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 plaintiffs Motion  for Partial
Reconsideration of the Court's Order on Summary Judgment
. 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
 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 (D.C. 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.
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
D.C. Circuit's ruling in Doak, it has
jurisdiction over all of plaintiff's 2009 accommodation
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  and
plaintiff's previous motion for summary judgment 
have ripened in light of this Court's newfound
jurisdiction. The Court will rule on these motion in the near
relies on the recent D.C. Circuit opinion Doak v.
Johnson, 798 F.3d 1096 (D.C. 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.
evaluating the parties' cross-motions for summary
judgment, the Court found that for all but plaintiff's
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, 371 U.S.App.D.C. 20 (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
the Court found that plaintiff's 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.
The D.C. Circuit's Recent Opinion in Doak v.
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 Lenkiewicz'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 " 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 D.C. Circuit ruled that courts may " not
read futility of other exceptions into statutory exhaustion
requirements where Congress has provided otherwise."
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.
U.S. 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, 111 F.Supp.3d 46, 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); Doak 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 Doak, have found that a plaintiff's
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
(" [Plaintiff] 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.
appeal from the district court's jurisdictional ruling in
Doak, the D.C. 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 (D.C. 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's] 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.'" Id. at 1103 (citing 29
C.F.R. 1614.105(a)(1)). The D.C. 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 " plaintiff's
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.
directly on the facts in this case, the D.C. 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 1104. Further
contributing to its finding of waiver, the Circuit ...