Lenkiewicz v. Donovan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DENISE L. LENKIEWICZ, )
)
Plaintiff, .- )
)
v.5 ) Civil Case No. 13-0261 (RCL)
)
JULIAN CASTRO, Secretary, )
US. Department of Housing and )
Urban Development )
)
Defendant. )
)
Ejai—-————;__—: z: =;:;
MEMORANDUM OPINION
Currently before the Court is the plaintiffs Motion [88] for Partial Reconsideration of the
Court’s Order on Summary Judgment [78]. The plaintiff in this case, Denise L. Lenkiewicz
(“Lenkiewicz”), brings a claim against the US. Department of Housing and Urban Development
(“HUD”) for failure to reasonably accommodate her alleged disabilities under § 501 of the
Rehabilitation Act of 1973. In July 2015, the Court issued a Memorandum Opinion [79] finding
that it lacked jurisdiction over Lenkiewicz’s 2009 requests for relocation, to telework, for a parking
space, and for a printer in her office because Lenkiewicz had failed to exhaust her administrative
remedies. In light of a recent D.C. Circuit opinion, Doak v. Johnson, 798 F.3d 1096 (DC. Cir.
Aug. 18, 2015), plaintiff now moves for reconsideration of the Court’s ruling that it lacked
jurisdiction for Lenkiewicz’s specific 2009 requests for accommodation, which would make ripe
the parties’ previous motions for summary judgment.
Upon consideration of defendant’s motion, plaintiff s opposition, defendant’s reply, and
the entire record herein, the Court will GRANT plaintiff s motion for reconsideration. The Court
finds that after the DC. Circuit’s ruling in Doak, it has jurisdiction over all of plaintiffs 2009
accommodation requests.
That said, the Court additionally finds that Lenkiewicz failed to provide notice of her 2009
telework request at the administrative level. The Court will therefore dismiss that portion of her
claim. The remaining portions of defendant’s previous motion for summary judgment [57] and
plaintiff s previous motion for summary judgment [56] have ripened in light of this Court’s
newfound jurisdiction. The Court will rule on these motion in the near future.
I. BACKGROUND
A. Procedural History
Lenkiewicz relies on the recent DC. Circuit opinion Doak v. Johnson, 798 F.3d 1096 (DC.
Cir. Aug. 18, 2015), to move for reconsideration of the Court’s July 2015 determination that it
does not have jurisdiction over plaintiff” s 2009 requests to relocate, to telework, to obtain a printer,
and to be granted parking privileges. Lenkiewicz alleges that her former employer, HUD, violated
her rights as a disabled employee under § 501 of the Rehabilitation Act. Essentially, she claims
that HUD unlawfully denied her requests to reasonably accommodate her persistent respiratory
and orthopedic impairments, as well as a broken foot. Pl.’s Mot. for Summ. J. 6, ECF No. 56. She
claims that over the course of nearly two years, she made the following five requests for reasonable
accommodations: “(i) a printer at her workstation, (ii) a parking space, (iii) relocation to the HUD
office located in the portals building, (iv) and on two separate occasions (iv) the ability to work
from home (or ‘telework’)” Id. at 7.
in how she manages and conducts her administrative claim generally ties in with Supreme Court’s
instruction that “[d]ocuments filed by an employee with the EEOC should be construed to the
extent consistent with permissible rules of interpretation, to protect the employee’s rights and
statutory remedies.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 406 (2008). Indeed, this more
lenient stance has been determined to be sensible given that complainants typically initiate the
administrative process without the assistance of trained lawyers. Id. at 403 (“The system must be
accessible for individuals who have no detailed knowledge of the relevant statutory mechanisms
and agency processes”).
In this case, like in Doak, the claimant “filed and received a final disposition of her
administrative complaint” regarding her requests for failure to accommodate. Doak, 798 F.3d, at
1104. In her original complaint, Lenkiewicz stated that HUD had “discriminated against her [for
her disability] by not having access to benefits and privileges of employment that are offered.” See
Pl.’s EEO Comp. 2, June 9, 2011, ECF No. 64-2 Moreover, although Lenkiewicz did not
specifically invoke the Rehabilitation Act, she did use the act’s central vocabulary, describing her
“first request for a reasonable accommodation” and noting, among other things, that “[she] was
never afforded the opportunity to show the work could be completed in other than the office setting
without causing undue hardship to the office.” Id. at 2, 3. Because plaintiffs claims at the
administrative level are to be liberally construed, see Holowecki, 552 U.S. at 406 (“Construing
ambiguities against the drafter may be the more efficient rule to encourage precise expression in
other contexts; here, however, the rule would undermine the remedial scheme Congress
adopted”), these allegations satisfy Doak’s requirement that the plaintiff file an administrative
complaint before seeking relief in federal court. Moreover, the plaintiff satisfied Doak’s second
requirement, the receipt of a final disposition, when she received HUD’s letter denying her claims
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on November 5, 2012. See Final Order, Mem. in Opp’n to Pl.’s Mot. for Summ. J ., Ex. 3, ECF No.
64-3.
In arguing that Doak does not apply to this case, defendant contends that Lenkiewicz did
not exhaust her administrative remedies because she did not specifically plead her Rehabilitation
Act claims, but instead couched them as support for a hostile work environment claim. Def.’s
Opp’n to Pl.’s Mot. for Recons. 2-3 (“Plaintiff only raised a hostile work environment claim and
her now dismissed claims were presented as nothing more than facts supporting her hostile work
environment claim.”). More specifically, HUD relies on Baird v. Gorbaum, 662 F.3d 1246 (DC.
Cir. 2011), and Burkes v. Holder, 953 F. Supp. 2d 167 (D.D.C. 2013) to suggest that because
plaintiff’s hostile work environment claim “is comprised. of a series of separate acts that
collectively constitute one unlawfill employment practice, . . . [it is] subject to a different
limitations rule.” Def.’s Opp’n to P1. ’s Mot. for Recons. 3 (“Plaintiff s exhaustion of a hostile work
environment claim, for which she alleged a continuing violation, does not serve to exhaust each
independent incident cited as evidence of a hostile work environment. . . . An employee must
timely exhaust the administrative process for each discrete act for which he seeks to bring a
claim.”).
Defendant’s argument is unpersuasive because in addition to hostile work environment,
plaintiff effectively pled her Rehabilitation Act claim, and the agency ruled on it. As stated, Doak
holds that “issues concerning how a claimant participates in [the] administrative process, both
procedurally and substantively, are not of jurisdictional moment.” Doak, 798 F.3d 1096, 1104.
Lenkiewicz submitted a complaint alleging HUD failed to “reasonably accommodate” her
disability. See P1.’s EEO Compl. 2, June 9, 2011, ECF No. 64—2. Moreover, in her June 2011
EEOC counseling report, the EEO Counselor checked “reasonable accommodation” as one of the
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matters “causing [Lenkiewicz’s] complaint” and further listed “the right to work from home or
any other reasonable accommodations . . . her doctor allegedly thought was necessary” as
discrimination Lenkiewicz purportedly suffered. See Plaintiff s EEO Counseling Report 2-3, ECF
No. 64-2. Lastly, HUD incorporated an EEO decision that listed the formal elements of a
Rehabilitation Act claim, see EEOC Decision, Def.’s Opp’n to Pl.’s Mot. for Recons., Ex. 2 at 5,
ECF No. 96-1, and further found that HUD was “not liable for disability discrimination because
Complainant failed to engage in the interactive process and provide reasonable medical
documentation as required by the Rehabilitation Act.” Id. at 8.
In light of the agency’s consideration and disposition of Lenkiewicz’s Rehabilitation Act
claim, the Court finds that Lenkiewicz’s decision to couch her allegations of disability
discrimination in terms of a hostile work environment speaks to ways in which she “participate[d]
in [the] administrative process” and are therefore “not of jurisdictional moment.” Doak, 798 F.3d
at 1104. Moreover, as discussed, claims a plaintiff makes in her administrative complaint are to be
read liberally, Holowecki, 552 US. at 406, as they were drafted without the benefit of professional
_ legal assistance. Because Lenkiewicz submitted a complaint and HUD issued a final order relating
to the agency’s alleged failure to accommodate her disabilities, there was “no wholesale failure to
file an administrative complaint or to obtain any administrative decision at all.” Id. In sum, after
Doak, the Court has jurisdiction over all five of Lenkiewicz’s accommodation requests at issue in
this litigation.
IV. Exhaustion of Administrative Remedies: Timeliness, Notice and Waiver
The Court finds that due to the govemment’s waiver, she is not barred from bringing her
Rehabilitation Act claim as it relates to HUD’s denial of her requests for a printer, parking
privileges, and relocation. On the other hand, plaintiff is barred from bringing her alleged 2009
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request to telework because Lenkiewicz had not provided notice to HUD at the administrative
level. Although the Court has jurisdiction to hear Lenkiewicz’s claims, that of course does not
' necessarily mean that her claims were properly exhausted, one of the Rehabilitation Act’s core
requirements. 29 U.S.C. § 794(a)( 1) (requiring “final disposition” of an “administrative
complaint”). The DC. Circuit in Book simply held that failure to exhaust is not a jurisdictional
requirement; instead, exhaustion of administrative remedies should be treated as an affirmative
defense in the nature of a statute of limitation and is “thus subject to equitable tolling, estoppel,
and waiver.” Doak, 798 F.3d 1096, 1104.
In order to exhaust administrative remedies under the Rehabilitation Act, a plaintiff must
do at least four things. First, as discussed, the plaintiff must file an administrative complaint.
Second, in the complaint or the administrative proceedings that follow, the plaintiff must provide
“notice of and opportunity to investigate claims.” See Dick v. Holder, 80 F. Supp. 3d 103, 111
(D.D.C. 2015) (citing Park v. Howard Univ., 71 F.3d 904, 907 (DC. Cir. 1995)). Third, the
plaintiff must make a “good faith effort to cooperate with the agency.” Koch v. White, 744 F.3d
162, 164-65 (DC. Cir 1995). And fourth, exhaustion must be timely, meaning that the plaintiff
must comply with all applicable deadlines, such as the 45 -day counseling period prescribed in 29
C.F.R. § 1614.105(a) and at issue in Doak.
In looking to these requirements, it is clear that by failing to contact an EEO Counselor
within 45 days, plaintiff did not satisfy the timeliness requirement for any of the four requests at
issue in this reconsideration motion. Similar to Doak, however, the agency never raised this
argument in the administrative proceeding and therefore waived timeliness as an affirmative
defense. In Doak, the Circuit ruled that although the plaintiff did not timely exhaust his
administrative remedies, the defendant, the United States Coast Guard, waived timeliness as a
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defense because it “never raised the 45-day time limit during the administrative proceedings.”
Doak, 798 F.3d at 1104. The Court went on: “indeed [the Coast Guard] not only accepted and
investigated Doak’s complaint, but also decided it on the merits—all without mentioning
timeliness.” Id. (quoting Bowden v. United States, 106 F.3d 433, 438 (DC. Cir. 1997)). In this
case, the defendant likewise decided the reasonable accommodation complaint on the merits.
without referencing the 45-day time limit and therefore waived its potential defense of timeliness.
In addition to timeliness, the plaintiff must provide the agency with notice of her claims,
either in the complaint itself or the administrative proceedings that follow. The information
contained in the administrative complaint must be sufficient to give the employer notice of the
subject matter of the charge, but it need not specifically articulate the precise claim or set forth all
evidence the plaintiff later provides in court. See, e. g., Dick v. Holder, 80 F. Supp. 3d 103 (D.D.C.
2015) (citing Park v. Howard Univ., 71 F.3d 904, 907 (DC. Cir. 1995)) (“For exhaustion purposes,
the EEO charge encompasses claims that are like or reasonably related to the allegations of the
charge and growing out of such allegations”). Essentially, claims stated in the initial charge,
reasonably related to the original complaint, or that may be developed through reasonable
investigation of the charges in the original complaint may be maintained in a subsequent lawsuit
in district court. See Latson v Holder, 82 F. Supp. 3d 377, 385 (D.D.C. 2015) (citing Marshall v.
Fed. Express Corp, 130 F.3d 1095, 1098 (DC. Cir. 1997) (“While every detail of the eventual -
complaint need not be presaged in the administrative filing, the substance of the plaintiff s
Rehabilitation Act claim must fall with the scope of the administrative investigation that can be
reasonably expect to follow the charge of discrimination.” (internal quotations omitted)).
The Court finds that in the course of the administrative proceedings, HUD had duly
received notice of plaintiff s request for a printer, a parking spot, and relocation, but in contrast,
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the agency’s reasonable investigation yielded no information on Lenkiewicz’s alleged 2009
telework request. With respect to her request for a printer, plaintiff made the allegation directly in
the complaint. See Plaintiffs EEO Complaint 2, June 9, 2011, ECF No. 64-2 (“1 had even
approached Ms. Lewis concerning the use of an unused spare printer which was given to a male
employee the day after I requested the printer accommodation”). For her parking request, although
Lenkiewicz did not reference it in her complaint, HUD learned of it through the course-of the
EEOC’s investigation. Indeed, Lenkiewicz specifically detailed her request for a parking spot in
her administrative deposition, see Lenkiewicz Administrative Deposition 8, ECF No. 64-1
(“[y]ou’ll find that I also had a request for handicapped parking”), and throughout these
proceedings HUD has never claimed that it did not receive notice of this charge. See P1.’s Mot. for
Partial Recons. of the Order on Summ. J. 6 (citing Def. Reply 8-10, ECF No. 72) (“There is no
dispute that her 2009 requests for a printer and parking space were expressly raised during the
administrative process”). Lastly, Lenkiewicz referenced her request for relocation in her
administrative complaint, see Plaintiffs EEO Complaint 2, June 9, 2011, ECF No. 64-2 (“1 was
more than willing to work at an alternate job site”), and discussed the issue more fully in her
deposition, see Lenkiewicz Administrative Dep. 11, ECF No. 64-1 (“Q: Did you tell her that you
wanted a new position or you wanted a new location? A: Both.”), and provided adequate notice in
her EEO counseling report. See EEO Counseling Report 2 (listingh“transferred to another office”
as her desired remedial action). The Court finds that HUD knew or should have known of
Lenkiewicz’s relocation request; therefore, for this aspect of her claim, plaintiff has satisfied the
notice requirement associated with administrative exhaustion.
Unlike the first three requests, however, Lenkiewicz failed to provide HUD with notice of
her 2009 request to telework. First, as opposed to printing and relocation, Lenkiewicz never
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referenced her 2009 telework request in her administrative complaint. Second, and importantly, a
reasonable investigation would not have yielded information on HUD’s - alleged failure to
accommodate Lenkiewicz’s 2009 request to teleWOrk. Indeed, in a 56-page deposition, Lenkiewicz
never directly references the request. In her briefing, Lenkiewicz highlights various points in the
deposition that she claims should have provided notice of her 2009 telework request. See Pl.’s
Mot. for Partial Recons. of Order on Summ. J. 12 (citing Lenkiewicz Administrative Deposition
11, ECF No. 64-1) (“When I put in' for a broken foot, reasonable accommodations, you know,
telework”). However, read in context, any reference to a telework request more naturally refers to
her 2010 telework request, not the her 2009 request. See, e. g., Lenkiewicz Administrative
Deposition 38, ECF No. 64-1 (“According to the record, Dr. Allen on February 113, 2011,
recommended declining your request for telework”). Indeed, defendants did perform a reasonable
investigation, which ultimately incorporated a detailed ten-page EEO final decision, and found
nothing to indicate that Lenkiewicz had made multiple, independent requests to telework.l
In arguing for a contrary conclusion, plaintiff contends that HUD’s failure to accommodate
Lenkiewicz’s 2009 telework request is “reasonably related” to her other accommodation requests,
thus satisfying administrative exhaustion’s notice requirement. See Pl.’s Mot. for Partial Recons.
of the Order on Summ. J. l 1. Moreover, plaintiff argues that because she need not plead her claims
in her administrative complaint with exact specificity, the notice requirement for her 2009 telework
request should “be excused.” Id. at 13. Neither of these arguments is persuasive. Indeed, the cases
that Lenkiewicz cites to support her “reasonably related” theory call for flexibility in interpreting
the formal legal claims that the plaintiff has asserted. See Perry v. Clinton, 674 F. Supp. 2d 110,
‘ Although in her briefing, plaintiff asserts that in late 2009, she requested reasonable accommodations to telework by
filling out a form 1000, Pl.’s Statement of Undisputed Material Facts in Supp. of Her Mot. for Summ. J. W 54-55,
ECF No. 56, that fact was not presented during the administrative proceedings, nor was it discovered after reasonable
investigation.
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117-18 (D.D.C. 2009) (concluding that “a wage discrimination claim” under Title VII was
“reasonably related to a failure to promote claim”). And in this case the Court has done just that
by leniently construing Lenkiewicz’s hostile work environment claim to include claims of failure
to accommodate, which Lenkiewicz neglected to formally plead. See Notice of Acceptance of Pl.’s
Administrative Compl., Def.’s Opp’n to Pl.’s Mot. for Recons., Ex. 1, ECF No. 96-1. Lenkiewicz
is not asking the Court to validate a legal theory reasonably related to the one she pled in her
administrative proceedings; rather, she would like the Court to credit facts that were simply not
discovered during the agency’s reasonable investigation. As such, for the purposes of
administrative exhaustion, HUD was not on notice of Lenkiewicz’s alleged 2009 telework request.
Because HUD was never put on notice of Lenkiewicz’s 2009 request to telecommute,
Lenkiewicz did not exhaust her administrative remedies. But importantly, unlike the timeliness
defenses, which HUD waived by not addressing in the administrative proceeding, the agency could
not have waived the notice requirement during those proceedings because at the time, it was not
even aware that Lenkiewicz brought, or intended to bring, this allegation against it. Moreover,
plaintiff’s contention that HUD waived this argument because it never specifically addressed the
notice requirement in its answer is also unavailing. Pl.’s Reply 3 (“[T]he agency never pleaded in
its answer whether non-jurisdictional requirements of exhaustion like notice and timeliness were
satisfied. . . . Lenkiewicz’s dismissed claims can be reinstated for these reasons alone.”). Although
plaintiffs never raised failure to exhaust formally as an affirmative defense in its answer, somewhat
glaringly, plaintiff never even provided information on Lenkiewicz’s 2009 telework request in her
complaint. See Def.’s Opp’n to Pl.’s Mot. for Summ. J. 4; Am. Compl. 111] 14-18 (listing requests
relating to parking privileges, a printeriand her 2010 request to telework, omitting any 2009
request to telework). Moreover, defendant has argued several times over the course of this
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litigation that the Court lacked jurisdiction to hear Lenkiewicz’s 2009 telework request because
she failed to exhaust her administrative remedies. Def.’s Mem. in Supp. of Its Mot. for Summ. J.
23 (“[T]his Court lacks jurisdiction over a number of Plaintiff s Rehab Act claims because Plaintiff
failed to exhaust those claims”); Def.’s Reply in Supp. of Its Mot. for Summ. J. 1 (“[Plaintiff] is
unable to establish her claims as a matter of law because she failed to properly exhaust a number
of her failure to accommodate claims leaving this court without jurisdiction”); Def.’s Opp’n to
l’l.’s Mot. for Summ. J. 3 (“Plaintiff failed to properly exhaust her claim with respect to . . . a 2009
request to telework”). With respect to Lenkiewicz’s 2009 request to telework, it would therefore
be inappropriate for the Court to consider defendant’s failure to plead exhaustion as an affirmative
defense in its answer as some sort of waiver. As such, the plaintiff is barred from bringing this
aspect of her claim.
It is worth noting that the Court recognizes the tension between the principles that
administrative complaints must be broadly interpreted and agencies must affirmatively and
specifically raise procedural defects for particular aspects of a claim. The fact is that because
plaintiffs need not plead their claims with any genuine specificity, agencies may be left guessing
what relief the employee seeks. Facing general allegations, agencies may then inadvertently waive
certain affirrnative defenses, which must be specifically raised against plaintiffs particular, though
perhaps undefined, claims. The present case provides an illustrative example. Lenkiewicz’s
request for a parking spot was not presented in her administrative complaint, which, as discussed,
related more directly to claims of reverse racial discrimination and a hostile work environment.
Her request for a parking spot, however, “was like or reasonably related to the allegations of the
charge and growing out” of her central allegations and was even referenced during her
administrative deposition. Park v. Howard Univ. , 71 F.3d 904, 907 (DC. Cir. 1995). She therefore
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provided HUD with notice for exhaustion purposes. As such, even though this aspect of her claim
was not formally raised during the administrative proceeding, the Court of Appeals in Doak has
ruled that the agency waived its exhaustion defenses, including timeliness, when it did not raise
those defenses during the administrative proceeding. To say the least, this principle produces
perverse incentives; the fuzzier a plaintiff drafts her administrative complaint, the less likely a
defendant is to identity every potentially related claim and raise the appropriate affirmative defense
when it has the opportunity to do so. Moving forward, just as defendants would be wise to raise
every possible defense at the administrative level, plaintiffs may be motivated to draft their
administrative complaints as broadly and imprecisely as possible. Although the Court feels this is
not a desirable outcome, the Court believes it is constrained by Doak to reach this result.
V. Reconsideration of Summary Judgment Motions for the Remaining Claims
The aspects of plaintiff s claim that remain are her 2009 requests for relocation, a printer,
and parking spot. The Court is currently reviewing the parties’ cross-motions for summary
judgment with respect to these issues.
The parties’ schedules permitting, the Court would like to schedu1e_a status conference for
the week of November 23, 2015.
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After evaluating the parties’ cross-motions for summary judgment, the Court found that
for all but plaintiffs second request to telework, the Court it lacked jurisdiction over the case
because plaintiff had failed to exhaust her administrative remedies. With respect to her 2009
requests to telework and relocate, the Court determined plaintiff “never contacted an Equal
Employment Opportunity (“EEO”) Counselor or filed an administrative complaint with respect to
these events.” Mem. Op. 6, ECF No. 79. In evaluating her requests for a parking space and printer,
the Court relied in part on Spinelli v. Goss, 446 F.3d 159 (D.C. Cir. 2006), to rule that Lenkiewicz’s
failure to initiate contact with an EEO Counselor within 45 days of the alleged discriminatory
occurrences presented a jurisdictional bar resulting in dismissal.
Essentially, the Court found that plaintiffs failure to exhaust her administrative remedies,
or failure to do so in a timely manner, stripped the Court of its jurisdiction to hear all but one aspect
of plaintiff’s claim, the denial of her 2010 request to telework. In evaluating this claim, the Court
found there was a genuine dispute of material fact as to who caused the breakdown in the
interactive process that lead to the denial of Lenkiewicz’s 2010 request to telework. See Mem. Op.
15, ECF No. 79. A trial date was set and remains scheduled for December to resolve this issue.
B. The D.C. Circuit’s Recent Opinion in Book v. Johnson
Very recently, the D.C. Circuit issued Doak v. Johnson, 798 F.3d 1096 (D.C. Cir. Aug. 18,
2015), an opinion that specifically clarified the meaning of Spinelli—the 2006 D.C. Circuit
decision this Court used as primary authority to find it was jurisdictionally barred from considering
whether or not the denial of Lehkiewicz’s requests for a printer and a parking space violated § 501
of the Rehabilitation Act. In Spinelli, a former CIA agent brought a claim against the CIA under
the Tort Claims Act and the Rehabilitation Act for psychological injuries and related disabilities.
After the district court denied motions to dismiss portions of the complaint, the D.C. Circuit ruled
VI. CONCLUSION
For the reasons stated herein and as consistent with this opinion, the Court will GRANT
plaintiff’s motion [88] for partial reconsideration of the Court’s Order [78].
A separate order consistent with this Opinion shall issue on this day of November&
2015.
Unitd States District Judge
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“the district court also should have dismissed Spinelli’s Rehabilitation Act claim for lack of
jurisdiction on the ground that he failed to exhaust his administrative remedy.” Spinelli, 446 F.3d
at 162. The Circuit highlighted that the Rehabilitation Act “mandate[s] administrative exhaustion,”
and as such, because “Spinelli never filed an administrative complaint,” the district court lacked
jurisdiction to hear the claim. Id. Although Spinelli argued that submitting a formal complaint to
the CIA would have been futile, the DC. Circuit ruled that courts may “not read futility of other
exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Id.
In applying Spinelli, several districts courts in our circuit have found that “exhaustion of
administrative remedies is a jurisdictional requirement under the Rehabilitation Act.” Mem. Op. 7
(quoting Saba v. US. Dep’t of Agric., 26 F. Supp. 3d 16, 22 (D.D.C. 2014) (Lamberth, J .)); see
also Briscoe v. Kerry, No. 13-cv-1204, 2015 WL 4055471, at *4 (D.D.C. July 2, 2015) (Sullivan,
J.) (“The Rehabilitation Act makes failure to exhaust administrative remedies . . . a jurisdictional
defect, requiring dismissal for lack of subject-matter jurisdiction”) (citation omitted); id. (“For
Title VII and the ADEA, however, these time limits are subject to equitable tolling, estoppel, and
waiver. . . . Such doctrines are not applicable to jurisdictional deadlines such as those imposed by
the Rehabilitation Act's exhaustion requirements”) (citations omitted); Book V. Johnson, 19 F.
Supp. 3d 259, 268 (D.D.C. 2014) (Contreras, J.) (“’ [F]ailure to exhaust administrative remedies is
a jurisdictional defect, requiring dismissal for lack of subject-matter jurisdiction under Rule
12(b)(1).’”) (quoting Ellison v. Napolitano, 901 F. Supp. 2d 118, 124 (D.D.C. 2012) (Howell, J .));
Moore v. Schafer, 573 F. Supp. 2d 216, 219 (D.D.C. 2008) (Friedman, J.) (“Failure to exhaust
administrative remedies [under the Rehabilitation Act] is a jurisdictional defect”). More
specifically, many districts courts, including the lower court in Book, have found that a plaintiffs
failure to adhere to the EEOC’s regulation to initiate contact with an EEO Counselor within 45
days of the alleged violations represents a failure to exhaust in a timely manner and strips the
district court of jurisdiction to hear the claim. See Doak, 19 F. Supp. 3d at 270 (“[Plaintift] did not
timely contact an EEO counselor within 45 days of the Department issuing a decision that she
viewed as discriminatory. As such, Ms. Doak's failure to accommodate claim . . . must be
dismissed for lack of subject matter jurisdiction”); Ellison, 901 F. Supp. 2d at 125 (dismissing
claims “for failure to exhaust in a timely manner” where the plaintiff “did not initiate contact with
an EEO Counselor within 45 days of their alleged occurrences”). When ruling on the parties’ cross-
motions for summary judgment in the present matter, the Court followed this line of cases and
ruled that it lacked jurisdiction to hear Lenkiewicz’s 2009 requests for a printer and a parking
space because she did not follow the EEOC’s 45-day requirement and therefore failed to properly
exhaust her claims.
On appeal from the district court’s jurisdictional ruling in Doak, the DC. Circuit declared
that failure to adhere to the 45-day requirement does not in and of itself present a jurisdictional bar
under the Rehabilitation Act. Doak v. Johnson, 798 F.3d 1096, 1104 (DC. Cir. Aug. 18, 2015).
As discussed, the district court in Doak, like the Court in the present case, had read Spinelli to
mean “it lacked subject matter jurisdiction over most of [plaintiff 3] claims because [plaintiff]
failed to comply with the regulatory requirement that an aggrieved person contact an EEO
Counselor ‘within 45 days of the date of the matter alleged to be discriminatory.’” 1d. at 1103
(citing 29 C.F.RR. 1614.105(a)(1)). The DC. Circuit reversed this jurisdictional ruling, clarifying
that Spinelli’s holding is a narrow one.'Id. (“Spinelli does not reach that far.”). As it relates to
jurisdiction, the Circuit held that Spinelli addressed only a “plaintiffs wholesale failure to file an
administrative complaint or to obtain any administrative decision at all.” Id. ; see also id. at 1104
(“That is all Spinelli held”). The Circuit went on: “[Spinelli] did not attach irremediable
jurisdictional consequence to every procedural misstep that happens during exhaustion of the
administrative process. And certainly not for defaults that occur in the informal process created by
EEOC regulation.” Id.
Bearing directly on the facts in this case, the DC. Circuit ruled that administrative time
limits created by the EEOC, like the 45—day consultation limit in question, “function like statutes
of limitation and thus are subject to equitable tolling, estoppel, and waiver,” id. (citations omitted),
making clear they do not present an outright jurisdictional bar. Moreover, the Circuit provided
guidance on what constitutes a waiver under such circumstances. Essentially, the Court ruled that
because the defendant in Doak ‘.‘never raised the 45-day time limit during the administrative
proceedings,” it had waived its defense of timeliness. Id. at 1 104. Further contributing to its finding
of waiver, the Circuit emphasized that “[the defendant] not only accepted and investigated Doak’s
complaint, but also decided it on the merits—all without mentioning timeliness.” Id.
11. Legal Standard for Reconsideration
Plaintiff now moves for reconsideration of the Court’s previous jurisdictional ruling under
Federal Rule of Civil Procedure 54(b). The rule provides in part that “any order . . . that adjudicates
fewer than all the claims . . . may be revised at any time before the entry of final judgment.” The
law is clear and well established as to what the basic requirements are that must be satisfied in
order to prevail on a motion for reconsideration. They are: “(1) an intervening change in the law;
(2) the discovery of new evidence not previously available: or (3) a clear error of law in the first
order.” Gilmore v. Palestinian Interim Self-Government Auth., 8 F. Supp. 3d 1, 7 (D.D.C. 2014)
(quoting In re Guantanamo Detainee Litig, 706 F. Supp. 2d 120, 122-23 (D.D.C. 2010)).
III.Reconsideration of the Court’s Jurisdiction
The Court finds that because Lenkiewicz did not commit a “wholesale failure to file an
administrative complaint or to obtain any administrative decision at all,” Doak v. Johnson, 798
F.3d 1096, 1103 (DC. Cir. Aug. 18, 2015), the Court has jurisdiction to hear all the requests
associated with her Rehabilitation Act claim.
A. Factual History
In its recent August 2015 decision, the DC. Circuit ruled that failure to achieve
administrative exhaustion will only bear on jurisdiction when the plaintiff fails to receive “final
disposition of an administrative complaint.” Id. at 13. In other words, Spinelli only goes so far as
to bar jurisdiction when a plaintiff never filed an administrative complaint or never received a final
administrative ruling on her claim. Id.
In the present case, Lenkiewicz both filed a complaint relating to HUD’s failure to
accommodate and received a final administrative decision on the merits. On June 9, 2011,
Lenkiewicz filed a complaint with the EEO alleging she had been subjected to a hostile work
environment as a result of her employer’s repeated acts of discrimination on the basis of her race
(Lenkiewicz is Caucasian and her former supervisor is African American) and various disabilities.
See Pl.’s EEO Compl. 2, 3, June 9, 2011, ECF No. 64-2. More specifically, Lenkiewicz claimed
she had suffered disability discrimination by “not having equal access to benefits and privileges of
employment that are offered to other employees, and . . . being harassed because of [her]
disability.” Id. at 2. She referenced a “reasonable accommodation” for a printer she requested in
2009 to account for a “broken foot along with other complications.” Id. Moreover, her
administrative complaint alleged she requested and was denied other accommodations, such as an
“alternative job site” or the opportunity to work outside the “office setting.” Id. at 3.
I Importantly, however, and at issue in this motion, Lenkiewicz never expressly pled that
she was denied the reasonable accommodations she is entitled to under the Rehabilitation Act;
rather, she claimed she had been “subjected to a hostile work environmen ” primarily due to her
race and secondarily, due to her status as a disabled employee. Id. at l, 2; Def.’s Opp’n to Pl.’s
Mot. for Recons.'2 (“Plaintiff only raised a hostile work environment claim and her now dismissed
claims were presented as nothing more than facts supporting her hostile work environment claim”).
Additionally, Lenkiewicz claimed she had been “harassed because of [her] disability” and denied
certain benefits of employment. Id. at 2. Any facts relating to reasonable accommodations were
not pled as independent causes of action but instead as proof that she was being discriminated
against and subject to a hostile work environment due to, among other things, her disabilities. See
Notice of Acceptance of Pl.’s Administrative Compl., Def.’s Opp’n to Pl.’s Mot. for Recons., -Ex.
1, ECF No. 96-1 (characterizing her administrative claim as being “subjected to ongoing
harassment resulting in a hostile work environment from December 2008 to the present”).
In ruling on Lenkiewicz’s administrative complaint, HUD issued a final order in November
2012 denying her claims. See Final Order, Mem. in Opp’n to Pl.’s Mot. for Summ. J ., Ex. 3, ECF
No. 64—3. The order fully incorporated an EEOC Administrative Law Judge’s (“ALJ”) summary
judgment decision dated August 24, 2012, which ruled for HUD in its entirety. Id. at l (“The Final
Order fully implements EEOC Administrative Judge Kurt Hodges’s Summary Judgment
Decision”). As described by the ALJ, the main issue before the EEOC administrative court was
whether or not Lenkiewicz was subject to a “hostile work environment” on the basis of her race
and on management’s persistent failure “to accommodate [her] disability.” EEOC Decision, Def.’s
Opp’n to Pl.’s Mot. for Recons., Ex. 2 at 2, ECF No. 96—1.
Although the decision ruled on Lenkiewicz’s formal hostile work environment claim, the
ALJ also considered Lenkiewicz’s allegation “that [she] was subjected to disability
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discrimination/failure to accommodate whether the Agency failed to grant her accommodation
request.” Id. at 5. After listing the four elements of a prima facie case for failure to discriminate
under the Rehabilitation Act, id., the ALJ found that HUD’s denial of Lenkiewicz’s 2010 request
to telework did not make the Agency liable “for disability discrimination because Complainant
failed to engage in the interactive process and provide reasonable medical documentation as
required by the Rehabilitation Act.” Id. at 8.
After HUD incorporated the ALJ’s opinion and formally denied Lenkiewicz’s various
claims, she filed the instant suit alleging her failure to accommodate claim more directly and with
more specificity. She has alleged over the course of these proceedings that for a span of two years,
she requested accommodation and was denied (i) a printer at her workstation, (ii) a parking space,
(iii) relocation to the HUD office located in the portals building, (iv) and on two separate occasions
(iv) the ability to work from home (or ‘telework’). See Pl.’s Mot. for Partial Recons. of the Order
on Summ. J. 6 (citing P1. Br., ECF No. 56). ..
In its original summary judgment opinion, this Court found that due to plaintiff s failure to
exhaust, it did not have jurisdiction. to hear Rehabilitation Act claim with respect to four out of
five of her denied accommodation requests. With respect to her request for a printer and parking
space, the Court found that it lacked jurisdiction because Lenkiewicz failed to comply with the
EEOC’s 45-day waiting period by waiting more than two yearsgto exhaust her claims. Mem. Op.
7—8, ECF No. 79. For her relocation and 2009 telework request, the Court came to a similar
conclusion, ruling Lenkiewicz “never contacted an EEO Counselor or filed an administrative
complaint with respect to these events.” Id. at 6.
i
B. Legal Conclusions
In light of Doak, the Court now finds that it has jurisdiction over all four of Lenkiewicz’s
accommodation requests at issue. Looking to Lenkiewicz’ s request for a printer and parking space,
it is clear that Doak compels a different result. In Doak, the Circuit reversed the trial court that had
determined it lacked jurisdiction to hear the Rehabilitation Act claim because plaintiff had failed
to contact an EEO Counselor within 45 days of the alleged discriminatory conduct (he had waited
78 days). See 798 F.3d 1096, 1103 (DC. Cir. Aug. 18, 2015). In this case, the facts and legal issues
are nearly identical with respect to Lenkiewicz’s requests for a printer and parking. Like the trial
' court in Doak, this Court similarly found it lacked jurisdiction over these specific requests because
Lenkiewicz had waited over a year to contact an EEO Counselor to discuss them. See Mem. Op.
7-8, ECF No. 79. The Circuit, however, made clear that delay beyond the EEOC’s 45-day
requirement—regardless of its length—is of no jurisdictional consequence. Doak, 798 F.3d at l 104
(“[A]dministrative time limits created by the EEOC erect no jurisdictional bars to bringing suit”)
(citations omitted). Therefore, because Doak’s facts and holding, let alone its reasoning, squarely
apply in this case, the Court has jurisdiction over Lenkiewicz’s 2009 requests for a printer and
parking space.
Additionally, after Doak, the Court also has jurisdiction over Lenkiewicz’s allegations that
HUD failed to accommodate her disabilities when it rejected or ignored her 2009 requests to
relocate and telework. Doak states that Spinelli only “addressed the consequence of a plaintiff’s
wholesale failure to file an administrative complaint or to obtain any administrative decision at
all.” Doak v. Johnson, 798 F.3d 1096, 1103 (DC. Cir. Aug. 18, 2015). Moreover, “issues
concerning how a claimant participates in [the] administrative process, both procedurally and
substantively, are not of jurisdictional moment.” Id. at 14. Providing the complainant this leeway
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