STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CV-15-135
MAINE HUMAN RIGHTS COMMISSION, SHIRLEY KELDERHOUSE, and SHAUNN PATTON,
Plaintiffs,
v. FINDINGS AND ORDER FOR ENTRY OF JUDGMENT
MEGUNTICOOK MANAGEMENT AND REALTY CORPORATION and JEFFREY WEYMOUTH,
Defendants
Background
This matter came before the Court for trial without a jury on February
21-24, 2017. The Maine Human Rights Commission (MHRC) is represented by Attorney
Barbara Archer-Hirsch. Attorney Patricia Ender represents Ms. Kelderhouse and Mr.
Patton. Attorney Rebecca Webber represents all Defendants. An Amended Complaint
was filed with the Kennebec County Superior Court on September 22, 2015 alleging
three counts: Count 1 against Defendant Megunticook Management and Jeffrey
Weymouth for violation of the Maine Human Rights Act, 5 M .R.S.§4581-A(B)(l)
prohibiting discrimination in housing accommodation based on race; Count II against
1 Rosemary Weymouth for violation of that same statutory provision; and Count III against
all Defendants alleging violation of the Federal Fair Housing Act, 42 U.S.C. §3604(A).
On January 4, 2016 this Court denied Defendant Rosemary Weymouth's Motion to
Dismiss all claims brought against her. On January 26, 2017 the Court granted Ms.
Weymouth's Motion for Summary Judgment for all claims brought against her, but
denied the motion as to other Defendants. The case then proceeded to trial on all three
Counts against Defendants Megunticook Management and Jeffrey Weymouth.
The Court has considered the evidence and exhibits, as well as the parties' written
closing arguments, the last of which were received on March 28, 2017, and issues the
following findings and Order for Entry of Judgment.
Standard of Review
In reviewing claims for discrimination in housing accommodation brought pursuant to
the Maine Human Rights Act and the Federal Fair Housing Act post-trial, the Court applies the
McDonnell Douglas burden-shifting test. In Dussault v. RRE Coach Lantern Holdings, LLC, the
Law Court applied the McDonnell Douglas test to a similar claim for disparate treatment:
When a plaintiff makes a disparate treatment claim ... , a three-step, burden shifting test applies. See Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, P 14, 45 A.3d 722. First, the plaintiff must establish a prima facie case of discrimination. See id. Second, if the plaintiff has met her burden in the first step, the landlord must present evidence of a legitimate, non-discriminatory reason for the adverse action. See id ~ 15. Third, if the landlord meets its burden in the second step, the plaintiff must present evidence that the landlord's proffered reason is pretextual or untrue. See id. This analysis addresses the parties' burdens of production, not persuasion. [***20] See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 521, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).
Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ~ 22, 86 A.3d 52.
2 In setting out a prima facie case for discrimination in housing accommodation
pursuant to the Maine Human Rights Act, the plaintiff must show that the defendant who
is a person or agent of a person having the right to sell or rent or manage housing,
unlawfully discriminated against plaintiff by "refus[ing] to show or refus[ing] to sell, rent
lease, let or otherwise deny[ing] to or withhold[ing] from any person the housing
accommodation because of race or color, sex, sexual orientation, physical or mental
disability, religion, ancestry, national origin or familial status". 5 M.R.S. § 4581-A.
According to the federal Fair Housing Act," it shall be unlawful ... [t]o refuse to sell or
rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of,
or otherwise make unavailable or deny, a dwelling to any person because of race, color,
religion, sex, familial status, or national origin." 42 U.S.C. § 3604. The Federal Courts
have interpreted the Fair Housing Act broadly, finding that discrimination in the
application process and the denial of the "opportunity to inspect, or even inquire about"
rental housing for discriminatory reasons constitute "discriminatory housing practice[s]".
Gilligan v. Jamco Dev. Corp ., 108 F.3d 246,250 (9th Cir. Cal. 1997).
The Law Court has held that in order to show that the refusal to show or rent or
otherwise deny housing to plaintiff must be "a substantial, even though perhaps not the
only, factor motivating" the defendant. Walsh v. Town ofMillinocket, 2011 ME 99, ,r 25,
28 A.3d 610; citing Wells v. Franklin Broadcasting Corp., 403 A.2d 771, 773 (Me.
1979); Maine Human Rights Comm'n v. City ofAuburn, 408 A.2d 1253, 1268 (Me.
1979). In the analogous employment discrimination case, Wells v. Franklin Broadcasting
Corp., the Law Court held that "even if more than one factor affects the decision to
dismiss an employee, the employee may recover if one factor is his age and in fact it
3 made a difference in determining whether he was to be retained or discharged. If an
employee would not have been dismissed but for his age, the existence of other
reasonable grounds for his discharge does not relieve the employer from liability under
the applicable statutory provisions." Wells, 403 A.2d at 773. Similarly, in a housing
discrimination such as the one before the court, the plaintiff must show that race was a
contributing factor to the defendant's decision not to rent to the plaintiff. See Marano v.
Department ofJustice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) ("The words "a contributing
factor" ... mean any factor which, alone or in connection with other factors, tends to
affect in any way the outcome ofthe decision."). The plaintiff is not required to prove that
race was the only factor in defendant's refusal.
The Federal Courts have adapted the McDonnell Douglas proof standard to
claims brought pursuant to the Fair Housing Act to require a plaintiff to show that "she is
a member of a protected class who applied for and was qualified to rent housing, that she
was rejected, and that the housing opportunity remained available." Gilligan,108 F.3d at
249. The McDonnell Douglas standard governs the burdens of proof, but "it does not
dictate the required elements of a complaint." Id. To that end, where there is no evidence
that a plaintiffs other qualifications for housing were considered by defendant, the court
does not require plaintiff to affirmatively prove that plaintiff is otherwise qualified for
housing. See Id; White v. HUD, 475 F.3d 898, 906 (7th Cir. 2007); Bezi v. Camacho,
2014 U.S. Dist. LEXIS 74047, *28 (C.D. Cal. Mar. 19, 2014) ("even without alleging or
proving financial qualification, a violation of the Fair Housing Act may still have
occurred").
4 Conversely, pursuant to the Maine Human Rights Act, the court need not make a
finding concerning plaintiffs qualification for housing. The court is required to make a
finding as to whether a plaintiff is otherwise qualified for a job where the plaintiff
complains of employment discrimination (5 M.R.S. § 4572(2)), and the court is required
to make a finding that the plaintiff is otherwise qualified for an educational opportunity
where the plaintiff complains of educational discrimination (5 M.R.S. § 4602(2)(A)).
However, the Maine statute does not require the court to make a finding that the plaintiff
is otherwise qualified for the housing where the plaintiff complains of housing
discrimination. See 5 M.R.S. § 4581-A. Plaintiffs' burden is to prove that race was a
contributing factor in Defendants' refusal to rent to Plaintiffs.
Findings and Conclusions
Plaintiffs Shirley Kelder house and Shaun Patton are the biological parents of two
minor daughters, "J" and "M". Ms. Kelderhouse is white, Mr. Patton is African
American, and their daughters are therefore biracial. Both girls have African-American
features. M is severely disabled, having been born prematurely to Ms. Kelderhouse at 26
weeks. She weighed 1.5 pounds at birth and is confined to a wheelchair which is
essentially a modified stroller. She cannot speak but seems able to communicate certain
needs, and she is fed through a tube. She has severe cerebral palsy, a significant seizure
disorder, and scoliosis. She has recently been diagnosed as being terminally ill due to
multiple maladies and their effects on her lungs and heart. Ms. Kelderhouse and Mr.
Patton have a relationship that is limited to co-parenting.
On August 30, 2014 Ms. Kelderhouse contacted Megunticook by phone in
response to an advertisement for rental housing at Townhouse Estates in Camden, Maine.
5 She left a voice mail saying she was interested in renting the property and that it needed
to be handicap-accessible because of M's disabilities. Jeffrey Weymouth, who is part
owner (as well as Secretary and Treasurer) of Megunticook, returned the call. According
to both Ms. Kelderhouse and Mr. Weymouth, the conversation was cordial and involved
the sharing by both of them of personal information. Ms. Kelderhouse explained how
disabled M was as a result of her prematurity. Mr. Weymouth in turned disclosed that he
and his wife, Defendant Rosemary Weymouth, had lost a young child due to medical
complications, and he understood how difficult it was to care for a severely disabled
child. Ms. Kelderhouse said that they both got "emotional" on the phone, and that Mr.
Weymouth said he would get the ramp built, and that he would do anything and
everything he could to make her life better. Ms. Kelderhouse talked to him about J as
well, and that they wanted to move to Camden because she was interested in being in a
good school system that had strong performing arts programs.
According to Ms. Kelderhouse, the call ended with Mr. Weymouth asking her if
she wanted to go forward with the process. When she said yes, she was told that she
would be hearing from a woman named Peggy. She testified that she felt excited, and was
sure "that he was going to help us" as her family needed to be out of their home in
Dover-Foxcroft by October 1, 2014.
The day after this phone call, Rosemary Weymouth collapsed while working for
Megunticook. She was treated medically, but returned to work quickly. Her husband and
son testified that she was an extremely hard worker who did not know how to slow down.
They both stated that as a result of this medical event, she curtailed some of her duties at
Megunticook which previously had included being the person primarily responsible for
6 dealing with the entire rental application process for tenants of Megunticook, including
those like Ms. Kelderhouse who were applying for subsidized housing. The evidence is
clear that Mrs. Weymouth was not aware of any of the events that transpired between her
husband and Ms. Kelderhouse until she received a copy of the Plaintiffs' MHRC
complaint, and there is no evidence she was involved in any of the decisions made by her
husband about the Plaintiffs' application.
The day after the fall, Ms. Kelderhouse requested and received a written
application to rent housing at Megunticook. She filled it out and stated that the occupants
would be Mr. Patton (described as a "live-in" aid for M) along with Ms. Kelderhouse,
and the Plaintiffs' two daughters. Mr. Patton testified that after learning that M was
terminal, he and Ms. Kelderhouse agreed that he should come back from Arizona, where
he had been attending to the death of his father. The plan was that he would move in with
his daughters and their mother so that he could help care for M. He testified that as M
grew, it became much more difficult for Ms. Kelderhouse to care for her, which included
lifting her for bathing and toileting. He testified that it gotten to the point that Ms.
Keldherhouse developed a hernia as a result of these activities.
On September 15, 2014 Ms. Kelderhouse talked to Megunticook's office
assistant, Peggy Wilson, to confirm that they had received the application which was
admitted at trial as Plaintiffs Exh. 15. A walk-through was scheduled for September 19,
2014 and Megunticook conducted a credit check on Ms. Kelderhouse. Mrs. Weymouth
testified that no walk-throughs are scheduled by Megunticook without the applicant
having an acceptable credit score. Ms. Kelderhouse testified that she believed she would
7 be "all set" to be offered the apartment as she had a "Section 8 voucher" and that they
would not have scheduled the walk-through unless they had approved her credit score.
Ms. Kelderhouse went to Megunticook on September 19 along with her
daughters. Ms. Kelderhouse testified that J came in the door first, followed by Ms.
Kelderhouse who was pushing M's stroller. She remembers Mr. Weymouth getting up
from his chair to look at Min her wheelchair. J testified that Mr. Weymouth gave a look
that "was kind of weird" when he first saw M in her stroller. J initially attributed the look
to the fact that her sister was "not normal". Ms. Kelderhouse also noted Mr. Weymouth's
looking at M but suggested that she and her family were used to people looking at them
in this fashion. J testified further that when she saw the apartment it was not as nice as
she had hoped but "it was good enough given our time frame" as she and her family had
to be out of their current home. She and her mother spoke with one another and then told
Mr. Weymouth they wanted to live there. Mr. Weymouth asked J if it was her father that
was going to be living with them and she told him it was. She testified that at that point
Mr. Weymouth indicated there would be a delay in building the ramp. She stated that she
felt confused by Mr.Weymouth's asking her about her father living with them and
thought that was a question he should have asked her mother. She remembers him getting
"more closed off' after learning that her father would be living with them, and felt that he
cared "a little less" than he had seemed before and wanted "to get us out." J testified that
she stayed with M while her mother went to sign papers with Mr. Weymouth and
remembers her mother indicating that she was hopeful that "it would happen" that they
would get the apartment.
8 J testified that while waiting to hear back from Megunticook her mother became
more and more stressed out, as did her father. She stated that after awhile she came to the
conclusion that Megunticook stopped processing their application because of "who we
are," and their skin color. She recalled the look he had given them and figured that it was
not about M's disability as her mother had told him before the walk-through that M was
severely disabled. She says the "only other explanation" she could arrive at was that it
was because of race, and that it could not have been about "my sister" or "the dog" that
she had mentioned they had obtained for M. She stated that M looks very ethnic, and that
she has had people judge her over her race before, and "I have seen the look before." She
conceded that she did not come to the conclusion about Mr. Weymouth's motivations
until "things fell apart" when she was "trying to make sense of it." She characterized the
look as a "very judgmental one."
Ms. Kelderhouse similarly testified that she noted a change in Mr. Weymouth's
demeanor once J told him that it was her father that was going to be moving in with her,
her mom and her sister M. While she did not testify at trial, as J did, that he gave the
children a "weird look" when he first saw M in her stroller, Ms. Kelderhouse testified
that she recalled him standing up from a seated position when they entered, as if to get a
good look at M. She insisted, however, that his behavior "just shifted" as soon as J told
him about her father moving in. She said he had initially seemed so nice and positive
about them renting, but as soon as J mentioned her father moving in "he completely
changed."
He did, however, return with them to the Megunticook office to begin the
paperwork. The parties do not agree on what paperwork was completed, or whether it
9 was adequately completed. Ms. Kelderhouse testified that she was left with the
impression that she had done everything she had to that day as far as the paperwork was
concerned and that all that was left was for him to fill in certain information as the
landlord. Despite this, she was concerned that he might be just "going through the
motions" as his handshake did not seem genuine, and she sensed a new reluctance in his
demeanor. Nevertheless, she testified that she decided to take him at his word, and that
she told Mr. Patton and a friend that it looked like they would be getting the apaiiment.
She explained that despite his change in demeanor, she "tried to remain positive" and
understood that she had to cooperate in the process and "do her part." \Vhen Ms.
Kelderhouse told Mr. Patton that it looked likely they would get the apartment, he began
transferring utilities from the home they were leaving to Megunticook, and she began
waiting to hear back from the Defendants about final approval. She testified that she
understood that what remained to be done since she already had "Section 8 approval" was
for an inspection to be done, the ramp had to be built, and she would need to sign a lease.
Over the next couple of weeks, Ms. Kelderhouse attempted to communicate with
Mr. Weymouth about the status of the application. Defendants acknowledge that she
called several times four days later. Their position is that after receiving these calls, Mr.
Weymouth went to Ms. Wilson I who he says had not completed the paperwork. On
September 30, Ms. Kelderhouse called them twice, and Mr. Weymouth called her back
but did not get through. Ms. Wilson also sent her an email saying that Mr. Weymouth had
been so busy that he could not complete the paperwork and could not help her "at that
time." She called him on October 1, and he returned the call. She testified that he told her
1 Ms. Wilson was not called by either party. Counsel for the Plaintiffs subpoenaed her but she sent them a note from a doctor saying she could not testify. It is undisputed by the parties that she left her employment at Megunticook under less than favorable terms.
10 that he was sorry but that he could not help her. Ms. Kelderhouse, feeling desperate about
her need for housing, told him that if he needed more time that she might be able to make
that work. However, Mr. Weymouth told her that he just could not help her, and "to think
of the glass as half full." He did not recall making that statement.
The parties agree that Megunticook did not rent the apartment to any other person,
and that it remained available for rent for months after the Plaintiffs were turned away.
There is no evidence in the record that Defendants ever told Ms. Kelderhouse that
the reason the paperwork was not completed was that Rosemary Weymouth, who usually
does such paperwork, had health problems and was unavailable. There is evidence in the
record that after Ms. Weymouth collapsed on Labor Day she returned to work essentially
full time. Defendants take the position that Mr. Weymouth (and his son) stepped in to do
certain tasks Mrs. Weymouth usually did while she resumed full time duties. They also
argue that Mr. Weymouth does not have the skills or training to complete the paperwork,
but again there is no evidence that they ever told Ms. Kelderhouse that was the reason the
process ended. They also argue that Ms. Wilson should have learned how to do this
paperwork, but that she had refused to do so. They blame Ms. Wilson, in large part, for
their failure to respond to Ms. Kelderhouse's efforts to check on the status of the
application
Mr. Weymouth testified that he is part owner of Megunticook. He stated he does
remember telling Ms. Kelderhouse in their phone call about the loss of a child, and that
she shared with him that M was severely disabled. He agreed he told her he wanted to
help them, that they had a connection, and that he actually "got stuffy" during the call. He
told her that "if you need a ramp we can make that work." He recalls the walk through on
11 September 19, but does not remember giving a look that was weird. He said he simply
stood up when they entered as he was raised to do, but "if they think it was weird, it was
weird." He also says he does not remember asking J about her father moving in, but
acknowledged that was what she and Ms. Kelderhouse remembered.
He offered various explanations for why the application process ended: Mrs.
Weymouth could not do the paperwork, Ms. Wilson could not or refused to do the
paperwork, and that he had run out of time. He acknowledged that he had never asked his
wife for help in the process, even though the evidence suggests that she was back to work
well before the October 1 phone call. He conceded that there was a credit report done on
Ms. Kelderhouse before the walk through, and that usually Ms. Wilson as the Office
Manager would ordinarily not schedule a walk through if the credit score was bad. He
denies noticing the credit score in the file. He also testified that the more Ms.
Kelderhouse called the more annoyed he became at "being pushed." However, there is no
evidence in the record that he ever spoke with her directly between the time of the walk
through and the time he told her on October 1 that he could not help her, and he did not
point to any particular conversation or writing to support his description of her behavior.
He adamantly denied that race was a factor in any decision he made on behalf or
Megunticook.
Mrs. Weymouth testified that she knew nothing about Ms. Kelderhouse's
application until the MHRC notice, and that she had nothing to do with her husband's
actions in relation to it. Like Mr. Weymouth, she blamed Ms. Wilson for not completing
the Section 8 paperwork in a prompt fashion, and not bringing it to her attention. She
testified about the fall, and how hurtful the allegations against her family and business
12 had been. She said she is the person who handles all aspects of tenant paperwork, and that
it was unrealistic for anyone to think the application process for this apartment, which
involved Rural Housing and Section 8 requirements, could have been completed in 10
days, and that there was "a lot left to do" on the forms. However, she also testified that
she wished she had known about it and would have been willing to work "til midnight" to
get the paperwork done. She also faults Ms. Wilson for not doing "due diligence." She
said Ms. Wilson's work performance had been steadily slipping over the last few months
she worked at Megunticook, and attributed that to Ms. Wilson's grandchildren moving in
with her. Mrs. Weymouth also claims that had she handled the application, she would
likely have denied the application based on Ms. Kelderhouse's credit, together with the
fact that M had a dog. J had testified they were more than willing to find another home
for the dog if that had ever been raised as an issue, but no one raised the issue. Mrs.
Weymouth also stated that her husband should never have told Ms. Kelderhouse that he
could not give her more time and indicated that if Ms. Kelderhouse had been willing to
give us more time "we would have worked with her." Nevertheless, the Defendants'
position is that an extended timeline would not have affected the outcome, as Ms.
Kelderhouse was not "otherwise qualified" to be a tenant for a number of reasons
including the dog, the credit score, uncertainty that a ramp and inspection would have
been approved, and whether Mr. Patton would have qualified as a live-in aid under
government standards.
Defendants also argue strenuously that they are not racist, and point to close
familial and professional relationships with people of color. A number of witnesses
testified credibly that they had never experienced or seen any evidence of racial animus
13 on the part of either Mr. or Mrs. Weymouth, and the Court finds there is no credible
evidence on the record of direct discrimination.2
Defendants make numerous arguments. First, they claim that Mr. Weymouth did
not even know that Mr. Patton was African-American based simply on the fact that J and
Mare bi-racial. The Court finds this argument to be unpersuasive. Ms. Kelderhouse
testified credibly that in the initial phone call she told Mr. Weymouth that she had given
birth to the girls, who clearly have African-American features. Any reasonable person
would conclude from Ms. Kelderhouse's statement about having given birth to the girls,
together with her appearance and theirs, that their father is African American. Mr.
Weymouth actually did not testify about his thought process in this regard but the
possibility of adoption or foster care was repeatedly posed by defense counsel as a
hypothetical about the ethnic origin J and M's father. Rather, Mr. Weymouth essentially
said the girls' skin color did not register with him, that he had no memory even of asking
J about her father, and further that he would not ask a child a question like that. The
Court finds J to be credible that the conversation took place and that the question was
asked by Mr. Weymouth. The Court also finds her credible as to her observations about
Mr. Weymouth's reaction upon learning that J's father, Mr. Patton, would be Hving in the
apartment with them. The defense expended much effort in drawing out words and
phrases Ms. Kelderhouse had used at different times to describe Mr. Weymouth's
demeanor. Ms. Kelderhouse was not the most articulate witness and she seemed confused
at times about when she gave statements containing descriptions of his demeanor.
2 Plaintiffs on page 4 of their Reply Brief concede that there is no direct evidence of discrimination in this case.
14 However, J was the person involved in this conversation, not Ms. Kelderhouse, and the
Court found J's testimony overall to be credible about this interaction.
The Defendants also question how it could be that Ms. Kelderhouse could on the
one hand believe that Mr. Weymouth's demeanor at the walk-through had changed, while
at the same time expressing hope to her family and friend that they would get the
apartment. This apparent contradiction does not, however, cause the Court to question
Ms. Kelderhouse's testimony for that reason. It is not unusual for a person to hope for the
best, even in the face of worry that something negative or painful might be about to
unfold. The Court is also not troubled by Ms. Kelderhouse's and J's admission that their
initial reaction to Mr. Weymouth's look and changed demeanor might have something to
do with M's striking physical appearance and disabilities. The Court would think it
obvious that people commonly react to M's appearance, and that her family has become
accustomed to these reactions. It was only after the rental application hit a dead-end, with
no credible explanation being given to them for the rejection, that they connected Mr.
Patton's presence in the household with what went wrong with their application. The
Court cannot find that the delay in coming to the conclusion is cause to question the
conclusion itself. On the contrary, it would be concerning to the Court if J and Ms.
Kelderhouse immediately jumped to the conclusion that race was a motivating factor in
how Megunticook treated their application.
The Court concludes based on the indirect, circumstantial evidence 3 in the record
that Plaintiffs have established a prima facie case of discrimination. That evidence is
based primarily on the credible testimony of J, and to a lesser extent that of Ms.
3 The Court agrees with the Plaintiff that given the lack of direct evidence of racial discrimination, the correct standard is that set out in Dussault v. RRE Coach Lantern Holding, LLC, 2014 ME 8. Dussault sets out the three-step burden shifting analysis that the Court will follow in this case.
15 Kelderhouse, as to what transpired at the walk-through. Mr. Weymouth knew that Ms.
Kelderhouse's children were her biological children, and that she is white. He learned
that their father would be living with them, and the Court does not believe that it did not
dawn on Mr. Weymouth that their father must be African-American. In addition, as the
Court stated previously, housing was denied Ms. Kelderhouse and Ms. Patton by
Megunticook within the meaning of 5 MRS §§4581-A(l)(B) and 42 U.S.C §3604(a).
They are members of a protected class; and they were qualified for a housing
opportunity, which in this case means they had a right to have their application reviewed;
and their application was denied while the housing opportunity remained available to
others. Lugo-Berrios v. Citibank, NA. 2013 US. Dist. LEXIS 45996, (citing Lindsay v.
Yates, 578 F.3d 407 (6th Cir. 2009). 4 As Plaintiffs point out, the evidence is unrefuted
that Mr. Weymouth and Peggy led Ms. Kelderhouse to believe that they were processing
her application when they were not. By allowing the walk through to happen at all, and
then proceeding to go through the checklist at the office, Defendants are effectively
conceding that they believed she was qualified as of October 1. In addition, they never
told her that she was not "qualified" for any reason up to that date -- they just let clock
run and the deadline expire on the notice to quit she had received from her landlord. And
as previously noted, no one at Megunticook ever told Ms. Kelderhouse that the delay had
anything to do with Mrs. Weymouth's health issues, even after Ms. Kelderhouse, as Mr.
Weymouth concedes, told them that she could wait longer for the processing if that
would help her get the apartment. If Mrs. Weymouth's health was the reason for the
delay, that would have been a good time for Mr. Weymouth to provide that explanation.
4 MHRC regulations specifically address situations akin to this. 348C.M.R. Ch. 8 § 8.04(D)(4)(c) states that included among prohibited rental practice is "denying or delaying the processing of an application made by a... renter."
16 With respect to the second step of the analysis, whether the Defendants can
articulate a legitimate, nondiscriminatory reason for their action, the Court finds that Mrs.
Weymouth's collapse likely resulted in Megunticook not running as well as it does when
she is fully functioning, and that some delay in processing Ms. Kelderhouse's application
occurred as a result. Clearly, both Mr. and Mrs. Weymouth are very hard-working
people, who along with their son run a successful housing business. Mrs. Weymouth
clearly is the person who understands the complexities and requirements of subsidized
housing. They are well respected in their community and obviously take a lot of pride in
what they have accomplished. However, the Court does not find that the collapse and
resulting delays adequately explain the decision Megunticook made to discontinue the
application process. First, the evidence suggests that Mrs. Weymouth was back to work
by mid September. Second, Mr. Weymouth and Ms. Wilson, who were both agents of
Megunticook, held themselves out to Ms. Kelderhouse as capable of processing the
application. At no time did either Ms. Wilson or Mr. Weymouth explain the difficulties
resulting from Mrs. Weymouth's temporary absence from the business to her. Given the
information Mr. Weymouth and Ms. Kelderhouse had shared about personal aspects of
their lives, specifically the terrible difficulties associated with caring for, and in Mr.
Weymouth's case, losing, a severely disabled child, it is difficult to understand why no
one from Megunticook simply explained to Ms. Kelderhouse that they needed more time
because Mrs. Weymouth was not well. The Court finds that her temporary absence likely
caused just a brief delay. This brief delay does not credibly explain Mr. Weymouth's
announcement on October 1 that Megunticook could not "help" Ms. Kelderhouse, or his
strange remark that she should "think of the glass as half full." These remarks were a
17 clear signal to her that Megunticook was not willing to process any application for Ms.
Kelderhouse, and a message that she should not call them again.
The other justifications put forth by Megunticook, namely that her credit score
was bad, that Ms. Kelderhouse's family had a dog, and that Ms. Wilson refused to do the
paperwork are also not credible. As noted previously, no one brought up the credit score,
the dog, or Mrs. Weymouth's health issues either at the walk through, or at the office, in
email communication, or over the phone. All of these justifications were known to
Megunticook before October 1, and the fact that they were not mentioned until much
later, and only after a claim for discrimination was made, undercuts Megunticook's
credibility on this issue.
The Court therefore concludes that the Defendants' proffered reasons for the
delay were pretextual, and that race was a motivating factor in the Defendants decision to
end Plaintiffs' application process.
Defendants also argue that Plaintiffs cannot prove their discrimination claims
because Ms. Kelderhouse would not have been approved for the housing even if the
application process was completed. They claim her credit score, the family dog, and the
unresolved issue about whether or not Mr. Patton would qualify to live in the apartment
as a caregiver for M, would have individually or in combination resulted in Plaintiffs
being "unqualified" to rent the unit.
As noted above, the requirement that a Plaintiff be "qualified to rent" housing
does not appear in the MHRA, and the Law Court has not been called upon to decide
whether being "qualified" should be considered as an element of proof in an MHRA
18 5 action. The Court has reviewed the federal cases cited by the parties, and finds the
reasoning in White v. HUD, 475 F.3d, 898, 906 (ih. Circuit) to be sound. When Mr.
Weymouth made the decision to terminate Plaintiffs' application process on October 1,
2014 there is no evidence in the record that he considered the dog, the credit score, or Mr.
Patton's eligibility to live in the unit before deciding that Megunticookjust "could not
help" Ms. Kelderhouse. The Court has concluded that its focus should be on what was
considered by the Defendants at the time the decision was made to make the unit
unavailable to them, and what Defendants may have known about Plaintiffs
"qualifications" at the time the decision was made. The credit report was in the Plaintiffs'
file before the walk-through, and J testified that she mentioned the dog to Mr. Weymouth
during the walk-through. However, there is no credible evidence in the record that
Defendants were at all troubled by the dog, the credit score, or Mr. Patton's eligibility to
be a "live in aid" under either Rural Housing or Section 8 requirements when the decision
was made. The Court finds therefore that Plaintiffs were qualified to pursue the
application at the time Megunticook otherwise made the unit unavailable to them.
Damages
Both Plaintiffs seek actual and compensatory damages which they enumerate as
humiliation, mental anguish, and emotional distress pursuant to 5 M.R.S. §4613(2)(8)
5 As the parties have noted throughout this litigation, the Law Court often relies upon fed eral case law when interpreting the discrimination provisions of the MHRA. The Court therefore addresses the arg ument made by Defendants that Plaintiffs had to have been qualified to rent the un it. The Court, however, does not agree that this requi rement allows the Court to specu late on what a hypothet ical decision- maker might have co nsidered. While Mrs. Weymouth testified 'that she docs not believe they wo uld have qualified for the reasons discussed here, the parties agree that s he was not the decision maker, and she was dismiS$ed by the Court as a named Defendant at the summ ary judgment stage in large part because she was not even aware oflhe app lication until months after the application process was terminated by Mr. Weymouth.
19 and 42 U.S.C. §3613(c)(l). Ms. Kelderhouse also alleges that she suffered physical
ailments as a result of the discrimination, including hair loss, effects on her menstrual
cycle, sleep disruption and depression.
While it is true that a Plaintiff need not provide expert testimony to prove certain
kinds of damages, the Court agrees with the Defendants that Ms. Kelderhouse has failed
to prove by a preponderance of evidence the claimed physical effects of hair loss,
menstrual disruption, sleep disruptions, and depression. Those kinds of damages would
require expert testimony which was not presented. In addition, Ms. Kelderhouse
conceded that she had experienced the need for medication for depression prior to these
events, and the Court finds that the Defendants have proven by a preponderance of
evidence that the physical ailments claimed were not caused by the Defendants conduct.
Lovely v. Allstate Insurance, 658 A.2d 1091 (Me. 1995).
However, Plaintiffs have proven by a preponderance of evidence what the parties
refer to as "garden variety" emotional distress damages. Ms. Kelderhouse testified
credibly that she felt humiliated and sad about losing this housing opportunity for her
family. She was panicked about where they would live, and felt responsible for not being
able to protect M, and provide the opportunity for J to live in a great school district. She
was tearful, and felt too embarrassed to go out in public. She could not keep up with her
daily responsibilities and she and Mr. Patton began arguing. Mr. Patton and to a lesser
extent J corroborated this testimony. Mr. Patton also testified credibly that he blamed
himself for the loss of housing, because he believed that if it was just Ms. Kelderhouse
and the children applying, Megunticook would have accepted them. He also felt guilty as
their father, and sad that his children had to endure what had happened. He said it is
20 difficult for him to express his feelings, that he had learned in his life and the military "to
go with the punches" in life but that it was "really difficult" to accept that in 2014 "this
kind of thing was still happening."
Both Ms. Kelderhouse and Mr. Patton conceded that they felt better relatively
soon, and that things improved once they secured housing in Bangor in December, and
that the evidence suggests that by the spring of 2015 things were much improved. The
Court will therefore award emotional distress damages to each of them for this limited
period in the amount of $15,000. 6
In addition, the Court will assess a civil penalty against Defendants under the
MHRA in the amount of $10,000. Plaintiffs are also allowed interest and costs, and an
award of counsel fees.
The entry will be: Judgment is issued to Plaintiffs on claims against Defendants
Jeffrey Weymouth and Megunticook Management and Realty Corporation under the
6 Plaintiffs state in their brief that they are not seeking and are not entitled to "duplicate money awards" under both statutes. (Pl. 's brief, pg 20).
21 Maine Human Rights Act and the Fair Housing Act (Counts I and 111). Damages are
awarded in the amount of $15,000 to each Plaintiff for emotional distress damages. A
civil penalty is assessed against the Defendants in the amount of $10,000. Plaintiffs shall
have interests and costs, and may submit a request for counsel fees for consideration by
the Superior Court.
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