Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Charles County Cause No.
1411-CC00987 Honorable Jon A. Cunningham
COLLEEN DOLAN, J.
Vermett ("Ms. Vermett"), Sally Dickherber
("Ms. Dickherber"), and Villa Roma Apartments
(collectively, "Appellants") appeal the order and
judgment of the Circuit Court of St. Charles County denying
their petition for judicial review of the administrative
ruling and order of the Missouri Commission on Human Rights
(the "MCHR") finding Appellants had violated §
213.040.1(1). After holding a public hearing, the MCHR
concluded that Appellants had refused to rent to Jacqueline
Henderson ("Mrs. Henderson") and Scott Henderson
("Mr. Henderson") (collectively,
"Respondents") because of Mrs. Henderson's
disability that confined her to a wheelchair. The MCHR
ordered Appellants to pay actual damages to Respondents in
the amount of $5, 000 and to pay a civil penalty in the
amount of $2, 000.
offer two points on appeal. In Appellants' first point,
they argue that the MCHR's decision and order was not
supported by competent and substantial evidence upon the
whole record. Specifically, Appellants contend that they did
not violate § 213.040(1) because they did not refuse to
rent or negotiate a rental agreement with Respondents and
that Mrs. Henderson's disability was not a contributing
factor in their decision. In Appellants' second point,
they assert that the MCHR's determination of damages was
also not supported by competent and substantial evidence upon
the whole record, as the MCHR's calculations of actual
damages were incorrect and Appellants' attempts to
accommodate Respondents should have been given more weight in
the assessment of damages.
affirm the judgment of the circuit court.
Factual and Procedural Background
MCHR hearing examiner who presided over the administrative
hearing in this case made the following findings that were
adopted by the MCHR in its decision and order. In early 2010,
Respondents searched for an apartment to rent that was closer
to Mrs. Henderson's work and Mr. Henderson's school.
Mrs. Henderson suffers lower-body paralysis due to a
severance of her spinal cord that resulted from an accident
in 1994. Mrs. Henderson is unable to walk, is confined to a
wheelchair, and has several limitations to major activities
in her daily life; it is undisputed by the parties that Mrs.
Henderson's condition meets the definition of
"disability" as defined in § 213.010(5) and
that both Respondents are protected under § 213.040.
an apartment at the Villa Roma apartment complex, Respondents
visited Villa Roma on February 10, 2010, after they had
determined it could potentially accommodate Mrs.
Henderson's disability. Ms. Vermett, the manager of Villa
Roma, showed Respondents the Villa Roma two-bedroom display
apartment (because there were no available apartments on the
first floor and the one-bedroom model could only be accessed
using stairs); Mrs. Henderson was able to easily navigate the
display unit in her wheelchair. Ms. Vermett relayed to
Respondents that a two-bedroom apartment on the first floor
would become available in April 2010.
Vermett then took Respondents to the exterior of Building
1915, opened the security door to Building 1915, and allowed
Mr. Henderson to lift Mrs. Henderson over the one-step
threshold (that was three to four inches high) into the
building. Ms. Vermett explained that she could not show
Respondents the ground-floor two-bedroom apartment in this
building (Unit 1915C) because it had not yet been cleaned.
Ms. Vermett then attempted to show Respondents another unit
in a different building, but Respondents declined to view the
apartment because it required using stairs to access it.
Before departing, Respondents told Ms. Vermett that they
would need a ramp to be built in order to access the security
door (that had a one-step threshold equaling three to four
inches) at Building 1915; Ms. Vermett told Respondents that
she would need to speak to Ms. Dickherber, Villa Roma's
any reply from Appellants concerning the ramp, Respondents
returned to Villa Roma on February 16, 2010, when they
completed and signed a lease application, paid a $25
application fee, and paid a $100 security deposit.
Respondents believed the security deposit was for Unit
1915C-the ground-floor unit where Ms. Vermett had led them
six days earlier and indicated that the apartment would be
available in April 2010. Respondents claimed that after they
had paid the application fee and security deposit, Ms.
Vermett informed Respondents that it would not be possible to
build the ramp for Building 1915, which obviously made it
impractical for Respondents to rent Unit 1915C. Ms.
Vermett's statements about not building the ramp led to a
heated exchange between Ms. Vermett and Respondents that left
both Respondents feeling shocked, angry, and humiliated.
letter addressed to Villa Roma's management office sent
February 18, 2010, Mrs. Henderson formally requested to have
a ramp to Building 1915 installed at Respondents'
expense. This letter was returned to Respondents as
"refused." Mrs. Henderson sent a second similar
letter to Villa Roma's Post Office Box address in St.
Charles on March 2, 2010; Respondents did not receive a
response to this letter. Subsequently, Villa Roma suggested
that Respondents could use the ground-level sliding glass
door as a means of entrance into Unit 1915C instead of the
primary entrance, which would thereby negate the need to
build a ramp.However, the entryway through the sliding
glass door was too narrow for Mrs. Henderson's wheelchair
and it was not possible to lock the sliding glass door from
the outside (meaning that the apartment would remain unlocked
if Mrs. Henderson chose to leave the apartment when Mr.
Henderson was not there). Unit 1915C was rented to another
individual on April 23, 2010.
filed a complaint with the MCHR on March 30,
2010. The Attorney General, on behalf of the
MCHR, filed an amended complaint against Appellants on
February 9, 2012. After a public hearing held on July 6,
2012, the MCHR issued its decision and order adopting the
Findings of Fact and Conclusions of Law of the MCHR hearing
examiner. Specifically, the MCHR concluded that Respondents
had established a prima facie case that they were
protected by § 213.040, Appellants had refused to rent
to them after they had made a bona fide offer to rent, and
Mrs. Henderson's disability was a factor in
Appellants' refusal to rent to Respondents. Further, the
MCHR concluded that Respondents had met their burden to prove
Appellants' stated non-discriminatory reason to not rent
to Respondents (that Unit 1915C was unavailable) was
pretextual. Concluding that Appellants had violated §
213.040.1(1), the MCHR ordered Appellants to pay actual
damages to Respondents, pursuant to § 213.075.11(1), in
the amount of $3, 000 for deprivation of Respondents'
civil rights and $2, 000 for emotional distress and
humiliation; the MCHR also ordered Appellants to pay a civil
penalty of $2, 000 pursuant to § 213.075.11(2).
Appellants filed their petition for judicial review of the
MCHR's decision and order on October 13, 2014; that
petition was denied by the circuit court.
Standard of Review
Court reviews the decision of the administrative agency, not
the circuit court. Coffer v. Wasson-Hunt, 281 S.W.3d
308, 310 (Mo. banc 2009). Our review extends to a
determination of whether the administrative agency's
action (1) is in violation of constitutional provisions; (2)
is in excess of the statutory authority or jurisdiction of
the agency; (3) is unsupported by competent and substantial
evidence upon the whole record; (4) is, for any other reason,
unauthorized by law; (5) is made upon unlawful procedure or
without a fair trial; (6) is arbitrary, capricious or
unreasonable; or (7) involves an abuse of discretion. §
536.140. We review the record before the administrative
agency in its entirety, not simply the evidence that supports
the agency's decision. Lake Ozark-Osage Beach Joint
Sewer Bd. v. Missouri Dep't of Nat. Res., 491 S.W.3d
667, 672 (Mo. App. W.D. 2016). "Although the
commission's decision is afforded substantial deference,
this Court must still 'examine the whole record to
determine if it contains sufficient competent and substantial
evidence to support the award, i.e., whether the award is
contrary to the overwhelming weight of the
evidence.'" Malam v. State, Dep't of
Corr., 492 S.W.3d 926, 928 (Mo. banc 2016) (quoting
Hampton v. Big Boy Steel Erection, 121 S.W.3d 220,
223 (Mo. banc 2003)). Further, we defer to the administrative
agency's ability to determine witness credibility.
Van Der Berk v. Missouri Com'n on Human Rights,
26 S.W.3d 406, 410 (Mo. App. E.D. 2000). We review questions
of law de novo. Lake Ozark-Osage Beach Joint Sewer
Bd., 491 S.W.3d at 672.