Maine Human Rights Commission v. Megunticook Management

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.

DATE

22