Companion animal lawsuit copied and pasted from the Rental Housing Association of Greater Portland website

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Keel vs. Gordon Properties
Submitted by rhagp on Wed, 10/24/2012 - 14:13
Keel vs. Gordon Properties is the opinion of Larry Southall and does not necessarily reflect the opinion of the Rental Housing Association of Greater Portland or it’s members as a whole. We invite members and the general public to respond and comment on this matter to [email protected].

Keel vs. Gordon Properties

Submitted as Public Comment to the Fair Housing Advocacy Committee

by Larry Southall on 9 October 2012

Both the Fifth and Fourteenth Amendments of the U.S. Constitution guarantee that no person shall be deprived of life, liberty or property by any State without due process of law. The U.S. Supreme Court stated in 1934 that due process is not upheld "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”1 One would assume the principles so rooted include the right to be heard before an impartial judge, the right to challenge evidence and cross examine witnesses and to present a rigorous defense. They should also include presumption of innocence and consequences that are proportionate to the charge. Within the last six months, the Oregon Department of Justice (DOJ) has closed three housing discrimination cases against rental property managers and owners in a manner that raises questions about due process. Two of the cases originated at the Civil Rights Division of the Bureau of Labor and Industries (BOLI), empowered to investigate discrimination claims in Oregon. Having reviewed the case file of one as public information, we would like to present a summary of this case to make the facts and process in question known.

Jim and Chris Gordon, father and son, have operated Gordon Properties as a family business on Portland’s Eastside for many years. Heather Keel lived with her two young sons in a complex they managed in 2008 and submitted to them in writing an accommodation request involving a companion dog for her son. She included a letter from her son's psychologist, which recommended she adopt a canine companion for her son. However, the wording of the letter was apparently (it had been redacted from the file) not explicit enough in describing the dog as a required service animal. Chris Gordon's interpretation was that the psychologist simply stated the son could benefit from having a dog as a pet. He did not feel that this described a service animal specifically trained to ameliorate a disability and sent a letter to that effect to Keel on 6/11/08. Because he felt the animal in question was really a pet instead of a service animal, he denied the request as pets were not allowed in that complex. He did offer to assist her in finding another apartment in complexes he managed that allowed pets. Later, he would be charged with "steering" for offering this help.

Keel claims she sent an email to Chris Gordon in late June 2008 describing in more detail her son's problems and how he might benefit from having a dog. She included links to websites supporting her statements. She apparently submitted printed copies of this email to BOLI, but Chris Gordon responded that he never received or saw the email. Because he never answered Keel's email, he was depicted as indifferent to her depicted diligence. However, when asked if she ever followed up with Gordon on this email or her accommodation request by phone or further correspondence, she said 'no'. She apparently never called to confirm receipt or discuss the matter at all. A few months later she moved from the complex and adopted a dog for her son that proved to be too aggressive and had to be let go. On 6/9/2009, she filed a HUD discrimination claim against the Gordons for refusing her accommodation request; the claim was referred to BOLI for investigation.

In the interim Keel went to the Fair Housing Council of Oregon (FHCO), who began conducting covert discrimination testing on Gordon Properties. Two testers posing as prospective renters contacted the Gordons and brought up the subject of companion animals. The first tester phoned on 6/1/2009 and spoke with Jim Gordon. According to her written narrative, when she inquired about her companion animal, Jim asked what kind of animal it was and how large, and told her the agent would be glad to discuss it with her if she was interested in the apartment. She told him she had a letter of support from her doctor, to which Jim responded “that would be what they needed and that it shouldn’t be a problem”. When she asked if there would be a deposit for her companion animal, she claimed, “He told me that there was a $200 deposit for the animal”.

The second tester phoned two days later and also spoke with Jim. According to her written narrative, she inquired about her companion animal to which Jim asked what kind of animal and did she have a doctor’s letter. When she answered yes, Jim did not express any concerns and instructed her to check out the apartment on their website. When she asked about a deposit for the animal, Jim responded that would depend on the validity of the doctor’s letter. “I’m having a lot of people say that they have a companion animal when it simply isn’t. It’s a pet…. sometimes people just can’t prove that they have a companion animal. We still try to accommodate them, but there’s a difference between a companion animal that someone needs for medical reasons and a pet.”

The targeted testing was directed by Luke Griffin and Moloy Good of FHCO, who also directed the controversial and since discredited Portland audit testing in 2010. From the test narratives described above, they concluded the Gordons were involved in a pattern of discrimination against people with disabilities, citing in the first case Gordon required deposits for companion animals even if there was a doctor's letter, and in the second case that the deposit depended on the validity of the doctor's letter. Such a conclusion presumes that predicating approval of a companion animal on the validity of a doctor's letter equates to discrimination. Equally problematic is the assertion that Jim Gordon would provide two different responses to the same question only two days apart. It seems more likely that his responses would have been consistent, echoing his belief that everything depended on the validity of the doctor's letter. Short of illegally recording the phone conversations, the statements attributed to Jim Gordon, and even placed in quotation marks in the second narrative, had to be based on the testers' best recollections and notes, which certainly could be flawed in detail. Nonetheless, Griffin and Good concluded that the tests proved that the Gordons were illegally discriminating against people with disabilities, and filed a separate HUD claim against them in late June 2009. Consequently, they were included as an "aggrieved party" in the eventual lawsuit.

Chris Lynch was the investigator at BOLI and issued findings of Substantial Evidence discrimination had occurred in Sept. 2009 in the Keel vs. Gordon Properties case and in May 2010 in the FHCO vs. Gordon Properties case. Lynch also raised a red flag over Chris Gordon’s offer to help Keel find an apartment that accepted pets, claiming it amounted to “steering”. The Gordons contested the findings of Substantial Evidence and their cases were sent to BOLI's Contested Case Hearings Unit and assigned to a case presenter. In September 2011, almost two years later, BOLI issued Formal Charges against the Gordons and were finally ready to go to hearing. BOLI hearings are before administrative law judges who are also BOLI employees. Feeling they would be better served in civil court, the Gordon's elected to go that route. FHCO also made that election on their case. So the two cases were combined in one civil suit to be filed by BOLI on behalf of Keel and FHCO.

When this occurs, the case is referred for "prosecution" to the State Attorney General's Office, who represents the plaintiffs at no charge. The case was assigned to John Kroger's new Civil Rights Unit and an official complaint was prepared by AAG Diane Schwartz Sykes in November 2011. It is unclear whether the complaint was ever actually filed with the court, as the document in the file is unsigned. She could have just prepared it for filing and sent preliminary copies to the Gordons to enlighten them. In the complaint, Sykes listed eleven separate claims for relief, six under the Oregon Fair Housing Law and five under the federal, all based on Chris Gordon’s letter to Keel and Jim Gordon’s statements to FHCO testers described above. Each of these claims cited a violation, such as "Failure to Make Reasonable Accommodation", "Refusal to Rent", "Expelling a Purchaser", "Applying Different Terms and Conditions", “Steering” and “Circulating Discriminatory Communications”. Five of the state claims were repeated in the federal claims and so these violations appeared twice. At the end, Sykes listed the damages she will seek: For each state claim, a $50,000 penalty for each aggrieved party; for each federal claim, a $55,000 penalty for each aggrieved party; plus compensatory damages, plus attorneys' fees and prevailing party costs, plus whatever other monetary damages to the aggrieved parties are determined at trial. The total would have been well over $1,000,000 and could go higher if Sykes prevailed at trial.

One wonders whether the DOJ somehow forgot the due process principle of presenting a defense before an impartial judge. They were certainly aware that a small business like Gordon Properties could not survive such a huge judgment and would be foolish to accept the risk of going to trial. By stacking the deck in this way against a weaker opponent, the DOJ is able to avoid going to trial and usurp the positions of judge, jury and executioner. Although this may save agency budget funds, it is difficult to accept the outcome as justice. The Gordons were effectively prevented from presenting their defense. More troubling is the fact that no housing discrimination case has ever gone to hearing at BOLI; we know of no housing discrimination cases that have gone to trial in Oregon.

In the end, the Gordons and their attorney sat down and negotiated a settlement with Sykes and three attorneys representing Keel and FHCO on 6/18/12. They admitted no wrongdoing, but agreed to pay $67,000 to Keel, FHCO and their attorneys (no information as to splits), $4,000 to the DOJ, and $4,000 to BOLI. They also agreed to several years of close oversight by BOLI on their rental practices, fair housing law training, and paying for quarterly display ads in the Gresham Outlook about disability accommodations, content to be approved by BOLI. They had to write a letter of apology to Ms. Keel and allow BOLI to classify the settlement as public information.

Oregon takes pride in supporting those who are independent and self-determined. It is doubtful the Gordons any longer agree with that claim.

1. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)