217 F.3d 517 (7th Cir. 2000)
JACKIE B. ALLEN,    Plaintiff-Appellant,v.FRANK MURIELLO, MARIE B. KRUSE, and  OAK PARK HOUSING AUTHORITY,    Defendants-Appellees.
No. 99-2703
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 11, 2000Decide June 21, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern  Division.  No. 97 C 3517--Blanche M. Manning, Judge.
Before MANION, DIANE P. WOOD, and EVANS,  Circuit Judges.
EVANS, Circuit Judge.


1
Jackie Allen is  an innocent man. But in processing his  application for federal housing  assistance, the Oak Park Housing  Authority treated him otherwise. After  background checks revealed what the  Authority said was a disqualifying  criminal record, it suspended Allen's  application and discouraged him from  attempting to clear his name. Because  Allen believed this treatment sharply  contrasted with the way the Authority  handled white applicants who found  themselves in similar circumstances, he  sued under Title VIII of the Fair Housing  Act and Title VI of the Civil Rights Act  of 1964, alleging that the Authority  discriminated against him because he is a  black man. On the Authority's summary  judgment motion the district court  dismissed the case, finding that Allen  had not made out a prima facie showing of  discrimination. Allen now appeals the  dismissal of his Fair Housing Act claim.  In reviewing this grant, we take the  facts as Allen presents them but without,  of course, vouching for their accuracy.


2
Section 8 is a federal program designed  to assist the elderly, low income, and  disabled pay rent for privately owned  housing. Applicants to the program who  fit the necessary criteria but have been  arrested for drug-related or violent  crimes within 3 years of their  application, or convicted of these crimes  such that their probation or jail time  extends to within 5 years of their  application, are ineligible.


3
Allen is a veteran who was receiving  treatment for severe depression when he  applied to the Oak Park Housing Authority  for Section 8 assistance in 1997. As part  of its review of his application, Oak  Park provided Allen's name, race, sex,  and social security number to the local  police and asked them to check whether  Allen had a criminal record. The local  police sent this information off to the  Illinois State Police and, in response,  received a teletype that referred to a  "Larry W. Hamilton" who had, on two  undisclosed occasions, been convicted of  "smuggling." Hamilton's birth date did  not match Allen's, but one of several  social security numbers linked to  Hamilton did, and the two were both black  men.


4
Based on this information, the Authority  assumed that Hamilton was Allen and thus  sent Allen a letter stating that because  the "criminal check . . . showed evidence  of criminal offenses and several alias  names.1  . . we will not continue  processing your [application]." The  letter also stated that Allen could seek  a review of the decision with Oak Park's  executive director, but it did not  provide Allen with any details about his  alleged criminal record.


5
Since Allen had never gotten into any  trouble with the law, he contacted the  Authority and said that it had made a  mistake. Marie Kruse, Oak Park's Section  8 program director, responded that Allen  would need a lawyer to clear his name and  then abruptly stopped the conversation. Scared that he would lose his housing  assistance, Allen called back later. He  got the same response.


6
Allen then took Oak Park up on its offer  and requested a hearing with the  executive director. He also asked for a  copy of his "criminal report." The  Authority scheduled a hearing but,  without explanation, Kruse refused to  provide Allen with a copy of the report.  In an affidavit, Kruse later disclosed a  peculiar fact. She said she did not turn  the report over--despite agency  regulations that required her to do so--  because the police officer who performed  the background check told her that giving  Allen a copy of the report would violate  Larry Hamilton's privacy rights if the  two were, indeed, different people.


7
In the month leading up to his hearing  Allen began searching for people who  might help him clear his name. After  visits to the State's attorney's office,  the public defender's office, the Cook  County Housing Authority, the Oak Park  police department, and the John Marshall  Law School's legal clinic, Allen found a  housing specialist with the United States  Department of Housing and Urban  Development (HUD) who agreed to call  Kruse on his behalf. But this, too,  proved useless. When the housing  specialist asked Kruse if she was  absolutely sure she had the right guy, he  got the same response as Allen:  Kruse  was sure, and Allen would need a lawyer  to clear his name. Allen then contacted  Merilyn Brown, an attorney in HUD's  Department of Fair Housing and Equal  Opportunity. Brown agreed to attend the  hearing on Allen's behalf.


8
At the hearing, Allen once again  explained that he did not have a criminal  record. He then complained about the  difficulty he had faced trying to clear  his name when the Authority refused to  provide him with a copy of his alleged  record. Finally, he asked why Kruse  treated him so poorly, stating "I'm a  veteran. I fought for this country. I  believe in this country, and you treat me  as if I'm nothing." In response,  according to Brown's recollection of the  hearing,


9
[Kruse] blew him off. . . . She did not  respond to him. She threw her head. It  was kind of ugly. . . . I gave a speech.  I had to because they were not helping  this man. They were not trying to be  sympathetic to this man. . . . I tried to  explain to [Kruse], you know, that common  courtesy doesn't cost anybody anything .  . . . And I asked her, "Would you at  least be willing apologize to him for the  treatment he has received?" She told me  no.


10
Frank Muriello, Oak Park's executive  director, then showed Allen a copy of the  one-half- page "criminal record" that the  Authority was banking on to deny Allen's  application. Kruse explained that unless  Allen could produce information then and  there that he had not committed the  crimes referred to in the teletype, the  Authority's position on his application  would become final. Brown and Allen  objected and Muriello eventually  relented, saying that if Allen could  provide fingerprints proving that he was  not Larry Hamilton, the decision would be  reversed.


11
Once Allen was fingerprinted, cleared,  and allowed to transfer his Section 8  housing to Oak Park, he filed this suit  against the Authority as well as Kruse  and Muriello. To flesh out his claims,  Allen related the stories of Tom Arado  and Mary Jenkins, two white Section 8  applicants whose background checks also  uncovered possible past criminal conduct.  Arado, like Allen, received a letter  rejecting his 1996 Section 8 application  after the police reported to the  Authority that he had been sentenced to 8  years in prison for drug-related offenses  in 1987. Arado contested the  determination and, like Allen, was  permitted to make his case at a hearing  attended by Kruse and Muriello. Arado  admitted to his conviction at the  hearing, but stated that he had finished  serving his time and probation for the  offense in 1990. Kruse and Muriello took  him at his word and reinstated his  application since, according to Arado,  neither his jail time nor his probation  extended into the time frame that would  have disqualified his application.


12
The Authority's background check of  Jenkins produced a report showing arrests  and convictions for several weapons,  assault, and drug charges. In response,  Kruse asked Jenkins to come down to the  office, where the two held an informal  meeting. Kruse showed Jenkins the report,  and when Jenkins asserted that it was not  hers, Kruse explained that she should  clear her name by going to the local  police station. Jenkins followed Kruse's  advice, was fingerprinted, cleared, and  her application proceeded without a  hitch.


13
The district court granted summary  judgment after determining that Allen  could not make out a prima facie  discrimination claim under the McDonnell  Douglas burden-shifting test. See Village  of Bellwood v. Dwivedi, 895 F.2d 1521,  1529 (7th Cir. 1990) (holding that the  mental element required to make out a  disparate treatment claim under Title  VIII of the Fair Housing Act is the same  as that required under Title VII of the  Civil Rights Act of 1964); see also  Kormoczy v. Secretary, United States  Dep't of Housing and Urban Dev. ex rel.  Briggs, 53 F.3d 821, 824 (7th Cir. 1995)  (noting that plaintiffs may use the  McDonnell Douglas framework to make out  claims under Title VIII of the Fair  Housing Act). The court explained that  since Arado never contested his  conviction, the fingerprint requirement  was moot, and thus he and Allen were not  sufficiently similarly situated to make  their disparate treatment actionable. The  court then found that since both Jenkins  and Allen were eventually required to  submit fingerprints to clear their names,  the two were not disparately treated.2


14
Allen asserts that by framing the case  as focusing solely on fingerprinting, the  district court skipped over his central  complaint--that when he and the white  applicants all faced positive background  checks, the Authority solicitously made  every effort to ensure that the white  folks' applications would not be  derailed, while it discouraged him from  continuing with the process. He believes  that this constitutes disparate treatment  of similarly situated applicants, and  thus that he more than adequately made  out a prima facie case of discrimination  under Title VIII of the Fair Housing Act.3


15
We begin by assessing the district  court's conclusion that Allen could not  make out a prima facie case because he  and Arado were not similarly situated. As  stated, this finding placed great weight  on the fact that Oak Park did not require  Arado's fingerprints because he admitted  to his prior conviction. If Allen's sole  complaint was that he had been  fingerprinted while Arado had not,  Arado's admission would be relevant. But  fingerprinting is not the essence of  Allen's claim--it is evidence toward it.  Allen's beef lies in the fact that he was  required to submit proof to support his  eligibility, while Arado was taken at his  word. Arado's admission does not explain  this distinction.


16
The Authority, however, attempts an  explanation. It argues that the "failure  to take Allen's word as against the  official police report can in no way be  equated with OPHA's willingness to take  Arado's word for the actual period of  incarceration and no probation when there  was no evidence to the contrary." The  Authority believes that Allen's word  would have had to overcome a  "disqualifying criminal background which  was rebutted only by Allen's unsupported  assertion that it was not his," whereas  Arado's word merely "explain[ed] an  ambiguity." In other words, the two  situations are not analogous because  Arado's criminal report did not contain a  disqualifying event, whereas Allen's did.


17
This ignores the facts. Allen's "record"  in the name of Hamilton in no way  disqualified him on its face. In fact, it  did not state when he had allegedly been  convicted, nor did it detail whether his  alleged conviction would bring him within  the range of disqualifying crimes.  Arado's drug convictions, on the other  hand, would certainly have disqualified  him if he had served even half of his  sentence. Thus, if anything, from the  face of the criminal reports Allen looked  like he'd be the more likely of the two  to avoid disqualification. Despite this,  Allen was put to his proofs and Arado was  given a free pass. This is disparate  treatment. And, the two men were almost  identically situated: both had  applications suspended because they were  suspected of having committed  disqualifying crimes; both appealed and  were given a hearing attended by Muriello  and Kruse; and both then asserted facts  about their pasts that would have allowed  their applications to be reinstated.  Arado's was; Allen's was not.


18
While Allen certainly has not carried  his ultimate burden of showing that  racial animus drove the Authority's  conduct, he has alleged a prima facie  case under Title VIII of the Fair Housing  Act. See Village of Bellwood, 895 F.2d at  1529 (holding that any effort to  discourage people from attaining housing  because of their race violates Title  VIII). Further, Oak Park's rather dubious  explanation for the differing treatment--  that Arado's application contained a mere  "ambiguity" while Allen's contained a  "disqualifying event"--puts the issue of  pretext in the lap of a trier of fact.


19
Standing alone, Oak Park's differing  treatment of Allen and Arado offers a  sufficient basis to reverse the district  court's decision. But we need not stop  here, as reviewing the court's conclusion  that Allen and Jenkins were not  disparately treated leads to the same  result.


20
The district court correctly observed  that Allen and Jenkins both eventually  had to be fingerprinted. But this does  not explain the different ways their  cases were handled. While both applicants  submitted fingerprints to dispel the  shadow a false criminal report cast over  their applications, this similar ending  does not mean that the two did not face  materially different treatment along the  way.


21
In fact, they did. When the Authority  received a potentially disqualifying  criminal report for Jenkins, it did not  tell her that she could only clear her  name with a lawyer, it did not refuse to  show her her alleged record, it did not  make her attend a hearing and threaten to  cut off her funding, and it did not wait  until a HUD lawyer took up the fight  before disclosing to her that  fingerprinting would take care of the  situation. Instead, Oak Park invited  Jenkins to a meeting, explained the  problem, and, when Jenkins asserted her  innocence, told her how to clear her  name. Once again, this constitutes  disparate treatment.


22
Oak Park acknowledges that it treated  Allen and Jenkins differently but asserts  that this stemmed from a policy change,  not discrimination. The Authority  explains that because its treatment of  Allen led to problems, it came up with a  less confrontational way to handle  applicants whose background checks  revealed ambiguous criminal records.  Since this new, nondiscriminatory policy  accounts for the different treatment of  Jenkins, the Authority urges us to affirm  the district court.


23
Allen, however, raises at least a couple  of reasons that, again viewing the  evidence and inferences in his favor,  cast doubt on the Authority's  explanation. First, he notes that despite  its detailed regulations, the Authority  can point to nothing that documents its  alleged policy shift. Next, he directs us  to Muriello's statement that the handling  of Jenkins' claim "is the usual thing"  and that as far as Muriello knew, Allen  wasn't treated any differently. Allen  suggests if there was indeed a formal  policy change in response to his case, it  stands to reason that Muriello would be  aware of the change.


24
None of this proves Oak Park is lying.  Indeed, the Authority may very well be  able to convince a jury that a changed  policy best explains why it handled  Allen's and Jenkins' applications so  differently. But Allen casts sufficient  doubt on the Authority's explanation to  avoid summary judgment. Whether Oak Park  did indeed create a new policy or whether  it came up with the new policy after the  fact to explain its different treatment  is a contested factual issue which should  be decided by a jury.


25
The Authority's processing of Allen's  application differed sharply from its  handling of the nearly identically  situated Arado and Jenkins. This could  very well be a case of bureaucratic  bungling, but were it discrimination, it  would likely look much the same. For this  reason, the law allows plaintiffs  alleging discrimination to make their  case circumstantially. And on summary  judgment, the McDonnell Douglas test's  shifting burdens of proof attempt to  ensure that a case of actual  discrimination does not slip through the  cracks for lack of direct evidence. If  the test is to work--and our  antidiscrimination laws are to have an  effect on more than the most egregious  and obvious discrimination--courts should  neither narrow McDonnell Douglas's  application such that no one is similarly  situated, nor broaden its application  such that no one is disparately treated.


26
Jackie Allen's allegations that his  application for federal housing  assistance was handled differently than  those of two similarly situated white  applicants presents a prima facie case  that he was discriminated against because  he is black. Since Oak Park's  explanations for its conduct raise  triable issues of fact, the case should  not have been dismissed on summary  judgment. The judgment is REVERSED and the  case REMANDED for further proceedings.



Notes:


1
  The "several alias names" were Larry W. Hamilton  and Larry William Hamilton.


2
  The text of the district court's opinion actually  states that Allen and Jenkins were not similarly  situated because "it is wholly irrelevant that  Kruse did not tell [Jenkins]--as she did Allen--  that fingerprints were mandatory since Jenkins  clearly inferred such." But since this statement  explains that Allen and Jenkins received the same  treatment, it appears the court may have made a  small slip of the pen. We thus infer that the  court meant that the similar treatment the two  received showed that Allen was not disparately  treated.


3
  Allen opted to drop his claims under Title VI  without explanation.


