Michael Neudecker v. Boisclair Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1799
___________
Michael Neudecker, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Boisclair Corporation, * District of Minnesota.
*
Appellee. * [PUBLISHED]
___________
Submitted: October 2, 2003
Filed: December 8, 2003
___________
Before BYE, BOWMAN, and MELLOY, Circuit Judges.
___________
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).
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 disability-
based 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
-2-
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
-3-
(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
-4-
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 hostile-
housing-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
-5-
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.
______________________________
-6-