The hearing examiner concluded that this qualified as a disability under the WOHA because of the "regarded as" clause in the statutory definition of "disability," Wis. Stat. § 106.04(1m)(g). ¶ 4. On judicial appeal, both the Waukesha County Circuit Court, Donald J. Hassin, Judge, and the court of appeals affirmed the conclusions of the hearing examiner. On review, we agree, and hold that Kitten's perception of Cenname's impairment was sufficient to qualify as a "disability" under the "regarded as" provision of the WOHA. We therefore affirm the court of appeals and uphold the decision of the hearing examiner.

I

[1-4]

¶ 5. We begin by recounting the facts of the case. Because this is a review of an administrative hearing, we will uphold the hearing examiner's findings of fact as long as they are supported by substantial evidence in the record. Wis. Stat. § 227.57(6). The test is whether, taking into account all of the evidence in the record, "`reasonable minds could arrive at the same conclusion as the agency.'" RURAL v. PSC, 2000 WI 129, 239 Wis. 2d 660, 676, 619 N.W.2d 888 (quoting Madison Gas & Elec. Co. v. PSC, 109 Wis. 2d 127, 133, 325 N.W.2d 339 (1982)). The findings of an administrative agency do not even need to reflect a preponderance of the evidence as long as the agency's conclusions are reasonable. Chi. & N.W.R.R. v. LIRC, 98 Wis. 2d 592, 607-08, 297 N.W.2d 819 (1980). If the factual findings of the administrative body are reasonable, they will be upheld.

¶ 6. Although the parties do suggest that there are some factual disputes in this case, we think that the findings of the hearing examiner are reasonable and that they are supported by the evidence in the record. We therefore accept the following findings of fact, as made by the hearing examiner in this case. ¶ 7. On September 8, 1998, Cenname called Kitten to inquire about an apartment in Brookfield, which Kitten had advertised for rent. Kitten told Cenname that the apartment was expensive—$925 a month—and that Cenname "must have a pretty good job" to afford the rent. Cenname said he was not currently employed, but he could provide a financial statement showing he was able to pay the rent. Kitten noticed on his telephone caller identification device that Cenname's phone call had originated at the Rogers Memorial Hospital.³

¶ 8. Cenname met with Kitten the next day, viewed the rental property, and decided that he wanted to lease it. Cenname provided Kitten with a letter from his father detailing Cenname's financial status. Cenname's father was an executive with Merrill Lynch, who also served as Cenname's financial advisor. The letter showed Cenname's current account balances as in excess of $40,000 and noted that Cenname received an income of $3000 per month after taxes. The letter further stated that Cenname had maintained an account with Merrill Lynch for over 13 years, and that Cenname's credit card bills had always been paid promptly. Along with the letter, Cenname gave Kitten copies of his account statements, confirming that he had a balance of over $40,000 as of July 31, 1998. Cenname also provided the names and telephone numbers of several financial references, including a former landlord.

¶ 9. As they prepared the paperwork, Kitten asked Cenname where he lived. Cenname initially said that he was staying with friends. Kitten persisted in his questioning, however, and Cenname eventually admitted that he was living at Rogers Memorial Hospital, where he was in residential treatment for an eating disorder. Kitten and Cenname had a short discussion about the eating disorder, and Kitten mentioned that it looked like Cenname had not been eating enough.

¶ 10. Kitten reviewed the lease agreement with Cenname and pointed out that Cenname would be required to pay one month's rent in advance along with a $1000 security deposit. Kitten explained that any money paid on that day would be non-refundable in the event that Cenname decided not to lease the apartment. Kitten also went over several other provisions of the lease, including the fact that Kitten intended to run a credit check on Cenname before Kitten would sign the lease. When they finished reviewing the lease, Cenname wrote a check to Kitten for $1925 to cover the first month's rent and the security deposit. Cenname asked Kitten for a copy of the lease, and Kitten told Cenname that he would send a copy by mail.

¶ 11. On September 11, 1998, Kitten received a verbal credit report for Cenname. The report revealed that Cenname's credit history was sparse, but it did not show any negative information. The verbal report was confirmed by a written credit report, which Kitten received about three weeks later. Kitten cashed Cenname's check on September 14, 1998.

¶ 12. On September 27, 1998, Cenname called to inform Kitten that he intended to move into the apartment on October 2, 1998. Cenname asked Kitten how he would get into the apartment and asked why Kitten had not sent him a copy of the lease. Kitten said that he was concerned that Cenname might be readmitted to the hospital and that Kitten would not get his rent money. Kitten said he would "feel better" if Cenname paid six months' rent in advance. Cenname initially agreed to pay Kitten the advance rent because he was afraid that Kitten would not rent the apartment to him otherwise. Cenname agreed to meet Kitten at the apartment on October 2 and asked Kitten to fax a copy of the lease to the hospital.

¶ 13. Kitten called Cenname the next day and asked if he could talk to Cenname's doctor. Cenname told Kitten that his treating physician was Dr. Richard Holbrook, the director of the Eating Disorder Center at Rogers Memorial Hospital. Cenname said that he would have Dr. Holbrook call Kitten. Cenname again mentioned that he was uncomfortable paying the advance rent; Kitten responded by reiterating his concern about rehospitalization. Cenname renewed his request for a copy of the lease.

¶ 14. On September 29, 1998, Kitten called Dr. Holbrook's office and left a message asking to speak with Dr. Holbrook about Cenname. Deanna Mueller, the clinic's office manager, got the message and contacted Cenname to see if Cenname would give Dr. Holbrook permission to speak with Kitten. Cenname was surprised to hear that Kitten had attempted to contact Dr. Holbrook without Cenname's approval and refused to give his consent.

¶ 15. Cenname called Kitten and expressed his displeasure with Kitten's actions. Kitten insisted that he needed to speak with Cenname's doctor and again insisted on a payment of six months' rent up front. Later that day, Kitten finally faxed a copy of the lease to Cenname. The copy of the lease bore only Cenname's signature; Kitten had not signed it.

¶ 16. On September 30, 1998, Cenname contacted Kitten to say that he would not pay the six months' advance rent and that Kitten did not have permission to speak to Dr. Holbrook. Kitten said that his sister, a nurse, had told him that Cenname's condition could involve depression. Kitten then described a hypothetical situation where he came to the apartment and found Cenname in his car, in the garage, with the door closed, and exhaust fumes coming from the car. Kitten said he was concerned that such a situation would damage the rental unit. Cenname denied being suicidal, and said that if Kitten needed more financial information, he should call Cenname's father.

¶ 17. Later that day, Kitten called Cenname's parents' home in Columbus, Ohio, and spoke with Cenname's mother. Cenname's father was not home at the time. Kitten explained that he had two concerns about Cenname renting the apartment. First, Kitten stated that he was worried that Cenname might try to commit suicide. Kitten explained that the garages were attached to the housing units and he was worried that exhaust fumes might enter the other units. Cenname's mother told Kitten that Cenname had...