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 are plaintiff's  and defendant's
 cross-motions for summary judgment, which again became
ripe for decision as a result of the Court's order 
granting plaintiff's motion for reconsideration of the
Court's previous order  on summary judgment. For the
reasons set forth below, the plaintiff's Motion for
Summary Judgment will be GRANTED in part and DENIED in part.
The defendant's Motion for Summary Judgment will be
GRANTED in part and DENIED in part.
plaintiff in this case, Denise L. Lenkiewicz ("
Lenkiewicz" ), brings a claim against her former
employer, 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. Lenkiewicz began working at HUD
in October 2008. Pl.'s Mem. of Law in Supp. of Her Mot.
for Summ. J. 3, ECF No. 56. During her roughly three years of
employment, she claims to have suffered from three separate,
though related, disability claims, all of which she requested
that HUD-reasonably accommodate. First, Lenkiewicz claimed
her " debilitating arthritis" was a "
hindering disability." Pl.'s Mem. of Law in
Opp'n to Def.'s Mot. for Summ. J. 15, ECF No. 64
(citing Pl.'s Ex. 22, LENK_0055). Before joining HUD, she
was diagnosed with tricompartmental osteoarthritis in both
knees and polyarthralgia, a form of arthritis, in her lower
back. Am Compl. ¶ 11. Second, and compounding the
problems associated with her arthritis, Lenkiewicz fractured
her right foot in November 2009, and in April 2010 tore the
meniscus in her right knee. Id. Third, Lenkiewicz
claims to have suffered from Chronic Obstruction Pulmonary
Disease (" COPD" ) with chronic bronchitis, a
respiratory illness that causes her " breathing
difficulty." Id. at 21.
connection with these alleged disabilities, plaintiff asserts
she made five separate requests for reasonable
accommodations, all of which HUD denied. Plaintiff claims
that over the course of nearly two years, she made the
following five requests: " (i) a printer at her
workstation, (ii) a parking space, (iii) relocation to the
HUD office located in the portals building, (iv and v) and on
two separate occasions the ability to work from home (or
'telework')." See Mem. Op. 2, ECF No.
109 (citing Pl.'s Mem. of Law in Supp. of Her Mot. for
Summ. J. 7). After submitting these various accommodation
requests, Lenkiewicz stopped reporting for work in May 2011.
Def.'s Statement of Material Facts Not in Dispute ¶
the facts of this case are reasonably straightforward, the
procedural posture is complex due in no small part to
intervening D.C. Circuit case law that compelled the Court to
grant plaintiff's recent motion for partial
reconsideration of its original July 2015 summary judgment
order . In that original July 2015 order, the Court found
it lacked jurisdiction over the case for all but
Lenkiewicz's second request to telework because she had
failed to exhaust her administrative remedies.
making this initial finding, the Court determined that
because Lenkiewicz had " never contacted an Equal
Employment Opportunity ('EEO') Counselor or filed an
administrative complaint" for her 2009 requests to
telework and relocate, the Court lacked jurisdiction over
those aspects of her claim. Mem. Op. 6, ECF No. 79. In
looking to her requests for a parking space and printer, the
Court ruled Lenkiewicz's failure to initiate contact with
an EEO Counselor within 45 days of the alleged discriminatory
occurrences also presented a jurisdictional bar and resulted
in dismissal. This ruling left plaintiff's 2010 telework
request as the only portion of Lenkiewicz's case over
which the Court had jurisdiction. In evaluating this 2010
telework request, the Court determined " there is a
genuine dispute of material fact as to who caused the
breakdown in the interactive process, leading to the denial
of Lenkiewicz's request for accommodation." Mem. Op.
15, ECF No. 79. At the time, this factual dispute framed the
sole issue to be determined at trial.
month after this summary judgment order was issued, the D.C.
Circuit decided Doak v. Johnson, 798 F.3d 1096 (D.C.
Cir. Aug. 18, 2015), binding the Court to revisit its
jurisdictional rulings and come to the contrary conclusion.
Doak specifically ruled that a plaintiff's
previous failure to comply with the EEOC's 45-day
requirement does not strip federal courts of jurisdiction
after the conclusion of the administrative proceedings.
Id. at 1104. The Circuit's opinion went further,
however. Doak held that " issues concerning how
a claimant participates in [the] administrative process, both
procedurally and substantively, are not of jurisdictional
moment." Id. Furthermore, only a
plaintiff's " wholesale failure to file an
administrative complaint or to obtain any administrative
decision at all" would jurisdictionally bar federal
courts from hearing the case. Id. at 1103.
light of Doak, the Court reconsidered its previous
summary judgment order and made two general findings. First,
after Doak, it is clear the Court does in fact have
jurisdiction over every accommodation request Lenkiewicz made
in connection with her present Rehabilitation Act claim.
See Mem. Op. 2, ECF No. 109. Second, HUD effectively
waived its exhaustion argument for four out of five of
Lenkiewicz's requests because HUD had received notice of
these requests and " never raised [failure to exhaust]
during the administrative proceedings," which the D.C.
Circuit ruled must be expressly argued as an affirmative
defense. Mem. Op. 14, ECF No. 109 (quoting Doak, 798
F.3d at 1104). In contrast, Lenkiewicz did not provide notice
of her 2009 request to telework in the administrative
proceeding, and the defendant therefore did not waive its
defense of failure to administratively exhaust. As such, the
Court is barred from hearing that aspect of Lenkiewicz's
claim. Id. at 16-18. The Court now turns to the
remaining unresolved aspects of the parties' previous
summary judgment motions, i.e., Lenkiewicz's 2009
requests for a printer, to relocate, and for parking, all of
which have again become ripe after the Court's order
granting plaintiff's motion to partially reconsider its
prior jurisdictional determinations. See Mem. Op.
20, ECF No. 109
Reconsideration of Summary Judgment Motions for the Remaining
to the remaining aspects of Lenkiewicz's claim and
re-evaluating the parties' cross-motions for summary
judgment, genuine disputes of material fact exist with regard
to Lenkiewicz's request for a printer and the
reasonability of HUD's ensuing accommodation. Lenkiewicz
prevails as a matter of law, however, on her 2009 relocation
and parking requests to the degree those requests related to
her broken foot, and defendant prevails as a matter of law on
the portion of plaintiff's claim that relates to the
presence of mold in her office.
Legal Standard for Summary Judgment
articulated in the Court's previous order, summary
judgment shall be granted when " the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A material fact is a fact that might
affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A dispute about a material fact is "
genuine" if " the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Id. " A party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,' which it ...