Judge: State Agency Chief Can Be Deposed

A state judge approved the deposition of Connecticut’s top anti-discrimination official in a court case involving an emotional support dog — following a debate around if a state agency head should be dragged into a lawsuit she may know nothing about.

That was the outcome of a Tuesday morning hearing in New Haven’s third-floor state housing court at 121 Elm St. in the ongoing case Commission on Human Rights and Opportunities v. BTB Group LLC and Randy Poxson.

CHRO — a state agency charged with combatting discrimination across Connecticut through civil and human rights law, advocacy, and education — brought the civil lawsuit last November alleging that a Branford-based landlord discriminated against a tenant named Diane DeVito by refusing to rent to her after finding out that she has a mental disability and requires an emotional support animal.

According to the lawsuit, DeVito filed a discrimination complaint with CHRO back in August 2021, and in August 2022, a CHRO case investigator ​“found reasonable cause to believe a discriminatory housing practice had occurred.” Soon thereafter, DeVito and her attorney, Ian Gottlieb, chose to file a civil action in state court against her landlord instead of pursuing an administrative hearing.

Tuesday’s hearing in state housing court, however, had little to do with the substance of the underlying discrimination allegations — and more with who the landlord’s attorney wanted to be able to question during the evidence-gathering stages of the ongoing court case.

Namely, the defendant had sought on March 20 to depose and question CHRO’s executive director, Tanya Hughes.

On March 23, CHRO Human Rights Attorney Timothy Lewendon filed a motion to quash that deposition — that is, to get the court to order that Hughes didn’t have to answer questions or, if she did, that those questions be limited in scope.

Hughes is the director of CHRO, Lewendon noted. She ​“has many responsibilities,” including those laid out in state statute, such as conducting comprehensive planning for the commission, coordinating the activities of the commission, and overseeing the administrative operations of the commission. 

“None of Director Hughes’ responsibilities including having knowledge of specific Commission cases,” the attorney wrote, including this particular case.

“The only foreseeable reasons that Defendant seeks to depose Director Hughes are to annoy Director Hughes by deposing her about facts she has no reason to have knowledge about, and to exert an undue burden on Director Hughes by providing only four days’ notice,” he wrote.

On Tuesday, landlord-hired attorney John Brown filed legal papers opposing that motion to quash. He wrote that Hughes’ testimony ​“is relevant to the defense of this matter, is not privileged or otherwise protected by law and should therefore be allowed.”

He wrote that his client, Paxson, would have liked to have rented to DeVito. But, when he learned of her request to have a dog reside with her in the apartment, he was ​“presented with a dilemma.” That’s because a long-time next-door neighbor at the apartment has asthma and ​“other life-threatening conditions” and that that neighbor was ​“highly sensitive to allergens and air-born triggers such as pet dander.” So he turned down DeVito’s apartment request and returned her security deposit, and was subsequently sued.

Brown argued in his motion that he should be allow to depose Hughes in this case to ask her if she is aware of any reasonable accommodation that the landlord could have made to the prospective tenant in this case.

“The potential embarrassment and annoyance of the Director of an organization that brought what appears in all likelihood to be a baseless and harassing lawsuit against the defendants is the least of the concerns faced in this matter,” Brown wrote. ​“Instead, this Court should be focused on affording Mr. Poxson the right to pursue a defense of this action in the manner that he and his counsel deem most likely to result in the least imposition of their time, attention and expenses.”

All of that led to Tuesday’s court hearing — in which Lewendon, Brown, and Gottlieb repeated their legal arguments before Judge Spader in support of and against CHRO’s motion to quash. That is: the judge heard arguments and was set to decide on Tuesday not whether or not the landlord discriminated against the tenant, but whether or not the landlord should be able to question CHRO Executive Director Hughes in this court case.

Lewendon stressed time and again on Tuesday that Hughes is an executive at this state agency. ​“She’s not engaged in the nuts and bolts of CHRO cases,” and therefore has no factual information to share in regards to this particular matter.

“This persistence in deposing the executive director is coming off as harassment,” he said. ​“She has no information regarding the facts of this case.”

Brown pushed back. He said that as the person who oversees the office’s policies and who participates in reviews that determine whether or not CHRO should bring a lawsuit in any given discrimination case, Hughes should have some insight as to what if any reasonable accommodation the landlord could have made in this case. 

“The rules of discovery are quite broad,” Brown argued. He and his client should have a chance to question the director on this matter — even if it is on the relatively narrow question of whether or not she is aware of any possible reasonable accommodations in this case.

Lewendon and Judge Spader then both pressed Brown on a different government-head-deposition hypothetical.

What if someone was upset with their tax bill and filed a lawsuit? Spader asked. Should they be allowed to depose the head of the IRS to provide testimony in the case?

Lewendon picked up on that same IRS hypothetical. He argued that, if the court allows the CHRO director to be deposed in this case, ​“it’s gonna be completely frivolous.” He said that CHRO’s legal housing manager would know much more about the details and policies around this case. And that person has already been deposed and ​“is going under oath” on Wednesday.

Brown countered by saying that the impact of Hughes’ deposition would be ​“de minimus.” Hugh could be deposed remotely, he said, and could answer a limited scope of questions directly from her office. This deposition is not designed to ​“annoy or embarrass.”

After hearing both sides’ arguments, Spader ended up ruling on the side of the landlord’s attorney — and allowing Hughes’ deposition.

Because Hughes is ​“directly involved” in whether this case or a case like this should be brought as a lawsuit in court, Spader ruled, he would allow the landlord’s side to ask her a limited set of questions about whether or not she was aware of any reasonable accommodations the landlord could have made.

“This should be a quick deposition,” Spader said. 

After the hearing, Brown commended Spader’s decision. The judge ​“heard the arguments and reached a very reasonable and reasoned decision in allowing the deposition to go forward, albeit with some significant restrictions in place,” Brown said.

Asked about the IRS hypothetical, he also noted that the CHRO is the plaintiff in this case. They’re the ones who brought the lawsuit in the first place. ​“The imposition on Tanya Hughes’ time and attention is really expected to be quite minimal,” he continued. ​“It really should be done well within the hour.”