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 defendant s 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 Ac t (FHA), claiming that defendants James and Carol Joura evicted him from hi s apartment because of his handicap. Radecki alleged, inter alia, that he was a tenant in-2-

an apartment building defendants owned; that he had a "handicap" under 42 U.S.C. § 3602(h), as he suffered from depression subst antially 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 requ ested a reasonable period of accommodation to prepare for" scheduled repairs and pest extermination in his apartment; th at defendants sent him
a lett er dated August 16 notifying him "he would have to permanently vacate th e apartment"; and that he was forcibly evicte d 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 affidav it, Carol Joura attes ted, inter alia, that she and her husband took possession of Radecki's apartmen t 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 wa s suffering from a disability or handicap or that he was requesting any accommodation [fromt hem]"; that, because of their difficulties in getting Radecki's cooperation an d 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 forcibl y evicted on December 16.

Defendants subsequently submitted the transcript of Radecki's deposition; hi s testimony i ncluded the following statements. He told defendants he needed time t o prepare for the exter

mination 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 an d his attorney told their attorney of his disability at some point after he received the notice to vacate. Radecki told d efendants "on September 1 and subsequently" that he was quite ill and wanted to stay in his apartment beyond September 30; he filed-3-

complaints with HUD and the Nebr aska Equal Opportunity Commission in an attempt to stop th e eviction; and in his October 27 HUD charge, he stated he was "bein g harassed to move because of [his] handicap."
The district court granted defendants' motion for s ummary judgment on the FHA claim, findi ng 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 hi s disability sometime af

ter August 16. Applying the framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), the court s et forth the following prima facie case which Radec ki had the burden of proving: a) he was a member of a class protecte d under the F HA; 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 dis pute, for purposes of their motion, that Radecki suffered from clinica l depression and thus had a "handicap" within the meaning of the FHA, the court concludedRadecki had failed to show the essential element that defendants knew of his han dicap before sending him the eviction notice on August 16; and, therefore , defendants were entitled to judgment as a matter of law. The court also dismisse d 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. , 61 F.3d 627, 628 (8th Cir. 1995). As the McDonnell Douglas framework applies to FHA claims, see United States v

. Ba dgett , 976 F.2d 1176, 1178 (8th Cir. 1992), Radecki initially had to prove a prima facie case of discrimination by a preponderance of the evidence, see id.

We hold the district court erred in limiting its "knowledge" inquiry to the dat e defe ndants sent Radecki the eviction notice (August 16). In assessing whether an d when defendants knew of Radecki's handicap, the court should have considered the-4-

date Radecki was a ctually evicted (December 16), as the FHA provides that unlawful discrimination occurs when a dwell ing is "den[ied]" to a renter because of that renter's handica p. See 42 U.S.C. § 3604(f)(1)(A); see generally Trafficante v. Metropolita n Lif e Ins. Co. , 409 U.S. 205, 211-12 (1972) (FHA must be given "generou s construc tion" to carry out "'policy that Congress consider[s] to be of the highes t priorit y'" (quoted source omitted)); Havens Realty Corp. v. Coleman , 455 U.S. 363 , 38 0 (1982) (FHA has broad, remedial purpose). Consequently, we believe tha t Radecki's deposition testimony and Carol Joura's affidavit created a genuine issue of material f

act as to the knowledge element: Carol Joura attested defendants wer e informed of Radecki's discrimination claim after August 16; and Radecki testified he explicitl ytold defendants he had a disability on September 1, he or his attorney tol d defendants of his handicap sometime after August 16, and his October 27 HUD charge indicated that defendant s were harassing him to move because of his handicap. Thus, summary judgment was improper.

On reman d, the district court should also consider whether defendant s discrimina ted against Radecki by refusing to accommodate his handicap. See 4 2 U.S .C. § 3604(f)(3)(B) (discrimination under FHA occurs by "a refusal to mak e reasonable accommodations . . . when such accommodations may be necessary t o af fordsuch person equal opportunity to use and enjoy a dwelling"); United States v

. California Mobile Home Park Management Co. , 29 F.3d 1413, 1416 (9th Cir. 1994) (FHA imposes affirmative duty upon landlords to make reasonable accommodation s for handicapped persons) ; H.R. Rep. No. 100-711, at 28-29 (1988), reprinted in1988 U.S.C.C.A. N. 2173, 2189-90 (courts should apply standard articulated in School Bd. of Nassau County v. Arline , 480 U .S. 273 (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 reason able accommodation could elim inate the risk, entities covered under [the FHA] are required to engage i n such accommodation").-5-

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

Attest:

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