1 1 BEFORE THE STATE OF INDIANA 2 CIVIL RIGHTS COMMISSION 3 - - - 4 5 PUBLIC MEETING OF OCTOBER 20, 2017 6 7 8 - - - 9 PROCEEDINGS 10 in the above-captioned matter, before the Indiana 11 Civil Rights Commission, Alpha Blackburn, 12 Chairperson, taken before me, Lindy L. Meyer, 13 Jr., a Notary Public in and for the State of 14 Indiana, County of Shelby, at the Indiana 15 Government Center South, Conference Center, 16 Rooms 4 & 5, 402 West Washington Street, 17 Indianapolis, Indiana, on Friday, October 20, 18 2017 at 1:05 o'clock p.m. 19 - - - 20 21 William F. Daniels, RPR/CP CM d/b/a ACCURATE REPORTING OF INDIANA 22 12922 Brighton Avenue Carmel, Indiana 46032 23 (317) 848-0088 2 1 APPEARANCES: 2 COMMISSION MEMBERS: 3 Alpha Blackburn, Chairperson Weilin Long 4 Sheryl Edwards Steven A. Ramos 5 Adrianne L. Slash 6 COMMISSION STAFF PRESENT: 7 John Burkhardt 8 Frederick S. Bremer Anehita Eromosele 9 10 ALSO PRESENT: 11 Leslie Barnes Sarah Meyer 12 - - - 13 14 15 16 17 18 19 20 21 22 23 3 1 1:05 o'clock p.m. October 20, 2017 2 - - - 3 CHAIRPERSON BLACKBURN: Good 4 afternoon. The Indiana Civil Rights Commission 5 is now in public session, and we do indeed have a 6 quorum. I would like to ask for the approval and 7 adoption of the minutes. 8 COMM. RAMOS: So moved. 9 COMM. EDWARDS: Second. 10 CHAIRPERSON BLACKBURN: All in favor? 11 COMM. EDWARDS: Aye. 12 COMM. SLASH: Aye. 13 COMM. RAMOS: Aye. 14 COMM. LONG: Aye. 15 CHAIRPERSON BLACKBURN: Aye. 16 Is there anyone opposed? 17 (No response.) 18 CHAIRPERSON BLACKBURN: Thank you 19 very much. 20 Next on our agenda is the Director's 21 Update. 22 JUDGE BURKHARDT: Good afternoon. 23 John Burkhardt, Administrative Law Judge for the 4 1 agency, here to speak on behalf of Director 2 Wilson, who unfortunately was not able to make it 3 today, but sends his greetings and thanks for 4 your participation today. 5 And he, in light of our discussion at the 6 last meeting, where it had been contemplated that 7 full reports from the Directors will be provided, 8 has very enthusiastically responded to that and 9 has undertaken during this transition time, with 10 his stepping into his role and consolidating so 11 many of our important efforts, from External 12 Affairs to Case Management, undertakes to come 13 provide a Director's Report at the November 14 meeting, and use that as a way to jump-start a 15 new and improved Director's Report, where it 16 is -- the reports are tailored to what you may 17 request. 18 And if you would like, at this time you 19 can state on the record anything in particular 20 that he can speak to. I know that generally we 21 covered at the last meeting his reports will 22 address it. The previously addressed report 23 content, which is Financial Update, External 5 1 Affairs Update, the general Case Management 2 Update in terms of inquiries received, adopted, 3 as it pertains to appeals and cases in 4 adjudication. 5 So, that is all on its way to the November 6 meeting. He'll be here to present as well, and 7 so he sends his greetings. 8 Any questions? 9 COMM. RAMOS: Yeah. I mean -- so, 10 part of that is how we're doing in day-to-day 11 operations, but part two of it is strategically, 12 you know, what is the outlook for the next, you 13 know, two years or so? What's his vision as the 14 new Director coming in? I mean I'd like to 15 understand that and be -- and our Chair, and all 16 of us members -- somewhat involved in that 17 process since that's part of our role. 18 JUDGE BURKHARDT: Uh-huh. 19 COMM. RAMOS: And then also, just in 20 general, since we serve a broad scope with other 21 Commissions, from Latino Affairs to Native 22 American Affairs, just updates on that, at least 23 quarterly or every six months -- 6 1 JUDGE BURKHARDT: Okay. 2 COMM. RAMOS: -- would be 3 appreciated. 4 JUDGE BURKHARDT: Absolutely, and he 5 very much anticipates speaking directly to that. 6 I know he has been on the road quite a bit 7 connecting with our human relations partners 8 across the state in the consortium, and he will 9 much appreciate the chance to present that to you 10 next time. 11 I know that one thing on his mind is we 12 are having a November sort of conference 13 internally, sort of a retreat internally with 14 staff, and that's going to be a time for us to -- 15 for him to forecast his vision to staff 16 internally, gather the input, and then bring all 17 of that to you in terms of a vision statement for 18 the future. 19 COMM. RAMOS: Thank you. 20 JUDGE BURKHARDT: Yes, absolutely. 21 CHAIRPERSON BLACKBURN: Excuse me. I 22 think I should add at this moment that it's 23 important to encourage staff that during a 7 1 period -- it feels in a state of upheaval because 2 you're transitioning and changing a lot of 3 positions, that the demands externally can 4 overwhelm and detract from your focus on the 5 functioning of the agency internally. 6 And my cautionary note is not to allow 7 that to be an issue for you. We support you in 8 outreach, but we don't want you to be in a 9 position where you think we demand of you to do 10 so much outside that you haven't the time to do 11 what's essential internally. 12 JUDGE BURKHARDT: Okay. Thank you 13 for that. Duly noted. I will share that 14 directly with him. 15 CHAIRPERSON BLACKBURN: Thank you so 16 much. 17 JUDGE BURKHARDT: Yes, ma'am. That 18 would conclude this report. 19 CHAIRPERSON BLACKBURN: We have 20 something wonderful to now speak to, and I think 21 that as long as I've been here, I have not known 22 of the dedication of so many individuals whose 23 careers have been centered here at this agency, 8 1 because frequently there's an exchange of 2 personnel within the government structure that 3 allows that people can relocate. 4 Their passion is for service, not 5 specifically to this agency, and I think of the 6 Civil Rights Commission as one of few highly 7 specialized commissions who are passion driven to 8 support the public, in particular the rights of 9 those who feel they've been infringed. And no 10 one comes to ICRC to get rich, and few come to 11 just build their resumes. But folks who stay, it 12 is not because they haven't other opportunities, 13 they stay because they are mission driven. 14 So, today we have an opportunity to 15 recognize Bradford Shockney for 40 years of loyal 16 service to this agency, and maybe you would like 17 to speak to him, introduce him to everyone here. 18 JUDGE BURKHARDT: Right. Thank you 19 for that. I believe he is even now diligently 20 discharging his duties in scheduled 21 investigations that he's transacting right now, 22 but I would just say that on behalf of the 23 Commission, we have formally in the office and do 9 1 now express our gratitude for his faithful and 2 loyal service, 40 years. So, I've been with the 3 agency for three years, and that sets quite an 4 example for me. 5 It's been said you can set your clock by 6 Mr. Shockney as he faithfully discharges his 7 duties on a daily basis. He's someone that is 8 looked to as a trusted friend in the office, and 9 as we know, Governor Holcomb's fifth pillar would 10 be great government service at a great value to 11 taxpayers, and one of the ways that great value 12 is realized at the Civil Rights Commission is the 13 exploitation of institutional knowledge that we 14 are able to make when we have such long-tenured, 15 experienced staff. 16 We're able to provide a great value with 17 that, with a staff sized at about 30 individuals 18 compared to some state agencies with over 5,000 19 individuals. We are lean, and we operate because 20 of the faithful service and experience that 21 individuals like Mr. Shockney contribute daily. 22 So -- 23 CHAIRPERSON BLACKBURN: I have a 10 1 request quite on my own, and I hope the 2 Commissioners will support the idea, that 3 Mr. Shockney receive something, a certificate or 4 small commemorative piece that we can all sign in 5 recognition of 40 years. We can't hope that he 6 would be in another 40 years, so this would be 7 something that can go on his wall or on his desk 8 in recognition of -- I know we don't have gold 9 watches, so something that represents that kind 10 of dedication. 11 COMM. EDWARDS: Yes. 12 COMM. RAMOS: Yes. 13 COMM. SLASH: I agree. 14 CHAIRPERSON BLACKBURN: That's a 15 motion. 16 COMM. SLASH: Yes, I agree. 17 CHAIRPERSON BLACKBURN: We all agree. 18 Can you try to -- 19 JUDGE BURKHARDT: Duly noted, yes. 20 CHAIRPERSON BLACKBURN: Thank you. 21 JUDGE BURKHARDT: Thank you. 22 CHAIRPERSON BLACKBURN: We move now 23 to Old Business and the report by Commissioners 11 1 on appeals which they have covered. 2 In the cases which I have been assigned, I 3 need to continue, and at some time at or before 4 the next meeting, I will report to you on those. 5 And after that -- 6 (Cell phone rang.) 7 CHAIRPERSON BLACKBURN: My apologies. 8 COMM. RAMOS: Music. 9 CHAIRPERSON BLACKBURN: The -- we 10 have a long list. It looks like mostly mine. 11 We'll hear now from Comm. Slash. 12 COMM. SLASH: Yes. So, to succeed in 13 reversing the Commission's finding of no probable 14 cause, Complainant Erica Shannon must show her 15 allegations to me, the prima facie element of 16 discrimination in housing. She -- specifically 17 she must show that she's a member of a protected 18 class, she was qualified, ready and willing and 19 able to continue her advocacy as a Respondent -- 20 with the Respondent in a manner consistent with 21 reasonable terms and conditions. 22 She was threatened with eviction and the 23 Respondent treated similarly situated tenants of 12 1 a different protected class more favorably in the 2 same circumstances. So, Erica Shannon has 3 demonstrated through her appeal that she meets 4 all four elements of that case, so I would like 5 to continue to ask for that reversal. 6 CHAIRPERSON BLACKBURN: And your 7 recommendation is? I'm sorry. 8 COMM. SLASH: Oh, that we reverse. 9 CHAIRPERSON BLACKBURN: May I have a 10 motion to accept the recommendation? 11 COMM. RAMOS: So moved. 12 COMM. EDWARDS: Second. 13 CHAIRPERSON BLACKBURN: All in favor? 14 COMM. EDWARDS: Aye. 15 COMM. SLASH: Aye. 16 COMM. RAMOS: Aye. 17 COMM. LONG: Aye. 18 CHAIRPERSON BLACKBURN: Aye. Wow. 19 Thank you very much. 20 I would like to assign the appeals as they 21 were listed to the Commissioners in the order 22 that would run from left to right. You may skip 23 me and assign them around the table. 13 1 We have a Final Order, a corrected Final 2 Order. It is in your packet. May I have a 3 motion to accept the corrected Final Order? 4 COMM. EDWARDS: So moved. 5 COMM. RAMOS: Second. 6 COMM. SLASH: Second. 7 CHAIRPERSON BLACKBURN: All in favor? 8 COMM. EDWARDS: Aye. 9 COMM. SLASH: Aye. 10 COMM. RAMOS: Aye. 11 COMM. LONG: Aye. 12 CHAIRPERSON BLACKBURN: Aye. 13 Anyone opposed? 14 (No response.) 15 CHAIRPERSON BLACKBURN: And second is 16 the Final Order between Echezona Echeazu versus 17 Local 5 of the United Automobile Aerospace and 18 Agricultural Implement Workers of America. May I 19 have a motion to accept the Final Order? 20 COMM. SLASH: So moved. 21 COMM. EDWARDS: Second. 22 CHAIRPERSON BLACKBURN: All in favor? 23 COMM. EDWARDS: Aye. 14 1 COMM. SLASH: Aye. 2 COMM. RAMOS: Aye. 3 COMM. LONG: Aye. 4 CHAIRPERSON BLACKBURN: Aye. Thank 5 you. 6 Electronic Communications Meeting Policy. 7 I would suggest, and I will go with a 8 recommendation, please, that we could put that at 9 the end of the agenda after the hearing. 10 Okay. With that, now I move to exactly 11 that -- we have time now for Public Comment. 12 We'd like to restrict to three minutes at the 13 microphone, if there is any. Any Public Comment? 14 MS. BARNES: Madam Chair? 15 CHAIRPERSON BLACKBURN: Yes. 16 MS. BARNES: Hi. I'm Leslie Barnes. 17 I'm Leslie Barnes, here on behalf of 18 Dr. Carrancejie, and I just wanted to clarify. 19 Her matter was, I think, the first one on Item V. 20 Was that continued? We just want to make sure we 21 understood. 22 CHAIRPERSON BLACKBURN: Item V? 23 MS. BARNES: Item V under Old 15 1 Business, item no. 1. 2 CHAIRPERSON BLACKBURN: Yes, it's 3 continued. 4 MS. BARNES: Thank you. We just 5 wanted to make sure. 6 CHAIRPERSON BLACKBURN: Yes. 7 MS. BARNES: Appreciate it. So, 8 might it be on the next month's meeting? 9 CHAIRPERSON BLACKBURN: Yes, exactly. 10 MS. BARNES: Thank you. 11 CHAIRPERSON BLACKBURN: Thank you. 12 Anyone else need to speak? 13 (No response.) 14 CHAIRPERSON BLACKBURN: Then we'll 15 move directly to the Announcements. 16 (No response.) 17 CHAIRPERSON BLACKBURN: Hearing 18 none -- 19 JUDGE BURKHARDT: All right. 20 CHAIRPERSON BLACKBURN: -- go right 21 ahead. 22 JUDGE BURKHARDT: I'll state that -- 23 CHAIRPERSON BLACKBURN: And we 16 1 will -- 2 JUDGE BURKHARDT: Okay. I'll state 3 that the Deputy Director -- 4 CHAIRPERSON BLACKBURN: -- discuss 5 our Electronic Communications Policy. 6 JUDGE BURKHARDT: Well, I'll just 7 state, for Deputy Director of External Affairs, 8 Lesley Gordon, she much anticipates joining in 9 the Director's Report, providing such 10 announcements included in a report on the 11 external affairs, and then those items yet to 12 occur. 13 I would also report to you that we have 14 narrowed our search and made our selection in 15 terms of a Public Outreach Manager to support 16 External Fairs, so that means we will be ready to 17 answer that call. 18 CHAIRPERSON BLACKBURN: Thank you. 19 JUDGE BURKHARDT: And as relates to 20 the Electronic Communications Meeting Policy, I 21 would just note that in my review of past meeting 22 transcripts, I saw that in January meeting 23 of 2017 a sort of template policy was introduced, 17 1 labeled for discussion only, and it seemed to -- 2 it includes general terms and even some blanks 3 where specifics can be filled in. 4 I believe that that template was generally 5 adopted at the February meeting by a vote, but 6 did not -- we had not returned since that time to 7 flesh out some of those details. So, if we can 8 help facilitate any discussion, or if you'd like 9 to receive any of our staff's input on that. 10 CHAIRPERSON BLACKBURN: Okay. We had 11 tried to -- when we spoke of it before, tried to 12 make it as simple and common-sensical as we 13 could. My thinking was that it's helpful if at 14 least one of us is live and in person at the 15 initiation of a call involving the Commissioners 16 to meet, whether in meeting or to discuss some 17 issue of urgency, and that all others could be on 18 a long-distance call. 19 And my thought is driven by the fact that 20 we did have prior a Commissioner who, in a 21 wheelchair, found it impossible to be at meetings 22 when the weather was bad, and it didn't have to 23 be snow, but rain could be very difficult for him 18 1 to get around, too. So, most of the winter he 2 couldn't attend meetings, and at that point we 3 had no policy for calling a conference call to 4 meet a quota or to advance the business of the 5 agency. 6 So, a lot of it has come out of a concern 7 for not being able to have a quorum to conduct 8 our business, and to allow those who are out of 9 town or have had to go out of town, to be able to 10 call in from wherever they are and participate 11 during the meetings by phone. 12 So, any comments that you would want to 13 make that would be helpful while they craft 14 something that is in writing for us, now would be 15 the time to speak. 16 COMM. LONG: Yeah, I think having 17 long distance calls sometimes is necessary, if 18 it's because of the weather or something urgent 19 and because of our schedule. I believe this 20 would make the things more efficient and 21 effective, so I would support having this option. 22 COMM. RAMOS: Yeah, my experience on 23 other boards is that we've had to have at least a 19 1 percentage of members being present in order to 2 suffice. That was more school-board oriented, 3 school board, but I don't know. I'm sure there's 4 precedent that's already been set by other 5 commissions. I think the Martin Luther King 6 Commission is an example of that, so I think we 7 may be able to follow the similar wording. 8 We'll have to get a bunch of attorneys to 9 figure that out, but my experience is that you 10 have to have at least some percentage present. 11 And in our case, you know, if we lose two, that's 12 a big chunk. But at least if you're coming from 13 far distances, like Comm. Edwards, that still 14 provides them an opportunity to participate. 15 COMM. SLASH: I agree. 16 COMM. EDWARDS: I agree. 17 JUDGE BURKHARDT: Okay. 18 CHAIRPERSON BLACKBURN: Okay. 19 JUDGE BURKHARDT: Thank you. 20 CHAIRPERSON BLACKBURN: As you can 21 see, we don't often delve into the verbatim of 22 suggestions, but generally I think we all support 23 having that option. 20 1 JUDGE BURKHARDT: Okay. Well, I will 2 proceed then. The agency staff will be happy to 3 fill in those gaps and present that to you in 4 conjunction with counsel from the Deputy Director 5 and General Counsel in light of the Public Access 6 Laws, so -- 7 CHAIRPERSON BLACKBURN: Great. 8 JUDGE BURKHARDT: Thank you. 9 CHAIRPERSON BLACKBURN: Thank you, so 10 much, John. 11 I'm going to read this in announcements in 12 case anybody has any -- there are a couple of 13 announcements I want to make not specific to the 14 Civil Rights Commission, but I want to announce 15 that -- a couple of fund-raisers which I'm 16 associated with that may interest you. 17 The Mozel Sanders Foundation annually 18 supports and presents a program to feed those who 19 are hungry on Thanksgiving, thousands and 20 thousands of meals for families who are at risk, 21 and there's a fund-raiser for the support of the 22 Foundation November 12th at the Willows on 23 Westfield Boulevard from 3:00 to 5:00 in the 21 1 afternoon, and I think those tickets will be 2 available on Eventbrite. Otherwise, they could 3 contact the Foundation. 4 And an event which I will be showing 5 that's next week, Tuesday the 24th, to raise 6 money for breast cancer awareness and a campaign 7 that is called Real Men Wear Pink. The proceeds 8 from that benefit will go to support the Cancer 9 Society, and those tickets, too, are on 10 Eventbrite, but they should be made today, 11 because the event is Tuesday. But if you're 12 interested, I wanted you to know about that. 13 Are there any other announcements? 14 (No response.) 15 CHAIRPERSON BLACKBURN: Hearing none, 16 the meeting is adjourned. 17 COMM. EDWARDS: Oral arguments. 18 COMM. RAMOS: Don't we have oral 19 arguments, under New Business? 20 CHAIRPERSON BLACKBURN: I'm sorry? 21 COMM. RAMOS: Under New Business. 22 CHAIRPERSON BLACKBURN: I'm sorry; we 23 did skip right over the oral argument. How'd we 22 1 do that? 2 COMM. RAMOS: I thought you were 3 saving the best for last. 4 CHAIRPERSON BLACKBURN: Huh? 5 COMM. RAMOS: I thought you were 6 saving the best for last. 7 CHAIRPERSON BLACKBURN: No, I was 8 trying to be ahead of our announcements. 9 Okay. Sorry to have you to wait for your 10 presentation. We are here to conduct oral 11 argument -- let me get to the -- we're here to 12 conduct oral argument. The case is Richard Hite, 13 our -- in his official capacity as Executive 14 Director, the Complainant, against -- I mean 15 versus the Zender Family Limited Partnership, 16 Respondents. 17 Would those who are going to speak during 18 this oral argument please introduce yourselves? 19 MR. BREMER: Thank you. My name is 20 Frederick S. Bremer. I'm a staff counsel with 21 the Indiana Civil Rights Commission. I would 22 like to address some remarks as to the situation. 23 We do not have Respondent's attorneys here, and I 23 1 do need to convey some information from their 2 office that I promised to do. 3 They have informed me -- I've just been on 4 the phone -- that they did not receive the notice 5 of this proceeding, and that's why they're not 6 here. They've also asked me to ask you to 7 continue for them -- to continue this matter to a 8 different date. 9 I've also talked to Sarah Meyer, who did 10 get notice and is seated behind me. And I'm -- 11 she has informed me that she wants to go ahead 12 with the argument, and it was -- it was quite a 13 lot of trouble for her to get down here. In 14 fact, she wasn't sure whether she could make the 15 trip the last time we talked to her. 16 I have -- I have nothing to say other than 17 the attorneys for the other side have never not 18 shown up. They did say that they moved their 19 offices from the Bank One -- from Chase Tower to 20 the Circle Tower on July 1st, and that may 21 account for this mail not getting there, but 22 they -- I asked them, I said, "Have you had any 23 other problem with mail?" And they said, "No." 24 1 Now, Anehita has recognized her signature 2 on the Certificate of Service of the notice. It 3 does recite the Circle Tower building address. 4 This was sent out on the 20th of September, and 5 they told me that they had moved into those 6 offices on July 1st. 7 So, as a courtesy to everybody, I just 8 wanted to convey all of this to you. Also, 9 Mr. Due and his partner, Mr. Myers, said that 10 they have calendars ready and would be available 11 by phone if it was to be rescheduled in order to 12 be here. So, that's what I wanted to tell you as 13 a preliminary matter. 14 CHAIRPERSON BLACKBURN: So, 15 Mr. Bremer, your suggestion is to proceed in the 16 absence of the Respondent? 17 MR. BREMER: The Complainant -- this 18 is the Complainant -- is asking me what can the 19 client do as -- I mean I have to respect her 20 desire to go ahead with this argument. Obviously 21 the Respondent, they would like to have a chance 22 to argue, and they have represented what they 23 have represented. I have no way of saying 25 1 whether that's accurate or not, but I have not 2 known them to not show up for any proceeding in 3 this case. I would find it unusual that they 4 wouldn't if they had notice. 5 CHAIRPERSON BLACKBURN: And your most 6 recent communication with them was when? 7 MR. BREMER: Oh, it's not -- it's 8 been several -- a long time since I have had any 9 phone communication with them, and there was no 10 need to, you know, for a normal argument. They 11 told me that they had been asking each other from 12 week to week, wondering when the Commission's 13 going to do something to get this case moving, 14 and said actually they had had that discussion a 15 couple of days ago. 16 CHAIRPERSON BLACKBURN: My 17 inclination, and I hope it is really sound to 18 proceed, is that we do as you asked and allow the 19 Complainant to give you authorization to proceed. 20 MR. BREMER: Okay. Well, I'm sure 21 she does. 22 MS. MEYER: I do. 23 MR. BREMER: Yes. 26 1 MS. MEYER: Thank you. 2 CHAIRPERSON BLACKBURN: In that 3 case -- 4 MR. BREMER: Proceed? 5 CHAIRPERSON BLACKBURN: -- we'd like 6 to proceed. 7 MR. BREMER: Okay. 8 To start out, I would like to introduce 9 the complaining party. This is Sarah Meyer to my 10 left, seated at the table. She originated this 11 complaint several years ago, alleging failure to 12 accommodate her disability. It is a housing 13 case. It involves a rent that she made of an 14 apartment opened by the Zender Family Limited 15 Partnership, which had several apartment 16 buildings in Indianapolis at the time. 17 I don't know how much of a background of 18 the case that you have. Obviously you probably 19 have the order as proposed by the Administrative 20 Law Judge, Doneisha Posey, who actually was given 21 permission by both sides to write a decision in 22 this case, even though the hearing was conducted 23 by the previous Administrative Law Judge, Judge 27 1 Allen. And so, the proposal, of course, is okay 2 by the Complainant. We would like the Commission 3 to adopt that proposal as its final order in this 4 case. 5 The Respondent objects to that being done, 6 and the Respondent's objections are quite 7 lengthy. They go -- if you have a copy of it, 8 they go -- object by -- finding by finding, 9 conclusion by conclusion. 10 And it's my observation that when it comes 11 to objections about facts that have -- that are 12 involved in the case, their objections do not 13 concern whether or not there is no evidence to 14 support what Doneisha Posey has proposed, but 15 it's facts that they think should have been 16 included and reflected upon and commented upon in 17 the proposed findings and conclusions. And they 18 believe there are certain significant material 19 that should have been included. 20 I maintain, and would if they were here, 21 that this is not the point. If this case goes on 22 from here, you issue a final order adopting the 23 order as proposed by Administrative Law 28 1 Judge Posey, the only place to stop after this is 2 across the plaza here at the Indiana Court of 3 Appeals. 4 There is a direct judicial review 5 possibility open to them if they wanted to avail 6 themselves of that. This is an administrative 7 order. Therefore, it is subject to what is 8 called judicial review. It's not an appeal in a 9 traditional sense. 10 What is going on with that type of 11 proceeding is that the Court is looking at the 12 record to see if there are any errors in some 13 limited circumstances, such as is there something 14 unconstitutional about what the administrative 15 agency has done? Or if there's something that's 16 outside the jurisdiction of the administrative 17 agency. Those are the most obvious ones. Then 18 when it comes to facts, the standard of review is 19 whether or not there are any facts at all to 20 justify what the administrative agency has 21 required. 22 In this case, Judge Posey has listened -- 23 well, has reviewed; Judge Allen listened to the 29 1 evidence and Judge Posey reviewed the transcript 2 of that hearing for you, and says, "Based on what 3 I see in this record, this is what I recommend 4 the Commission do, to adopt by way of factual 5 findings, conclusions of law, and the relief. 6 So, that's -- that's what we're looking 7 at. They have a lot of objections. They are 8 saying that things have not been found that 9 should be found. 10 But the basic case is this: We're talking 11 about a failure to accommodate a disability. The 12 first element is whether or not the Complainant 13 was a qualified individual with a disability, and 14 there was no question, and Judge Posey noted 15 that, there's no issue about that. Sarah Meyer 16 is very severely disabled in her eyesight, she 17 can see light and things like that, but certainly 18 is blind. So, there's no question about that. 19 The second element is whether the employer 20 was aware of the disability. Judge Posey set 21 that out as the second element. Well, they were 22 certainly aware of the blindness. I mean she 23 went there, rented the apartment, and they had 30 1 personal interaction with her. There's no 2 question about that. 3 Their argument is that they were not aware 4 that she had any kind of disabilities involving 5 stress disorders and depression and things that 6 were going on in her life because of things that 7 had happened to her when she was younger. 8 And that when she presented a letter to 9 the owners of the Zender Family Limited 10 Partnership from a doctor saying that "Due to a 11 recent illness, issues that have exacerbated her 12 condition, Sarah has been treated in our clinic 13 for several years for a medical illness. She has 14 been very compliant and motivated in her 15 treatment. 16 "We have discussed at length the increase 17 in her symptoms, in no small part due to her 18 living situation. I highly recommended for her 19 health and well being that she move to a 20 different place. She is unable to break the 21 current lease due to penalties which she cannot 22 afford. 23 "My hope is that she could receive 31 1 assistance with this, so that she would be able 2 to move without penalty, which I feel is in her 3 best interest." 4 So, she presented this letter and she did 5 talk to a person on the staff there at the Zender 6 offices and did allude to -- she said, "Because 7 of medical conditions, I need -- I need to get 8 out of here," basically, and she -- the doctor 9 specifically asked that she be -- that they waive 10 this -- she had to pay two months of rent and 11 then a penalty, the whole thing came out to 12 $1,170 -- that she wouldn't have -- to in order 13 to be clear of this obligation, because she had 14 just signed a year's lease. This hadn't been 15 very long after she had signed up for a year's 16 lease. 17 So, we get to whether -- they're saying 18 they were not aware, they were not made aware 19 that she had these other problems that were -- 20 that was really accounting for her needing to 21 move. Obviously she rented. Blindness was not 22 it, so to speak, because she rented it when she 23 was blind. 32 1 This was something that she was doing that 2 was new in her life. She had never lived on her 3 own like this. She lived in schools and so forth 4 and dormitories, but she was excited about moving 5 into the downtown area, being able to go to 6 school, go to work, being able to be on her own 7 and have her own apartment. 8 After she was there for a short time, she 9 explored the area where she was living and some 10 things happened when she was -- when she would 11 ride the bus, she would come off the bus, some -- 12 on the streets to and from the bus stop and this 13 building where she lived, the Zender building 14 where she lived. 15 People would approach her, touch her, make 16 suggestive remarks, and so forth, and made her 17 very frightened about the -- whether she would be 18 assaulted. So, she -- because of that, this 19 awakened fears and emotions that she had 20 experienced because of things that had happened 21 to her when she was younger in her life. 22 This -- this prompted her to make them 23 aware. Obviously, when I questioned one of the 33 1 partners who made the decision to not give her a 2 break, they didn't discuss this with her. They 3 didn't have her come to a meeting. She asked if 4 she could talk to the partners and tell them more 5 about the situation. 6 She wanted to meet them, she wanted to ask 7 them if they would just please consider her 8 situation and her circumstances. And they had a 9 meeting. They didn't -- you know, there were 10 three of the partners, Lisa Zender being one of 11 them -- she did testify -- and they decided not 12 to honor her request. 13 Now, the most important thing here is 14 this: The denial of a reasonable accommodation 15 on the basis of disability is larger than just 16 the denial. It can also go to whether or not an 17 opportunity was extended to the person who is in 18 need of an accommodation to enter into what's 19 called an interactive communications with each 20 other in order to see if there's something that 21 could be done to accommodate her. 22 They had a number of buildings besides 23 this one in this particular area. They said that 34 1 all of their buildings were downtown, but 2 actually there were some that I would not 3 consider to be in the downtown business direct. 4 I mean they were quite a bit further north of 5 that. The building she was at was at 13th and 6 Delaware. It was the Harrison. 7 So, there was no opportunity given for -- 8 that legally required communication, that back 9 and forth thing. That's what's available in the 10 law for a disabled person when they're in this 11 kind of a situation. So, that was not done, and 12 that's the thrust of Judge Posey's finding, that 13 she was not accommodated because of that, that 14 other issue. No, they didn't grant her what she 15 wanted. You don't necessarily have to grant 16 that, but there could be other things. 17 So, as you read Judge Posey's proposal, 18 you'll see that her decision rests on that. Now, 19 you do not -- the Administrative Law Judge or the 20 administrative agency, nor you as a state agency, 21 you wield part of the sovereignty of the State of 22 Indiana of what would be called executive slash 23 administrative branch. 35 1 You have your own branch. The judiciary 2 has only a limited right to interfere in what you 3 do as a final order. They can review it. They 4 can absolutely say -- if you say that this 5 certain fact was true and it wasn't true, they 6 can review it and say that that's not appropriate 7 and they would remand it back to this agency to 8 find in accordance with what they said. 9 Or if you said that there was a rule of 10 law that really did not apply, then they could 11 send it back for that reason. But they can't 12 say, "Well, you didn't talk about this and you 13 didn't talk about that." In other words, you 14 don't have to write a book, you know, with lots 15 of footnotes and annotations and details, "and by 16 the way, we took this into consideration, but we 17 didn't think that." 18 That's not the responsibility. You can do 19 that if you want, but I mean it's not necessary, 20 and it really all involves the constitutional 21 interplay between the executive branch and the 22 judicial branch. 23 Now, but even going further than that, I 36 1 mean the final thing was it was -- it was not -- 2 she was not given the procedure that she should 3 have been given. They had a rule. They let the 4 rule decide for them. They said, "We don't -- 5 you know, we don't let people out early. We gave 6 you an accommodation. We said you get to get out 7 of paying the entire lease because you just have 8 to pay this two months and this penalty, this 9 $250 penalty." 10 Well, that is not -- doesn't solve the 11 problem. I mean they have to engage in the 12 conversation. And the reason they have to engage 13 in the conversation, the law says that if you 14 don't, that prevents you of possibly arriving at 15 a reasonable accommodation as something that 16 could be done. 17 "Hey, at no charge, what about if we move 18 you over to this other building and put you in a 19 similar apartment or something like that, or what 20 if we have some security arrangements?" I mean 21 maybe they didn't, but that discussion was -- 22 that opportunity was never afforded. 23 Now, the objections are also directed 37 1 toward damages that have been proposed by 2 Judge Posey: $10,000 totally to Sarah Meyer and 3 a $5,000 penalty to the Indiana Civil Rights 4 Commission. They have raised issues about what 5 the Commission can order in terms of emotional 6 distress. 7 They are in tune with what courts can 8 award for torts that are committed that are 9 recognized in the common law of the State of 10 Indiana, court- and judge-made law, such as the 11 intentional infliction of emotion distress, or 12 the negligent infliction of emotional distress. 13 Those are out there standing in a field to 14 themselves and are not authority to what the 15 Commission can do. 16 By statute, the Commission can award what 17 are called actual damages upon a finding that a 18 violation of the act has occurred, and actual 19 damages include damages for out of pocket, it 20 also includes -- can include damages for any 21 emotional distress. 22 In addressing it, they said, "Well, there 23 was only a short time that she found out that she 38 1 wasn't going to be able to get this accommodation 2 that she -- the actual accommodation that she was 3 seeking was to not have to pay this money, and 4 not -- you know, if she walked away -- she 5 testified if she walked away, then she'd have 6 trouble renting someplace else, because the 7 landlord would put a bad mark on her credit 8 record and so forth. 9 And she's already -- her income is very 10 limited, and it just wasn't -- she really needed 11 for this to happen. So, she was able -- when she 12 got down to it and she knew that this wasn't 13 going to happen, she testified along these lines. 14 She says, "I'm sorry; the details are kind of 15 blurred because at that point I just -- I just 16 felt completely hopeless." 17 And I asked her, "Why did you feel 18 completely hopeless?" And she said, "Because I 19 felt trapped and I felt powerless. I felt as 20 if -- I felt as if someone -- people, I guess, 21 because I knew there was a few owners. I felt as 22 if people would were in a position to do 23 something for someone who is suffering and in 39 1 physical and emotional distress did not act 2 ethically or in good conscience to protect their 3 tenant. 4 "And I felt hopeless because at that point 5 I did not think I was going to be able to get out 6 of the lease, and I honestly didn't know how I 7 was going to survive the rest of the year in that 8 situation, and I felt that it was inevitable that 9 I was going to be sexually assaulted or that I 10 was not going to be able to protect myself." 11 When -- so, emotional distress -- I mean that's 12 the stuff of emotional distress. 13 Now, as it happened, a friend, within a 14 short time after she knew she wasn't going to be 15 able to get what she was asking of Zender, paid 16 the money, so that she then left and she located 17 herself someplace else. 18 Now, in their objections, they said, 19 "Well, there was proof that this was not a loan, 20 that it was a gift." But I did elicit the 21 following testimony from Sarah on that, and I 22 asked, I said, "Now, you said that you had a 23 friend that helped you in getting out of there; 40 1 is that right? And she said, "Yes." 2 And I said, "Do you take that money as 3 something that you intend to pay back?" And she 4 said, "It is something that I have desperately 5 wanted to be able to pay back, yes." And then I 6 asked again, "It's your -- it is your intention 7 to do that in the future at some point?" And she 8 said, "Yes." 9 So, that's where that one sum of money 10 comes from in Doneisha Posey's proposal: 10,000 11 totally, most of it for emotional distress, which 12 you have every right to award, and you are not 13 held to the same standard as to what is 14 sufficient for -- to prove emotional distress for 15 the purposes of the torts of the intentional 16 infliction of emotional distress or the negligent 17 infliction of emotional distress, where you would 18 have to have some medical evidence and so forth. 19 The Commission has awarded emotional 20 distress and more in cases, I know that you have, 21 and the amounts of money have not been very 22 small, they've been significant amounts of money, 23 and there were not any -- there were not any 41 1 proof of any medical -- going to a psychiatrist 2 or anything like that. 3 I remember one case where the person was 4 denied access to a restroom in a pizza parlor 5 because he did not buy something, and then we had 6 somebody from the Commission go and test it out 7 who was white, and they said they wanted to use 8 the restroom. They said nothing about having to 9 buy something, threw the key at him, and he went 10 and used the restroom and came out. 11 The other guy, he went out to catch the 12 bus. He was not able to use the restroom, and he 13 urinated on himself. He was so embarrassed he 14 did not take the bus. He walked a couple of 15 miles home. So, there was a lot of emotional 16 distress talked about in that case, but in that 17 case, there wasn't any physician's testimony, 18 medical records or anything like that. 19 So, to sum it up, there are facts that 20 justify the Commission finding that certain 21 things happened. There are -- there are facts 22 that justify the Commission saying that this was 23 a violation of this -- of the Indiana Civil 42 1 Rights Law, in particular, the Indiana Fair 2 Housing Act. And there are facts that justify 3 the Commission awarding the damages that the 4 former Judge Posey proposed. 5 On behalf of Sarah Meyer, I then argue and 6 ask you to please go ahead and adopt Judge 7 Posey's order as the final order of the 8 Commission in this case. 9 CHAIRPERSON BLACKBURN: Thank you, 10 Mr. Bremer. I want to ask you, please, on 11 page 12 of the order, nos. 2 and 3, where the 12 amounts are listed, I'm curious why, after 13 $6,000, in parentheses you have 15,000, and 14 no. 3, where the amount is $3,000, you have five. 15 MR. BREMER: I said 10,000. I'm 16 sorry; it was 15 is the total amount, but okay. 17 Your question, on paragraph 2, again, is -- 18 COMM. EDWARDS: The wording does not 19 match the figures. 20 COMM. SLASH: Yeah. 21 CHAIRPERSON BLACKBURN: The wording 22 says, on the second line of no. 2, the amount of 23 $6,000. Behind it, you have in parentheses 43 1 15,000. 2 MR. BREMER: The copy that I'm 3 looking at doesn't say $6,000. 4 CHAIRPERSON BLACKBURN: I'm sorry? 5 MR. BREMER: The copy of the proposed 6 order doesn't say 6,000. It says -- it's printed 7 out fifteen thousand, and then it's numerical 8 15,000, this document that I have. So, I can't 9 answer that question. 10 COMM. SLASH: Ours has a typo. 11 CHAIRPERSON BLACKBURN: It's a pretty 12 important typo. 13 MR. BREMER: I can't account for that 14 error. 15 CHAIRPERSON BLACKBURN: Okay. 16 MR. BREMER: This is the one that I 17 got from -- 18 CHAIRPERSON BLACKBURN: And there's 19 lack of accuracy in no. 2 around the same issue, 20 where it says $3,000, and in parentheses, five. 21 But that, too, is just a typo, you're telling me; 22 right? 23 MR. BREMER: Whatever the original 44 1 document says is what I would go by. 2 CHAIRPERSON BLACKBURN: Okay. 3 MR. BREMER: I assume I had a copy of 4 the original document, and I assume one was made 5 available to you, so I think that has to be 6 clarified. 7 CHAIRPERSON BLACKBURN: Yes. 8 But do the Commissioners have any 9 questions about the content of Mr. Bremer's 10 presentation or anything about this case? 11 COMM. SLASH: No, not from me. 12 CHAIRPERSON BLACKBURN: No? May I 13 have a recommendation with regards to the 14 acceptance or rejection of the proposed findings 15 of fact, conclusions of law and order? 16 COMM. RAMOS: Madam Chair, I motion 17 that we accept the ALJ's motion as probable 18 cause, and correct the enumeration as suggested 19 here, but that would be my motion. 20 CHAIRPERSON BLACKBURN: May I have a 21 second? 22 COMM. SLASH: Second. 23 CHAIRPERSON BLACKBURN: Is there any 45 1 discussion? 2 (No response.) 3 CHAIRPERSON BLACKBURN: All in favor? 4 COMM. EDWARDS: Aye. 5 COMM. SLASH: Aye. 6 COMM. RAMOS: Aye. 7 COMM. LONG: Aye. 8 CHAIRPERSON BLACKBURN: Aye. 9 Anyone opposed? 10 (No response.) 11 CHAIRPERSON BLACKBURN: Thank you, 12 Ms. Meyers. 13 MS. MEYER: Thank you. 14 CHAIRPERSON BLACKBURN: And I want to 15 thank you, Mr. Bremer. 16 MS. MEYER: Thank you. 17 MR. BREMER: Well, a lot of people at 18 this agency did a lot of work on this, not the 19 least of which is your new Administrative Law 20 Judge. 21 CHAIRPERSON BLACKBURN: Yes. 22 MS. MEYER: Thank you. 23 CHAIRPERSON BLACKBURN: You're very 46 1 welcome. Thank you. 2 Is there any other business to come before 3 the Commission? 4 (No response.) 5 CHAIRPERSON BLACKBURN: Anything in 6 the agenda I might have missed? 7 JUDGE BURKHARDT: I just have one 8 thing. Just for purposes of clarification, 9 the -- I'm sorry. The vote that was just taken, 10 that was to adopt the ALJ's proposed order, and 11 was that -- was it noted that there is any 12 modification made to the text as it pertains to 13 damages? 14 CHAIRPERSON BLACKBURN: Yes. 15 JUDGE BURKHARDT: Okay. 16 COMM. RAMOS: Maybe more of a 17 clarification, that there is a typo. 18 COMM. SLASH: What we have in front 19 of us has in the text a typo. 20 JUDGE BURKHARDT: Okay. So, would it 21 be expected, then, that the ALJ who issued that 22 proposed order, the Honorable Doneisha Posey, 23 then provide to you for signature a final order, 47 1 then, with her signature which notes as pertains 2 to the images, there is a modification just to 3 strike -- 4 CHAIRPERSON BLACKBURN: The 5 inaccurate numbers. 6 JUDGE BURKHARDT: -- the inaccurate 7 num -- would that be the classical representation 8 and maintain the 15 and 5,000, or would it be to 9 strike the numerical amounts and maintain them? 10 CHAIRPERSON BLACKBURN: You could 11 just strike the numerical amounts, or correct it, 12 one or the other to be done. 13 JUDGE BURKHARDT: So, is it -- 14 COMM. RAMOS: Yeah. My -- my 15 recommendation would be to -- the number that was 16 proposed by Mr. Bremer was 15,000, and 5,000. 17 JUDGE BURKHARDT: Uh-huh. 18 COMM. RAMOS: That's the point that 19 we accepted, and that's what we need as the 20 clarification. 21 CHAIRPERSON BLACKBURN: Excellent. 22 JUDGE BURKHARDT: Okay. Thank you 23 very much. Appreciate it. 48 1 CHAIRPERSON BLACKBURN: Excellent. 2 Thank you. 3 The Indiana Civil Rights Commission is 4 adjourned. 5 - - - Thereupon, the proceedings of 6 October 20, 2017 were concluded at 2:06 o'clock p.m. 7 - - - 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 49 1 CERTIFICATE 2 I, Lindy L. Meyer, Jr., the undersigned 3 Court Reporter and Notary Public residing in the 4 City of Shelbyville, Shelby County, Indiana, do 5 hereby certify that the foregoing is a true and 6 correct transcript of the proceedings taken by me 7 on Friday, October 20, 2017 in this matter and 8 transcribed by me. 9 10 _________________________ 11 Lindy L. Meyer, Jr., 12 Notary Public in and 13 for the State of Indiana. 14 15 My Commission expires August 26, 2024. 16 17 18 19 20 21 22 23