In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2703

JACKIE B. ALLEN,

Plaintiff-Appellant,

v.

FRANK MURIELLO, MARIE B. KRUSE, and
OAK PARK HOUSING AUTHORITY,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 3517--Blanche M. Manning, Judge.

ARGUED April 11, 2000--DECIDED JUNE 21, 2000



  Before MANION, DIANE P. WOOD, and EVANS,
Circuit Judges.

  EVANS, Circuit Judge. Jackie Allen is
an innocent man. But in processing his
application for federal housing
assistance, the Oak Park Housing
Authority treated him otherwise. After
background checks revealed what the
Authority said was a disqualifying
criminal record, it suspended Allen’s
application and discouraged him from
attempting to clear his name. Because
Allen believed this treatment sharply
contrasted with the way the Authority
handled white applicants who found
themselves in similar circumstances, he
sued under Title VIII of the Fair Housing
Act and Title VI of the Civil Rights Act
of 1964, alleging that the Authority
discriminated against him because he is a
black man. On the Authority’s summary
judgment motion the district court
dismissed the case, finding that Allen
had not made out a prima facie showing of
discrimination. Allen now appeals the
dismissal of his Fair Housing Act claim.
In reviewing this grant, we take the
facts as Allen presents them but without,
of course, vouching for their accuracy.

  Section 8 is a federal program designed
to assist the elderly, low income, and
disabled pay rent for privately owned
housing. Applicants to the program who
fit the necessary criteria but have been
arrested for drug-related or violent
crimes within 3 years of their
application, or convicted of these crimes
such that their probation or jail time
extends to within 5 years of their
application, are ineligible.

  Allen is a veteran who was receiving
treatment for severe depression when he
applied to the Oak Park Housing Authority
for Section 8 assistance in 1997. As part
of its review of his application, Oak
Park provided Allen’s name, race, sex,
and social security number to the local
police and asked them to check whether
Allen had a criminal record. The local
police sent this information off to the
Illinois State Police and, in response,
received a teletype that referred to a
"Larry W. Hamilton" who had, on two
undisclosed occasions, been convicted of
"smuggling." Hamilton’s birth date did
not match Allen’s, but one of several
social security numbers linked to
Hamilton did, and the two were both black
men.

  Based on this information, the Authority
assumed that Hamilton was Allen and thus
sent Allen a letter stating that because
the "criminal check . . . showed evidence
of criminal offenses and several alias
names/1 . . . we will not continue
processing your [application]." The
letter also stated that Allen could seek
a review of the decision with Oak Park’s
executive director, but it did not
provide Allen with any details about his
alleged criminal record.

  Since Allen had never gotten into any
trouble with the law, he contacted the
Authority and said that it had made a
mistake. Marie Kruse, Oak Park’s Section
8 program director, responded that Allen
would need a lawyer to clear his name and
then abruptly stopped the conversation.
Scared that he would lose his housing
assistance, Allen called back later. He
got the same response.

  Allen then took Oak Park up on its offer
and requested a hearing with the
executive director. He also asked for a
copy of his "criminal report." The
Authority scheduled a hearing but,
without explanation, Kruse refused to
provide Allen with a copy of the report.
In an affidavit, Kruse later disclosed a
peculiar fact. She said she did not turn
the report over--despite agency
regulations that required her to do so--
because the police officer who performed
the background check told her that giving
Allen a copy of the report would violate
Larry Hamilton’s privacy rights if the
two were, indeed, different people.

  In the month leading up to his hearing
Allen began searching for people who
might help him clear his name. After
visits to the State’s attorney’s office,
the public defender’s office, the Cook
County Housing Authority, the Oak Park
police department, and the John Marshall
Law School’s legal clinic, Allen found a
housing specialist with the United States
Department of Housing and Urban
Development (HUD) who agreed to call
Kruse on his behalf. But this, too,
proved useless. When the housing
specialist asked Kruse if she was
absolutely sure she had the right guy, he
got the same response as Allen: Kruse
was sure, and Allen would need a lawyer
to clear his name. Allen then contacted
Merilyn Brown, an attorney in HUD’s
Department of Fair Housing and Equal
Opportunity. Brown agreed to attend the
hearing on Allen’s behalf.

  At the hearing, Allen once again
explained that he did not have a criminal
record. He then complained about the
difficulty he had faced trying to clear
his name when the Authority refused to
provide him with a copy of his alleged
record. Finally, he asked why Kruse
treated him so poorly, stating "I’m a
veteran. I fought for this country. I
believe in this country, and you treat me
as if I’m nothing." In response,
according to Brown’s recollection of the
hearing,

[Kruse] blew him off. . . . She did not
respond to him. She threw her head. It
was kind of ugly. . . . I gave a speech.
I had to because they were not helping
this man. They were not trying to be
sympathetic to this man. . . . I tried to
explain to [Kruse], you know, that common
courtesy doesn’t cost anybody anything .
. . . And I asked her, "Would you at
least be willing apologize to him for the
treatment he has received?" She told me
no.
  Frank Muriello, Oak Park’s executive
director, then showed Allen a copy of the
one-half- page "criminal record" that the
Authority was banking on to deny Allen’s
application. Kruse explained that unless
Allen could produce information then and
there that he had not committed the
crimes referred to in the teletype, the
Authority’s position on his application
would become final. Brown and Allen
objected and Muriello eventually
relented, saying that if Allen could
provide fingerprints proving that he was
not Larry Hamilton, the decision would be
reversed.

  Once Allen was fingerprinted, cleared,
and allowed to transfer his Section 8
housing to Oak Park, he filed this suit
against the Authority as well as Kruse
and Muriello. To flesh out his claims,
Allen related the stories of Tom Arado
and Mary Jenkins, two white Section 8
applicants whose background checks also
uncovered possible past criminal conduct.
Arado, like Allen, received a letter
rejecting his 1996 Section 8 application
after the police reported to the
Authority that he had been sentenced to 8
years in prison for drug-related offenses
in 1987. Arado contested the
determination and, like Allen, was
permitted to make his case at a hearing
attended by Kruse and Muriello. Arado
admitted to his conviction at the
hearing, but stated that he had finished
serving his time and probation for the
offense in 1990. Kruse and Muriello took
him at his word and reinstated his
application since, according to Arado,
neither his jail time nor his probation
extended into the time frame that would
have disqualified his application.

  The Authority’s background check of
Jenkins produced a report showing arrests
and convictions for several weapons,
assault, and drug charges. In response,
Kruse asked Jenkins to come down to the
office, where the two held an informal
meeting. Kruse showed Jenkins the report,
and when Jenkins asserted that it was not
hers, Kruse explained that she should
clear her name by going to the local
police station. Jenkins followed Kruse’s
advice, was fingerprinted, cleared, and
her application proceeded without a
hitch.
  The district court granted summary
judgment after determining that Allen
could not make out a prima facie
discrimination claim under the McDonnell
Douglas burden-shifting test. See Village
of Bellwood v. Dwivedi, 

,
1529 (7th Cir. 1990) (holding that the
mental element required to make out a
disparate treatment claim under Title
VIII of the Fair Housing Act is the same
as that required under Title VII of the
Civil Rights Act of 1964); see also
Kormoczy v. Secretary, United States
Dep’t of Housing and Urban Dev. ex rel.
Briggs, 

, 824 (7th Cir. 1995)
(noting that plaintiffs may use the
McDonnell Douglas framework to make out
claims under Title VIII of the Fair
Housing Act). The court explained that
since Arado never contested his
conviction, the fingerprint requirement
was moot, and thus he and Allen were not
sufficiently similarly situated to make
their disparate treatment actionable. The
court then found that since both Jenkins
and Allen were eventually required to
submit fingerprints to clear their names,
the two were not disparately treated./2

  Allen asserts that by framing the case
as focusing solely on fingerprinting, the
district court skipped over his central
complaint--that when he and the white
applicants all faced positive background
checks, the Authority solicitously made
every effort to ensure that the white
folks’ applications would not be
derailed, while it discouraged him from
continuing with the process. He believes
that this constitutes disparate treatment
of similarly situated applicants, and
thus that he more than adequately made
out a prima facie case of discrimination
under Title VIII of the Fair Housing
Act./3

  We begin by assessing the district
court’s conclusion that Allen could not
make out a prima facie case because he
and Arado were not similarly situated. As
stated, this finding placed great weight
on the fact that Oak Park did not require
Arado’s fingerprints because he admitted
to his prior conviction. If Allen’s sole
complaint was that he had been
fingerprinted while Arado had not,
Arado’s admission would be relevant. But
fingerprinting is not the essence of
Allen’s claim--it is evidence toward it.
Allen’s beef lies in the fact that he was
required to submit proof to support his
eligibility, while Arado was taken at his
word. Arado’s admission does not explain
this distinction.

  The Authority, however, attempts an
explanation. It argues that the "failure
to take Allen’s word as against the
official police report can in no way be
equated with OPHA’s willingness to take
Arado’s word for the actual period of
incarceration and no probation when there
was no evidence to the contrary." The
Authority believes that Allen’s word
would have had to overcome a
"disqualifying criminal background which
was rebutted only by Allen’s unsupported
assertion that it was not his," whereas
Arado’s word merely "explain[ed] an
ambiguity." In other words, the two
situations are not analogous because
Arado’s criminal report did not contain a
disqualifying event, whereas Allen’s did.

  This ignores the facts. Allen’s "record"
in the name of Hamilton in no way
disqualified him on its face. In fact, it
did not state when he had allegedly been
convicted, nor did it detail whether his
alleged conviction would bring him within
the range of disqualifying crimes.
Arado’s drug convictions, on the other
hand, would certainly have disqualified
him if he had served even half of his
sentence. Thus, if anything, from the
face of the criminal reports Allen looked
like he’d be the more likely of the two
to avoid disqualification. Despite this,
Allen was put to his proofs and Arado was
given a free pass. This is disparate
treatment. And, the two men were almost
identically situated: both had
applications suspended because they were
suspected of having committed
disqualifying crimes; both appealed and
were given a hearing attended by Muriello
and Kruse; and both then asserted facts
about their pasts that would have allowed
their applications to be reinstated.
Arado’s was; Allen’s was not.

  While Allen certainly has not carried
his ultimate burden of showing that
racial animus drove the Authority’s
conduct, he has alleged a prima facie
case under Title VIII of the Fair Housing
Act. See Village of 

(holding that any effort to
discourage people from attaining housing
because of their race violates Title
VIII). Further, Oak Park’s rather dubious
explanation for the differing treatment--
that Arado’s application contained a mere
"ambiguity" while Allen’s contained a
"disqualifying event"--puts the issue of
pretext in the lap of a trier of fact.

  Standing alone, Oak Park’s differing
treatment of Allen and Arado offers a
sufficient basis to reverse the district
court’s decision. But we need not stop
here, as reviewing the court’s conclusion
that Allen and Jenkins were not
disparately treated leads to the same
result.

  The district court correctly observed
that Allen and Jenkins both eventually
had to be fingerprinted. But this does
not explain the different ways their
cases were handled. While both applicants
submitted fingerprints to dispel the
shadow a false criminal report cast over
their applications, this similar ending
does not mean that the two did not face
materially different treatment along the
way.

  In fact, they did. When the Authority
received a potentially disqualifying
criminal report for Jenkins, it did not
tell her that she could only clear her
name with a lawyer, it did not refuse to
show her her alleged record, it did not
make her attend a hearing and threaten to
cut off her funding, and it did not wait
until a HUD lawyer took up the fight
before disclosing to her that
fingerprinting would take care of the
situation. Instead, Oak Park invited
Jenkins to a meeting, explained the
problem, and, when Jenkins asserted her
innocence, told her how to clear her
name. Once again, this constitutes
disparate treatment.

  Oak Park acknowledges that it treated
Allen and Jenkins differently but asserts
that this stemmed from a policy change,
not discrimination. The Authority
explains that because its treatment of
Allen led to problems, it came up with a
less confrontational way to handle
applicants whose background checks
revealed ambiguous criminal records.
Since this new, nondiscriminatory policy
accounts for the different treatment of
Jenkins, the Authority urges us to affirm
the district court.
  Allen, however, raises at least a couple
of reasons that, again viewing the
evidence and inferences in his favor,
cast doubt on the Authority’s
explanation. First, he notes that despite
its detailed regulations, the Authority
can point to nothing that documents its
alleged policy shift. Next, he directs us
to Muriello’s statement that the handling
of Jenkins’ claim "is the usual thing"
and that as far as Muriello knew, Allen
wasn’t treated any differently. Allen
suggests if there was indeed a formal
policy change in response to his case, it
stands to reason that Muriello would be
aware of the change.

  None of this proves Oak Park is lying.
Indeed, the Authority may very well be
able to convince a jury that a changed
policy best explains why it handled
Allen’s and Jenkins’ applications so
differently. But Allen casts sufficient
doubt on the Authority’s explanation to
avoid summary judgment. Whether Oak Park
did indeed create a new policy or whether
it came up with the new policy after the
fact to explain its different treatment
is a contested factual issue which should
be decided by a jury.

  The Authority’s processing of Allen’s
application differed sharply from its
handling of the nearly identically
situated Arado and Jenkins. This could
very well be a case of bureaucratic
bungling, but were it discrimination, it
would likely look much the same. For this
reason, the law allows plaintiffs
alleging discrimination to make their
case circumstantially. And on summary
judgment, the McDonnell Douglas test’s
shifting burdens of proof attempt to
ensure that a case of actual
discrimination does not slip through the
cracks for lack of direct evidence. If
the test is to work--and our
antidiscrimination laws are to have an
effect on more than the most egregious
and obvious discrimination--courts should
neither narrow McDonnell Douglas’s
application such that no one is similarly
situated, nor broaden its application
such that no one is disparately treated.

  Jackie Allen’s allegations that his
application for federal housing
assistance was handled differently than
those of two similarly situated white
applicants presents a prima facie case
that he was discriminated against because
he is black. Since Oak Park’s
explanations for its conduct raise
triable issues of fact, the case should
not have been dismissed on summary
judgment. The judgment is REVERSED and the
case REMANDED for further proceedings.

FOOTNOTES

/1 The "several alias names" were Larry W. Hamilton
and Larry William Hamilton.

/2 The text of the district court’s opinion actually
states that Allen and Jenkins were not similarly
situated because "it is wholly irrelevant that
Kruse did not tell [Jenkins]--as she did Allen--
that fingerprints were mandatory since Jenkins
clearly inferred such." But since this statement
explains that Allen and Jenkins received the same
treatment, it appears the court may have made a
small slip of the pen. We thus infer that the
court meant that the similar treatment the two
received showed that Allen was not disparately
treated.

/3 Allen opted to drop his claims under Title VI
without explanation.