United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1799

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Michael Neudecker, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Boisclair Corporation, * District of Minnesota.

*

Appellee. * [PUBLISHED]

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 Submitted: October 2, 2003

 Filed: December 8, 2003

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Before BYE, BOWMAN, and MELLOY, Circuit Judges.

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PER CURIAM.

Michael Neudecker appeals from the district court’s dismissal of his civil

complaint against Boisclair Corporation. We reverse and remand.

In October 2002 Neudecker filed his pro se complaint for damages, alleging

Boisclair violated his rights under Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794 (Rehabilitation Act); the Privacy Act of 1974, 5 U.S.C. § 552a (Privacy

Act); the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (FHA); and the Minnesota

Government Data Practices Act, Minn. Stat. §§ 13.01-13.99 (2003) (MGDPA).
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Neudecker later sought leave to recast his Privacy Act and MGDPA claims as a

common law invasion-of-privacy claim.

Neudecker alleged the following facts in his complaint and in response to the

motion to dismiss. See Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996) (district

court must consider allegations made in response to motion to dismiss). In April

1979 Boisclair property manager Marcia Thompson coerced unidentified medical

information from Neudecker’s father as a condition of Neudecker’s tenancy at Penn

Place Apartments (Penn Place). Boisclair owns Penn Place and is a recipient of

federal funding. Thompson released this medical information to “third party

subordinate employees who released it to other tenants in the building, who released

the information to later incoming tenants.” This “practice and procedure” of

disseminating Neudecker’s private information continued for the entire twenty-three

years Neudecker lived at Penn Place.

In December 1996, the son of Boisclair building manager “Anderson” and the

daughter of Boisclair assistant building manager Fran Lubecke both targeted

Neudecker, who suffers from obsessive-compulsive disorder (OCD), for disabilitybased harassment (hereinafter “disability harassment”). When Neudecker complained

to Boisclair management about the harassment, Anderson and Lubecke sent letters

to Boisclair property manager Sally Ruffenach “containing false counter-accusations

. . . as reprisal.” In January 1998 Neudecker received an anonymous threatening letter

signed, “The Demon that will haunt you,” and in April 1998 Anderson’s son pinned

Neudecker against a wall after Neudecker had made another complaint. In October

1998 Ruffenach falsely accused Neudecker of “stalking” another tenant and

threatened to evict him, and sometime in late 1998 she threatened to evict Neudecker

“as reprisal” for his continued complaints about being harassed.

In December 1998 Neudecker filed an administrative claim, which was denied

in August 1999 after the HUD investigator concluded “that the harassment was an
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aspect of [Neudecker’s] mental disorder.” Neudecker sought reconsideration, which

HUD denied in December 2000. The harassment and retaliation continued

throughout Neudecker’s tenancy at Penn Place and exacerbated his mental health

problems, resulting “in alcohol and food abuse that caused damage to [his] liver,

pancreas and other body systems.” In April 2002 Neudecker surrendered his

apartment.

The two statutes at issue in this appeal are the FHA and the Rehabilitation Act.

The FHA prohibits discrimination, based on handicap, against any person with

respect to the rental of a dwelling or the provision of related services or facilities. See

42 U.S.C. § 3604(f)(2). The Rehabilitation Act prohibits discrimination “under any

program or activity receiving [F]ederal financial assistance” against any otherwise

qualified individual with a disability, solely because of his disability. See 29 U.S.C.

§ 794(a). Both statutes provide for private causes of action. See Rodgers v. Magnet

Cove Pub. Schs., 34 F.3d 642, 643-45 (8th Cir. 1994) (Rehabilitation Act provides

for damages claim for disability discrimination); Robinson v. Gorman, 145 F. Supp.

2d 201, 205 (D. Conn. 2001) (disability discrimination in federally subsidized

housing program is actionable under Americans with Disabilities Act (ADA), FHA,

and Rehabilitation Act).

Although the district court did not address Boisclair’s argument that the

complaint was time-barred, we find that neither of the applicable statutes of

limitations had expired when Neudecker filed his October 2002 complaint: the

alleged harassment and retaliation continued throughout the pendency of his HUD

administrative claim and until he moved from his apartment in April 2002. See 42

U.S.C. § 3613(a)(1)(A)-(B) (2-year limitations period applicable to FHA claims is

tolled while administrative claim is pending); Havens Realty Corp. v. Coleman, 455

U.S. 363, 380-81 (1982) (FHA complaint is timely where unlawful practice continues

into limitations period); Gaona v. Town & Country Credit, 324 F.3d 1050, 1055-56
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(8th Cir. 2003) (Minnesota’s 6-year limitations period for personal-injury claims

applies to Rehabilitation Act and ADA claims).

As to the merits of the claims, we conclude that Neudecker sufficiently alleged

a retaliation claim under the FHA and the Rehabilitation Act, because he asserted that

a Boisclair representative threatened to evict him as reprisal for his complaints that

tenants were engaging in disability harassment. See 42 U.S.C. § 3617 (it is unlawful

to coerce, intimidate, threaten, or interfere with any person in exercise or enjoyment

of any right granted or protected under §§ 3603-3606 of FHA); Sherman v. Runyon,

235 F.3d 406, 409-10 (8th Cir. 2000) (to be engaged in protected activity under

Rehabilitation Act, person must have been protesting what he perceived as

discriminatory acts); Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999)

(elements of ADA retaliation claim include (1) plaintiff engaged in statutorily

protected activity; (2) defendant took adverse action against plaintiff; and (3) causal

connection exists between adverse action and protected activity); Allison v. Dep’t of

Corr., 94 F.3d 494, 497 (8th Cir. 1996) (cases interpreting ADA and Rehabilitation

Act are effectively interchangeable). Although the retaliatory conduct in this case

involved only threats of eviction, which were never carried out, we find Neudecker

sufficiently alleged an adverse action, at least at this early pleading stage. Cf. Harris

v. Itzhaki, 183 F.3d 1043, 1050-52 (9th Cir. 1999) (holding in summary judgment

case that tenant established prima facie FHA claim where she presented evidence that

she suffered emotional distress and feared eviction due to notices she received in

alleged retaliation for complaining about racially insensitive remarks; tenant’s

damages claim was not barred simply because she moved from her apartment and was

not evicted).

We next consider whether Neudecker has an independent claim for disability

harassment under the FHA and the Rehabilitation Act. Although we find no case

authority expressly authorizing such a claim in the housing context, decisions in

related areas provide the foundation for this type of claim. Several federal courts
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have found disability harassment in the workplace to be actionable under the

Rehabilitation Act and the ADA. See Fox v. Gen. Motors Corp., 247 F.3d 169, 176

(4th Cir. 2001) (hostile-work-environment claims for disability harassment are

cognizable under ADA); Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229,

233 (5th Cir. 2001) (same); Hiller v. Runyon, 95 F. Supp. 2d 1016, 1022-23 (S.D.

Iowa 2000) (same under Rehabilitation Act). Although this case presents disability

harassment in housing--not the workplace--some federal courts have permitted claims

under the FHA when sexual harassment causes a hostile housing environment. See

DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996) (recognizing hostilehousing-environment claim for sexual harassment under FHA); Honce v. Vigil, 1

F.3d 1085, 1088-90 (10th Cir. 1993) (hostile-housing-environment claims for sexual

harassment are actionable under FHA where harassment unreasonably interferes with

plaintiff’s use and enjoyment of premises; harassment must be “sufficiently severe or

pervasive” to alter conditions of housing arrangement); Williams v. Poretsky Mgmt.,

Inc., 955 F. Supp. 490, 495-96 (D. Md. 1996) (collecting cases and concluding

hostile-housing-environment claims for sexual harassment are actionable under

FHA).

Based on the foregoing, we conclude that disability harassment in the housing

context is actionable under the FHA and the Rehabilitation Act, and that Neudecker’s

allegations state such a claim. He alleged below that he suffers from OCD, that

Boisclair, a recipient of federal funding, subjected him to unwelcome harassment

based on his OCD, and that this unwelcome harassment was sufficiently severe to

deprive him of his right to enjoy his home, as evidenced by his physical problems and

ultimate decision to move out. Cf. Amir, 184 F.3d at 1027 (OCD found to be

disability under ADA); EEOC v. J. H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir.

2001) (complaint need only advise defendant of claimed disability; plaintiff need not

identify in initial pleading substantially limited major life activity); EEOC v.

Northwest Airlines, Inc., 216 F. Supp. 2d 935, 939 (D. Minn. 2002) (noting four

circuit courts have ruled that ADA plaintiff is not required to assert substantially
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limited major life activity at pleading stage); Hiller, 95 F. Supp. 2d at 1023 (elements

of hostile-work-environment claim for disability harassment include (1) plaintiff is

qualified individual with disability; (2) plaintiff was subject to unwelcome

harassment; (3) harassment was based on his disability or request for accommodation;

and (4) harassment was sufficiently severe or pervasive to alter conditions of

employment and to create abusive working environment).

While Neudecker does not allege that Boisclair’s agents themselves harassed

him, he does allege that tenants--including children of Boisclair’s management team--

constantly harassed and threatened him based on his disability; that he repeatedly

complained to Boisclair management about the harassment to no avail; and that he

ultimately moved from his apartment out of concerns for his health stemming from

the harassment. Cf. Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111-12 (8th Cir.

1997) (residential home for individuals with developmental disabilities could be

liable for resident’s sexual harassment of caretakers where caretakers reported

harassment to residential home and residential home failed to respond adequately);

Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1982) (workplace can be

rendered offensive in equal degree by acts of supervisors, coworkers, and strangers).

Finally, we note the district court did not address Neudecker’s request to recast

his Privacy Act and MGDPA claims as a common-law privacy claim under Minnesota

state law. On remand Neudecker should be granted this opportunity. See Lake v.

Wal-Mart Stores, Inc., 582 N.W.2d 231, 236 (Minn. 1998) (recognizing common-law

privacy claims for intrusion upon seclusion, and for appropriation and publication of

private facts).

Accordingly, we reverse and remand for further proceedings consistent with

this opinion.

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