U.S. Department of Justice Press Release

 

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION


                                               
SCOTT M. CRAWFORD, DEWONE
BANKS, JASON BUNCHE,
GWENDOLYN BYRD, LEE COLE, JAN
HAWTHORNE, IRENE MYERS, BONNIE
THOMPSON, MELVINA TOBIAS, EDDIE
TURNER, JERRI WALTON, MISSISSIPPI
COALITION FOR CITIZENS WITH
DISABILITIES, MISSISSIPPI COUNCIL
FOR THE BLIND JACKSON CHAPTER,
ON BEHALF OF THEMSELVES AND
ALL OTHERS SIMILARLY SITUATED,

Plaintiffs,

and

THE UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

v.

CITY OF JACKSON AND CITY OF
JACKSON PUBLIC TRANSPORTATION
SYSTEM (“JATRAN”),

Defendants.

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Civil Action No. 3:08-cv-586-TSL-FKB

CONSENT DECREE



I. INTRODUCTION

1. The United States intervened in this action against the City of Jackson, Mississippi, and the City of Jackson Public Transportation System, the entity which operates the City’s public transit system known as “JATRAN” (collectively, the “Defendants” or “City”), to enforce title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., section 504 of the Rehabilitation Act of 1973, as amended (“section 504"), 28 U.S.C. § 794, and the regulations implementing title II and section 504, 49 C.F.R. Parts 27 and 37 and 28 C.F.R. Part 35. In their Complaint filed on September 23, 2008, the individual plaintiffs, the Mississippi Coalition for Citizens with Disabilities, and the Mississippi Council for the Blind, Jackson Chapter (“Private Plaintiffs”), alleged that Defendants had failed to provide fixed route1 buses with operative lifts, failed to adequately train staff, failed to operate buses with air-conditioning, denied eligible paratransit trips, provided late and extended paratransit trips, failed to dispatch paratransit operators to correct addresses, and failed to provide accessible sidewalks and bus stops in violation of title II of the ADA and section 504.

II. BACKGROUND

2. On June 23, 2009, the United States filed an unopposed Motion to Intervene, and subsequently, on July 27, filed its Complaint in Intervention.

3. The Complaint in Intervention alleged that Defendants discriminated against “qualified individual[s] with a disability,” within the meaning of the ADA, 42 U.S.C. §§ 12131 and 12102(2)(A), 49 C.F.R. § 37.3, and 28 C.F.R. § 35.104, and section 504, 29 U.S.C. §§ 705(20) and 794 and 49 C.F.R. § 27.5, excluding them from participation in or denying them the benefits of their public transportation system, and subjecting them to discrimination in violation of title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 C.F.R. Part 35 and 49 C.F.R. Part 37, and section 504, 29 U.S.C. § 794, and its implementing regulations at 49 C.F.R. Part 27. Specifically, the United States alleged that the Defendants’ violations of title II and section 504 included, but were not necessarily limited to: (1) failure to maintain, promptly repair, and keep vehicle lifts in operative condition, in violation of 49 C.F.R. §§ 37.161(a) and (b); 163(b), (d) and (e); and 28 C.F.R. § 35.133; (2) failure to promptly provide alternative transportation to individuals with disabilities in any case in which a vehicle is operating on a fixed route with an inoperative lift and the headway to the next accessible vehicle on the route exceeds thirty (30) minutes, in violation of 49 C.F.R. § 37.163(f); (3) failure to train personnel to proficiency so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, in violation of 49 C.F.R. § 37.173; (4) failure to provide paratransit services to individuals with disabilities “that are sufficient to provide to such individuals a level of service . . . which is comparable to the level of designated public transportation services provided to individuals without disabilities” who use defendants’ fixed route system, in violation of 42 U.S.C. § 12143(a) and 49 C.F.R. § 37.121(a); (5) failure to schedule and provide paratransit service to any ADA paratransit eligible person at any requested time on a particular day in response to a request for service made the previous day, in violation of 49 C.F.R. § 37.131(b); (6) failure to plan to meet paratransit demand, in violation of 49 C.F.R. § 37.131(b); and (7) capacity constraints significantly limiting the availability of service to ADA paratransit eligible persons, including substantial numbers of trip denials, missed trips, significantly untimely pickups for initial or return trips, trips with excessive trip length, and telephone reservation capacity constraints, including busy signals and long telephone hold times, in violation of 49 C.F.R. § 37.131(f)(3). Many of these allegations are identical or similar to allegations in the Private Plaintiffs’ Complaint.

4. The parties agree that settlement of these matters without further protracted, expensive, and unnecessary litigation is in the public interest and that entry of this Consent Decree (“Decree”) is the most appropriate means of resolving these matters. Accordingly, they agree to the entry of this Decree without trial or further adjudication of any issues of fact or law. The parties further agree that the entry of this Decree resolves all issues raised in the Complaint in Intervention filed by the United States and all issues raised in the Complaint filed by the Private Plaintiffs, except for issues relating to sidewalks and bus stops, subject to Paragraph 94.

It is therefore ORDERED, ADJUDGED, AND DECREED as follows:

III. JURISDICTION AND VENUE

5. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345, 42 U.S.C. § 12133, and 29 U.S.C. § 794a.

6. The parties agree that venue is proper. The Court may grant the relief sought in this action under 42 U.S.C. § 12133, 29 U.S.C. § 794a, and 28 U.S.C. §§ 2201 and 2202.

7. The United States is authorized to bring suit to enforce title II of the ADA and section 504, 42 U.S.C. §§ 12133; 29 U.S.C. § 794a(a)(2).

8. Plaintiffs Scott M. Crawford, Dewone Banks, Jason Bunche, Gwendolyn Byrd, Lee Cole, Jan Hawthorne, Irene Myers, Bonnie Thompson, Melvina Tobias, Eddie Turner, and Jerri Walton, the Private Plaintiffs, are individuals with mobility or vision disabilities and are each a “qualified individual with a disability” within the meaning of the ADA and section 504, 42 U.S.C. § 12131(2), 29 U.S.C. §§ 705(20) and 29 U.S.C. § 794, 49 C.F.R. §§ 27.5 and 37.3, and 28 C.F.R. § 35.104.

9. Plaintiff Mississippi Coalition for Citizens with Disabilities is a nonprofit membership organization and works on behalf of persons with disabilities in Mississippi.

10. Plaintiff Mississippi Council for the Blind, Jackson Chapter, is the Jackson Chapter of the Mississippi affiliate of the American Council for the Blind and serves as a support organization and an information source for blind and visually impaired individuals and their families in Jackson, Mississippi.

11. Defendant City of Jackson is a city incorporated under the laws of the State of Mississippi and is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1), 28 C.F.R. § 35.104, and 49 C.F.R. § 37.3, and is, therefore, subject to title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 49 C.F.R. Parts 27 and 37 and 28 C.F.R. Part 35.

12. Defendant City of Jackson is charged with funding, providing, and overseeing the provision of transportation services throughout the City of Jackson, Mississippi, including complementary paratransit services required by the ADA, 42 U.S.C. § 12143.

13. Defendant City of Jackson, has “operate[d] a fixed route system (other than a system which provides solely commuter bus service)” within the meaning of 42 U.S.C. § 12143(a) and 49 C.F.R. §§ 37.3 and 121.

14. Defendant City of Jackson has been a recipient of Federal financial assistance within the meaning of 49 C.F.R. § 27.5, and is therefore subject to section 504, 29 U.S.C. § 794 and 42 U.S.C. § 12131 et seq., and its implementing regulations, 49 C.F.R. Parts 27 and 37 and 28 C.F.R. Part 35.

15. Defendant City of Jackson Public Transportation System (“JATRAN”) is an instrumentality of the City, overseen by the City of Jackson Transit Service Division of the Department of Planning and Development.

IV. INJUNCTIVE RELIEF

16. The City agrees to comply with title II of the ADA, 42 U.S.C. §§ 12131 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the implementing regulations, at 28 C.F.R. Part 35 and 49 C.F.R. Parts 27 and 37, and to modify its policies, practices, and procedures as necessary to bring its fixed route and complementary paratransit service into compliance with title II and section 504.

17. The City agrees not to engage in any act or practice, directly or through contractual, licensing, or any other arrangement, that has the effect of unlawfully discriminating against any individual with a disability and agrees to take appropriate steps to ensure compliance with the accessible public transportation requirements of title II and section 504. The City shall ensure that its agents, vendors, and service providers also comply with the accessible transportation requirements of title II and section 504.

18. The City agrees not to retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Decree, title II, or section 504.

V. TERMS OF AGREEMENT

19. The City shall maintain in operative condition the accessibility features on all existing vehicles and any vehicle acquired in the future for use in the City’s fixed route system.

Wheelchair Lifts and Ramps

20. All wheelchair lifts shall be in operative condition. All buses with inoperative lifts shall be removed from service until those lifts are repaired or replaced, as described below. To ensure that all buses have operative lifts the City shall:

(A) Maintain a centralized system to track reported wheelchair lift failures and wheelchair lift repair, by date and vehicle.

(B) Make daily checks of wheelchair lifts on all buses that are being placed into service at the beginning of the service day. These checks shall include cycling the lift, which involves deploying the lift as if to allow a rider in a wheelchair to embark in order to test the lift’s function and stowing the lift as if preparing to continue in service.

(C) Record the results of the daily checks and cycling on the Bus Operator’s Report & Inspection Check List and enter the information in the JATRAN computer system.

(D) Have a yard mechanic on duty at all times to repair minor problems.

(E) Remove from service any bus with an inoperative lift at the beginning of the service day. If there is no replacement bus available and removing the bus from service will substantially delay or disrupt the bus service schedule, the City may keep the bus with an inoperative lift in service for no more than three (3) service days.

(F) Remove from service any bus found to have an inoperative lift while the bus is in service either at the end of that service day or as soon as a bus with a functioning lift can be substituted, whichever comes first. If the City has no available substitute, and removal from service of the bus with the inoperative lift will substantially delay or disrupt the bus service schedule, the City may keep the bus with an inoperative lift in service for no more than three (3) service days.

21. The Bus Operator’s Report & Inspection Check List shall indicate:

(A) the bus number,

(B) the date and time of the cycling of the wheelchair lift,

(C) the bus operator’s name or identification number,

(D) the bus route number,

(E) whether the wheelchair securement system was functioning, and

(F) whether the wheelchair lift was functioning.

Preventive Maintenance

22. The City shall perform preventive maintenance on the accessibility features of its buses in accordance with, at a minimum, the manufacturer’s recommendations, schedules, and procedures for performing preventive maintenance, but in no case will a bus accumulate more than 6,000 miles since the last preventive maintenance was done.

23. Records of preventive maintenance shall be maintained by the City and include:

(A) the bus number, make, and model;

(B) the date of the maintenance;

(C) the bus mileage; and

(D) the maintenance performed on the accessibility features.

Alternative Transportation

24. Within thirty (30) days of the effective date of this Decree the City will implement the following procedure whenever a rider in a wheelchair cannot board a bus because the wheelchair lift does not operate:

(A) Before proceeding further, the vehicle operator shall contact and confer with the JATRAN dispatchers;

(B) If a bus with a known operative lift is scheduled and expected to arrive within thirty (30) minutes, the vehicle operator shall notify the rider;

(C) In the event no bus with a known operative lift is scheduled to arrive at that stop within thirty (30) minutes, the dispatcher will be required to arrange for alternative transportation and the vehicle operator will notify the rider of the estimated time of the alternative transportation vehicle’s arrival;

(D) The bus operator will provide the rider with a completed Missed Bus card; and

(E) The dispatcher will maintain a daily log recording the time, the date, the location of the incident, the identity of the bus operator, the time of arrival of the bus with an operative lift or alternative transportation, and the time the passenger arrived at his or her final destination. This log will be provided to the United States on a quarterly basis.

25. The City will provide a Missed Bus card to any rider who is unable to board a bus because the wheelchair lift is not functioning. The Missed Bus card, to be completed by the bus operator, shall include the following information:

(A) the bus route number and the bus identification number;

(B) the time, date, and location of the incident;

(C) an explanation of JATRAN’s alternative transportation policy;

(D) directions for filing a complaint; and

(E) contact information including relevant telephone numbers.

26. To ensure that the bus operator is able to communicate with the dispatcher without exiting the bus, the City will install radio transmission equipment in all vehicles, inspect the equipment daily, and replace or repair non-functioning radios.

27. A dedicated telephone number will be available to fixed route riders during the hours of operations to check on the status of their alternative transportation or to communicate with a dispatcher. This telephone number will be displayed on the City’s website, all bus schedules, the Missed Bus card, and in all fixed route buses above the wheelchair securement area.

28. Alternative transportation will arrive within thirty (30) minutes of the bus operator’s call to the dispatcher requesting alternative transportation 95 percent of the time; within forty five (45) minutes 99 percent of the time; and within one (1) hour 100 percent of the time. In instances where the next accessible bus arrives prior to the alternative transportation, it is assumed that the passenger will board the bus.

Bus Operator Conduct

29. The City shall ensure that all bus operators:

(A) Operate buses and equipment safely and assist and treat all riders—including riders with disabilities—in a courteous manner;

(B) Stop the bus at the nearest location accessible to the rider in inclement weather or where construction work or other road conditions impede access to the bus stop;

(C) Do not bypass any rider in a wheelchair waiting at or near a bus stop;

(D) Assist individuals with disabilities with the use of the lift, ramp, or wheelchair securement system upon request, even if this service requires the operator to leave the driver’s seat.

Handilift Paratransit Service

30. Before implementing any changes to its current Handilift eligibility procedures or requirements, the City will consult and submit them to the United States for approval.

31. Within six (6) months of the effective date of this Decree the City will accept telephone reservations during normal business hours on all days that precede a day of service.

32. The City will ensure that direct communications on its Handilift telephone lines are as effective for persons who are deaf or hard of hearing as it is for others, by using and maintaining operable teletypewriter (“TTY”) devices or by other devices accessible to deaf or hard of hearing.

33. The City shall ensure that no caller receives a busy signal when attempting to reach a Handilift reservationist, that all calls to schedule a trip during business hours are answered, and that no caller is told to call back later to schedule a trip.

34. The City shall implement a standard script for use by Handilift reservationists. The script shall include collection of information required to make a reservation; an explanation of the pickup window, cancellation polices, and rider no-show penalties; and confirmation of trip details.

35. If a requested pickup time is unavailable, the reservationist may not negotiate a pickup time that is more than sixty (60) minutes before or after the requested pickup time.

36. The City shall ensure that every request to schedule a trip and the City’s response to such requests are recorded. The record shall include whether a pickup time was offered within the negotiation window, whether a pickup time was scheduled within the negotiation window, and whether the trip was a denial (including trips scheduled outside the negotiation window).

37. When a Handilift vehicle arrives to pick up a rider prior to the on-time pickup window, the vehicle operator shall contact the dispatcher. The dispatcher may contact and notify the rider, but will also advise the rider that he or she is not required to board before the on-time pickup window.

38. A vehicle operator shall wait at least five (5) minutes within the on-time pickup window before departing. If a rider is not present when the operator arrives, the operator will call the dispatcher, who will attempt to contact the rider. If, following attempts to contact the rider and the passage of at least five (5) minutes within the on-time pickup window, the rider still fails to board, this will be counted as a rider no-show. If the Handilift vehicle arrives after the on-time pickup window, and the passenger takes the trip, this will be counted as a late pickup. If the Handilift vehicle fails to arrive, or arrives after the on-time pickup window and the passenger cannot be found or declines the trip, this will be counted as a missed trip.

39. In all circumstances where attempts to contact the rider are unsuccessful, the vehicle operator will await authorization from the dispatcher before leaving the location. The dispatcher shall log the date, time, location, and vehicle operator information in a “Rider No-Show/Missed Trip” log.

40. The City shall ensure that dispatchers will resolve all outstanding requests for accessible transportation and will ensure that no riders have been stranded without transportation to their destination before shutting down fixed route and Handilift operations for the day.

41. Where necessary, the Handilift operator will provide beyond curb-to-curb service, as required by the United States Department of Transportation’s guidance on origin-to-destination service.

42. Any policy instituted to penalize riders who fail to notify the dispatcher of a trip cancellation within thirty (30) minutes of their scheduled pickup time or riders who do not show up for a scheduled trip will be done in consultation with the United States.

ADA Complementary Paratransit Demand

43. Within six (6) months of the effective date of this Decree the City shall design, fund, implement, and operate its paratransit service to satisfy all requests by ADA eligible riders for service, including next-day trip requests.

44. The City shall estimate future demand for Handilift service annually. These demand estimations should conform with industry-accepted standards and include calculations of current demand, unmet demand, previous trends in demand, and service area population demographics.

ADA Coordinator

45. The Director for the Department of Planning and Development will be responsible for implementing and administering the City’s obligations under this Decree and will be responsible for JATRAN’s overall compliance with title II of the ADA and section 504.

46. The Director shall designate an ADA Coordinator to carry out the day-to-day responsibility for compliance with title II of the ADA and section 504 provisions in this Decree. The selection of the ADA Coordinator will be made in consultation with the United States. The ADA Coordinator shall be a full-time City employee in the Department of Planning and Development, experienced in public transit and paratransit systems, and be knowledgeable or receive training on the City’s obligations under title II of the ADA and section 504 as they relate to public transportation.

47. The ADA Coordinator will serve as a liaison between the individuals in the Department of Planning and Development, the City, and JATRAN who will carry out the City’s obligations under this Consent Decree and shall be a resource to these individuals on ADA issues. The ADA Coordinator shall also participate in reviewing and revising any of the City’s policies relating to the ADA and riders with disabilities and the curriculum for employee training with regard to ADA obligations and riders with disabilities.

48. The ADA Coordinator shall be responsible for handling all complaints from riders including ensuring that disability-related problems and complaints reported by riders are addressed in accordance with the policies and procedures set forth below in Paragraphs 55-59. The ADA Coordinator shall have the authority to incur incidental expenses, for example taxi fare, to ensure that riders are not stranded without transportation to their destination.

49. The ADA Coordinator will serve as the City’s primary contact on accessible transportation issues for the public. The name, address, and telephone number of the ADA Coordinator shall be posted prominently on the City’s and JATRAN’s websites.

Training

50. The City shall provide training for all newly hired JATRAN fixed route, Handilift, and alternative transportation operators. This training shall include the requirements under title II of the ADA; hands-on training on the operations, deployment, and stowing of all of the different models of wheelchair lifts in the JATRAN fleet; hands-on training in the use of wheelchair securement systems; and appropriate conduct toward individuals with disabilities. The City shall provide annual refresher training for all JATRAN operators.

51. The City shall provide training for all newly hired JATRAN mechanics. The training shall include repair and maintenance of all models of wheelchair lifts in the JATRAN fleet. The City shall provide annual refresher training for all JATRAN mechanics.

52. The City shall provide training for all newly hired JATRAN office staff, including managers, reservationists, dispatchers, and administrative support, and any Department of Planning and Development employees with JATRAN oversight responsibilities, including the Transit Service Division. Reservationists shall be trained in all trip reservation and record keeping requirements as outlined in Paragraphs 31-36 above. Dispatchers shall be trained in the procedures for alternative transportation as outlined in Paragraphs 24-28, 37, and 40 above. All staff shall be trained to treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the differences among individuals with disabilities. The City shall provide annual refresher training for any office or oversight staff.

53. All training materials will be subject to review and approval by the United States.

54. The City shall maintain, for the duration of this Decree, records showing the dates and hours of training and names of instructors and attendees.

Complaint Procedure

55. The City shall maintain a dedicated telephone number to accommodate incoming complaints and comments from JATRAN riders during normal business hours. The telephone number and hours of operation shall be posted on the City’s and JATRAN’s web sites and printed on all schedules and other JATRAN print materials published by the City.

56. Within sixty (60) days of the effective date of this Decree the City shall develop various print and electronic forms or templates designed to record the information for each rider complaint and a method of tracking progress and the resolution of the complaint. The templates shall include the name of the complainant, the date of the incident, the vehicle number, the location (e.g., address or closest intersection), the nature of the complaint, whether the complainant was using a wheelchair at the time of the incident (for fixed route complaints), the bus operator’s or City employee’s response to the complaint, and the resolution of the complaint. The City shall submit these templates to the United States for approval.

57. The rider’s complaint line shall be staffed by JATRAN personnel trained in recording the relevant information on the complaint templates. Sufficient staff will be assigned so that 95 percent of all calls by riders will be answered by JATRAN personnel within three (3) minutes, and 99 percent of all calls will be answered within five (5) minutes. A complaint form will also be available on the City’s website to allow electronic filing of a complaint form.

58. All complaints shall be entered into a customer complaint database. All alleged violations of the ADA shall be identified in the database. A complaint will be categorized as:

(A) A fixed route complaint if the rider uses a wheelchair lift and alleges: (1) being bypassed by a bus; (2) being unable to board or disembark a bus because the wheelchair lift was not functioning; (3) a discourteous operator; (4) a delay of more than thirty (30) minutes in receiving alternative transportation; (5) failure of the bus operator to request alternative transportation; (6) failure of the bus operator to stop and cycle a lift; (7) failure of a bus operator to secure the rider in the bus; or (8) any other subjects that a complainant or the City determines are wheelchair lift complaints.

(B) A Handilift complaint if the rider is complaining about: (1) access to telephone reservations; (2) trip denials; (3) late pickups; (4) late drop-offs; (5) missed trips; (6) excessively long trips; (7) failure to provide origin-to-destination service; or (8) any other subjects that a complainant or the City determines are Handilift complaints.

59. Each day, the ADA Coordinator shall retrieve the ADA complaints entered into the customer complaint database. The ADA Coordinator shall investigate and ensure that all complaints are resolved. The complaint investigation may include interviewing relevant persons, such as bus operators, garage managers, mechanics, reservationists, dispatchers, and the complainant, and reviewing relevant records, such as bus dispatch, lift cycling, reservation log, and alternative transportation records. The ADA Coordinator shall send the complainant a written response within one (1) month advising him or her of the status of the complaint. The ADA Coordinator shall record in the rider complaint database the resolution of each complaint. The ADA Coordinator shall evaluate whether the complaints indicate systemic ADA-related problems or trends and report them to the Director. The City shall implement changes necessary in order to remedy such problems or trends.

Public Outreach

60. The City will create a flyer that outlines the City’s services for riders who use wheelchairs. The flyer will include the role and duties of bus operators, the protocol for operating the wheelchair lift (for example: the requirement to cycle the lift at any stop to allow a rider in a wheelchair to board, the operator’s responsibility to courteously assist the rider, etc.), the provision of alternative transportation, the procedures for filing complaints, and information on how to contact the ADA Coordinator. Within sixty (60) days of the effective date of this Decree the City will submit a prototype of the flyer for the approval of the United States. Within thirty (30) days of approval by the United States, the City shall post the flyer on its website, provide sufficient copies for public distribution on all fixed route buses, and provide copies to organizations who provide services to individuals with disabilities. The City shall ensure that the materials are available in accessible formats.

61. Within sixty (60) days of the effective date of this Decree the City shall revise and update the Handilift Policies and Procedures manual, and all publicly available information for Handilift riders, to be consistent with the provisions of this Decree, and submit a draft of the manual for the approval of the United States. Within thirty (30) days of approval by the United States, the City shall post the manual on its website, and provide a copy of the manual to each registered Handilift rider with a cover letter explaining the resolution of this litigation, the right of riders to have service free of capacity constraints, and a description of the procedure for filing a complaint. The City shall ensure that the materials are available in accessible formats.

62. The City’s and JATRAN’s websites will be accessible to individuals with visual disabilities by January 1, 2011.

63. The City shall continue to work closely with its ADA Advisory Committee to ensure accessibility issues are addressed and that the disabled community is aware of the JATRAN services available. This committee shall meet at least every other month. The General Manager of JATRAN, Director of Planning and Development or his/her designee, and other appropriate City personnel, as designated by the Director of Planning and Development, shall attend each meeting. Within thirty (30) days after the final approval of the minutes, they will be provided to the United States and posted on JATRAN’s website.

64. The Director of the Department of Planning and Development will meet a minimum of four (4) times per calendar year with the City’s JATRAN ADA Coordinator and the JATRAN General Manager.

65. The Director of the Department of Planning and Development will meet a minimum of four (4) times per calendar year with members of the City ADA Advisory Committee to discuss JATRAN’s service to individuals with disabilities.

Data Maintenance and Reporting Requirements

66. The City shall maintain the following electronic data and records:

(A) Maintenance and Repair. For each lift malfunction incident: (1) the bus identification number; (2) the date and time of the incident; (3) the location of the incident (e.g., during pull-out, while in service, during an inspection); (4) the date and time the bus was removed from service for repair; (5) a description of the cause of the malfunction and the repair performed; (6) the date and time the bus was returned to service.

(B) Preventive Maintenance. For each bus: (1) the bus identification number; (2) the date and time that preventive maintenance was performed on the wheelchair lift; (3) the bus mileage at the time of the maintenance; and (4) the maintenance performed.

(C) Rider Usage. For each instance where a rider using a wheelchair was unsuccessful in boarding because of a malfunctioning lift: (1) the bus identification number; (2) the date and time of the incident; (3) the location; and (4) the bus route and direction the bus was traveling.

(D) Alternative Transportation. For each alternative transportation request: (1) the date and time of the request; (2) the location of the rider; (3) whether and time alternative transportation was dispatched; and (4) the time the alternative transportation arrived at the bus stop.

(E) Vehicle Deployment. For each garage, a list of each bus deployed each day, identified by number, and indicating if the bus was dispatched with an inoperative or disabled lift.

(F) Vehicle Inventory. By month, a complete vehicle inventory (including vehicles acquired and retired).

(G) Paratransit Telephone Access. By month: (1) the number of telephone requests for reservations; (2) the number of telephone calls that exceed the standards defined in Attachment A; and (3) the names of the individuals who were subjected to those long hold times as defined in Attachment A.

(H) Paratransit Ridership. By month the number of: (1) trips requested; (2) trips scheduled; (3) trips denied; (4) trips cancelled; (5) trips provided; (6) rider no-shows; and (7) JATRAN missed trips and (8) for each trip denied or missed by JATRAN, the name of the rider affected.

(I) Paratransit On-Time Performance. By month the number of: (1) early pickups; (2) on-time pickups; (3) late pickups; (4) on-time drop-offs (where an appointment time is known); and (5) late drop-offs (where an appointment time is known). For each late pickup or drop-off record: (6) the number of minutes late for each late pickup or drop-off and (7) the name of the individuals for whom their pickup or drop-off was late.

(J) Paratransit Ride Time. By month the number of excessively long trips, and for each excessively long trip: (1) the length of the on-board ride time; (2) the length of the comparable fixed route ride time; (3) the number of minutes by which the excessively long trip exceeded the threshold for excessively long; and (4) the name of the rider subjected to the excessively long trip.

(K) Complaints. For each complaint: (1) the name of the complainant; (2) the date of the incident; (3) the location of the incident; (4) the nature of the complaint (see Paragraph 58); (5) whether the complainant uses a wheelchair; (6) the bus number; and (7) the outcome and whether any City personnel, including the operator, was disciplined.

(L) Training. The dates, subject matter, number of hours, names of instructors and identity and job title of each employee attending.

(M) Daily Bus Operator’s Report & Inspection Check List. Copies of the check lists completed during vehicle pull-outs.

67. Within thirty (30) days of the effective date of this Decree, and thereafter on a quarterly basis, the City will submit the data and records identified in Paragraph 66 in an electronic format, to be identified, to the United States, counsel for Private Plaintiffs, and the Independent Monitor (see Paragraphs 69-78).

68. Six (6) months following the effective date of this Decree, and every six (6) months thereafter for the duration of this Decree, the City shall provide the United States, counsel for the Private Plaintiffs, and the Independent Monitor with a written report setting forth:

(A) Progress implementing the terms of this agreement;

(B) Progress implementing recommendations of the Monitor’s Initial Report of Findings and Recommendations;

(C) Compliance with the performance standards set forth in Attachment A;

(D) A description of any modifications in the operation of the fixed route or paratransit system; and

(E) The name, address, and telephone number of any individual who files any lawsuit, complaint, or allegation alleging discrimination on the basis of disability in the provision of public transportation.

Independent Monitor

69. An Independent Monitor (“Monitor”) to be selected by the United States will serve for the first three (3) years beginning with the effective date of this Decree. The purpose of the Monitor is to assist the parties in evaluating and assessing the City’s compliance with the Decree.

70. The Monitor shall have experience evaluating whether public transportation systems comply with title II of the ADA and section 504.

71. No party, nor any employee or agent of any party, shall have any supervisory authority over the Monitor’s activities, reports, findings, or recommendations.

72. The City agrees to pay the Monitor’s fee and expenses, not to exceed $140,000.

73. Unless approved in writing by the parties, the Monitor shall not accept employment or provide consulting services that would present a conflict of interest with the Monitor’s responsibilities during the term of this Decree including retention (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with a claim or suit against the City or their components, officers, agents, or employees.

74. The City shall provide the Monitor and representatives of the United States with reasonable access to all City staff, facilities, meetings, and documents that are relevant to evaluate compliance with this Decree. The City shall direct all employees to cooperate fully with the Monitor and representatives of the United States. Except as required or authorized by the terms of this Decree or the parties together in writing, the Monitor shall not make any public statements or issue findings with regard to any act or omission of the City, its agents, representatives, or employee, or disclose any information provided to the Monitor under this Decree. The Monitor and representatives for the United States shall be permitted to make reasonable unannounced inspections and visits of JATRAN operations and facilities in the course of implementing this Decree, during JATRAN’s normal operating hours.

75. The duties of the Monitor shall be to report the City’s compliance with the terms of this Decree and include, but are not limited to, the following:

(A) On-site observations of JATRAN operations and making recommendations for complying with the terms of this Decree;

(B) Collecting and assessing the accuracy of the data provided by the City under Paragraph 66 above;

(C) Assessing the City’s compliance with the performance standards set forth in Attachment A; and

(D) Determining the penalties, if any, that the City is required to pay under Paragraph 79 below.

76. Within ten (10) days of his or her appointment, the Monitor will conduct an initial review of all available information on the City’s transportation system. Within sixty (60) days, the Monitor will conduct an on-site visit to observe and assess the JATRAN system. This site visit will include a tour of each JATRAN facility; a review of JATRAN’s operations, records, databases, and procedures; and interviews with JATRAN staff, including dispatchers, reservationists, operators, mechanics, and supervisors.

77. Within thirty (30) days of the site visit, the Monitor will provided an Initial Report of Findings and Recommendations to all parties outlining observations and recommendations for compliance with this Decree.

78. Within thirty (30) days of the City’s bi-annual written report, the Monitor will submit a report to all parties describing the City’s ongoing compliance with this Decree. The City will have twenty-one (21) days to file a response to each report. The Monitor’s report and the City’s response will be filed bi-annually each year for a period of three (3) years following the effective date of this Decree.

Penalties

79. Upon entry of this Decree, and barring violations of the performance standards identified in Attachment A caused by operational circumstances beyond the City’s control, the Monitor shall assess penalties according to the following schedule;

(A) Fixed Route: For each wheelchair user who is not able to board a bus because the City has failed to comply with any provision relating to operative accessibility features, wheelchair lifts, maintenance, alternative transportation, or bus operator conduct, the City will provide the aggrieved rider four (4) free vouchers for future trips on the fixed route system.

(B) Handilift: For each month the City fails to meet the standards provided for in Attachment A, or fails to comply with any of the provisions relating to Handilift paratransit service, the City shall provide each aggrieved rider four (4) free vouchers for future trips on the Handilift system.

(C) The City shall deliver the vouchers within ten (10) days following the date any penalties are assessed by the Monitor.

VI. IMPLEMENTATION AND ENFORCEMENT

80. The City shall retain during the life of this Decree records required by this Decree, and any other records necessary to document the implementation of and continued compliance with this Decree.

81. Any JATRAN service contract negotiated during the life of this Decree will be subject to approval by the United States. The United States will have thirty (30) days to comment before any contract is awarded.

82. The United States or Private Plaintiffs may review compliance with this Decree at any time and may enforce this Decree if either believes that it or any of its provisions have been violated. If any party believes that this Decree or any portion of it has been violated, it will raise any concern(s) with the City and the parties will attempt to resolve the concern(s) in good faith. The City will have twenty-one (21) days from the date it is notified of any breach of this Decree to cure that breach, before a party can institute any action with the Court.

83. Failure by the United States or Private Plaintiffs to enforce any provision or deadline of this Decree shall not be construed as a waiver of their right to enforce other provisions or deadlines of this Decree. Likewise, failure of the City to perform, object to, comply with, or seek modification of any provision of this Decree shall not be construed as a violation of other provisions of this Decree.

84. This Decree shall remain in effect for five (5) years from the effective date of this Decree. The Court shall retain jurisdiction to enforce this Consent Decree.

85. This Decree constitutes the entire agreement between the parties relating to Crawford, et al. and United States of America v. City of Jackson, et al., No. 3:08-cv-586-TSL-JCS (S.D. Miss.), and Department of Justice No. 204-41-141, and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Order shall be enforceable, except that this agreement does not address issues raised in the Complaint filed by Private Plaintiffs relating to sidewalks or bus stops. This Decree does not purport to remedy any other potential violations of the ADA or any other federal law. This Decree does not affect the City’s ongoing responsibility to comply with all aspects of the ADA.

86. Nothing in this Decree shall preclude the United States or Private Plaintiffs from filing a separate action under the ADA or section 504 for any alleged violation not covered by this Decree.

87. This Decree shall be binding on the City, its agents, and employees. In the event the City seeks to transfer or assign all or part of its operation of Jackson’s public transportation system, as a condition of transfer the City shall obtain the written accession of the successor or assignee to any obligations remaining under this Decree for the remaining term of this Decree.

88. Nothing in this Decree shall preclude the parties from exercising any rights a party may otherwise have outside the scope of this agreement.

89. Titles and other headings contained in this Decree are included only for ease of reference and shall have no substantive effect.

90. All notices, demands, or other communications to be provided pursuant to this Decree shall be in writing and delivered by fax or overnight mail to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time)

:For the Department of Justice
John L. Wodatch, Chief
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW - NYA
Washington, D.C. 20530
Telephone: (202) 307-0663
Fax: (202) 307-1198
Attn. David W. Knight

For the Private Plaintiffs
Courtney A. Bowie, Esq.
The Mississippi Youth Justice Project
921 North President Street, Suite B
Jackson, Mississippi 39206
Telephone: (601) 948-8882
Fax: (601) 948-8885

Frances Kay Hardage, Esq.
Disability Rights Mississippi
5305 Executive Place
Jackson, Mississippi 39206
Phone: (601) 981-8207
Fax: (601) 981-8313

For the City of Jackson, Mississippi
OFFICE OF THE CITY ATTORNEY
Pieter Teeuwissen, Esq.
City Attorney
455 East Capitol Street
Jackson, Mississippi 39207
Telephone: (601) 960-1799
Fax: (601) 960-1756

91. The United States and the City shall bear their own costs and expenses. Nothing in this Consent Decree shall preclude counsel for Private Plaintiffs from seeking fees and costs from the City.

 

SO ORDERED this 30th day of      March,      2010,

_____________________________________
Tom S. Lee
United States District Judge

 


AGREED AND CONSENTED TO:

FOR THE UNITED STATES:

ERIC H. HOLDER, JR.
Attorney General of the United States

DON BURKHALTER
United States Attorney
Southern District of Mississippi

THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division



PSHON BARRETT
Assistant United States Attorney
United States Attorney’s Office
Southern District of Mississippi
188 E. Capitol Street, Ste. 500
Jackson, Mississippi 39201
Telephone: (601) 973-2842

SAMUEL R. BAGENSTOS
Deputy Assistant Attorney General
Civil Rights Division



JOHN L. WODATCH, Chief
ALLISON NICHOL, Deputy Chief
PHILIP L. BREEN, Special Legal Counsel
Disability Rights Section
Civil Rights Division



____________________________
DAVID W. KNIGHT
EUGENIA ESCH
Trial Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW - NYA
Washington, D.C. 20530
Telephone: (202) 616-2110

 

FOR THE PRIVATE PLAINTIFFS:

____________________________
COURTNEY A. BOWIE
MSB # 102528
The Mississippi Youth Justice Project
921 North President Street, Suite B
Jackson, Mississippi 39206
Telephone: (601) 948-8882

FRANCES KAY HARDAGE
MSB # 3061
Disability Rights Mississippi
5305 Executive Place
Jackson, Mississippi 39206
Phone: (601) 981-8207

FOR THE CITY OF JACKSON:

____________________________
PIETER TEEUWISSEN
MSB # 8777
CLAIRE BARKER HAWKINS
MSB # 101312
AZANDE W. WILLIAMS
MSB # 100161
Office of the City Attorney
455 East Capitol Street
Jackson, Mississippi 39207
Telephone: (601) 960-1799

 

 

Attachment A

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION 

SCOTT M. CRAWFORD, et. al

Plaintiffs,

and

THE UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

v.

CITY OF JACKSON et. al

Defendants.

Civil Action No. 3:08-cv-586-TSL-FKB

CONSENT DECREE


 

ATTACHMENT A

I. Definitions

The parties agree and stipulate that for purposes of this Consent Decree certain terms shall be defined as follows:

(a) “Accessibility features” shall mean wheelchair lifts and ramps, kneeling mechanisms, and securement devices.

(b) “Alternative transportation” shall mean a dedicated accessible vehicle that can be dispatched to a location where an individual with a disability is waiting because he or she was unable to board one or more fixed route buses.

(c) “Appointment time” shall mean the communicated time at which the ADA paratransit eligible rider has a scheduled obligation at their destination, such as a medical appointment or the start of work.

(d) “Bus operator,” “vehicle operator,” and “operator” shall mean the JATRAN employee who drives and operates the bus.

(e) “Disabled lift” shall mean a lift that has been permanently disabled such that there is no intention to repair or make the lift operative.

(f) “Dispatch” or “dispatcher” shall mean the individual(s) responsible for communicating with all vehicle operators, including, road supervisors, fixed route bus drivers to coordinate the dispatch of alternative transportation, and Handilift drivers to track progress of runs.

(g) “Effective date of this Decree” shall mean the date the Decree is signed and entered by the District Judge.

(h) “Excessively long trip” shall mean any Handilift trip where the time from pickup to drop-off is more than fifteen (15) minutes longer than the transportation time would be from origin to destination if traveled using the fixed route system.

(i) “Fixed route system” and “fixed route” means a system of transporting individuals (other than by aircraft), on which a vehicle is operated along a prescribed route according to a fixed schedule, as defined in 49 C.F.R. § 37.3.

(j) “Fleet” shall mean and refer to all of the buses and vans owned or leased by the City for public transportation use by JATRAN.

(k) “Headway” shall mean the anticipated time between two fixed route buses operating on the same route.

(l) “Inoperative lift” shall mean a lift that JATRAN has determined is a non-functioning lift.

(m) “Late pickup” or “untimely pickup” shall mean when a Handlift van arrives after the on-time pickup window and the ADA paratransit eligible person is transported to their destination.

(n) “Missed trip” shall mean when a Handilift van arrives after the on-time pickup window and the ADA paratransit eligible person is not transported, either because they cannot be located or because they declined the late trip.

(o) “Negotiate a pickup time” and “negotiation window” shall refer to JATRAN’s right to negotiate a scheduled pickup time within sixty (60) minute of the requested pickup time. This negotiation may not be an offer and acceptance or refusal, however. JATRAN must take into consideration the particular needs of the passenger and attempt to schedule a pickup time that is responsive to the riders constraints, while balancing scheduling efficiencies.

(p) “On-time pickup window” shall mean the thirty (30) minute period of time starting with the scheduled pickup time.

(q) “Operative condition” is the condition in which the accessibility features function so as to enable a passenger who uses a wheelchair to board and ride the fixed route bus.

(r) “Operative lift” shall mean a functioning lift, usable by persons with disabilities to board or disembark a vehicle.

(s) “Operator,” “bus operator,” or “vehicle operator” shall mean the JATRAN employee who drives and operates the bus.

(t) “Paratransit” and “Handilift” shall mean comparable transportation service required by the ADA for individuals with disabilities who are unable to use the fixed route system, as defined in 49 C.F.R. § 37.3.

(u) “Requested pickup time” shall mean the original time that the ADA paratransit eligible person requests to be picked up to commence their trip.

(v) “Rider no-show” shall mean when a Handilift vehicles arrives within the on-time pickup window and the rider cannot be found or declines to board the vehicle, provided that no sanction for a pattern or practice of rider no-shows will penalize a rider for legitimate circumstances beyond their control.

(w) “Scheduled pickup time” shall mean the agreed upon time between Handilift and the ADA paratransit eligible person that the passenger will be picked up to commence their trip.

(x) “Telephone hold time” shall mean the amount of time an ADA paratransit eligible person waits after calling Handilift during reservation hours to speak to a reservationist regarding their trip request.

(y) “Trip denial” shall mean when an ADA paratransit eligible person calls Handilift during reservation hours, requests a pickup time for a trip during service hours at least the next day, and at most fourteen (14) days in advance, and the ADA paratransit eligible person is either offered a pickup time more than one (1) hour earlier or later than the requested pickup time or is offered no pickup time at all.

(z) “Wheelchair” shall mean a wheelchair, scooter, or other mobility device as defined in 49 C.F.R. § 37.3.

(aa) “Wheelchair lift,” “vehicle lift,” or “lift” shall mean both a lift mechanism or a ramp mechanism that allows individuals with mobility disabilities, such as those who use wheelchairs, to board a City van or bus.

II. Paratransit Performance Standards

The parties agree and stipulate that for purposes of this Consent Decree the City shall meet the following performance standards:

(a) Telephone Hold Times: The City shall ensure that, on a monthly basis, 95 percent of individuals calling into any of its paratransit telephone lines shall experience a telephone hold time of no longer than three (3) minutes; and 99 percent of individuals calling into any of its paratransit telephone lines shall experience a telephone hold time of no longer than five (5) minutes.

(b) Trip Denials: The City shall not deny more than ten (10) trips per month.

(c) Timeliness of Pickups: The City shall meet the following standards:

(i) At least 95 percent of all pickups, on a monthly basis, shall occur within the on-time pickup window (i.e., within thirty (30) minutes of the scheduled pickup time); and

(ii) At least 99 percent of all pickups, on a monthly basis, shall occur within the on-time pickup window or up to fifteen (15) minutes after the on-time pickup window (i.e., within forty-five (45) minutes of the scheduled pickup time).

(d) Timeliness of Drop-offs: The City shall provide, on a monthly basis, at least 95 percent of drop-offs prior to the appointment time.

(e) Trip Length: The City shall not provide excessively long trips for more than 5 percent of all paratransit trips in a single month and no trip shall last more than one hundred and twenty (120) minutes.

(f) Missed Trips: The City shall not miss more than twenty (20) trips in a single month.

 




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March 31, 2010