United States District Court, D. Columbia
DENISE L. LENKIEWICZ, Plaintiff,
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, Defendant
DENISE L. LENKIEWICZ, Plaintiff: Evan E. North, J. Wells
Harrell, LEAD ATTORNEYS, BOIES, SCHILLER & FLEXNER, LLP,
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
JULIAN CASTRO, Secretary, U.S. Department of Housing and
Urban Development, Defendants: Carl Ezekiel Ross, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC.
C. Lamberth, United States District Judge.
before the Court is the defendant's Motion for Leave to
Amend Answer . The plaintiff in this case, Denise L.
Lenkiewicz (" Lenkiewicz" ), brings a claim against
the U.S. 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
 granting defendant's motion for summary judgment on
all portions of Lenkiewicz's claim except for her
December 22, 2010 request to telework. In a separate
memorandum and order issued on this date, the Court granted
plaintiff's September 22, 2015 motion for partial
reconsideration of the Court's previous summary judgment
now moves for leave to amend its answer to plead undue
hardship as an affirmative defense to plaintiff's 2010
request to telework. Moreover, defendant's motion seeks
to amend its answer to include a defense that Lenkiewicz does
not qualify for relief under the Rehabilitation Act. Upon
consideration of defendant's motion, plaintiff's
opposition, defendant's reply, and the entire record
herein, the Court will GRANT defendant's motion for leave
to amend its answer.
lawsuit is rooted in HUD's alleged failure to
affirmatively accommodate what former employee Denise L.
Lenkiewicz characterizes as qualifying disabilities under the
Rehabilitation Act of 1973. Lenkiewicz alleges that while she
was employed by HUD, she suffered from various physical
disabilities, including arthritis in her knees and lower
back, a fracture in her right foot, and a chronic respiratory
ailment. Am. Compl. ¶ ¶ 11-12, 21-22. In connection
with her purported disabilities, Lenkiewicz requested that
HUD make certain specific accommodations, including granting
her permission to telework three days a week, privileges to
park closer to HUD's headquarters, and easier access to a
printer. Id. at ¶ ¶ 14-17. After HUD
either denied or ignored her requests, Lenkiewicz eventually
filed the present lawsuit, putting forth the theory that HUD
failed to reasonably accommodate her disabilities in
violation of § 501 of the Rehabilitation Act of 1973.
Id. at ¶ 1.
analyzing plaintiff's claim under the Rehabilitation Act,
the Court recently ruled for defendant on summary judgment on
all but one portion of plaintiff's allegations: the
denial of her 2010 request to telework. Mem. Op. 15, ECF No.
79. Essentially, the Court found that in nearly all
instances, Lenkiewicz did not exhaust her administrative
remedies in accordance with the Rehabilitation Act's
jurisdictional requirements. Id. at 6-8. With one
exception, the Court determined it was bound to dismiss each
of plaintiff's allegations because she either never
contacted an EEO Counselor or failed to do so in a timely
manner. Id. at 7-8. Although plaintiff's motion
for reconsideration of the Court's summary judgment has
now been granted, at the time defendant filed its motion for
leave to amend, Lenkiewicz's December 22, 2010 request to
telework was the sole issue to be determined at trial.
Id. at 15.
Plaintiff's 2010 Request to Telework
explained above, before the Court granted plaintiff's
motion for reconsideration, all that remained for trial is
HUD's denial of Lenkiewicz's 2010 telework request.
On December 22,2010, Lenkiewicz submitted a Form 1000
requesting accommodations to telework for Chronic Obstructive
Pulmonary Disease with chronic bronchitis and arthritis.
See id. at 11 (citing Accommodation Request
for Persons with Disabilities for Denise Lenkiewicz (Dec. 22,
2010)). HUD ultimately rejected this request. Id. at
13. The parties' dispute now centers on " who caused
the breakdown in the interactive process" that preceded
and partially caused HUD to deny
Lenkiewicz's request for a telework accommodation.
Id. at 15.
order to establish a prima facie case of discrimination under
the Rehabilitation Act for an employer's failure to
reasonably accommodate a disability, " a plaintiff must
show (1) that [she] was an individual who had a disability
within the meaning of the statute; (2) that the employer had
notice of [her] disability; (3) that with reasonable
accommodation [she] could perform their essential functions
of the position; and (4) that the employer refused to make
the accommodation." Loya v. Sebelius, 840
F.Supp.2d 245, 258 (D.D.C. 2012) (citations omitted).
Additionally, to be considered disabled, the plaintiff must
show that she " (1) has a physical or mental impairment
which substantially limits one or more . . . major life
activities; (2) has a record of such an impairment, or (3) is
regarded as having such an impairment." Adams v.
Rice, 531 F.3d 936, 943, 382 U.S.App.D.C. 207 (D.C. Cir.
2008) (quoting 29 U.S.C. § 705(20)(B)).
determine the appropriate reasonable accommodation, federal
regulations require agencies, such as HUD, to " initiate
an informal, interactive process with the qualified
individual with a disability in need of accommodation."
29 C.F.R. § 1630.2(o)(3). This interactive process is
designed to ensure that an agency is fully aware of its
employees' purported disabilities and desired
accommodations and possesses the information it needs to
comply with its obligations under the Rehabilitation Act. As
such, " [w]hen the need for an accommodation is not
obvious, an employer, before providing a reasonable
accommodation, may require that the individual with a
disability provide documentation of the need for
accommodation." Ward v. McDonald, 762 F.3d 24,
31, 412 U.S.App.D.C. 24 (D.C. Cir. 2014).
there is no question that HUD eventually rejected
Lenkiewciz's 2010 telework request, there is a "
genuine dispute of material fact as to who caused the
breakdown in the interactive process" that eventually
led to the denial. See Mem. Op. 15, ECF No. 79. The
D.C. Circuit has recently stated ...