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Lenkiewicz v. Castro

United States District Court, D. Columbia

November 20, 2015

DENISE L. LENKIEWICZ, Plaintiff,
v.
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, Defendant

          For DENISE L. LENKIEWICZ, Plaintiff: Evan E. North, J. Wells Harrell, LEAD ATTORNEYS, BOIES, SCHILLER & FLEXNER, LLP, Washington, DC.

         For 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.

         MEMORANDUM OPINION

         Royce C. Lamberth, United States District Judge.

         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 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 [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 (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.

         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 D.C. Circuit's ruling in Doak, it has jurisdiction over all of plaintiff's 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 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.

         After 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 dismissal.

         Essentially, 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.

         B. The D.C. Circuit's Recent Opinion in Doak 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 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." 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. 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.

         On 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.

         Bearing 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 ...


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