UNITED STATES DISTRICT COURT
The United States is filing, concurrent with this Consent Order, a civil action to enforce title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111 et seq., against the Marion County Nursing Home District, Inc., d/b/a Maple Lawn Nursing Home. The Complaint alleges that Maple Lawn Nursing Home discriminated against the Charging Party on the basis of disability, in violation of title I of the ADA, 42 U.S.C. § 12112(a) by terminating her from her job as a Certified Nurse’s Assistant at the Maple Lawn Nursing Home when she disclosed she had HIV disease.
This matter was initiated by the Charging Party by the filing of a timely charge with the Equal Employment Opportunity Commission [“EEOC”] in St. Louis, MO (EEOC Charge No. 280 A 300308.) The EEOC investigated the charge, and concluded there was probable cause to find that the Maple Lawn’s actions violated the ADA. Because Maple Lawn Nursing Home is a public entity, the EEOC referred the charge to the United States Department of Justice, pursuant to 42 U.S.C. § 12117(a). The Department of Justice investigated this charge pursuant to its authority to investigate alleged violations of title I of the ADA by state and local governments, 42 U.S.C. §12117(a).
As a result of ongoing discussions, Marion County Nursing Home District, Inc. and the United States (collectively, the “parties”) have reached agreement that it is in the parties’ best interests, and the United States believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation. The parties waive, for the purposes of this Consent Decree only, a hearing and findings of fact and conclusions of law on all issues raised by the United States in its Complaint.
It is therefore ORDERED, ADJUDGED, AND DECREED as follows:
1.This Court has jurisdiction over this action pursuant to 42 U.S.C. §§ 12117(a) and 2000e?]5(f), and 28 U.S.C. §§ 1331 and 1345. Pursuant to 28 U.S.C. § 1391, venue is proper in this District because the claim arose within this District. This Court has authority to grant equitable relief and monetary damages pursuant to 42 U.S.C. § 12117(a) and 28 U.S.C. §§ 2201 and 2202.
2.Maple Lawn Nursing Home, is a nursing home, owned and operated by Marion County, Missouri. Defendant is an employer within the meaning of Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and covered entity within the meaning of Section 101(2) of the ADA, 42 U.S.C. §12111(2).
3.The Charging Party is a qualified individual with a disability within the meaning of title I of the ADA, 42 U.S.C. §12102(2) and 29 C.F.R. §1630.2(g).
Specific Relief to Be Offered to the Charging Party by Marion County
4.Upon execution of this Order, Marion County will offer, by letter to the Charging Party, to pay her $25,000.00 as damages for any and all losses sustained as a result of Maple Lawn’s alleged actions.
5.Marion County will send a copy of the executed Consent Order, along with a letter (substantially similar to and including all information contained in Exhibit 1), and Release of All Claims, and any other necessary administrative forms, to the Charging Party. In order to accept the relief offered, the Charging Party must return an executed Release of All Claims to counsel for Marion County within 60 days of her receipt of the County’s offer letter.
6.Marion County will send counsel for the United States a copy of Exhibits 1 and 2 when they are sent to the Charging Party. If the Charging Party accepts Marion County’s offer to pay $25,000.00, Marion County will pay her that sum within 21 days of receipt of her signed Release of All Claims.
7.Marion County will notify counsel for the United States when it has completed the actions described in paragraphs 4?]6. If the Charging Party accepts Marion County’s offer to pay $25,000.00, Marion County will provide counsel for the United States a copy of the check and transmittal letter sent to her.
Policies to Be Adopted by Marion County Nursing Home District Inc.
8.Defendant, by and through its officials, agents, employees and all persons in active concert or participation with Maple Lawn Nursing Home, shall not engage in any act or practice that has the purpose or effect of unlawfully discriminating against any employee or applicant for employment on the basis of disability, including HIV/AIDS, in violation of the ADA. Defendant will comply with the requirements of title I of the ADA, 42 U.S.C. § 12112.
9.Defendant will not take any adverse employment action, including refusal to hire or termination, against an employee or applicant for employment, on the basis of HIV/AIDS without conducting an individualized assessment. If defendant determines that an employee or applicant for employment cannot perform an essential function of his/her job because the employee has HIV/AIDS, defendant will follow the procedures for providing reasonable accommodations as defined in 42 U.S.C. § 12111(9) and 29 C.F.R. § 1630(o).
10.Defendant will not screen employees, applicants for employment, or applicants to whom a job offer has been extended, for HIV/AIDS.
11.Defendant will employ universal infection control procedures for all health care workers. Defendant will inform all health care workers about routes of transmission and blood borne pathogens, and the proper use of universal precautions.
12.Defendant will not utilize any special monitoring efforts for a health care worker infected with HIV.
13.Defendant will maintain the confidentiality of any health care worker that is infected with HIV, and will instruct all employees with knowledge of a the health care worker’s HIV disease to maintain that confidentiality.
14.Maple Lawn will post a notice in an area used by all employees stating that it does not discriminate against qualified individuals with a disability, on the basis of disability, with respect to hiring, promotion, firing compensation, harassment of other terms conditions or privileges of employment.
15.Defendant shall not retaliate against any person because that person has cooperated with the United States’ investigation of the employment practices at Maple Lawn Nursing Home or any proceedings connected with that investigation or the administration of this Order.
16.The United States may review compliance with this Consent Order at any time and may enforce this Consent Order if the United States believes that it or any requirement thereof has been violated. If the United States believes that this Consent Order or any portion of it has been violated, it will raise its concern(s) with Maple Lawn Nursing Home and the parties will attempt to resolve the concern(s) in good faith. The United States will give Maple Lawn thirty (30) days from the date it notifies Marion County of any breach of this Consent Order to cure that breach, prior to instituting any court action.
17.Failure by the United States to enforce any provision of this Order shall not be construed as a waiver of its right to enforce other provisions of this Order.
18.This Consent Order does not purport to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Consent Order. This Consent Order does not affect Maple Lawn’s continuing responsibility to comply with all aspects of the ADA. However, this Consent Order does resolve all issues raised in the Complaint captioned United States v. Marion County Nursing Home District, Inc. which was filed concurrently with this Order in the Eastern District of Missouri, and EEOC Charge No. 280-A-300308.
19.This Consent Order shall remain in effect for three years from the effective date. The Complaint shall be dismissed with prejudice, except that the United States may petition the Court, at any time during the duration of this Consent Order, to reopen the case for the purpose of enforcing the Order, and the Court shall retain jurisdiction to enforce this Consent Order.
20.This Order shall be binding on the Defendant, its agents and employees. In the event Marion County seeks to transfer or assign all or part of its interest Maple Lawn Nursing home, and the successor or assignee intends on carrying on the same or similar use of the facility, as a condition of sale, the owner shall obtain the written accession of the successor or assign to any obligations remaining under this Order for the remaining term of the Order.
21.The effective date of this Consent Order is the date on which the Court enters this Consent Order.
22.This Consent Order constitutes the entire agreement between the parties relating to EEOC Charge No. 280-A-300308 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 Consent Order, including its attachments, shall be enforceable.
23.The individuals signing this Consent Order represent that they are authorized to bind the parties to this Consent Order.
For and in consideration of the acceptance of the monetary relief offered to me by Marion County Nursing Home District, Inc. pursuant to a Consent Order between the United States of America and the Marion County Nursing Home District, Inc:
I, Kim Robertson, release and discharge Marion County Nursing Home District, Inc and its current, former, and future agents, employees, officials, and designees, of and from all legal and equitable claims, related to my employment with the Maple Lawn Nursing Home or EEOC charge No.280 A 300308 which I filed with the Equal Employment Opportunity Commission on or about . I further agree that I will not exercise my right to institute against the above entities any civil action alleging employment discrimination on the basis of EEOC charge No. 280 A 300308, or any of the facts alleged therein.
I understand that the payment offered to me does not constitute an admission by Marion County Nursing Home District, Inc of the validity of any claim raised by me or on my behalf. I acknowledge that a copy of the Consent Order between Marion County Nursing Home District, Inc and the United States of America resolving the matter between them has been made available to me. This Release constitutes the entire agreement between myself and Marion County Nursing Home District, Inc without exception or exclusion. This Release will be voidable in the event that Marion County Nursing Home District, Inc fails to send a check for the monetary compensation of $25,000.00 within 21 days of receipt of this executed Release.
I have read this Release and understand the contents thereof and I execute this Release of my own free act and deed.
May 11, 2007