IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

 

UNITED STATES OF AMERICA,

 

Plaintiff,

 

v.

 

THE METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, CIVIL ACTION NO.

TENNESSEE, acting by and through

the Metropolitan Fire Department,

Emergency Ambulance Service,

 

Defendant.

 

 

 

ROBERT J. MATHER

BEBE NOVICH

Attorneys for Plaintiff

Civil Rights Division

U. S. Department of Justice

P. O. Box 66738

Washington, D.C. 20035-6738

(202) 307-2236

(202) 616-2313

 

WM. MICHAEL SAFELY

Attorney for Defendant

Department of Law

Metropolitan Government

of Nashville and Davidson County

204 Metro Courthouse

Nashville, Tennessee 37201

(615) 862-6341


CONSENT DECREE

 

 

 

This action was brought by the United States against the Metropolitan Government of Nashville and Davidson County to enforce the provisions of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12111-12117. In its complaint, the United States alleges, inter alia, that the Metropolitan Government of Nashville and Davidson County (hereinafter collectively "Defendant") discriminated against Mr. Ola on the basis of disability by failing or refusing to hire him as an emergency medical technician-paramedic in January 1994, despite Mr. Ola's successful completion of all components of the selection process and despite the fact that Mr. Ola was certified by the State of Tennessee as an EMT-P and capable of performing the essential functions of the position. At that time, he had been working part-time in the position of paramedic in Sumner County, Tennessee, for over a year and in Hickman County, Tennessee, for more than five years. This Consent Decree resolves all issues raised by the complaint.

 

The parties, desiring that this action be settled by appropriate Consent Decree and without the burden of protracted litigation, agree to the jurisdiction of the Court over the parties and the subject matter of this action. The parties hereby waive, for the purpose of this Consent Decree only, a hearing and findings of fact and conclusions of law on all issues, and further agree to the entry of this Consent Decree as final and binding among themselves as to the issues raised in the complaint.

 

It is therefore ORDERED, ADJUDGED AND DECREED as follows:

 

A. PROSPECTIVE RELIEF

 

1. The Defendant, by and through its officials, agents, employees and all persons in active concert or participation with the Defendant, is enjoined from refusing to hire applicants on the basis of disability in violation of Title I of the ADA. Defendant shall evaluate, on an individualized basis, every applicant's ability to perform the essential functions of the job, including considering his/her current physical abilities to perform the essential functions of the job with or without an accommodation. Defendant shall also perform such an individualized assessment if it makes a job offer to an applicant contingent upon passing a medical examination of his/her physical condition.

 

2. In making any employment decision (including making a conditional job offer), the Defendant shall not utilize any personnel standards, including but not limited to medical/physical standards (e.g., standards issued by the National Fire Protection Association) that require automatic, absolute, or categorical exclusions or other limitations of applicants or employees based on those applicants' or employees' physical conditions. All hiring decisions shall be based on an individualized assessment, as described in paragraphs three (3) and four (4) below.

 

3. Before rejecting an applicant on the basis that he/she poses a direct threat to the health or safety of himself/herself or others, the Defendant shall perform an individualized assessment within the meaning of 29 C.F.R. 1630(r). This individualized assessment shall include a consideration of all relevant factors including the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. In evaluating those factors, the Defendant will consider all relevant information, including, but not limited to, information specified in 29 C.F.R 1630(r) and the interpretive guidance to that section: for example, input from the applicant, the experience of the applicant within previous similar positions, and the opinions of medical doctors, and other professionals or associates of the applicant who have expertise in the medical condition involved and/or direct knowledge of the applicant.

 

4. Before rejecting an applicant on the basis that he/she poses a direct threat, the Defendant shall advise the applicant of the reasons for the proposed rejection, including each essential function of the job which Defendant believes the applicant cannot perform and all of the reasons why Defendant believes the applicant cannot perform those functions, and invite him/her to provide, within a reasonable time, additional information in regard to his/her ability to perform the job, with or without an accommodation, including but not limited to information from other physicians and information about his/her current and recent physical capabilities as described in paragraph three (3). The Defendant shall evaluate this information in good faith to determine whether the applicant can perform the essential functions of the position with or without reasonable accommodation.

 

5. The Defendant shall provide ADA training to all Fire Department personnel who participate in making hiring, firing, promotion, and personnel decisions, and to medical personnel hired to evaluate applicants. Such training shall include at least the provisions of paragraphs two (2) through four (4). Within five (5) business days after the training has been completed, the Defendant shall provide to the Plaintiff written certification that it has conducted such training.

 

6. Within sixty (60) days of entry of this Consent Decree, the Defendant shall review and where necessary modify its application, selection, promotion, evaluation, and termination procedures and standards to ensure that such procedures and standards comply with Title I of the ADA. This review shall include modifications to ensure compliance with paragraphs two (2) through four (4).

 

7. The Defendant shall post notices (in the form of Appendix A) in conspicuous places at the Metro Courthouse, at the fire headquarters, and at all fire stations and substations. The notices shall remain posted for six (6) months from the date of entry of this Consent Decree.

 

8. The Defendant, by and through its officials, agents, employees and all persons in active concert or participation with the Defendant, is enjoined from retaliating against Mr. Ola or any other person because that person has opposed policies or practices he or she believes to discriminate on the basis of disability, has filed an EEOC charge, or because of that person's participation in or cooperation with the initiation, investigation, litigation or administration of the charge on which the complaint in this case is predicated or this Consent Decree.

 

 

B. INDIVIDUAL REMEDIAL RELIEF

 

9. The Defendant shall offer Mr. Ola a monetary award of $49,296.74 in back pay for the period up to June 25, 1997, and additional back pay for the period thereafter in such event that hiring occurs after that date.

 

10. The Defendant shall offer Mr. Ola a monetary award of

$4,999.00 in compensatory damages, for any claims arising out of or related to the instant action. The Defendant will not require Mr. Ola to accept instatement to an EMT-P position to be entitled to this monetary award, or the monetary award provided for in paragraph nine (9) of this Consent Decree.

 

11. The Defendant shall offer Jeffrey A. Ola employment as an EMT-P in the Metropolitan Fire Department's Emergency Services Division. The Defendant shall not condition this offer on the completion of any probationary period, training, test, or attendance at any fire academy. Should Mr. Ola accept the offer of instatement, his seniority date as an EMT-P will be February 1, 1994, for all purposes for which seniority is computed or considered, including but not limited to pay step increases, promotions, vacations, assignments and pension. If Mr. Ola accepts this offer of instatement to an EMT-P position, the Defendant shall separately pay the full contribution, including the employee's contribution, to the Metropolitan Fire Retirement System sufficient to place Mr. Ola for pension purposes in the position of an employee with a seniority date for retirement purposes of February 1, 1994.

 

12. Should Mr. Ola accept the offer of instatement to an EMT-P position, the Defendant shall credit Mr. Ola with the full vacation leave, sick leave, personal leave and any other leave, and any other accumulated benefits, that Mr. Ola would have received or been credited with had he been hired on February 1, 1994.

 

13. In order to accept any of the relief to be offered by the Defendant under this Consent Decree, Mr. Ola must complete a Release and Election of Remedies form (Appendix C). Within ten (10) days of the Defendant's receipt of Mr. Ola's executed Release and Election of Remedies form, the Defendant shall pay to Mr. Ola the monetary award described in paragraphs nine (9) and ten (10) of this Consent Decree. In addition, should Mr. Ola accept the position of EMT-P, the Defendant shall hire Mr. Ola and begin paying his salary within ten (10) days of the Defendant's receipt of Mr. Ola's executed Release and Election of Remedies form.

 

 

C. IMPLEMENTATION

 

14. The Defendant agrees to notify Mr. Ola of the terms of this Consent Decree within three (3) days of its entry by mailing to him, by certified mail, return receipt requested, a copy of the letter in the form set forth in Appendix B and enclosing a copy of the Consent Decree and a copy of the Release and Election of Remedies form attached as Appendix C. The letter identified as Appendix B shall advise Mr. Ola that to accept the relief offered, he must return the executed Appendix C Release and Election of Remedies form to the Defendant within thirty (30) days of his receipt of the Appendix B letter unless he shows good cause for his failure to do so.

 

15. This Consent Decree shall terminate three (3) years from the date of its entry. Prior to its termination any party may move, for good cause shown, to extend the duration of the Consent Decree.

 

 

D. RECORDS

 

16. Within sixty (60) calendar days after entry of this Consent Decree, the Defendant shall provide counsel for the United States a report showing the disposition of individual relief for Mr. Ola pursuant to this Consent Decree and copies of all the documents contained in Mr. Ola's personnel file. Within fourteen (14) calendar days of the completion of the examination and modification of procedures described in paragraph six (6), the Defendant shall forward to the Plaintiff copies of all selection procedures and policies related to the hiring of emergency medical technicians-paramedics in the Metropolitan Fire Department. In addition, the Defendant shall make available for inspection and copying, within fourteen (14) calendar days after receipt of a request by the Plaintiff, through its counsel, all documents used for the Defendant's compliance with and implementation of this Consent Decree.

 

It is so ORDERED, this _____ day of ________, 1997.

 

____________________________

HON.

UNITED STATES DISTRICT JUDGE

 

Agreed and Consented to:

 

 

________________________

CHIEF NORMAN DOZIER

Director of Fire

Metropolitan Fire Department

 

 

________________________ ________________________

WM. MICHAEL SAFELY ROBERT J. MATHER

Attorney for Defendant BEBE NOVICH

Department of Law Attorneys for Plaintiff

Metropolitan Government Civil Rights Division

of Nashville and Davidson P. O. Box 66738

County Washington, D.C. 20035-6738

204 Metro Courthouse (202) 307-2236

Nashville, Tennessee 37201 (202) 616-2313

(615) 862-6341

 

 



Appendix A

Appendix B

Appendix C


black divider line

APPENDIX A

 

NOTICE TO EMPLOYEES

 

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of disability. The ADA makes it unlawful to discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.

 

The Equal Employment Opportunity Commission ("EEOC") is the federal agency primarily responsible for investigating individual charges of discrimination under Title I of the ADA. Any individual who believes that he or she has been discriminated against in violation of the ADA, or who desires more information on the ADA or other employment discrimination statutes can contact the EEOC at the following address and phone number:

 

Equal Employment Opportunity Commission

Nashville District Office

50 Vintage Way

Suite 202

Nashville, Tennessee 37228-9940

Phone No. (615) 736-5820

FAX No. (615) 736-2107

TDD No. (615) 736-5870

 

The Metropolitan Government of Nashville and Davidson Government, supports and will comply with the ADA in all respects.

 

 

 

____________________ _________________________________

Date Signature

 

_________________________________

Title

 

 


APPENDIX B

 

NOTICE LETTER

 

United States v. The Metropolitan Government of Nashville and Davidson Government, Tennessee, Case No. 97-CV- - (M.D. Tenn.) (Hon. )

 

[Date]

 

Jeffrey A. Ola

622 Beech Street

Centerville, Tennessee 37033

 

Dear Mr. Ola:

A Consent Decree has been entered settling a complaint of employment discrimination filed by the United States against the Metropolitan Government of Nashville and Davidson Government, Tennessee ("the Defendant") in the case United States v. The Metropolitan Government of Nashville and Davidson Government, Tennessee, Case No. 97-CV- - (M.D. Tenn) (Hon. ).

Under the terms of the Consent Decree entered on [date], we are offering you a monetary award and instatement to the position of emergency medical technician-paramedic with the Metropolitan Fire Department with a seniority date as an emergency medical technician-paramedic of February 1, 1994. We enclose a copy of the Consent Decree. Please review it carefully.

As a monetary award, we are offering you $54,295.74. You may obtain the monetary award by completing and returning the enclosed Release and Election of Remedies form to the following address:

 

Wm. Michael Safely

Department of Law

Metropolitan Government

of Nashville and Davidson County

204 Metro Courthouse

Nashville, Tennessee 37201

 

You must sign and notarize the Release and Election of Remedies Form before you return it.

 

We offer the monetary award to you on the following condition: if you accept it, we will require you to release the Defendant from all employment discrimination claims you may have against it on the basis of your disability arising out of this case and EEOC Charge No. 253-94-0476.

If you accept the monetary award, the Defendant will send you a check for the monetary award within ten days of the Defendant's receipt of your Release and Election of Remedies Form.

IF YOU FAIL TO SUBMIT THE RELEASE, AS DIRECTED IN THIS LETTER, WITHIN THIRTY (30) DAYS FROM YOUR RECEIPT OF THIS LETTER, YOU WILL FORFEIT YOUR RIGHTS TO ANY MONETARY AWARD UNDER THIS CONSENT DECREE, UNLESS YOU CAN SHOW GOOD CAUSE FOR YOUR FAILURE TO DO SO WITHIN A REASONABLE TIME THEREAFTER.

If you have any questions concerning this settlement, you may contact Robert Mather or Bebe Novich, the attorneys for the United States Department of Justice at (202) 307-2236 or 616-2313.

 

 

Sincerely,

 

 

___________________________

Wm. Michael Safely, Esquire

Attorney

The Metropolitan Government

 

Enclosures


APPENDIX C

 

RELEASE AND ELECTION OF REMEDIES FORM

United States v. The Metropolitan Government of Nashville and Davidson Government, Tennessee, Case No. 97-CV- - (M.D. Tenn) (Hon. )

 

STATE OF TENNESSEE

COUNTY OF DAVIDSON

 

For and in consideration of the payment of a monetary award and/or instatement to the position of emergency medical technician-paramedic with a seniority date of February 1, 1994, made by The Metropolitan Government of Nashville and Davidson Government (hereinafter "the Defendant") pursuant to the provisions of the Consent Decree entered by the Honorable [ , United States District Judge, on [date] in United States v. The Metropolitan Government of Nashville and Davidson Government, Tennessee, Case No. 97-CV- - (M.D. Tenn) (Hon. ), I, Jeffrey A. Ola, hereby release and forever discharge the Metropolitan Government, its current and past and future officials, employees and agents, of and from any legal and equitable claims arising out of United States v. The Metropolitan Government of Nashville and Davidson Government, Tennessee, Case No. 97-CV- - (M.D. Tenn) (Hon. ), and any and all claims arising out of EEOC Charge 253-94-0476.

This Release constitutes the entire agreement between myself and the Metropolitan Government without exception or exclusion.

I acknowledge that the Metropolitan Government has made a copy of the Consent Decree in this action available to me.

I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.

 

Signed this _____ day of ________, 1997.

 

 

__________________________________

Jeffrey A. Ola

 

Social Security Number__________________

 

Other Identification____________________

 

Sworn and subscribed to before me this _____day of ____________, 1997.

 

__________________________________

NOTARY PUBLIC

 

My commission expires:____________

 

ELECTION OF REMEDIES

 

Please complete by checking the appropriate response to each following:

A. Monetary Award

__________ I hereby accept the monetary award of $54,295.74 contained in the Consent Decree in the case of United States v. The Metropolitan Government of Nashville and Davidson County, Case No. 97-CV- - (M.D. Tenn) (Hon. ).

 

B. Job Offer Award

__________ I hereby accept the offer of instatement to the position of emergency medical technician-paramedic with the Metropolitan Fire Department contained in the Consent Decree in United States v. The Metropolitan Government of Nashville and Davidson County, Case No. 97-CV- - (M.D. Tenn) (Hon. ).

__________ I decline the job offer award.

 

Date:________________ Signature ________________________________

 

Social Security No. ______________________

 

TO RECEIVE EITHER AWARD, YOU MUST ALSO COMPLETE AND RETURN THE ENCLOSED RELEASE FORM. FAILURE TO RETURN BOTH THIS FORM AND THE RELEASE FORM WITHIN THIRTY (30) DAYS WILL RESULT IN FORFEITURE OF THE AWARDS UNLESS YOU SHOW GOOD CAUSE FOR YOUR FAILURE TO TIMELY RESPOND.

RETURN THE COMPLETED FORMS TO:

 

WM. MICHAEL SAFELY

Attorney for Defendant

Department of Law

Metropolitan Government

of Nashville and Davidson County

204 Metro Courthouse

Nashville, Tennessee 37201

(615) 862-6341




 


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