Opinion
DBDCV176022142S
04-09-2019
Carmen Lopez v. William Raveis Real Estate, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Kowalski, Ronald E., J.
MEMORANDUM OF DECISION
Kowalski, J.
This action involves a claim of housing discrimination brought by Carmen Lopez against the defendants, William Raveis Real Estate ("Raveis"), Sarah Henry, Anthony Vaccaro, and Eve Vaccaro. The first amended complaint alleges that the defendants discriminated against the plaintiff by denying her the opportunity to rent property on the basis of her lawful source of income, in violation of General Statutes § § 46a-64c(a)(1) and 46a-64c(a)(3). The court holds that the plaintiff has failed to prove that the defendants discriminated against her due to her lawful source of income, and therefore renders judgment in favor of the defendants.
I. BACKGROUND
A. Allegations of the First Amended Complaint
The plaintiff’s first amended complaint consists of seven counts, each of which allege violations of General Statutes § § 46a-64c(a)(1) and 46a-64c(a)(3) against the defendants, as follows: (1) count one alleges a violation as to Raveis, due to improper training and supervision of its agents; (2) count two alleges a violation as to Raveis for the actions of its agents; (3) count three alleges a violation as to Sarah Henry, a real estate salesperson associated with Raveis; (4) count four alleges a violation as to Anthony Vaccaro; (5) count five alleges a violation as to Anthony Vaccaro for the action of his agents, Raveis and Henry; (6) count six alleges a violation as to Eve Vaccaro; and (7) count seven alleges a violation as to Eve Vaccaro for the actions of her agents, Raveis, Henry and Anthony Vaccaro. The defendants have denied the allegations, which may be summarized as follows:
Raveis is a Connecticut corporation and licensed real estate broker. Henry is a licensed real estate salesperson who is associated with Raveis pursuant to an independent contractor agreement, with Raveis as broker and Henry as real estate salesperson. Anthony and Eve Vaccaro are joint owners of real property located at 5 Prince Street, Danbury, Connecticut and engaged Raveis, through its authorized representative Henry, to represent them in listing an apartment at 5 Prince Street for rent.
In or about February 2017, Lopez engaged the services of Sarah Becker to assist her in the search for a new home. In early March 2017, Lopez and Becker viewed the 5 Prince Street property together, and Lopez directed Becker to submit a rental application. On or about March 11, 2017, Becker sent Henry an email containing Lopez’ application materials, which Lopez alleges included a completed application, credit reports and reference letters, as well as information regarding Lopez’ income from employment. Lopez alleges that Henry verbally informed Becker that the offer to rent the property had been accepted by the owner. On or about March 13, 2017, Becker emailed Henry asking if the "offer is ok for April 1?" Approximately forty-five minutes later, Henry responded that they were "all set for April 1" and that she would send the lease to Becker. A few hours later, Becker sent Henry forms that were necessary for Lopez to use her section 8 program housing voucher pursuant to section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f ("section 8 program").
On the morning of March 15, 2017, Henry allegedly responded via email that she was not aware of Lopez’ status as a section 8 program tenant and that she would have to confer with her client. Lopez alleges that Henry and Becker continued to exchange text messages in which Henry expressed concerns about the use of the section 8 program voucher and that Lopez was required to have disclosed her section 8 program status earlier in the process. Lopez alleges that after Becker reassured Henry that the leasing process could be completed for an April 1, 2017, occupancy date, Henry informed Becker that Anthony Vaccaro had decided to rent the unit to someone else.
Lopez alleges that the defendants’ discrimination caused her ongoing hardship that has resulted in financial loss, emotional distress, humiliation, embarrassment, and loss of housing opportunity. Lopez seeks a declaration that the defendants’ actions violated § 46a-64c, a permanent injunction, compensatory damages, punitive damages, reasonable attorneys fees and costs, and any other relief the court deems just and equitable.
The court trial of this action began on September 6, 2018, and was conducted over four non-consecutive days, concluding on September 13, 2018. The parties also filed post-trial briefs.
B. Findings of Fact
After hearing the testimony at trial and reviewing the exhibits admitted into evidence, the court finds the following facts. At all times relevant to this action, Anthony and Eve Vaccaro owned 5 Prince Street in Danbury, a two-family home in which the rental apartment at issue (the "Premises") is located. On January 28, 2017, Vaccaro entered into an exclusive right to lease listing contract, whereby Vaccaro, as owner, gave Raveis, as broker, the exclusive right to lease the Premises. Henry, a real estate salesperson, executed the listing contract on behalf of Raveis, as its authorized representative. Raveis and Henry were associated pursuant to an independent contractor agreement. Vaccaro owned a number of rental apartments in addition to the Premises and had known Henry for approximately ten years at the time the listing contract was executed. Vaccaro did not give Henry specific instructions regarding how to handle the listing and left it to Henry to handle the details of the process that would lead to a rental of the Premises.
Anthony Vaccaro will be referred to as "Vaccaro" in this decision and Eve Vaccaro will be referred to by her full name. Eve Vaccaro had no meaningful involvement in the real estate transaction at issue, and did not testify at trial.
At that time, Lopez and her two minor children were residing in a three-bedroom apartment in the Hillcroft apartment complex, located at 109 Kohanza Street in Danbury. The apartment overlooked a parking area where, according to Lopez, illegal activities would regularly take place. Lopez testified that she wanted to move out of the complex so that her children would not be exposed to the activity taking place in the parking area. Also, by notice dated February 17, 2017, the Housing Authority of the City of Danbury had notified Lopez that, effective April 1, 2017, her contribution to her monthly rental expense would be increasing from $1,172 per month to $1,430 per month for a three-bedroom apartment such as the apartment she was renting at that time. Subsequently, on March 3, 2017, the housing authority notified her that her contribution to monthly rent for a two-bedroom unit would be $1,195. Therefore, if Lopez were to remain in a three-bedroom apartment, her monthly contribution to rent would increase by $258, but if she were to move into a two-bedroom apartment, her monthly contribution to rent would increase by $23. On March 3, 2017, Lopez engaged a realtor, Sarah Becker of Best Realty in Danbury to act as her exclusive agent to represent her in finding a new apartment.
Henry listed the Premises on the multiple listing service on March 6, 2017. The listing described the Premises as having two bedrooms, one bath, and specified a rent of $1,500 per month for a term of one year and a security deposit equal to two months’ rent. The listing further identified "William Raveis Danbury" as the listing office and Henry as the listing agent. The evidence at trial established that Vaccaro wanted to make sure that a new tenancy was in place for the Premises by April 1, 2017. On March 9, 2017, three days after the Premises was listed on the multiple listing service, Becker emailed paperwork to Henry, including an application to lease and an offer to lease, both of which were signed by Lopez. The application to lease was dated March 3, 2017, and identified Lopez as the applicant and provided contact, employment, and other relevant information. The application also stated that Lopez was paying a current monthly rent of $1,850. The second document was an offer to lease, dated March 9, 2017, which was also signed by Becker.
Subsequently, on or before March 13, 2017, the listing was changed to require a security deposit equal to one month’s rent.
The offer to lease identified Lopez as the tenant, Prince Street as the Premises, a lease term starting on April 1, 2017, ending "1 year, may renew," and a lease price of $1,500 per month, but left a blank where it would have been indicated that an initial deposit was tendered with the offer. There were other blanks that were not filled in on the offer to lease, including two consecutive lines that were left blank, as follows:
Security Deposit: Payable to Landlord or Landlord’s Agent upon signing of Lease: $____
Additional Rent: Payable to Landlord or Landlord’s Agent upon signing of Lease: $____
Although these lines were left blank, the words "AS REQUESTED" were handwritten next to the additional rent line. (Capitalization in original.) The offer to lease further provided that it would expire at midnight "ASAP" if not accepted by all parties, and identified as a contingency "kitchen sink faucet leaking, needs repair."
Although the foregoing documents were emailed to Henry on March 9, 2017, Henry did not receive them until they were forwarded to her by Becker on March 11, 2017, due to an email problem. Henry testified that although Lopez’ offer was not complete, she nonetheless presented the offer to Vaccaro via email on March 12, 2017, and asked him to let her know whether she could call Becker to let her know he had accepted the offer. On that same day, Henry spoke with Vaccaro on the telephone. During that call, Vaccaro told Henry that he was satisfied with the key terms of the proposed tenancy, which he understood would be one month’s rent, one month’s security deposit, and a twelve-month term, and told Henry that if Lopez wanted the apartment on those terms that "she could have it." Vaccaro also testified that all of this was transpiring in the days leading up to his son’s wedding on March 18, 2017, and that during that time he was preoccupied with putting the wedding together.
Starting at 1:15 p.m. on March 13, 2017, Henry and Becker began communicating via email. Becker first asked if the offer was still ok for April 1, 2017. Henry replied that it was, that she would soon send the lease to Becker and that one month’s rent and one month’s security were required. Later that same day, Becker responded via email to Henry, asking if Henry wanted her to drop off the section 8 program documents which were attached to the email. Those documents included a request for tenancy approval form, a direct deposit authorization form, and a section 8 landlord certification form, all of which were completely blank. Further, the tenancy approval form was not signed by Lopez. Henry did not receive this email until March 15, 2017.
Among the items of missing information on the tenancy approval form that could have been completed by Becker on behalf of Lopez prior to sending it to Henry were the address of the Premises, beginning date of the lease, number of bedrooms, proposed rent, security deposit amount, type of house/apartment, type of subsidy, which utility and appliances would be provided or paid for by the landlord, head of household, present address of family and Lopez’ telephone number.
On March 15, 2017, there was a flurry of activity with respect to the rental of the Premises. At 8:29 a.m. that day, Henry sent Becker an email stating that she was not aware that Lopez was a section 8 program tenant, and that she would have to speak with Vaccaro that day. Henry also reminded Becker that her client was looking for a security deposit. Beginning at 10:41 a.m., Henry and Becker exchanged an email, followed by a series of text messages. To summarize, Henry advised Becker that because she was not initially aware of Lopez’ section 8 program status, she had to confer with Vaccaro because she was not sure whether he would want to wait for the section 8 program process to run its course given his expressed desire to have the Premises rented by April 1, 2017. Becker assured Henry that the April 1, 2017 date would still work, that Lopez had the security deposit ready and had already given notice, and thus had to move out of her current residence.
Notwithstanding Becker’s assurance to Henry in this regard, Becker sent a text to Lopez that same day, that, in part, instructed her to "[a]sk [the housing authority] if 4/1 possible to start lease if we get papers back today?"
Also that morning, Henry spoke with Justino Peralta, a realtor with Keller Williams Realty, who was working with prospective tenants Everton Thompson and Saudia Dyer. At 11:37 a.m., Peralta sent an email to Henry communicating an offer to rent the Premises, consisting of a completed rental application, with an offer to lease that had been signed by both proposed tenants on March 11, 2017, that identified the proposed tenants, the property as the Premises, a lease term beginning on March 15, 2017, and ending on February 28, 2018, and a lease price of $1,500 per month and a security deposit of $3,000. The offer to lease also recited that Peralta was holding a $1,500 deposit from Thompson and Dyer and identified no contingencies. Henry testified that the March 15, 2017 offer from Thompson and Dyer was a complete offer and had everything necessary to present it to Vaccaro, and that she did so.
At trial, Vaccaro testified that a "better offer" came in, from a second tenant, referring to the offer from Thompson and Dyer. He further testified that the second tenant provided complete paperwork, two months security deposit and first month’s rent, and could take immediate occupancy of the apartment. Vaccaro told Henry to accept the offer from Thompson and Dyer. At no time prior to accepting that offer did Vaccaro know that Lopez intended to use a section 8 program voucher. Indeed, Vaccaro testified that he never knew that Lopez was using a section 8 program voucher and that he only knew that the deal with Lopez was not finalized. The testimony at trial established that Vaccaro had previously rented several apartments to tenants receiving section 8 program benefits and that Vaccaro was favorably predisposed to renting to section 8 program tenants because, in his words, it assured him of "guaranteed money every month." Vaccaro testified at trial that he never told Henry that he would refuse to rent to a section 8 program tenant and that he did not know that Lopez would be using a section 8 program voucher towards the monthly rent when he decided to rent to Thompson and Dyer. This testimony was consistent with the testimony of Henry, who testified that she never advised Vaccaro that Lopez would be using section 8 program benefits. The court finds the testimony of Vaccaro and Henry to be credible on this issue and finds a lack of discriminatory intent on the part of Vaccaro and Henry.
At 1:50 p.m., Henry told Becker by email that Vaccaro was considering another offer and that the final decision would be up to him. On March 15, 2017 at 7:09 p.m., Henry informed Becker by email that Vaccaro had chosen the other offer. By March 18, 2017, Thompson and Dyer and Vaccaro had a fully-executed lease for the Premises in place. Vaccaro never signed anything with respect to the potential Lopez transaction. Lopez subsequently commenced the present action.
III. DISCUSSION
Section 46a-64c protects tenants from discrimination based on their "lawful source of income" and is "designed to provide that low income families ‘may not be rejected or denied a full and equal opportunity for ... public accommodation based solely on the presence of [their lawful source of] income." Commission on Human Rights and Opportunities v. Sullivan Associates, 250 Conn. 763, 777, 739 A.2d 238 (1999) (Sullivan I), quoting 32 H.R. Proc., Pt. 25, 1989 Sess., p. 8776, remarks of Representative Taborsak. The relevant provisions of § 46a-64c provide as follows: "(a) It shall be a discriminatory practice in violation of this section: (1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status or status as a veteran ... (3) To make, print or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, familial status, learning disability, physical or mental disability or status as a veteran, or an intention to make any such preference, limitation or discrimination." General Statutes § § 46a-64c(a)(1) and 46a-64c(a)(3).
"The section 8 program exists for the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing ..." (Internal quotation marks omitted.) Commission on Human Rights and Opportunities v. Sullivan, 285 Conn. 208, 214, 939 A.2d 541 (2008) (Sullivan II). "Section 8 rental assistance is available only to persons who are classified as very low income or as low income within the meaning of 24 C.F.R. § § 813.102 and 813.105 (1994). The program permits otherwise qualified tenants to rent private units and to pay personally only a small portion of the total rent, commensurate with their income. The local public housing authority contracts separately with the landlord to pay the remainder of the rent directly to the landlord." (Internal quotation marks omitted; footnotes omitted.) Sullivan I, supra, 250 Conn. 770-71. When considering housing discrimination claims, our Supreme Court has held that "we are properly guided by the case law surrounding the federal fair housing laws, 42 U.S.C. § § 3601 through 3631, even though there may be differences between the state and federal statutes." (Footnote omitted.) Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 358, 514 A.2d 749 (1986), overruled on other grounds by Tolly v. Department of Human Resources, 225 Conn. 13, 621 A.2d 719 (1993).
"The United States Supreme Court has set forth three theories of discrimination, each which requires a different prima facie case and corresponding burden of proof. These theories are: (1) the [pretext] theory; ... (2) the disparate impact theory; ... and (3) the [mixed motives] theory." (Citations omitted; internal quotation marks omitted; footnote omitted.) Sullivan II, supra, 285 Conn. 225-26, citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Lopez has decided to proceed under a mixed motives theory, contending that because the evidence in this action "shows that the decisionmakers were motivated in their refusal to rent ... by her lawful source of income, the case is best analyzed under the [mixed motives/direct evidence] theory." (#162.00, Plaintiff’s Post-Trial Memorandum, p. 11.)
Both the pretext theory and the mixed motives theory "require a plaintiff to show, as part of her prima facie case, disparate treatment ... The United States Supreme Court explained that disparate treatment ... is the most easily understood type of discrimination. The [defendant] simply treats some people less favorably than others because of their race, color, religion, sex or [other protected trait." (Citation omitted; internal quotation marks omitted.) Sullivan II, supra, 285 Conn. 226. However, "the mixed motives theory applies in multiple motive cases, in which there is at least one improper motive and one proper motive." Id., 226-27. To trigger a mixed motives analysis, "direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision" is required. (Internal quotation marks omitted.) Id., 227. Further, "[t]he court has since clarified that circumstantial evidence may trigger a mixed motives analysis when such circumstantial evidence is sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that [membership in a protected group] was a motivating factor for the decision." (Internal quotation marks omitted.) Id. Therefore, as part of her prima facie case alleging discrimination, the plaintiff must: (1) establish that she is a member of a protected class; and (2) show that the defendant was motivated by an impermissible factor in making the decision. See id., 228. "Once the plaintiff has made this showing, the burden then shifts to the defendant to show, by a preponderance of the evidence, that it would have made the same decision even in the absence of the impermissible factor." Id., 229.
A. Lopez’ claims against Henry— Count Three
At the heart of this dispute is the question of whether Henry discriminated against Lopez when dealing with Lopez’ real estate agent, Becker. Lopez alleges that Henry violated § 46a-64c(a)(1) when she refused to rent, or otherwise make unavailable, the property based on Lopez’ lawful source of income. Lopez also alleges that Henry violated § 46a-64c(a)(3) by making discriminatory statements regarding the rental of the property. Lopez focuses on certain email and text messages sent by Henry, including two which stated, "I was not aware of the Section 8 when I spoke with you I’m not sure my client would want to wait. I know it takes a couple of weeks for the process and he wants to run it by April 1st and "[y]ou did not inform me of section 8 when I spoke with you about the offer. I have to present that to my client. Im [sic]not sure if he wants to want [sic] through the process. It is up to my client. We do not have a signed offer yet."
The court finds that Lopez was in a protected class at all times relevant hereto. Our Supreme Court has observed that the legislative intent of § 46a-64c is to "prohibit discrimination on the basis of source of income ... Thus, the original statutory language manifested an intention that persons receiving section 8 housing assistance be treated on an equal basis with similarly situated individuals who are not section 8 housing assistance recipients." (Emphasis in original.) Sullivan I, supra, 250 Conn. 796-97. Lopez testified that she relied on the section 8 program to pay some of her rent at the time she submitted her application to rent the Premises. Further, records of the Danbury Housing Authority support a finding that Lopez did receive section 8 program benefits. While precedent dictates that the defendant’s knowledge of the plaintiff’s status as a member of a protected class is implicitly required, Henry not does dispute that she was aware of Lopez’ section 8 program status as of March 15, 2017. See Tufano v. One Toms Point Lane Corp., 64 F.Supp.2d 119, 127 (E.D.N.Y. 1999), aff’d, Tufano v. One Toms Point Lane Corp., Board Of Directors, 229 F.3d 1136 (2nd Cir. 2000).
In addition to proving that she is a member of a protected class, Lopez must also provide direct evidence that her membership was a motivating factor in the decision. Lopez argues that Henry’s previously described statements evidence a hesitancy to lease to section 8 program tenants that, along with circumstantial evidence, amount to a prima facie showing that Lopez’ membership in a protected group was a motivating factor in the defendants’ decision. This argument is unavailing. If the court cannot be sufficiently convinced, based on the entire record, that the contents of a conversation constituted discrimination based on a protected class, then plaintiff’s burden has not been met. See Commission on Human Rights and Opportunities ex rel. Cameron v. 58A Buckingham Street, LLC, Superior Court, judicial district of Hartford, Docket No. CVH-7605 (March 7, 2012, Oliver, J.). As testified to by Vaccaro and Henry, Vaccaro retained the final decision-making authority to rent. Prior to Henry learning about Lopez’ section 8 program status, Vaccaro had been informed of certain key terms and was satisfied with the offer to lease. However, Vaccaro also testified that he was under the impression that the deal was not finalized. Henry’s actions in communicating with Lopez and Vaccaro are consistent with what can be expected under these circumstances. Upon receiving Lopez’ offer and informing Vaccaro, Henry updated the listing to "Continue to Show" which she testified meant that offers could still be received and considered because nothing had been signed by both parties or put under deposit. Henry further testified that she was obligated to report additional offers that came in to her client, Vaccaro.
It was under these circumstances that Henry learned of Lopez’ status as a section 8 program tenant and the above statements were made. Moreover, the evidence shows that Henry did not abandon Lopez’ offer or otherwise seek to dissuade Becker from pursuing a rental of the Premises on Lopez’ behalf upon learning of her section 8 program status. To the contrary, after learning of same, Henry continued to engage with Becker, and also forwarded a sample lease for a potential Lopez tenancy to Vaccaro. As stated previously, based on the evidence in the record and the testimony at trial, this court finds a lack of discriminatory intent on the part of Henry.
Although Becker was not called to testify at trial, the exchange of emails and texts in the record speaks for itself. The offer to lease that Becker sent to Henry was incomplete at best. The section 8 program documents were completely blank. Henry testified that she had spoken with Becker "1, 000 times," and that she received information in "bits and pieces" from Becker over the course of four days. The evidence in the record reveals that Becker first attempted to contact Henry on March 9, 2017, and that by March 15, 2017, Becker had still not provided sufficient information and reliable assurances from which the defendants could reasonably conclude that the Lopez offer was on equal footing with the Thompson and Dyer offer with respect to an April 1 occupancy. Indeed, on March 15, as Becker was assuring Henry that an April 1 occupancy date would be no problem, Becker was also texting Lopez asking that she inquire of the housing authority as to whether an April 1 occupancy date would be possible. Peralta, on the other hand, first contacted Henry on behalf of Thompson and Dyer on March 15, transmitting an offer on that day with complete information and documentation, and with no contingencies. Of the two potential tenancies, only that proposed by Peralta on behalf of Thompson and Dyer could guarantee the April 1 occupancy sought by Vaccaro.
While this court is cognizant of the important and laudable intent, purposes and goals of statutes that prohibit housing discrimination, controlling precedent in which a violation of § 46a-64c was found has involved clearer evidence of prohibited conduct than that existing present in this action. In Sullivan I, our Supreme Court held that landlords could not refuse to accept the terms of section 8 program leases. Sullivan I, supra, 250 Conn. 783-84. "[T]he failure to use such a lease would have resulted in the denial of section 8 reimbursement as a matter of federal law." Id., 784. In Sullivan II, our Supreme Court upheld its rationale in Sullivan I, and held that landlords’ formula stating minimum income requirements was not a legitimate and nondiscriminatory basis for refusing to rent because "it does not comport with the antidiscriminatory purpose of § 46a-63c." Sullivan II, supra, 285 Conn. 224. Similarly, in Fulk v. Lee, Superior Court. judicial district of Tolland, Docket No. CV-97-0063572 (February 7, 2002, Scholl, J.) (31 Conn.L.Rptr. 375), the court held that a realty company had violated § 46a-64c when they rejected an individual’s application because of "no employment." Id. There, the prospective tenant was told by the realty company’s agent that they could not rent to her because "she was on welfare and had a Section 8 certificate." Id.
Guidance can also be taken from the United States Second Circuit Court of Appeals, which addressed a scenario similar to the present action in Mitchell v. Shane, 350 F.3d 39 (2008). In Mitchell, the court reviewed a district court’s grant of summary judgment, in which the plaintiffs were an African-American couple who sued the vendors, real estate agency, and listing agent after attempting to purchase property from them. Id., 41-42. The couple alleged housing discrimination under the Fair Housing Act and a New York state statute. Id. After a phase of communications and negotiations, the vendors accepted an offer from another suitor, and the couple alleged that discrimination based on their racial background contributed to the collapse of the transaction. Id., 45-46. The court upheld the lower court’s ruling of summary judgment as to the vendors because there was no evidence that they had any knowledge of the couple’s racial background until after they had rejected their offer. Id., 48-49. In overturning the trial court’s grant of summary judgment as to the agent, however, the court reasoned that the agent, unlike the vendors, was aware of the couple’s race which gave rise to a genuine issue of material fact as to whether the agent violated a custom and treated the couple differently than white prospective purchasers. Id., 49. The court concluded, however, that "[w]e do not doubt that a reasonable factfinder could conclude that [the listing agent] violated no custom in his dealings with the plaintiffs, or that even if he did ... the totality of circumstances— including his alleged solicitude for the plaintiffs in earlier stages of negotiation— obviates any inference of discrimination ." (Emphasis added.) Id., 50.
The custom contemplated by the court was whether, in eastern Long Island, "a real estate broker must disclose the existence of a competing offer to bidders involved in negotiations with the seller ..." Mitchell v. Shane, 350 F.3d 39, 49-50 (2008).
Even if Lopez had established a prima facie case and the burden shifted to the defendants to show that the decision was motivated by a legitimate reason and that the legitimate reason, by itself, would have motivated the defendants to make the same decision, the court finds that the defendants have satisfied this burden. "The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff ... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." (Citations omitted; emphasis in original; internal quotation marks omitted.) Chestnut Realty, Inc. v. CHRO, supra, 201 Conn. 350, 362-63, 514 A.2d 749 (1986), overruled on other grounds by Tolly v. Department of Human Resources, 225 Conn. 13, 621 A.2d 719 (1993). The defendants produced admissible testimony supporting that they decided to go with the offer from Thompson and Dyer with legitimate reasons, specifically that it was a more complete offer and that they could definitely move in by April 1, 2017. See Mitchell v. Century 21 Rustic Realty, 233 F.Supp.2d 418, 435 (E.D.N.Y. 2002), aff’d in part and vacated in part by Mitchell v. Shane, supra.
In the present action, Lopez has failed to provide sufficient evidence to establish that her source of income was a motivating factor in Henry’s handling of the transaction or Vaccaro’s ultimate decision to move forward with the Thompson and Dyer offer instead of the Lopez offer. Accordingly, the court finds that Lopez has not established by a preponderance of the evidence that her lawful source of income was a motivating factor in Henry’s handling of the listing of the Premises, nor has Lopez established by a preponderance of the evidence that her lawful source of income was a motivating factor in Vaccaro’s decision not to rent to her.
B. Lopez’ claims against Raveis— Counts One and Two
Because this court has found that Lopez has failed to establish that Henry violated § 46a-64c, there is no reason to address the alleged violation as to Raveis for failing to properly supervise and train its agents under § 46a-64c, or the alleged violation as to Raveis predicated on Henry’s actions as its agent. Lopez failed to meet her burden as to the predicate claim against Henry, and thus the derivative claims against Raveis fail as well.
C. Lopez’ Claims Against Vaccaro and Eve Vaccaro— Counts Four Through Seven
Lopez has also alleged violations of § § 46a-64c(a)(1) and 46a-64c(a)(3) against both Vaccaro and Eve Vaccaro. Proving that membership in a protected class motivated a decision "implicitly requires the defendant to be aware that the plaintiff belonged to a protected class." Tufano v. One Toms Point Lane Corp., supra, 64 F.Supp.2d 127. The court finds that Lopez has failed to provide any evidence that either Vaccaro or Eve Vaccaro were aware of Lopez’ status as a section 8 program tenant at the time they decided not to proceed with the transaction. Indeed, Vaccaro and Henry both testified to the fact that Vaccaro was not made aware of Lopez’ intent to use a section 8 program voucher until after he had decided to accept and move forward with the competing Thompson and Dyer offer. The court disagrees with Lopez’ assertion that "both defendants lacked credibility in their testimony and the circumstantial evidence supports a contrary conclusion." Lopez bears the burden of proving that the decision was motivated by her section 8 program status, and without evidence that Vaccaro or Eve Vaccaro had knowledge of that status at the time the decision was made, it is impossible to infer the requisite motivation. See Mitchell v. Shane, supra, 350 F.3d 49. Additionally, because this court concludes that Lopez has failed to establish that Henry violated § 46a-64c, there is no reason to address the derivative claims against Vaccaro and Eve Vaccaro predicated on the actions of Henry and Raveis, as their agents.
IV. CONCLUSION
Based on the foregoing, the plaintiff has failed to establish the facts necessary to prove a prima facie case of housing discrimination, in that she has failed to prove, based on the entire record, that the actions of the defendants constituted housing discrimination based on her lawful source of income. Accordingly, judgment enters for the defendants.