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Final Order
Hearings Unit: Final Order
 
 
BEFORE THE COMMISSIONER OF THE BUREAU OF LABOR AND INDUSTRIES OF THE STATE OF OREGON
 
 
In the Matter of
THOMAS E. HARRINGTON, dba Harrington Property Management,
Respondent. Case Number 36-96 FINDINGS OF FACT ULTIMATE FINDINGS OF FACT CONCLUSIONS OF LAW OPINION ORDER
 
 

 
SYNOPSIS

Respondent unlawfully terminated its resident apartment manager because of her age, 67, and disability, coronary artery disease. The Commissioner awarded two year´s pay and expenses plus emotional distress damages. ORS 659.030(1); 659.425(1)(a)
 

 
The above-entitled contested case came on regularly for hearing before Warner W. Gregg, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on September 3, 4, and 5, 1996, in the hearings conference room of the Bureau of Labor and Industries, 1004 State Office Building, 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, an employee of the Agency. Thomas E. Harrington, dba Harrington Property Management (Respondent), was represented by Marianne Brams, Attorney at Law, Portland, and was present periodically throughout the hearing. Dorothy M. Kiefel (Complainant) was present throughout the hearing.
 
The Agency called the following witnesses: Complainant, cleaning contractor Jim R. Haas, Respondent´s former employee Rosalyn Loft, Agency Senior Investigator Jane McNeill, current Allentowne Village (Allentowne) tenants Patricia Pham and Deborah Woods; and former tenant John Frizzell.
 
Respondent called the following witnesses: Respondent; Respondent´s former employees Charles Buys, Fred Boyce and Richard McConnell; Respondent´s current employees Kent Carter, David Cone, Jo Criswell, Janna Erichsen, and Brent Melgaard; current Allentowne tenant Barbara Cochran; and former tenant Marge Klier. Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion and Order.
 
FINDINGS OF FACT -- PROCEDURAL
 
1) On August 15, 1995, Complainant filed a verified complaint with the Agency, amended on January 23, 1996, alleging that she was the victim of the unlawful employment practices of Respondent. After investigation and review, the Agency issued an Administrative Determination finding substantial evidence supporting the allegations of the complaint. (Testimony of Complainant; Exhibits A-1, A-1a, A-3)
2) On June 20, 1996, the Agency prepared for service on Respondent Specific Charges, alleging that Respondent discriminated against Complainant in her employment with Respondent by terminating her employment, based on her age, 67, and/or on her marital status of being unmarried, both in violation of ORS 659.030, and/or based on a disability, coronary artery disease, which Respondent had previously accommodated, in violation of ORS 659.425. With the Specific Charges, the Agency served on Respondent the following: a) Notice of Hearing setting forth the time and place of the hearing; b) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413; c) a complete copy of Oregon Administrative Rules (OAR) regarding the contested case process; and d) a separate copy of the specific administrative rule regarding responsive pleadings. (Exhibit X-2)
3) A copy of those Charges, together with items a) through d) of Procedural Finding 2 above, was sent by US Post Office mail, postage prepaid, to Respondent on June 20, 1996. Both the Notice of Contested Case Rights and Procedures (item b) and the Bureau of Labor and Industries Contested Case Hearings Rules (item d) at OAR 839-50-130(1), provided that an answer must be filed within 20 days of the receipt of the charging document. (Exhibit X-2)
4) Respondent through counsel requested an extension of time in which to answer and on July 24, 1996 timely filed an answer wherein Respondent admitted employing Complainant, a female, in Oregon and denied any unlawful employment practices or damages to Complainant based on Complainant´s age, marital status or disability. Respondent alleged further that Complainant´s termination was performance based and that her unsatisfactory performance was Respondent´s primary consideration. Respondent also alleged that Complainant had breached her employment contract and received notice of termination in accordance with that contract, and that she failed to mitigate any damage alleged by refusing an offer of an alternative position prior to her termination. (Exhibits X-3, X-4, X-5)
5) Respondent moved for postponement of the hearing to facilitate a discovery deposition and on August 8, 1996, after discussion of available dates with the participants, the ALJ authorized the deposition of Complainant, reset the hearing date, and ordered the participants to submit case summaries pursuant to OAR 839-50-200 and 839-50-210. The participants timely filed their respective summaries of the case in accordance with the order of the ALJ. (Exhibits X-7, X-8, X-9)
6) At the commencement of the hearing, counsel for Respondent stated that she had reviewed the Notice of Contested Case Rights and Procedures and had no questions about it. (Statement of Brams)
7) At the commencement of the hearing, pursuant to ORS 183.415(7), the ALJ orally advised the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of the ALJ)
8) At the close of testimony, due to prior commitments of the ALJ and the Agency Case Presenter, the ALJ ordered simultaneous written arguments from the participants due November 1, 1996. That schedule was later modified with the approval of the ALJ. (Exhibit X-10; Statement of the ALJ)
10) On September 24, 1996, Respondent´s counsel requested verification of the exhibit numbers admitted at hearing and requested copies of the tapes of testimony taken in the afternoon of September 3. On September 26, the ALJ supplied the requested items and information, and requested readable copies of certain exhibits. (Exhibits X-11, X-12)
11) On November 12, 1996, Respondent filed and offered for admission clear copies of exhibits R-2 through R-10, and, in addition, R-12 through R-19, which were affidavits of eight individuals, four of whom had testified at hearing. In response, the Agency objected to the admission of affidavits of persons who were not called as witnesses at the hearing (R-12 through R-15) and to the affidavits of witnesses who were examined and cross-examined at hearing (R-16 to R-19). On November 22, 1996, the ALJ received in evidence the copies of R-2, R-3, R-4, R-5, and R-7, and accepted the copy of R-10 as an offer of proof. The ALJ did not receive in evidence the affidavits of persons who were not called as witnesses at the hearing (R-12 through R-15) because the Agency had no opportunity for cross-examination. The ALJ did not receive in evidence the affidavits of witnesses who testified at hearing (R-16 to R-19) because they were untimely. None of those exhibits (R-12 through R-19) have been considered in the formulation of this order. The respective final arguments of the participants having been timely received, the record herein closed on November 22, 1996. (Exhibits X-13, X-14, X-15, X-16, X-17)
11) The proposed order, containing an exceptions notice, was issued January 21, 1997 and an amendment to the Order portion, also containing an exceptions notice, was issued on January 24, 1997. On January 29, 1997, the ALJ extended the due date for exceptions to February 28, 1997. Respondent timely filed exceptions which are dealt with in the Opinion section of this order.
 
FINDINGS OF FACT -- THE MERITS

1) At times material herein, Respondent owned several apartment complexes where he utilized the personal services of six or more persons within the State of Oregon. Respondent owned several similar properties in California. He managed his properties under the assumed business name of Harrington Property Management, headquartered in Los Altos, California. (Testimony of Respondent, Entire Record) 2) Among the apartments owned by Respondent was Allentowne Village Apartments, Beaverton (Allentowne), which he purchased in approximately 1987 and which was his first Oregon property. Allentowne´s 107 units were in two- and three-story buildings. Subsequently, Respondent acquired Country Club Estates (Country Club), Englewood Terrace Apartments (Englewood), Crestview Apartments (Crestview), and, for a time, Cornell Apartments (Cornell). (Testimony of Respondent, Entire Record)
3) Complainant, born May 12, 1928, was the resident manager of Allentowne for Princeton Properties when Respondent acquired it and had been there about two years. Previous to that she had four years experience in resident management with CTL Properties. Before managing apartments, she had been a housewife and had been employed with Pendleton Woolen Mills. She had two adult sons, had divorced in 1978, and had an eighth grade education. (Testimony of Complainant)
4) Complainant´s duties as resident manager were to show and rent apartments, collect rent, keep the books and oversee maintenance of the property. She generally had one or more assistants who did day to day maintenance and relieved her in the office. Major cleaning, painting and landscaping was done by outside contractors. ("vendors"). Her duties were substantially the same before and after Respondent became owner, and did not change in 1989 when Respondent acquired Country Club Estates in Gresham and made David Cone resident manager there and regional manager over the other Oregon properties, including Allentowne. Complainant received a salary of $2200 per month, rental of a three bedroom apartment, valued at $550 per month, and utilities and telephone, valued at $100 per month. (Testimony of Complainant, Respondent, Cone)
5) Complainant annually proposed a budget for Allentowne. The budget included the costs of herself and other staff and of painting, cleaning, and landscaping. It also included proposals for major maintenance, not always approved, such as paving the parking area. Respondent did not question the ongoing items, nor did Cone when he received them as regional manager. The bills from vendors, such as plumbing, contract cleaning, landscaping and electrical were approved by Complainant and paid by the California office. (Testimony of Complainant, Respondent, Cone, Entire Record)
6) Complainant´s assistant in 1988 was Richard McConnell, who did the day-to-day maintenance and relieved Complainant in the office. McConnell went to Crestview as resident manager in 1989. He retired voluntarily from that position in 1995 at age 65. Due to a heart condition, he delegated cleaning and maintenance but still inspected some apartments regularly himself. (Testimony of Complainant, McConnell)
7) When Complainant had difficulty replacing McConnell, she hired her son, Ben Beeler as maintenance person. He also helped in the office. He performed routine maintenance until April, 1993, when a series of events prompted Respondent to order him off the property. Beeler was reported to have been responsible for a friend entering the wrong apartment, was reported to have gone through the property of a tenant while doing maintenance in the tenant´s apartment, and had items discovered in his apartment which included the ingredients of methamphetamine. Beeler denied knowledge of the drugs and claimed he was storing the boxes containing them for an acquaintance, who also used Beeler´s car. (Testimony of Complainant, Respondent)
8) Beeler was not charged by the authorities, but the presence of the unlawful substances caused mandatory cleanup costs to Respondent. Cone told Beeler and Complainant in April, 1993, that Respondent had barred Beeler from Allentowne for six months, after which he was allowed only to visit Complainant. Complainant was not to use Beeler for maintenance again. Respondent did not otherwise sanction or discipline Complainant concerning Beeler. (Testimony of Complainant, Respondent, Cone)
9) As resident manager, up to about 1993, Complainant walked the property in the early morning, checking the orderliness of the parking lot and grounds. She checked and scheduled the cleanup and reconditioning of vacant apartments, showed apartments to prospective renters, and inspected routine maintenance and cleaning. She had no maintenance skills herself, but attempted to have tenants´ maintenance concerns resolved within one to three days unless told by the tenant it was unimportant. She needed to give 24 hour notice to inspect an occupied apartment. (Testimony of Complainant, McConnell)
10) Vacancies appeared to be cyclical, occurring at the end of the school year and around Christmas time. Complainant used newspaper advertising when she had more vacancies than normal, which was seldom. (Testimony of Complainant, McConnell, Loft)
11) When Complainant had a large number of vacancies to get ready for rental or when she had no cleaning assistant, she hired a contractor. Jim Haas did contract apartment cleaning for Complainant between 1988 and 1995. He worked for her successors, but discovered he was getting only the most difficult jobs. Apartment cleaning was done on a flat rate for a particular sized apartment, regardless of how long or how difficult. (Testimony of Complainant, Haas, Loft)
12) Rosalyn ("Rose") Loft was Ben Beeler´s girlfriend. She met Complainant in 1992, when she lived with Beeler. When the regular cleaning contractor was not available, Complainant asked Loft to try it. The first apartment Loft cleaned was inspected by Complainant three times before Complainant passed it as satisfactory. She was paid the flat rate even though it took a good deal of time. (Testimony of Loft)
13) Complainant was diagnosed with breast cancer in about 1989, which affected her lungs by 1991. She also had a heart problem, coronary artery disease, about 1990. By late 1992, Complainant was medically restricted from climbing more than one flight of stairs. She ceased personally showing or inspecting units on the second and third levels, except occasionally. She continued to personally view the lower level units and had her assistant inspect the others. She gave prospective renters the key in order that they might view a vacant apartment. (Testimony of Complainant, Loft; Exhibit A-9)
14) Loft learned Complainant´s cleaning standards by working for her. She was paid as a vendor by the job for cleaning and as a vendor by the hour for office work until Beeler was terminated. Complainant occasionally went to the upper levels to check cleaning or maintenance when she was training Loft. Loft helped her get up the stairs. Complainant always checked the lower floors and when she was sure Loft knew what was wanted, she had Loft check the upper apartments. Loft also relieved Complainant on weekends, staying in Complainant´s apartment. She did an evening walk around the grounds. (Testimony of Loft, Complainant)
15) Loft learned the other aspects of assisting Complainant. She checked apartments and listed needs of cleaning and repair. She was eventually put on the payroll as assistant manager. Respondent acknowledged her at the 1994 Christmas party for outstanding work in renting three apartments in one day. She checked the work of cleaners and painters using the standards she had learned from Complainant. (Testimony of Loft)
16) Cleaning contractor Jim Haas was aware of Complainant´s cancer and heart trouble. She couldn´t go to the third level about 1992. By Haas´s observation, the condition of Allentowne did not deteriorate after that. A woman named Rose was assistant manager. (Testimony of Haas)
17) Complainant had training in housing discrimination laws and was aware that such things as race and gender, among other protected statuses, could not be considered in accepting renters. In late 1993, Brenda Keith, a black female, asked to see a three bedroom apartment. Complainant gave her the key and described the apartment location allowing the prospective tenant to view the apartment unaccompanied. About a week later, Keith´s daughter; Simone, came in and made a deposit. Complainant subsequently found that Simone´s credit was not acceptable and returned the deposit. (Testimony of Complainant)
18) At about the same month that Keith and her daughter were dealing with Allentowne, a third black woman, possibly a friend of Keith, was told by then assistant manager Mona Smith that Allentowne did not accept federal housing "Section 8" rentals. Smith was leaving Respondent´s employ at the time. Allentowne did not accept section 8 only on three bedroom units which called for rent above the section 8 allowance. (Testimony of Complainant, Loft)
19) Keith, her daughter and the third woman filed complaints of housing discrimination with federal authorities against Respondent and Complainant, initiating a lengthy investigative and enforcement process. Complainant steadfastly denied discriminating against any of the three. (Testimony of Complainant)
20) Complainant believed that Respondent and Cone never blamed her for the discrimination claims. She wanted to defend against the claims. She had attended anti-discrimination training and had sent her assistant managers to such training before the claims arose. (Testimony of Complainant)
21) The tenants at Allentowne were generally on a month to month tenancy and gave 30 days written notice, either on a form or by an informal note. These were sometimes complimentary about Complainant. Of those submitted by the Agency as evidence, at least three came from black tenants. (Testimony of Complainant; Exhibit A-15)
22) Respondent had insurance for defending the discrimination claims. The insurance company´s attorney and the claimants´ attorney worked out a no-fault settlement order requiring the payment of a total of $10,000 among the three claimants. The money was paid by the insurance company. (Testimony of Respondent)
23) Respondent had difficulty in believing that Complainant was guilty of discrimination. His insurance attorney advised settlement based on statements from the Smiths and the claimants which seemed to support the claims. The resulting consent order, while not finding liability, imposed certain reporting requirements on Allentowne which could be revised or eliminated if there was a change in managers. (Testimony of Respondent, Exhibit R-6)
24) Respondent visited Allentowne approximately monthly until acquiring Country Club. His visits were less frequent thereafter because Cone became regional manager. (Testimony of Complainant, Respondent, Cone)
25) As regional manager, Cone visited Allentowne every six to eight weeks. Through 1994, it appeared to him that Complainant was doing all right. He was aware of her earlier problems with cancer and her heart. He recalled that Complainant had several assistants or maintenance assistants after Beeler left, including Dan Gray and Mona and Shawn Smith. He knew there were gaps in time when there was no maintenance person. (Testimony of Cone)
26) Complainant had several assistants after Beeler, including Shawn and Mona Smith (who quit after three months), Dan Gray (whom Complainant terminated because of tenant complaints of noise), Dave Slagle (who didn´t like having a female boss), James Mathews (who did a good job), and lastly, Brent Melgaard (who was slow but reliable). She also periodically called Cone for Chuck Buys, the regional maintenance person. (Testimony of Complainant, Exhibit R-1)
27) Complainant acknowledged that Respondent offered Complainant the resident manager position at Englewood, but placed the time about 1992. She knew he was aware of her cancer problem and he thought that the smaller complex might be easier. He did not tie it to any deficiency in her current performance. Complainant declined because it would pay less and because the smaller budget at Englewood would allow her less help. (Testimony of Complainant, Respondent)
28) Beeler visited Complainant in 1994, and also brought Loft´s grand daughter to visit Loft. He did no maintenance work except for one occasion in an emergency when he was present and was given permission by Cone to deal with that one situation. (Testimony of Complainant, Loft, Cone)
29) As resident manager of Country Club, Cone gave keys to prospective tenants, allowing the prospective tenant to view the apartment unaccompanied. Country Club was a long, spread out property and Cone was reluctant to be away from the office. Cone checked on cleaners, painters and maintenance persons each job they did, at first. Once he considered the employee or vendor dependable, he checked less frequently. Cone denied a preference for married couples but acknowledged that two employees under one roof was less expensive than providing an apartment for each of two employees. (Testimony of Cone)
30) Charles R. Buys was hired by Cone as regional maintenance person from March, 1989 to October, 1995 when a bad back forced him to find other work. Buys was responsible for capital improvement projects, such as decks and outside painting. In winter, he did vinyl floors and counter tops. When there was no maintenance person at Allentowne, Buys attempted to assist. He found it difficult when access to apartments hadn´t been arranged. He saw Beeler on the property after 1993, but didn´t see him working. He didn´t think that Complainant had very good maintenance assistants. (Testimony of Buys)
31) Buys never discussed Complainant´s performance with Respondent or Cone. He often saw her driving the perimeter of the property. Cone assigned Buys´ work. Neither Cone or Respondent asked about Allentowne´s condition. Buys noticed a badly deteriorated deck there and began replacing decks, doing 14 in all. He did 47 deck replacements at Crestview. (Testimony of Buys)
32) Janna Erichsen was Respondent´s operations manager in Los Altos. She received the book work from the Oregon properties, including Allentowne. When the system changed from a simple receipts system of bookkeeping to a double entry 13 column system, it appeared to Erichsen that Complainant did not understand the system and could not balance. Erichsen did much of Complainant´s bookwork herself. In December, 1994, the system changed again, this time to computers, with the main computer in Erichsen´s office and the various Oregon and California properties as satellites. It was an on-line system. Erichsen trained the Oregon property managers at Allentowne in December. Both Complainant and Loft attended. (Testimony of Erichsen)
33) After the initial computer training, Erichsen coached the Oregon managers from her computer, talking through any problems using a modem. Erichsen thought all except Complainant understood the system by January 31, 1995. Complainant was reluctant to give up her paper journal system. Erichsen did not think Complainant would master the computer bookkeeping. She reported the time she spent with Complainant to Respondent and that Complainant hadn´t caught on. She never challenged Complainant or gave her a deadline. After March 15 it didn´t matter. She was convinced that things were not getting done. She overheard one conversation between Respondent and Complainant in July, 1994, when Respondent asked Complainant to think about it and Complainant said she would. She never discussed it with Complainant, but assumed Respondent had further conversations because she saw the March 16 letter. (Testimony of Erichsen)
34) On March 15, 1995, Respondent met with Complainant and mentioned that the McConnells were planning on retiring and asked her if she was going to do so. Complainant stated that she could not afford it and planned to work two more years. Respondent said she would be 67 in May. Complainant said she would think about it, check on her IRA, health insurance and social security and that she must work until at least the end of 1995. (Testimony of Complainant, Respondent, Loft)
35) Loft was in the kitchen of Complainant´s apartment and overheard the conversation of March 15 between Complainant and Respondent. It was a friendly conversation during which Respondent did not sound angry or upset. Respondent told Complainant they would talk about her plans again the next trip to Allentowne. (Testimony of Loft)
36) On March 16, 1995, Complainant received a letter by fax from Respondent which stated:
"Dear Dorothy:
"As we discussed on Tuesday, I would like you to retire as manager of Allentowne Village. Since you will be 67 on May 12, I would like May 15, 1995, to be your last day. "This has been a difficult last couple of years for us at Allentowne. The discrimination lawsuit was an unpleasant thing to go through, and I think you did very well in defending yourself. You have certainly done a fine job in managing Allentowne for a number of years, of this there is no question. I truly appreciate your efforts on my behalf. I know trying to learn the computer has been a struggle. "To make things easier for you, I will pay for your medical and life insurance now in effect for one year after May 15. I will also give you a bonus at that time of $3,000.00, so you can use these figures in your financial planning. I am hopeful that by giving you 60 days notice, you will have plenty of time to find a new place to live.
"You will be missed by your tenants and all of us at Harrington properties. Please indicate that these arrangements are satisfactory to you by signing and faxing back a copy of this letter.
"Very truly yours,
"/s/
"Thomas E. Harrington"
(Testimony of Complainant, Exhibit A-5)
37) In the conversation of March 15, Complainant did not resign. Respondent did not mention a bonus or paying for Complainant´s insurance and did not mention the discrimination case. (Testimony of Complainant, Loft)
38) Complainant was shocked, humiliated and hurt when she received the March 16 letter. Not only was she losing her job, she was losing her residence of nine years. She lost sleep and was hurt, nervous and upset. She still resented the basis of her termination at the time of hearing. In 1991, when she was told that she had only a few months to live because of cancer, she had sold a house she owned in which she had a $17,000 equity. She spent time in Reno and spent her money. She had acquired a large credit card indebtedness. In order to have a place to live, she bought a manufactured home which she moved into in late May, 1995. Because of limited income and the large indebtedness, she eventually filed for bankruptcy. She was able to keep the manufactured home. (Testimony of Complainant)
39) Complainant attempted to find other employment as a property manager. She inquired at Princeton (her old employer), C and R, Guardian and Norris and Stevens. There were no jobs available. She looked for similar positions in the newspaper. She became discouraged and felt due to her age and physical condition she might not find employment. (Testimony of Complainant)
40) When Respondent did not receive the March 16 letter, he told Cone to assure that Complainant would move. Under date of March 30, 1995, Cone wrote to Complainant as follows:
"Dear Dorothy:
"This letter is a follow-up to discussions we have had on several occasions in the past couple of weeks. Specifically, it is our desire to move a different direction regarding the management of Allentowne Village and as such will no longer be in need of your services as of May 15, 1995. Whereas this was a difficult decision, we feel it´s one we must make at this time. What adds to the difficulty is knowing that, at your termination, you will be required to vacate your residence at Allentowne at the same time. "Please sign, date, and return this letter (or a copy) which will signify your intent to comply with its terms, which are: 1. cease employment as of May 15, 1995; 2. Vacate your premises as of May 15, 1995.
"We appreciate the job you have done for us and wish you well in future endeavors.
"Sincerely,
"/s/
"Dave Cone
"Regional Manager
"Harrington Property Management"
Complainant ceased employment and vacated the apartment on May 15. (Testimony of Cone; Exhibit A-6)
41) Complainant filed a discrimination complaint with the Agency after discussing her termination with friends, family, and former co-workers. She retained an attorney. In January, 1996, Complainant´s attorney received a letter from San Jose, California attorney John McBride which read as follows:
"The undersigned has been asked to respond to your letter to Tom Harrington dated January 2, 1996. My client of course is aware of the pending investigation based upon the complaint filed by Ms. Kiefel.
"In response to your inquiry concerning mediation, my client respectfully declines. "You should be advised that Ms. Kiefel´s employment was terminated because she no longer could physically carry out the duties of the position. Specifically, it is my understanding that her doctor had ordered that she not attempt to climb to the third floor of the apartment, which was a necessary function of her position as manager. Indeed, her inability to go to the third floor appears to have been an instrumental fact which gave rise to a discrimination claim based upon her treatment of some prospective tenants.
"It is further my understanding that upon discussion, Ms. Kiefel asked that she be allowed to retire and indeed accepted some continued fringe benefits as well as a retirement bonus.
"Under the circumstances my client rightfully does not feel he has any legal obligation to Ms. Kiefel and thus there is nothing to mediate.
"I would be more than happy to discuss this matter further with you if you so desire." The letter was signed by Mr. McBride with a copy to Respondent.
(Testimony of Complainant, Exhibit A-8)
42) Fred Boyce was resident manager of Cornell Apartments for four years before Respondent sold them. Respondent offered Boyce a job in California, but Boyce didn´t want to move. At the time of the offer, Boyce was past 65 years of age and had recovered from coronary bypass surgery. He did the minor maintenance at Cornell, Buys did the major repairs. (Testimony of Boyce)
43) Brent Melgaard became the maintenance person at Allentowne in September, 1994. He did the day-to-day maintenance and four or five "turnovers" (reconditioning of vacant units) a month. At the time, Loft worked in the office. She or Complainant notified him of work. He is a perfectionist and saw some bad previous repairs and corrected them. He stated Complainant seemed frustrated with the computer; he saw her drive the property occasionally. The maintenance jobs were written down, then crossed off when they were done. He continued as maintenance person under Complainant´s successors, the Carters. (Testimony of Melgaard)
44) Kent and Linda Carter, husband and wife, were the Allentowne resident managers at the time of the hearing. Kent Carter did maintenance and grounds with Melgaard and Linda did the office and showed apartments. Maintenance is done within three days. The garbage area, roofs and gutters were redone by vendors. Carter did the landscaping with some help from his stepson, Roth, who was paid as a vendor. Other than Roth, there was no outside landscape contractor. It took Linda about one and one half months to master the computer. Since the Carters became managers, the rent scale has been raised and a system of refundable security deposits instituted. There is another employee who relieves the office on weekends. (Testimony of Carter)
45) Patricia Pham was a tenant at Allentowne during Complainant´s entire tenure. She found Complainant friendly and reliable. Complainant forwarded her mail when requested. At Pham´s request by telephone, Complainant went to Pham´s second floor apartment in 1994 and turned off the stove. She saw Complainant out picking up the grounds in 1993, and found her always available when needed. Pham noted that Complainant took care of emergency repairs immediately and took care of routine repairs in a timely manner. (Testimony of Pham)
46) John Frizzell lived at Allentowne from 1989 to 1994 and thought Complainant to be a good manager. He recalled seeing her on the grounds in the early morning. In his experience, repairs were accomplished in one day. He noted that the apartments did not deteriorate and were clean and well run. He recalled he had a black neighbor for a time. (Testimony of Frizzell)
47) Deborah Woods was an Allentowne tenant at the time of hearing. She testified that the current managers did not look at her maintenance concerns but rather sent Melgaard, who works extremely slow. She moved in in early October, 1995, and was still dealing with maintenance problems in early 1996. She admitted that her apartment was not always available for repair because she works nights and sleeps days. She hasn´t moved out because it is quiet for a day sleeper. (Testimony of Woods)
48) Jo Criswell was resident manager of a 140 unit apartment belonging to Respondent in Oceanside, California, at the time of the hearing. Her husband was not employed by Respondent. She had six employees and could do some maintenance herself. She denied that Respondent preferred couples as managers and at 60 years of age, she had not been pressured to retire. Her apartment was near a large military installation. (Testimony of Criswell)
49) Not all of Respondent´s testimony was credible. He testified that he was "duped´ and deceived about Complainant´s physical ability, that he was unaware that she was not visiting second floor apartments until he saw her doctor´s letter in 1994, and that he learned of the third floor restriction at the time of the hearing. But he admitted knowing her cancer and heart condition by 1991. He stated that he had tolerated "creeping incompetence" at Allentowne for five years, but acknowledged she had been manager of the year and that he had given her a cruise, money for Reno and a trip to San Francisco within that period. He stated he could not discharge her during the discrimination claim because it would have been an admission of guilt. He testified that he began discussing retirement with Complainant in mid-1994, but admitted that he at no time told Complainant directly that her performance was not satisfactory. Nonetheless, he stated that it should have been clear to her. He denied any acquaintance with Rose Loft other than as an occasional contract cleaner and the roommate of Beeler. He denied knowing Loft was an employee, despite testimony from other witnesses, including his operations manager and Cone, establishing Loft´s status. He claimed to be aware of Complainant´s accounting deficiencies, but never confronted her with it. He denied that age was a factor in the termination and asserted that he had used "retire" because Complainant had asked him to. He stated that Complainant must have signed the March 16 letter or he would not have paid her $3,000 and her insurance premium, but he could not produce a signed copy. He said that attorney McBride´s letter was the result of a brief golf course conversation. He signed a note to Complainant thanking her "sincerely for your many years of faithful and competent service" and testified at hearing that he did not mean "competent." He was resentful of these proceedings and while testifying became increasingly critical of Complainant. He said that it was increasingly apparent from bottom line figures on Allentowne that the complex was losing money, but the only evidence adduced was the comparative monthly expense of the Oregon properties, without the corresponding average intake. For the foregoing reasons, his testimony was viewed with caution and was accepted as establishing fact only where it was uncontroverted or was confirmed by other credible testimony. (Testimony of Respondent; Exhibit A-17)
50) Complainant´s testimony was credible. She acknowledged she had difficulty with line 13 on the bookkeeping system. She believed she was understanding the computer when Respondent sent the termination letter. She insisted that Respondent never mentioned to her that her performance was wanting; he only mentioned cash flow from time to time and to watch her budget. She denied making a deal to retire and never signed Respondent´s letter. (Testimony of Complainant)
51) The testimony of both current Allentowne tenant Barbara Cochran and former tenant Marge Klier was unfocused and confused, was not credible and was given no weight. (Testimony of Cochran, Klier)
52) The testimony of David Cone was substantially credible. His tendency to equivocate detracted from the strength of his testimony, but the Forum found him overall to be believable. (Testimony of Cone)
 
ULTIMATE FINDINGS OF FACT

1) At times material herein, Respondent was an individual who owned several apartment complexes within the State of Oregon where he utilized the personal services of six or more persons.
2) Complainant, born May 12, 1928, worked as resident manager at Respondent´s Allentowne Village from 1987 to May 15, 1995.
3) Initially, Respondent was Complainant´s immediate supervisor; later David Cone acted as regional manager, but Respondent continued dealing with Complainant.
4) In 1991 and 1992, Complainant had severe health problems including breast cancer which affected her lungs and she had a heart condition, coronary artery disease. By 1993, she was medically restricted from climbing more than one flight of stairs.
5) Complainant coped with her health and adequately managed Allentowne.
6) While Complainant was resident manager of Allentowne, she and Respondent were sued for alleged race discrimination by three prospective tenants who alleged Complainant would not show or rent apartments to them.
7) The race discrimination case was settled in early 1995 by the payment of $10,000 by Respondent´s insurance company. There was no finding of liability, but there were compliance requirements in the resulting consent order.
8) Respondent urged Complainant to retire. When she did not, he sent her a letter terminating her services as if she had agreed to retire at age 67.
9) Complainant did not agree to retire and did not acknowledge Respondent´s requirement that she sign the termination letter.
10) Respondent later had his attorney explain Complainant´s termination as due to her physical disability.
11) Respondent had not determined what accommodation, if any, could be made for Complainant´s disability.
12) Complainant was replaced as resident manager by a married couple under 50 years of age without known physical disabilities.
13 Complainant had planned to work two more years as resident manager. Had she done so she would have earned $35,200 in salary plus $10,400 in rental and utilities up to the time of hearing.
14 Complainant was shocked, humiliated and hurt by her termination, and suffered ongoing emotional distress from her inability to take care of her financial obligations and obtain other employment.
 
CONCLUSIONS OF LAW

1) At times material herein, ORS 659.010 provided, in part:
"As used in ORS 659.010 to 659.110 and 659.400 to 659.545, unless the context requires otherwise: " * * *
"(6) "Employer" means any person * * * who in this state * * * engages or utilizes the personal service of one or more employees reserving the right to control the means by which such service is or will be performed."
At times material herein, ORS 659.400 provided, in part:
"As used in ORS 659.400 to 659.460, unless the context requires otherwise: " * * *
"(3) ´Employer´ means any person who employs six or more persons * * *"
Respondent was an employer in this state.
2) At times material herein, ORS 659.040 provided, in part:
"Any person claiming to be aggrieved by an alleged unlawful employment practice, may * * * make, sign and file with the commissioner a verified complaint in writing which shall state the name and address of the * * * employer alleged to have committed the unlawful employment practice complained of * * * "
At times material herein, ORS 659.435 provided, in part:
Any person claiming to be aggrieved by an unlawful employment practice may file a complaint under ORS 659.040 * * * . The Commissioner of the Bureau of Labor and Industries may then proceed and shall have the same enforcement powers, and if the complaint is found to be justified the complainant shall be entitled to the same remedies, under ORS 659.050 to 659.085 as in the case of any other complaint filed under ORS 659.040 * * * " The Commissioner of the Bureau of Labor and Industries has jurisdiction over the persons and subject matter herein.
3) The actions, inactions, statements and motivations of David Cone, Janna Erichsen and California attorney John McBride are properly imputed to Respondent herein.
4) At times material herein, ORS 659.030 provided, in part:
"(1) For the purposes of ORS 659.010 to 659.110 * * * and 659.400 to 659.545, it is an unlawful employment practice: "(a) For an employer, because of an individual´s * * * marital status or age if the individual is 18 years of age or older * * * to bar or discharge from employment such individual. * * * "
By terminating Complainant´s employment because of she was 67 years of age, Respondent violated ORS 659.030(1)(a).
5) Respondent did not terminate Complainant´s employment due to her marital status
6) At times material herein, ORS 659.425 provided, in part:
"(1) For the purpose of ORS 659.400 to 659.460, it is an unlawful employment practice for any employer * * * to bar or discharge from employment * * * because: "(a) An individual has a physical * * * impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved;
" * * * "
By terminating Complainant´s employment because of her physical impairment without seeking accommodation therefore, Respondent violated ORS 659.425(1)(a).
7) Pursuant to ORS 659.060(3) and by the terms of ORS 659.010(2), the Commissioner of the Bureau of Labor and Industries has the authority to issue a cease and desist order requiring Respondent to perform an act or series of acts in order to eliminate the effects of an unlawful practice. The amounts awarded in the Order below are a proper exercise of that authority.
 
OPINION

It was apparent from the evidence presented in this case that Respondent wanted to get rid of Complainant as manager of Allentowne Village. Rather than attempt to document legitimate reasons for her termination, he chose to force her into retirement because she was 67 years of age. Respondent brought up the subject of retirement on more than one occasion and finally determined that she should retire under his terms. Complainant, on the other hand had considered retirement but knew she could not do so financially. Because Respondent had never discussed with her any supposed inadequacies in her performance, she had no reason to believe that she could not continue working until she chose to retire. Respondent never told Complainant her performance was no longer satisfactory. Indeed, since she performed her job in the same manner for a number of years and received positive encouragement from Respondent and Cone, she had no reason to suspect that respondent was somehow dissatisfied. She admittedly had difficulty with the bookkeeping, but neither Erichsen or Respondent told her she was unsatisfactory. Erichsen redid her books and did not report any shortcomings to Respondent. Nothing in the termination letter sent to Complainant by Respondent suggested inadequate performance; rather it complimented her for "a fine job in managing Allentowne for a number of years." Respondent´s position that Complainant retired voluntarily was undercut by Cone´s letter of March 30, 1995 and totally destroyed by attorney John McBride´s letter of January 8, 1996, which Respondent authorized McBride to write. He attempted to establish through McBride that Complainant´s physical disability had made her performance of her manager duties impossible. But Respondent was aware of her disabilities in 1992, and they remained substantially unchanged from that time to March, 1995. In regard to disability, Respondent was obligated under Oregon law to 1) do an individualized assessment of Complainant´s capabilities and 2) determine whether he could reasonably accommodate Complainant´s disability, without undue hardship. Complainant has selected as accommodation using her staff as her legs for those portions of Allentowne which were difficult for her to reach. She trained her staff to evaluate apartment conditions by the same standards she would use. Other managers delegated inspection duties or bypassed inspection and follow-up where a trusted employee or contractor was known to be reliable. As for showing apartments, Cone himself routinely gave prospective tenants a key to vacant apartments so that he would be nearer the office. Respondent has not established that he was justified in terminating Complainant due to disability, if indeed that was the reason.
 
Respondent´s counsel argues that the real reasons for replacing Complainant as resident manager were:
1. the substantial risk that she was making discriminatory housing decisions.
2. the regular presence of Beeler on the property in defiance of Respondent´s order.
3. Complainant´s failure to understand and implement the record-keeping systems.
4. an increasing concern about deterioration of the physical condition of the apartments.
5. the growing realization that active managers are more cost-effective than those who delegate substantial portions of management and maintenance tasks.
This record fails to substantiate those real reasons:
1. Complainant was accused in one series of supposed discriminatory activity, which was settled rather than tried. Even Respondent testified that he couldn´t believe she would discriminate, nor could the other witnesses who testified. None of the supposed witnesses to her discriminatory acts or attitudes appeared in this Forum, which will not give preclusive effect to mere allegations.
2. A few witnesses confirmed that Beeler was occasionally at Allentowne; none could establish that he was working there or even that he stayed there, except in emergency.
3. At the time Respondent first mentioned retirement to Complainant, it is not clear that he personally was aware of Complainant´s bookkeeping problems; by the time of the computer he had already determined to force her retirement.
4. Many witnesses testified that Allentowne had not deteriorated.
5. Several of Respondent´s other managers delegated tasks.
Respondent´s counsel´s other arguments regarding age and disability discrimination are answered above. This order finds in Respondent´s favor regarding marital status since the Agency did not establish that the state of being married or single was necessarily a qualification for employment with Respondent.
Complainant suffered severe emotional distress as the result of her termination, and up to the time of hearing, lost sixteen months of the two years of employment she had come to expect. The ALJ is proposing that respondent pay her the lost salary and expenses and, in addition, the sum of $30,000 to compensate for her emotional distress.
 
Respondent´s Exceptions.
Respondent filed numerous exceptions to the proposed order. The Forum has corrected the listing of the witness Buys to reflect that he was a former employee. The Forum has revised finding of fact (FOF) 6 to more accurately reflect the evidence. Some of Respondent´s other specific exceptions to individual FOF constitute comments on the evidence rather than findings of historical fact (see exceptions to FOF 4, 12, 13, 14, 39, 42, 50). Other exceptions suggest revisions to the FOF which are unsupported by credible evidence (see exceptions to FOF 3, 28, 29, 42, 52). Still other exceptions suggest language for revising the individual FOF which says substantially the same thing, or adds irrelevant detail (see exceptions to FOF 16, 23, 30, 32). The exception to FOF 31 misstates the evidence. The suggested revision to FOF 48, regarding Ms. Criswell, is unnecessary in that Criswell was not an apt comparitor to Complainant because she had a larger complex, several more assistants or maintenance people, and was located in an entirely different area with a large military base and its transient population nearby.
 
Respondent´s exceptions to FOF 49 and the suggested revision thereto contains elements of each of the other exceptions: comment on the evidence, unsupported assertions, misstatements and irrelevancies. Respondent´s argument on this exception even points up Respondent´s incredible tendency to interpret or revise the written word by suggesting that the written thanks "sincerely for your many years of faithful and competent service" was a reference to earlier years only, but his testimony was that it was written "after I asked her to leave," and that he didn´t mean "competent." He also attempted to establish that his March 16 letter reference to Complainant´s age didn´t mean what it said and that his California attorney´s letter regarding Complainant´s disability also was misinterpreted. Overall, the record in this matter suggests otherwise. Except as specifically detailed above, Respondent´s exceptions to the findings of fact are disallowed. So, too are the exceptions to the Ultimate Findings of Fact, since Respondent´s suggested ultimate findings have no basis in the findings of fact on the merits.
 
Respondent also excepted to the Proposed Conclusions of Law and Proposed Opinion. Respondent correctly acknowledges that the real question is whether, but for Complainant´s protected class membership, the harmful action would have occurred, OAR 839-05-015, and admits that Complainant´s age was used as "a non-accusatory excuse" for insisting upon her retirement. Respondent states that the real reasons were the discrimination lawsuit, the defiance of Respondent´s orders about Complainant´s son, and her substandard performance. The increasing pressure on Complainant regarding retirement focused more on her age than on the alleged discrimination for which she was never criticized, or on Beeler, who was rarely mentioned, or on her performance. This Forum is convinced that Complainant´s age was a factor in her termination, regardless of the ages of some of Respondent´s other employees.
Respondent also argues that he made reasonable efforts to accommodate Complainant´s disability, but personal inspection of property is absolutely essential for adequate performance of a resident manager´s job. Respondent suggests correctly that a person with a disability must be able to perform the essential functions of the job, with or without accommodation, and that an accommodation is usually accomplished by "adjustments to the way a job customarily is performed." In essence, Respondent argues that Complainant was unable to perform that essential function, and that he did not illegally terminate her due to disability.
 
Whether a job duty is an essential function is a factual determination that must be made on a case by case basis, and all relevant evidence should be considered. In this case, not only was personal inspection not always done by other managers, it was delegated to trusted subordinates. Complainant did the "personal inspection" for a portion of the complex. Also, whether inspection was done by the manager or under the manager´s direction, it did not appear to consume a large amount of the inspecting individual´s time. Much more of the resident manager´s time seemed to be spent in staffing the office and on other duties. Under the circumstances of this case, the "personal inspection" aspect was not essential within the meaning of the law, and the inability to perform it was not a legitimate reason for termination.
 
Finally, Respondent argued that he had no duty to inform Complainant of his dissatisfaction with her performance. That may well be true in the "employment at will" context, but employers expose themselves to the risk of discrimination claims or worse when they fail to document or otherwise note performance that could be a legitimate reason for discipline or termination. As in this case, the employer´s after-the-fact evaluations and "non-accusatory" excuses fail to convince.
 
ORDER

NOW, THEREFORE, as authorized by ORS 659.060(3) and 659.010 (2), and in order to eliminate the effects of the unlawful practices found, Respondent Thomas E. Harrington is hereby ordered to: In the Matter of MARY STEWART-DAVIS
1) Deliver to the Fiscal Office of the Bureau of Labor and Industries, State Office Building, Ste. 1010, 800 NE Oregon Street, # 32, Portland, Oregon 97232-2162, a certified check, payable to the Bureau of Labor and Industries in trust for DOROTHY KIEFEL, in the amount of:
a) FORTY-FOUR THOUSAND SEVENTY-SIX DOLLARS ($44,076), less lawful deductions, representing $34,247 in wages lost by Complainant between May 15, 1995, and September 3, 1996, and $9,829 in rental and utilities lost between those dates, PLUS
b) THIRTY THOUSAND DOLLARS ($30,000), representing compensatory damages for the mental and emotional distress suffered by DOROTHY KIEFEL as a result of Respondent´s unlawful practices found herein, PLUS
c) Interest at the legal rate from May 15, 1996 on the sum of $26,400 until paid, d) Interest at the legal rate from September 3, 1996 on the sum of $7,847 until paid. PLUS
e) Interest at the legal rate on the sum of $30,000 from the date of this Final Order herein until Respondent complies herewith, and
2) Cease and desist from discriminating against any employee based upon the employee´s age or upon the employee´s disability.
Dated this March ___________________, 1997
 

 
Jack Roberts, Commissioner
Bureau of Labor and Industries
 
JUDICIAL NOTICE

Pursuant to ORS Chapter 183, you are entitled to judicial review of this Final Order. To obtain judicial review, you must file a Petition for Judicial Review with the Court of Appeals in Salem, Oregon, within sixty (60) days of the issuance of this Order. If you file a Petition for Judicial Review,
 
YOU MUST ALSO SERVE A COPY OF THE PETITION ON THIS AGENCY and THE DEPARTMENT OF JUSTICE - APPELLATE DIVISION AT THE FOLLOWING ADDRESSES:
 
BUREAU OF LABOR AND INDUSTRIES
HEARINGS UNIT
1005 STATE OFFICE BUILDING
800 NE OREGON STREET # 32
PORTLAND, OREGON 97232-2162
 
DEPARTMENT OF JUSTICE
APPELLATE DIVISION
400 JUSTICE BUILDING
SALEM, OREGON 97310
 
CERTIFIED TO BE A TRUE AND
CORRECT COPY OF THE ORIGINAL
AND OF A WHOLE THEREOF.
 
___________________________________
BEFORE THE COMMISSIONER
OF THE BUREAU OF LABOR AND INDUSTRIES
OF THE STATE OF OREGON
 
In the Matter of
THOMAS E. HARRINGTON, dba Harrington Property Management,
Respondent.
Case Number 36-96
AMENDED PROPOSED ORDER
Having noted an error in the "Proposed Order" portion of the Proposed Findings, Conclusion, Opinion and Order issued herein on January 21, 1997, the ALJ hereby amends that portion to read as follows:
 
AMENDED PROPOSED ORDER
 
NOW, THEREFORE, as authorized by ORS 659.060(3) and 659.010 (2), and in order to eliminate the effects of the unlawful practices found, Respondent Thomas E. Harrington is hereby ordered to: In the Matter of MARY STEWART-DAVIS
1) Deliver to the Fiscal Office of the Bureau of Labor and Industries, State Office Building, Ste. 1010, 800 NE Oregon Street, # 32, Portland, Oregon 97232-2162, a certified check, payable to the Bureau of Labor and Industries in trust for DOROTHY KIEFEL, in the amount of:
a) FORTY-FIVE THOUSAND SIX HUNDRED DOLLARS ($45,600), less lawful deductions, representing $35,200 in wages lost by Complainant between May 15, 1995, and September 3, 1996, and $10,400 in rental and utilities lost between those dates, PLUS
b) THIRTY THOUSAND DOLLARS ($30,000), representing compensatory damages for the mental and emotional distress suffered by DOROTHY KIEFEL as a result of Respondent´s unlawful practices found herein, PLUS
c) Interest at the legal rate from May 15, 1996 on the sum of $34,200 until paid, PLUS
d) Interest at the legal rate on the sum of $30,000 from the date of the Final Order herein until Respondent complies therewith, and
2) Cease and desist from discriminating against any employee based upon the employee´s age or upon the employee´s disability.
January 24, 1997
 

 
Warner W. Gregg, Administrative Law Judge
Bureau of Labor and Industries
 
While much of the testimony seemed to place this series of incidents in 1992, the Forum infers from the whole record that 1993 was correct, since Mona Smith was involved and was not working at Allentowne in 1992. Exhibit R-1
 
The Forum has given little weight to the 30 day notice notes of various former tenants because, other than Frizzell, Respondent had no opportunity to cross examine the authors.