United States Court of Appeals

                          FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 95-4091
                                    ___________

Dr. Tadeusz Radecki,                     *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
James Joura; Carol Joura,                *
                                         * [PUBLISHED]
             Appellees.                  *
                                    ___________

                  Submitted: April 14, 1997

                        Filed: June 3, 1997
                                   ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
                           ___________

PER CURIAM.

      Tadeusz Radecki appeals from the district court's order granting defendants
summary judgment on his federal housing-discrimination claim, and dismissing without
prejudice his four related state law claims. We reverse.

      Radecki filed this complaint under 42 U.S.C. § 3604(f)(1) of the Fair Housing
Act (FHA), claiming that defendants James and Carol Joura evicted him from his
apartment because of his handicap. Radecki alleged, inter alia, that he was a tenant in
an apartment building defendants owned; that he had a "handicap" under 42 U.S.C. §
3602(h), as he suffered from depression substantially limiting one or more of his major
life activities; that on August 13, 1993, he informed defendants he was "suffering from
a long-term disability and requested a reasonable period of accommodation to prepare
for" scheduled repairs and pest extermination in his apartment; that defendants sent him
a letter dated August 16 notifying him "he would have to permanently vacate the
apartment"; and that he was forcibly evicted therefrom pursuant to a state court writ of
restitution. Radecki also asserted four state law claims based upon his eviction.

        Defendants moved for summary judgment. In a supporting affidavit, Carol Joura
attested, inter alia, that she and her husband took possession of Radecki's apartment
building on July 1, 1993; that Radecki was a month-to-month tenant; that Radecki
informed them on August 7 or 8 that he was "ill," but "never told [them] that he was
suffering from a disability or handicap or that he was requesting any accommodation
[from them]"; that, because of their difficulties in getting Radecki's cooperation and
their need to eliminate cockroaches and mice in the apartment for the benefit of all their
tenants, they sent Radecki a notice on August 16 to vacate the apartment by September
30; that they first became aware of Radecki's claim of disability discrimination when
their attorney told them about it after they had given Radecki the notice to vacate; and
that they obtained a restitution order on November 22, and Radecki was forcibly
evicted on December 16.

       Defendants subsequently submitted the transcript of Radecki's deposition; his
testimony included the following statements. He told defendants he needed time to
prepare for the extermination and repairs; and on August 14, he specifically told them
he was "ill," he "need[ed] some more time because of [his] illness," and it was a "long
term illness." Radecki explicitly told defendants he had a disability on September 1;
he and his attorney told their attorney of his disability at some point after he received
the notice to vacate. Radecki told defendants "on September 1 and subsequently" that
he was quite ill and wanted to stay in his apartment beyond September 30; he filed

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complaints with HUD and the Nebraska Equal Opportunity Commission in an attempt
to stop the eviction; and in his October 27 HUD charge, he stated he was "being
harassed to move because of [his] handicap."

       The district court granted defendants' motion for summary judgment on the FHA
claim, finding as undisputed facts that Radecki had informed defendants twice before
August 16 that he was "ill" and "it was long term," but had not mentioned the nature
of his illness; and that Radecki asserted he or his attorney told defendants of his
disability sometime after August 16. Applying the framework of McDonnell Douglas
Corp. v. Green, 

(1973), the court set forth the following prima facie case
which Radecki had the burden of proving: a) he was a member of a class protected
under the FHA; b) defendants were aware of Radecki's membership in that class; c)
Radecki was willing and qualified to continue renting his apartment; and d) defendants
refused to permit Radecki to continue to rent the apartment. After noting defendants
did not dispute, for purposes of their motion, that Radecki suffered from clinical
depression and thus had a "handicap" within the meaning of the FHA, the court
concluded Radecki had failed to show the essential element that defendants knew of
his handicap before sending him the eviction notice on August 16; and, therefore,
defendants were entitled to judgment as a matter of law. The court also dismissed
without prejudice Radecki's state law claims. Radecki timely appealed.

       We review a grant of summary judgment de novo, applying the same standard
as the district court. See Miller v. National Cas. Co., 

, 628 (8th Cir. 1995).
As the McDonnell Douglas framework applies to FHA claims, see United States v.
Badgett, 

, 1178 (8th Cir. 1992), Radecki initially had to prove a prima
facie case of discrimination by a preponderance of the evidence, see 

the district court erred in limiting its "knowledge" inquiry to the date
defendants sent Radecki the eviction notice (August 16). In assessing whether and
when defendants knew of Radecki's handicap, the court should have considered the

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date Radecki was actually evicted (December 16), as the FHA provides that unlawful
discrimination occurs when a dwelling is "den[ied]" to a renter because of that renter's
handicap. See 42 U.S.C. § 3604(f)(1)(A); see generally Trafficante v. Metropolitan
Life Ins. Co., 

, 211-12 (1972) (FHA must be given "generous
construction" to carry out "'policy that Congress consider[s] to be of the highest
priority'" (quoted source omitted)); Havens Realty Corp. v. Coleman, 

,
380 (1982) (FHA has broad, remedial purpose). Consequently, we believe that
Radecki's deposition testimony and Carol Joura's affidavit created a genuine issue of
material fact as to the knowledge element: Carol Joura attested defendants were
informed of Radecki's discrimination claim after August 16; and Radecki testified he
explicitly told defendants he had a disability on September 1, he or his attorney told
defendants of his handicap sometime after August 16, and his October 27 HUD charge
indicated that defendants were harassing him to move because of his handicap. Thus,
summary judgment was improper.

       On remand, the district court should also consider whether defendants
discriminated against Radecki by refusing to accommodate his handicap. See 42
U.S.C. § 3604(f)(3)(B) (discrimination under FHA occurs by "a refusal to make
reasonable accommodations . . . when such accommodations may be necessary to
afford such person equal opportunity to use and enjoy a dwelling"); United States v.
California Mobile Home Park Management Co., 

, 1416 (9th Cir. 1994)
(FHA imposes affirmative duty upon landlords to make reasonable accommodations
for handicapped persons); H.R. Rep. No. 100-711, at 28-29 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2189-90 (courts should apply standard articulated in School Bd.
of Nassau County v. Arline, 

(1987), to determine whether FHA requires
accommodations; although tenancy may be denied if individual poses direct threat and
significant risk of harm to health and safety of others, "[i]f a reasonable accommodation
could eliminate the risk, entities covered under [the FHA] are required to engage in
such accommodation").


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      Accordingly, we reverse and remand for further proceedings consistent with this
opinion.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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