HUD to Pay $900,000 over Failure to Accommodate Claim

By Allen Smith February 11, 2016

Managers can’t expect HR professionals to do all of the heavy lifting when it comes to reasonably accommodating employees with disabilities.

“It’s incumbent on HR to educate managers that they have their own responsibility,” said Evan North, an attorney with Boies, Schiller & Flexner in Washington, D.C., who secured a $900,000 settlement on Jan. 29 for a former U.S. Department of Housing and Urban Development (HUD) employee. A manager can’t just pass off an accommodation request to HR and be considered done with the request, North asserted. Instead, a manager must be involved in the interactive process for identifying a reasonable accommodation, along with HR and the employee.

The settlement is large for a disability discrimination case, exceeding all but three of the Equal Employment Opportunity Commission’s most significant disability discrimination cases.

Strained Relationship with Supervisor

Denise Lenkiewicz alleged that she was denied accommodations from 2009 to 2011 for her arthritis, broken foot and chronic obstructive pulmonary disease (COPD).

The vast majority of employees who sought accommodations from HUD in 2011 received some form of accommodation, said co-counsel Wells Harrell, also of Boies, Schiller & Flexner in Washington, D.C. Some of the handful who were not accommodated had, like Lenkiewicz, strained relationships with supervisors, he stated.

Lenkiewicz, who handled Freedom of Information Act requests for HUD, said she became too winded from her daily commute, among other activities, to perform her job duties. She requested a parking space so she wouldn’t have to walk from the Metro subway stop, a walk that put stress on her lungs. She also asked for a parking space because of a broken foot that did not heal properly, Harrell said.

Lenkiewicz then rented a scooter to get to work. She requested a printer near her desk, rather than using a community printer down the hall. All of these accommodation requests were summarily denied, North remarked.

For more than 18 months, Lenkiewicz asked the agency for various reasonable accommodations, including the option of teleworking. The accommodation policy provided that an employee could request accommodations from managers or HR, and Lenkiewicz said she did both. She requested telework in 2009, when she did not want to bring the scooter in because she was afraid of damaging it. HUD’s reasonable accommodation branch allegedly never got back in touch with her.

In 2010, Lenkiewicz tore a tendon in her knee and took leave, returning in the summer. She requested to telework again in December 2010 when her breathing and mobility got worse. But her accommodation request was denied. Her request for telework should have at least started a conversation about accommodation but it did not, Harrell said.

Without accommodations, Lenkiewicz became unable to come to work after May 2011, and she was discharged in November 2011.

After pursuing an administrative complaint without success, Lenkiewicz sued under the Rehabilitation Act in federal district court, claiming that she was unlawfully denied reasonable accommodations for her disabilities. In settling the claim, HUD did not admit that it or any of its employees violated any of her rights.

However, Harrell said that Lenkiewicz’s manager failed to approach her accommodation requests with the desire to find a solution. Her manager “did not engage with her to improve her productivity, but just sent her to HR,” he emphasized. Harrell said that if HR thinks managers are not familiar with accommodation procedures or are not communicating with employees about accommodations, then managers should be pushed to get involved with HR and employees in the accommodation process.

HUD declined to comment for this article.

This case is Lenkiewicz v. Castro, No. 1:13-0261 (D.D.C.).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.



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