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RGR Co. LLC v. Lincoln Comm'n on Human Rights on Behalf of Simeus

Supreme Court of Nebraska

February 12, 2016

RGR COMPANY LLC, APPELLANT,
v.
LINCOLN COMMISSION ON HUMAN RIGHTS ON BEHALF OF LIONEL SIMEUS, APPELLEE

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Appeal from the District Court for Lancaster County: LORI A. MARET, Judge.

Melanie J. Whittamore-Mantzios, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellant.

Jeffery R. Kirkpatrick, Lincoln City Attorney, and Jocelyn W. Golden for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, and CASSEL, JJ. MCCORMACK and STACY, JJ., not participating.

OPINION

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[292 Neb. 746] Miller-Lerman, J.

NATURE OF CASE

On June 12, 2013, Lionel Simeus filed a complaint against RGR Company LLC (RGR) with the Lincoln Commission on [292 Neb. 747] Human Rights (the Commission) for housing discrimination on the basis of race, nationality, and disability pursuant to 42 U.S.C. § 3604(b) (2012) of the federal Fair Housing Act and Lincoln Mun. Code § 11.06.020(b) (1991). The Commission determined that reasonable cause existed to believe that RGR discriminated against Simeus in the provision of housing on the basis of race and national origin. On October 31, the Commission, on behalf of Simeus, filed a charge of discrimination against RGR. A public hearing was held. On February 27, 2014, the Commission filed an amended final order finding against RGR and awarding various penalties and costs.

RGR appealed to the district court for Lancaster County. On December 23, 2014, the district court affirmed the Commission's amended final order. RGR appeals. For reasons more fully explained below, we determine that the Commission failed to prove that RGR's explanation of its negative treatment of Simeus was a pretext for discrimination and that the Commission did not establish that intentional discrimination was the real reason. Therefore, we reverse the decision of the district court and enter orders accordingly.

STATEMENT OF FACTS

RGR owns a rental property located at 1315 D Street in Lincoln, Nebraska. Ryan Reinke is the sole owner of RGR, as well as various other business entities. There are 12 rental properties in Lincoln that are owned by Reinke or entities owned by Reinke. At the time relevant to this case, 75 tenants lived in the 12 rental properties.

Simeus is a black man from Haiti. On May 27, 2013, Reinke and Simeus met to discuss Simeus' renting an apartment in the building located at 1315 D Street. Simeus entered into a 1-year lease agreement with an agreed monthly rent of $385. The parties disagree about whether Simeus signed a lease. Despite requests from Simeus, Reinke did not provide Simeus with a copy of the lease, and there is not a signed copy of the lease in the record. Simeus resided in the apartment from June 1 through August 7.

[292 Neb. 748] Simeus noted that there were repairs that needed to be completed in the apartment. There was a hole in the bedroom wall. There were broken items, including a shower faucet, kitchen cabinets, and a stove with only one functioning burner. Simeus attempted to contact Reinke regarding the repairs by telephone and in

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person. Reinke did not answer or return Simeus' calls. Simeus stated that on or about June 5, 2013, he approached Reinke while Reinke was in his vehicle outside the apartment building, but instead of talking to Simeus, Reinke rolled up his car window and said, " 'That's why I don't want to deal with you foreigners . . . .'" Reinke denies making the statement. However, Reinke acknowledges he rolled up the car window because he was in a conversion on his cell phone.

On June 6, 2013, Reinke gave Simeus a " Fourteen-Day Notice of Termination of Rental Agreement," which stated that Simeus was " in material noncompliance" of his rental agreement for the following reasons: " 1. Burning candles, incense, or smoking within the premises[,] 2. Disturbances[,] 3. Argumentative or threatening other tenants[,] 4. Public intoxication."

On June 7, 2013, the police responded to a noise complaint regarding Simeus' apartment. Simeus spoke with the responding officer who asked him to turn his music down, and Simeus complied.

Reinke asserted that he delivered a second 14-day notice to Simeus sometime after June 6, 2013, but a signed copy of the second notice was not offered at the hearing, and a signed copy is not in the record. An unsigned copy of the second notice is in the record, and it stated that Simeus was " in material noncompliance" with the rental agreement for the following reasons: " 1. Commons area damage by tenant or guest[,] 2. Replace advertising banner[,] 3. Failure to maintain building thermal efficiency when heat[ing] or cooling apartment." Simeus denied receiving the second notice.

[292 Neb. 749] Simeus filed complaints with the Commission on June 12, 2013, and with the U.S. Department of Housing and Urban Development on July 2, alleging that Reinke and RGR committed discriminatory housing practices on the basis of race, national origin, and disability, in violation of § 11.06.020(b) of the Lincoln Municipal Code, which describes acts which are unlawful regarding housing, and 42 U.S.C. § 3604(b) of the federal Fair Housing Act. On June 13, the Commission sent a notice of the filing of the complaint to RGR and Reinke. Reinke refused to claim the certified letter, so it was returned. On June 27, the sheriff served Reinke with the notice.

Angela Lemke, a senior civil rights investigator with the Commission, investigated Simeus' complaint. While the Commission was investigating his complaint, additional incidents occurred. On or about June 17, 2013, Simeus contacted the Lincoln's Building and Safety Department regarding perceived violations of the housing code in his apartment. A housing inspector inspected Simeus' apartment and noted that the leaking bathtub faucet constituted a code violation. The housing inspector sent RGR a letter dated June 17, 2013, which stated that the violation must be repaired by July 3.

On June 26, 2013, Simeus had left his apartment, and when he returned, the electricity was not working in his apartment. He contacted Lemke and notified her that his electricity was not working, and Lemke contacted the Building and Safety Department. A housing inspector from the Building and Safety Department determined that the issue was with the main breaker box in the hallway outside of Simeus' apartment, which was located in a locked closet. It was determined that Simeus' apartment was the only apartment in the building where the electricity was affected.

On June 27, 2013, Reinke entered Simeus' apartment to make repairs. Reinke did not provide Simeus with notice. That

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night, Simeus had taken medication to help him sleep, and he was asleep when Reinke entered the apartment and [292 Neb. 750] completed the repairs. In an interview with Lemke, Reinke acknowledged that he completed the repairs while Simeus " was 'not alert.'"

On July 9, 2013, Reinke posted a " 3 Day Notice of Breach of Lease Agreement" on Simeus' apartment door. The notice stated that Simeus owed $465, which was rent in the amount of $385 and a late fee in the amount of $80. The notice stated that if Simeus did not remedy the noncompliance by July 12, the rental agreement would terminate. Reinke brought an eviction proceeding against Simeus in the district court for Lancaster County in the separate case No. CI 13-8406. Simeus moved out of the apartment on or about August 7 without paying his rent for July.

Based on Lemke's investigation, the Commission determined that reasonable cause existed to believe that a discriminatory housing practice had occurred on the basis of race and national origin. Therefore, on October 31, 2013, the Commission, on behalf of Simeus, issued a " Charge of Discrimination" against RGR, pursuant to Lincoln Mun. Code § 11.02.070 (1996) and rule 2-(6.1a) of the Commission's rules and regulations. The charge alleged, inter alia, that RGR failed to respond to Simeus' requests for repairs in a timely fashion and that when Reinke did complete the repairs, he entered Simeus' apartment without notice and while Simeus was sleeping. The charge stated that timely repairs were made " to units occupied by tenants outside of [Simeus'] race and national origin" and that RGR failed to make timely repairs to an apartment " which houses a Black tenant of Ethiopian descent." Based on these facts, the charge alleged that RGR discriminated against Simeus on the basis of race and national origin.

Neither party elected to have the claims asserted in a civil action, so a public hearing was held before a hearing officer on December 4 and 5, 2013. Simeus, Reinke, and Lemke testified at the hearing. The Commission offered and the hearing officer received 17 exhibits. RGR offered and the hearing officer received 15 exhibits.

[292 Neb. 751] The hearing officer's " Findings of Fact and Discussion" were received by the Commission on December 19, 2013. Based on the evidence adduced at the hearing, the hearing officer determined that Reinke discriminated against Simeus on the basis of race or national origin. In making this determination, the hearing officer had found that (1) Reinke failed to make timely repairs to Simeus' apartment; (2) Reinke served upon Simeus a notice to quit the premises only 6 days after Simeus moved into the apartment; (3) Reinke, without notice, entered Simeus' apartment to complete repairs when Simeus was sleeping; and (4) Simeus was the only tenant who lost electricity on June 26, 2013, and " [i]t is more likely than not that . . . Reinke was responsible for the loss of electricity to the Simeus apartment." The hearing officer also noted that there was no evidence that (1) any other tenant had been given a notice to quit the premises after requesting a copy of the lease agreement, (2) Reinke had entered any other apartment to make repairs while the tenant was sleeping, or (3) Reinke had rolled up his car window when any other tenant was speaking to him. The hearing officer therefore determined that RGR and Reinke discriminated against Simeus based on his race or national origin. The hearing officer recommended the following order: that a civil penalty be imposed against Reinke in the amount of $1,000, that Reinke pay Simeus' moving costs in the amount of $100, that Reinke return Simeus' security deposit in the amount of $385, and that RGR file a satisfaction of

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the judgment against Simeus by Reinke or RGR for the eviction for unpaid rent or costs in the amount of $1,348.62.

On January 30, 2014, the Commission held a meeting at which it discussed, inter alia, the public hearing against RGR. And later on January 30, the Commission filed its " Final Order." The final order largely adopted the hearing officer's findings of fact, and set forth the following findings of fact:

1. The property at issue in this case is located at 1315 D Street, in Lincoln, Nebraska. Respondent, RGR . . . [292 Neb. 752] owns the subject property, and Respondent . . . Reinke is the sole owner of RGR . . . .
2. The Complainant . . . Simeus, is a black individual of Haitian descent. Respondent denies having knowledge of the Complainant's national origin. Respondent Reinke testified about the nationality or race of his other tenants, and testified that he believed Complainant Simeus had a speech impediment and not an accent. Based on ...

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