             Case: 14-14085    Date Filed: 02/18/2016    Page: 1 of 22


                                                                         [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-14085
                          ________________________

                      D.C. Docket No. 9:14-cv-80432-KLR



DYAN HUNT,
individually and as parent and guardian for Karl Hunt,

                                                               Plaintiff - Appellant,


                                      versus


AIMCO PROPERTIES, L.P.,

                                                             Defendant - Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (February 18, 2016)

Before MARCUS, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

JILL PRYOR, Circuit Judge:
              Case: 14-14085     Date Filed: 02/18/2016    Page: 2 of 22


      Dyan Hunt lives with her son, Karl Hunt, who was born with Down

Syndrome. They reside in the Reflections apartment complex, which was owned

by Aimco Properties (“Aimco”) when this lawsuit was first filed. Dyan sued

Aimco, for herself and on behalf of Karl as his parent and guardian (collectively

“the Hunts”), alleging that Aimco threatened her and her son with eviction and

non-renewal of their lease purportedly because Karl had harassed and made threats

to members of the apartment complex’s staff. The Hunts alleged that Aimco

violated the Fair Housing Act, 42 U.S.C. § 3604, by denying or making

unavailable to them their apartment because of Karl’s disability; discriminating in

the terms, conditions, or privileges of the apartment rental because of Karl’s

disability; and failing to reasonably accommodate Karl’s disability. The district

court granted Aimco’s motion to dismiss the complaint, and the Hunts appealed.

After careful consideration of the parties’ briefs, and with the benefit of oral

argument, we reverse and remand for further proceedings.

                                 I. BACKGROUND

A. Federal Law Prohibiting Discrimination in Housing Based on Disability

      Originally Title VIII of the Civil Rights Act of 1968, the Fair Housing Act

prohibited discrimination in housing on the basis of race, color, religion, national

origin, and, later, gender. See Pub. L. No. 90-284, 82 Stat. 81 (1968); Pub. L. No.

93-383, 88 Stat. 729 (1974). The Fair Housing Amendments Act of 1988 amended


                                           2
                Case: 14-14085        Date Filed: 02/18/2016        Page: 3 of 22


the Fair Housing Act (as amended, the “FHA”) to bar housing discrimination based

on disability. See Pub. L. No. 100-430, 102 Stat. 1619 (1988) (codified at 42

U.S.C. § 3604(f)). In relevant part, section 3604(f) makes it unlawful:

       (1) To discriminate in the sale or rental, or to otherwise make
       unavailable or deny, a dwelling to any buyer or renter because of a
       handicap of . . . that buyer or renter . . . [or] any person associated
       with that buyer or renter.

       (2) To discriminate against any person in the terms, conditions, or
       privileges of sale or rental of a dwelling, or in the provision of
       services or facilities in connection with such dwelling, because of a
       handicap of . . . that person . . . [or] any person associated with that
       person.

42 U.S.C. § 3604(f)(1)-(2). 1 Under section 3604(f), “discrimination includes,”

among other things,

       a refusal to make reasonable accommodations in rules, policies,
       practices, or services, when such accommodations may be necessary
       to afford such person equal opportunity to use and enjoy a dwelling[.]

Id. § 3604(f)(3)(B).

       With these statutory elements in mind, we review the Hunts’ allegations.2




       1
         “The FHA refers to discrimination based on ‘handicap’ rather than disability. 42 U.S.C.
§ 3604(f). Disability scholars, however, generally prefer the term ‘disability’ to handicap. . . .
For this reason, we treat the terms interchangeably and elect to use ‘disability’. . . .” Bhogaita v.
Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 n.2 (11th Cir. 2014).
       2
          At the motion to dismiss stage, we accept the well-pleaded allegations in the complaint
as true and view them in the light most favorable to the Hunts. See Chaparro v. Carnival Corp.,
693 F.3d 1333, 1335 (11th Cir. 2012).

                                                  3
                 Case: 14-14085         Date Filed: 02/18/2016        Page: 4 of 22


B. Factual Background

      Dyan and Karl Hunt have lived in the Reflections apartment complex in

West Palm Beach, Florida since November 2006. Aimco owned and managed

Reflections at the time of the events in question, August and September 2012.

Karl, who was 21 years old at that time, was born with Down Syndrome. His

intellectual disability causes him to “act[] like a child that is seven years old.”

Second Am. Compl. ¶ 6, Doc. 21.3

      On August 13, 2012, the Hunts received from Aimco a Notice of Required

Notice to Vacate informing them that their 12-month lease was due to expire on

November 19, 2012. The notice invited them to renew their lease, adding that

Aimco would “gladly discuss flexible renewal options.” Id. ¶ 13.

      On August 30, 2012, Dyan discovered that her son “was being used as a

maintenance person” by the Reflections staff and had been cleaning the bathroom

of the complex’s clubhouse. Id. ¶ 15. Karl appeared upset; Dyan believed that the

apartment community manager, Anne-Valery Jackson, had chastised him for

stealing toilet paper. Later that day, Dyan called Ms. Jackson, who claimed that on

August 25, 2012, Karl had drawn on a map of the property and, when asked what

he was doing, had informed Ms. Jackson that he was going to sacrifice her and

another Reflections employee and then trap all the residents in their apartments and

      3
          “Doc.” refers to the docket entry in the district court record in this case.

                                                   4
              Case: 14-14085    Date Filed: 02/18/2016    Page: 5 of 22


set the property on fire. Dyan advised Ms. Jackson that Karl was describing an

episode of a Japanese anime television series that he watched and that he did not

mean any harm. Ms. Jackson warned Dyan that “words like that ‘should not come

out in a joking manner.’” Id. ¶ 18. Ms. Jackson told Dyan that the Reflections

office staff had called Aimco’s corporate office because they did not feel safe

working at the office and that Aimco’s legal department was now involved.

      The next morning, Ms. Jackson and Palm Beach County Sheriff Deputy Josh

Kushel appeared at the Hunts’ apartment and asked to speak with Karl. The officer

talked to Karl about the perceived threats toward the office staff, which Karl

denied. Dyan explained again that Karl was not a threat, that “he has a speech

impediment that causes him to speak without properly explaining himself,” and

that he was merely describing a cartoon that he watched regularly. Id. ¶ 24.

Deputy Kushel then warned Karl that if he went in or around the community

clubhouse or the office, he would be arrested. Fifteen minutes after the police left,

Dyan called Ms. Jackson “crying and said she and Karl are very sorry and she is

looking at finding him a place/organization that will have him for the day while

she is at work to avoid any more situations.” Id. ¶ 26. Aimco ignored Dyan’s

“explanations of Karl’s activities or motivations” and failed to consider her request

for a reasonable accommodation. Id. ¶ 84.




                                          5
               Case: 14-14085      Date Filed: 02/18/2016      Page: 6 of 22


       That same day, Aimco decided not to renew the Hunts’ lease based on its

attorney’s instructions. Ms. Jackson posted on their door a Seven Day Notice of

Noncompliance with Opportunity to Cure, stating that Dyan had violated the terms

of her lease due to her son’s actions, including: (1) aggressive and confrontational

language and actions; (2) harassing management employees; (3) using obscenities,

vulgar, profane, cursing, insulting, belligerent or threatening language or behavior

towards management employees in and/or around the office; (4) threatening

management employees and/or acting in a threatening manner; and (5) stealing

numerous rolls of toilet paper from the restrooms.

       On September 12, 2012, Ms. Jackson posted on the Hunts’ door a Notice of

Non-Renewal, which stated that the Hunts would be required to vacate on or

before November 19, 2012, the date the current lease expired. Dyan packed up the

apartment and sold some furniture and personal property. She paid for several

background checks for rental applications and a rental agent to assist her with a

move. Karl became afraid of the police and terrified to leave the apartment,

believing he would be arrested, after the warning from Deputy Kushel.

       On October 12, 2012, the Hunts filed a complaint with the Palm Beach

County Office of Equal Opportunity. 4 On November 29, 2012, before the Hunts

vacated, a new management company took over ownership and operation of
       4
      The Office of Equal Opportunity had yet to render a decision at the time the Second
Amended Complaint was filed.

                                              6
               Case: 14-14085      Date Filed: 02/18/2016     Page: 7 of 22


Reflections and, after an investigation, determined that Karl was not a threat and

allowed the Hunts to remain in their apartment.

       The Hunts thereafter filed a complaint in federal district court, alleging that

under the FHA Aimco unlawfully: (1) denied or made a dwelling unavailable for

rental, in violation of 42 U.S.C. § 3604(f)(1) and (2) discriminated in terms and

conditions of housing, in violation of 42 U.S.C. § 3604(f)(2). Aimco moved to

dismiss the complaint for failure to state a claim. After the district court granted

Aimco’s motion to dismiss without prejudice, the Hunts filed an Amended

Complaint and later a Second Amended Complaint. Both the Amended Complaint

and the Second Amended Complaint (now the operative complaint)5 further

alleged that Aimco unlawfully failed to reasonably accommodate Karl’s disability,

in violation of 42 U.S.C. § 3604(f)(3).

       Aimco again moved to dismiss, and the district court granted the motion

with prejudice. The Hunts now appeal the dismissal of their claims.

                                   II. DISCUSSION

A. Mootness

       As a preliminary matter, we note that this case is not moot despite the fact

that the Hunts ultimately were allowed to remain in their apartment. Although
       5
         The Second Amended Complaint included five exhibits: the Notice of Required Notice
to Vacate, Aimco’s electronic record for the Hunts’ tenancy, the Seven Day Notice of
Noncompliance with Opportunity to Cure, the Notice of Non-Renewal, and a series of internal
emails by the new owners of Reflections about renewing the Hunts’ lease.

                                             7
             Case: 14-14085     Date Filed: 02/18/2016   Page: 8 of 22


Aimco did not argue mootness in its briefing, “[i]t is incumbent upon this court to

consider issues of mootness sua sponte and, absent an applicable exception to the

mootness doctrine, to dismiss any appeal that no longer presents a viable case or

controversy.” Pac. Ins. Co. v. Gen. Dev. Corp., 28 F.3d 1093, 1096 (11th Cir.

1994). “A case is moot when it no longer presents a live controversy with respect

to which the court can give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173,

1175 (11th Cir. 1993). Had the Hunts requested only injunctive relief to prevent

eviction, their case would be moot. See Adler v. Duval Cty. Sch. Bd., 112 F.3d

1475, 1477 (11th Cir. 1997) (“When the threat of future harm dissipates, the

plaintiff’s claims for equitable relief become moot because the plaintiff no longer

needs protection from future injury.”). But the Hunts also sought compensatory

and punitive damages in all three counts of their complaint. Thus, the controversy

as to money damages remains live, and we may hear this appeal. See id. at 1478

(holding that, although high school students’ Establishment Clause claims were

mooted by their graduation, “[b]ecause the [students’] claim for money damages

does not depend on any threat of future harm, this claim remains a live

controversy”); Harris v. Itzhaki, 183 F.3d 1043, 1050 (9th Cir. 1999) (concluding

that a plaintiff’s claim for damages for violation of 42 U.S.C. § 3604(a) was not

moot when she received multiple eviction notices but ultimately was not evicted).




                                          8
              Case: 14-14085     Date Filed: 02/18/2016    Page: 9 of 22


B. Failure to State a Claim

      The district court dismissed each of the Hunts’ claims under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim. We review the district court’s

grant of a motion to dismiss for failure to state a claim de novo, accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff. Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1169 (11th Cir.

2014). To withstand a motion to dismiss under Rule 12(b)(6), a complaint must

include “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A “claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s allegations must

amount to “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

      The Hunts alleged three FHA violations: (1) denying or making a dwelling

unavailable for rental, in violation of 42 U.S.C. § 3604(f)(1); (2) discriminating in

the terms and conditions of housing, in violation of 42 U.S.C. § 3604(f)(2); and (3)

failure to reasonably accommodate, in violation of 42 U.S.C. § 3604(f)(3). We

address in turn whether the Hunts failed to state a claim for each count.




                                           9
             Case: 14-14085     Date Filed: 02/18/2016   Page: 10 of 22


      1. Count I: Making Unavailable or Denying a Rental

      We address first the Hunts’ section 3604(f)(1) claim, which alleged that

Aimco discriminated against Dyan and Karl by making their apartment unavailable

because of Karl’s disability. See 42 U.S.C. § 3604(f)(1)(A). We conclude that the

Hunts sufficiently pled a claim under section 3604(f)(1), and the district court erred

in dismissing this claim.

      We have never expressly set forth the elements of a section 3604(f)(1) claim.

At the pleading stage, the relevant question is whether the complaint provides “a

short and plain statement of the claim” that “give[s] the defendant fair notice of

what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz v.

Sorema N. A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). In a discrimination case, “[b]efore discovery has unearthed relevant

facts and evidence, it may be difficult to define the precise formulation of the

required prima facie case in a particular case.” Id. Thus, the allegations in the

complaint “should be judged by the statutory elements of an FHA claim rather than

the structure of the prima facie case.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246,

250 (9th Cir. 1997); see also Ring v. First Interstate Mort., Inc., 984 F.2d 924, 927

(8th Cir. 1993).

      As relevant here, section 3604(f)(1) makes it unlawful to discriminate in the

rental of, or to otherwise make unavailable or deny, a dwelling because of a


                                          10
               Case: 14-14085        Date Filed: 02/18/2016       Page: 11 of 22


disability of the renter or a person associated with the renter. 42 U.S.C.

§ 3604(f)(1). Before discovery, a plaintiff may not be able to plead all the facts

necessary to prove that there was discrimination based on the disability. For this

reason, it is not necessary to state in the complaint, for example, that the housing

remained available or was secured by an individual outside of the protected class.6

But a complaint must allege that the adverse action was taken because of a

disability and state the facts on which the plaintiff relies to support that claim.

       The Hunts pled that Karl has Down Syndrome, an intellectual disability that

causes him to act like a seven year old child and have difficulty making himself

understood. This meets the definition of a disability, which, according to 42

U.S.C. § 3602(h)(1), is “a physical or mental impairment which substantially limits

one or more of such person’s major life activities.” Indeed, Aimco does not argue

that the Hunts failed to plead Karl has a disability within the meaning of the FHA.




       6
         The Sixth Circuit offers a case in point. Although the court has held that a prima facie
case of housing discrimination arises when a plaintiff shows that the housing was given to a
person outside the protected class, at the pleading stage, the court held that the following
allegations were sufficient to withstand a motion to dismiss:

       [Plaintiffs] allege that the Yateses advertised their house for sale, that they (the
       Lindsays) executed a purchase agreement to buy the house, and that nearly two
       weeks after signing the purchase agreement and depositing $500 in earnest money
       with Brent Yates—and one day after Brent learned they were black—the Yateses
       terminated the contract.

Lindsay v. Yates, 498 F.3d 434, 440 (6th Cir. 2007).
                                                11
             Case: 14-14085     Date Filed: 02/18/2016   Page: 12 of 22


      The Hunts further alleged that Aimco “had actual knowledge that Karl . . .

has an intellectual disability.” Second Am. Compl. ¶ 12. Supporting that

allegation were facts showing that Karl has observable behavioral characteristics.

In addition to behaving like a seven year old child, Karl, who was 21 years old,

“would listen to children’s music, such as Disney sing-a-longs, and Pokémon

son[g]s, on his headphones in the public areas” of Reflections. Id. ¶ 22.

      Moreover, the Hunts pled that Aimco took adverse action against them

because of Karl’s disability. The Hunts alleged that “Aimco treated Karl Hunt

differently solely because of his disability and did not want him residing at

Reflections.” Id. ¶ 53. Even though Dyan described to Ms. Jackson how Karl’s

disability could cause misunderstandings such as the perceived threat, Ms. Jackson

disregarded her explanations and continued the eviction process.

      The Hunts also alleged that they were willing and qualified to continue

renting the apartment. They had lived together in the Reflections apartment

complex for almost six years at the time they received the Notice of Non-Renewal.

Shortly before Karl made the alleged threats, a Notice of Required Notice to

Vacate had informed the Hunts that the apartment’s community manager would

“gladly discuss flexible renewal options or renew [their] lease for 12 months.” Id.

¶ 13. Despite the fact that the Hunts intended to renew the lease and were qualified

to do so, Aimco allegedly refused to allow the Hunts to continue renting the


                                         12
               Case: 14-14085        Date Filed: 02/18/2016       Page: 13 of 22


apartment. The Hunts were given notice to vacate the apartment on a date certain.

These allegations would suffice to show that Aimco “ma[d]e unavailable or

den[ied], a dwelling to any . . . renter because of a [disability].” 42 U.S.C. §

3604(f)(1).

       Given the complaint’s allegation that the new owners ultimately permitted

the Hunts to remain in the apartment, however, we must decide whether the Hunts

pled sufficient facts to establish that their apartment was “made unavailable” for

the purposes of section 3604(f)(1). A defendant need not make it impossible for a

person to occupy a dwelling to make housing unavailable. In McDonald v. Verble,

the Sixth Circuit held that a white couple violated a different, but similar, provision

of section 3604 7 when it refused to sell a house to a black couple, the McDonalds,

even though the McDonalds were able to buy the house after the district court

issued a temporary restraining order that allowed the sale. 622 F.2d 1227 (6th Cir.

1980). We find the Sixth Circuit’s reasoning persuasive: “The fact that subsequent

to the filing of a lawsuit, the sale of the property was consummated with the

McDonalds, does not alter the prior discriminatory conduct. Nor does that fact

wipe out the need for consideration of damages.” Id. at 1233. Additionally, given


       7
         Although Mc Donald v. Verble concerned section 3604(a), which prohibits racial
discrimination, the relevant language is identical in subsections (a) and (f): “otherwise make
unavailable or deny, a dwelling.” We see no reason to distinguish section 3604(a) from
section 3604(f)(1) as to this element.


                                                13
               Case: 14-14085    Date Filed: 02/18/2016   Page: 14 of 22


the FHA’s remedial policy “to provide, within constitutional limitations, for fair

housing throughout the United States,” 42 U.S.C. § 3601, “the Supreme Court has

repeatedly instructed us to give the Fair Housing Act a ‘broad and inclusive’

interpretation.” Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir.

2008) (quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995)).

Accordingly, we hold that the FHA protects renters not only from eviction, but also

from discriminatory actions that would lead to eviction but for an intervening

cause.

         Here, Aimco never evicted the Hunts, but it nevertheless made the Hunts’

housing unavailable by refusing to renew their lease and directing them to vacate

their apartment. Aimco made the decision not to renew their lease shortly after

Karl made purported threats to the Reflections office staff. According to the

complaint, Dyan explained to Ms. Jackson that the perceived threats were the

result of a misunderstanding attributable to Karl’s disability. Nonetheless, Aimco

proceeded with the eviction process. Approximately two weeks after offering to

renew the Hunts’ lease, the community manager posted a Seven Day Notice of

Noncompliance with Opportunity to Cure on the Hunts’ door. About two weeks

after that, Aimco issued a Notice of Non-Renewal to the Hunts, stating that they

were required to vacate the premises on or before November 19. The Hunts

prepared for eviction by packing up their apartment, selling their furniture and


                                          14
             Case: 14-14085     Date Filed: 02/18/2016   Page: 15 of 22


housewares, and paying for background checks and a rental agent to assist them in

finding another apartment.

      Meanwhile, there is no indication in the complaint or its attached exhibits

that Aimco ever reconsidered its decision or gave the Hunts permission to remain

in the apartment. To the contrary, Aimco made the apartment unavailable to them

throughout its ownership and operation of the complex. The apartment only

became available to the Hunts again because the complex was sold, and the new

owners permitted the Hunts to remain. Just as in McDonald, the fact that the Hunts

were able to remain in their apartment “does not alter the prior discriminatory

conduct.” 622 F.2d at 1233. The damages the Hunts suffered cannot be ignored

simply because a third party stepped in and allowed them to stay.

      The Hunts’ allegations contain “factual content that allows the court to draw

the reasonable inference” that Aimco discriminated against the Hunts because of

Karl’s disability. Iqbal, 556 U.S. at 663. The district court erred in concluding

otherwise.

      2. Count II: Discriminating in the Terms, Conditions, or Privileges of a
         Rental

      We now address the Hunts’ claim under section 3604(f)(2) for disparate

treatment in the terms, conditions, or privileges of their rental. The Hunts alleged

that because of Karl’s disability Aimco representatives mistreated him by yelling at

him, making him do maintenance work around the complex, and barring him from
                                         15
              Case: 14-14085     Date Filed: 02/18/2016     Page: 16 of 22


the community rooms and the office. We conclude that the Hunts stated a claim

for relief under section 3604(f)(2).

      Section 3604(f)(2) makes it unlawful to discriminate in the terms,

conditions, or privileges of, or in the provision of services or facilities in

connection with, a rental because of a disability. 42 U.S.C. § 3604(f)(2). The

allegations regarding Karl’s disability similarly support this claim. According to

the complaint, because of Karl’s disability Aimco representatives yelled at him and

forced him to clean bathrooms and collect garbage. Additionally, the complaint

alleged that Karl sat and listened to music in Reflections’s “public areas where

people congregate” prior to the perceived threats; afterwards, because of the

Reflections staff’s reaction to his disability, Karl was prohibited from entering the

community room, the pool area, and the office. Second Am. Compl. ¶ 22. These

alleged facts sufficiently pled that Aimco placed conditions on Karl that were not

imposed on other residents and restricted his access to facilities in the complex that

were open to other residents. The complaint therefore satisfies the pleading

requirements for a section 3604(f)(2) claim.

      Aimco argues that it cannot be liable under section 3604(f)(2) because the

police, not Aimco, instructed Karl to stay out of the community room. This is a

distinction without a difference. A private entity may not use the police as a front

for discrimination. We find persuasive an analogous case from the District of


                                           16
             Case: 14-14085     Date Filed: 02/18/2016   Page: 17 of 22


Puerto Rico. In Schroeder v. De Bertolo, the defendants—board members of the

condominium association that governed the plaintiff’s housing—allegedly

subjected the plaintiff, who had a mental illness, to baseless civil claims and

potential criminal charges because the plaintiff allegedly took property from the

condominium’s common areas. 879 F. Supp. 173, 175 (D.P.R. 1995). The district

court concluded that “[b]y bringing groundless civil claims against [the plaintiff]

and threatening to bring criminal actions, defendants’ actions could arguably have

intimidated [the plaintiff] in such a way that she refrained from exercising her right

to use the lobby and other common areas of the Condominium whenever she

wished.” Id. at 178. Similarly, here, although it was Deputy Kushel who warned

Karl that he would be arrested if he entered the community room, it was an Aimco

employee who called the police and accompanied Deputy Kushel to the Hunts’

apartment. As in De Bertolo, Karl was discouraged from using common areas at

Reflections because Aimco escalated the situation to a law enforcement matter.

      Naturally, in some circumstances it may be legitimate or even necessary to

protect public safety by calling the police. Indeed, the FHA contemplates such a

situation: “Nothing in [section 3604] requires that a dwelling be made available to

an individual whose tenancy would constitute a direct threat to the health or safety

of other individuals or whose tenancy would result in substantial physical damage

to the property of others.” 42 U.S.C. § 3604(f)(9). It may well be that Aimco took


                                          17
               Case: 14-14085       Date Filed: 02/18/2016        Page: 18 of 22


reasonable actions based on Karl’s direct threat. But the direct threat exception

described in section 3604(f)(9) is an affirmative defense and thus does not aid

Aimco at the motion to dismiss stage.8 See Chevron U.S.A. Inc. v. Echazabal, 536

U.S. 73, 78 (2002) (characterizing as an affirmative defense the Americans with

Disabilities Act’s (“ADA”) direct threat provision, 42 U.S.C. § 12113(a)-(b),

which similarly exempts adverse action against people with disabilities who “pose

a direct threat to the health or safety of other individuals”). Considering the

alleged facts in the light most favorable to the Hunts, as we must at this stage, the

threat of police involvement—regardless of who spoke the warning—restricted

Karl’s use of the complex’s facilities.

       3. Count III: Failure to Reasonably Accommodate

       Lastly, we address the Hunts’ failure to reasonably accommodate claim.

The district court decided that the Hunts could not proceed with this claim because

Dyan had failed to request from Aimco a reasonable accommodation for Karl’s

disability as required by section 3604(f)(3). But the complaint alleged that Dyan

asked Aimco staff to let her and her son remain in their apartment while she found

“a place/organization that will have [Karl] for the day while she is at work to avoid


       8
         “Generally, the existence of an affirmative defense will not support a motion to
dismiss.” Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984) aff’d and
reinstated on reh’g, 764 F.2d 1400 (11th Cir. 1985) (en banc). In some cases, however, “[a]
complaint may be dismissed if an affirmative defense . . . appears on the face of the complaint.”
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). This is not such a case.

                                                18
               Case: 14-14085       Date Filed: 02/18/2016       Page: 19 of 22


any more situations.” Second Am. Comp. ¶ 26. We conclude that the complaint

presented a plausible set of facts from which we can infer that Dyan requested an

accommodation and thus sufficiently pled this claim. See Iqbal, 556 U.S. at 663.

       To assert a failure to reasonably accommodate claim under section

3604(f)(3), a plaintiff must plead four elements: (1) the plaintiff is a person with a

disability within the meaning of the FHA or a person associated with that

individual; (2) the plaintiff requested a reasonable accommodation for the

disability; (3) the requested accommodation was necessary to afford the plaintiff an

opportunity to use and enjoy the dwelling; and (4) the defendant refused to make

the accommodation. See Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765

F.3d 1277, 1285 (11th Cir. 2014). 9 Here, the claim turns on whether the complaint

sufficiently alleged that Dyan requested a reasonable accommodation.

       We have yet to determine “precisely what form the request [for a reasonable

accommodation] must take.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247,

1261 n.14 (11th Cir. 2007). Several other circuits have addressed this issue in the

context of Title I of the ADA, which includes a similar provision requiring

employers to make reasonable accommodations for their employees with

       9
          This Court decided Bhogaita in the context of a motion for judgment as a matter of law,
rather than a motion to dismiss. 765 F.3d at 1281, 1285. Nevertheless, because none of the
elements we set forth there were evidentiary in nature, we adopt these same elements as pleading
requirements. See Swierkiewicz, 534 U.S. at 512 (“Given that the prima facie case operates as a
flexible evidentiary standard, it should not be transposed into a rigid pleading standard for
discrimination cases.”).

                                               19
             Case: 14-14085     Date Filed: 02/18/2016   Page: 20 of 22


disabilities. See 42 U.S.C. § 12112(b)(5)(A); Schwarz, 544 F.3d at 1220 (noting

that, in a failure to reasonably accommodate claim, “we look to case law under the

[Rehabilitation Act] and the ADA for guidance on what is reasonable under the

FHA”). The Third Circuit, for example, has stated that what matters is not

“formalisms about the manner of the request,” but that the employer has notice of

the employee’s disability and wish to be accommodated. Taylor v. Phoenixville

Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999). Similarly, the Tenth Circuit has

emphasized that a plaintiff “need not use magic words” to express a request for

accommodation. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir.

1999) (en banc). However stated, a plaintiff can be said to have made a request for

accommodation when the defendant has “enough information to know of both the

disability and desire for an accommodation.” Conneen v. MBNA Am. Bank, N.A.,

334 F.3d 318, 332 (3d Cir. 2003) (internal quotation marks omitted). We agree

with the Third Circuit that “circumstances must at least be sufficient to cause a

reasonable [housing provider] to make appropriate inquiries about the possible

need for an accommodation.” Id.

      Here, the complaint contained allegations that, taken together, meet this

standard. Dyan explained to Ms. Jackson, the community manager, that Karl was

not making threats but rather describing scenes from a cartoon he watched

regularly, and that he “was harmless and . . . has a speech impediment that causes


                                         20
             Case: 14-14085     Date Filed: 02/18/2016    Page: 21 of 22


him to speak without properly explaining himself,” resulting in his words being

misconstrued. Second Am. Comp. ¶ 24. After Ms. Jackson and Deputy Kushel

left the Hunts’ home, Dyan called Ms. Jackson crying and apologizing profusely.

Dyan told her that she would look for a facility that would take care of Karl during

the day while she was away at work to prevent any more incidents. It is clear from

the context that Dyan communicated that she was attempting to make these

arrangements for the express purpose of avoiding future conflict as a result of

Karl’s disability. We conclude that these factual allegations were sufficient to

plead that Dyan sought an accommodation in the form of an exception to Aimco’s

apparent policy or practice of not renewing the leases of tenants who make threats.

      We can now easily conclude the complaint adequately pled the third and

fourth elements of a reasonable accommodation claim. The requested

accommodation was necessary to eliminate the possibility that Karl would make

perceived threats or engage in other behavior that frightened or disturbed the

Reflections staff. It thus was necessary to afford the Hunts an opportunity to

continue to use and enjoy the apartment, yet Aimco refused to make the

accommodation. The complaint alleged that Aimco disregarded Dyan’s plea that

Karl “was not a direct threat and . . . ignored her attempts to suggest alternatives

short of eviction.” Id. ¶ 32. Aimco failed “to modify its existing policies and

practices to accommodate [Karl’s] disabilities.” Id. ¶ 95. These allegations


                                          21
             Case: 14-14085    Date Filed: 02/18/2016   Page: 22 of 22


sufficiently support the claim that Aimco failed even to consider, much less make,

the reasonable accommodation of permitting the Hunts to remain in their apartment

while Dyan made arrangements for Karl to be placed in offsite care to avoid future

incidents or misunderstandings. The Hunts stated a claim for failure to make a

reasonable accommodation.

                               III. CONCLUSION

      For the reasons explained above, we reverse the district court’s dismissal of

the complaint and remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




                                        22
