SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND PONY BASEBALL, INC.,


UNDER THE AMERICAN"S WITH DISABILITIES ACT

DEPARTMENT OF JUSTICE COMPLAINT NUMBER 202-21-37


BACKGROUND AND PARTIES     

1.     The parties to this Settlement Agreement (“Agreement”) are the United States of America and PONY Baseball, Inc., (“PONY”), a youth baseball and softball organization that includes affiliated leagues and is headquartered in Washington, Pennsylvania.

2.     This matter was initiated by a complaint filed by Justin Tokioka (“Complainant”) with the Department of Justice (“Department”) against PONY under title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189 and its implementing regulation, 28 C.F.R. Part 36.

3.     The Department is the federal agency responsible for administering and enforcing title III of the ADA.

4.     PONY operates places of public accommodation, including the facilities where PONY games are played, and is covered by title III of the ADA. 42 U.S.C. § 12182(a); 42 U.S.C. § 12181(7)(C), (I), (L).

5.     The ADA prohibits a covered entity, such as PONY, from discriminating against an individual on the basis of disability in the full and equal enjoyment of the entity’s goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(a). Such discrimination includes the failure to provide an individual with an equal opportunity to participate and the denial of reasonable modifications and auxiliary aids. 42 U.S.C. §§ 12182(b)(1)(A)(ii); (b)(2)(A)(ii),(iii). The ADA also prohibits the utilization of administrative methods that have the effect of discriminating based on disability, 42 U.S.C. § 12182(b)(1)(D), and interference with individuals exercising rights protected by the ADA. 42 U.S.C. § 12203(b). Ensuring that a youth league does not discriminate against persons who are deaf or hard of hearing is an issue of general public importance.

6.     Complainant, who is deaf, alleges that PONY violated the ADA by taking actions that prohibited him from having effective communication during the 2005 Mustang Regional Tournament in Hilo, Hawaii and by denying his subsequent requests for modification of PONY’s Baseball Rules. PONY denies the Complainant’s allegations and asserts that PONY modified its rules to permit Complainant’s father to stand next to the dugout. The Department has investigated the Complainant’s allegations and finds them to be meritorious.

7.     The Department finds that PONY violated the ADA by denying Complainant full and equal enjoyment of their goods and services. Specific violations include failing to provide an equal opportunity to participate, failing to make a reasonable modification, and failing to provide an auxiliary aid. The Department also finds that PONY utilized administrative methods that have the effect of discriminating based on disability, and that they interfered with Complainant’s exercise of rights protected by title III of the ADA. PONY denies any violation of the ADA. The parties agree that settlement of this matter without litigation is in the public interest and that execution of this Agreement is the most appropriate means of resolving this matter. In exchange for the actions that PONY agrees to take as part of this Agreement, the Department agrees not to institute or be a party to any lawsuit filed against PONY based on the findings listed above, except as provided in paragraph 22 below.

DEFINITIONS

8.     “Effective communication” means communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is afforded to other individuals. 28 C.F.R. § 36.303.

9.     “PONY Baseball Rules” means the rules and regulations issued by PONY Headquarters for use by PONY baseball leagues and PONY tournaments.

10.     “PONY Headquarters” means the national office of PONY Baseball, Inc. located in Washington, Pennsylvania, and the employees and volunteers who are affiliated with that office.

11.     “PONY Officials” means all PONY employees and volunteers including, but not limited to, officials who supervise PONY tournaments and team coaches.

12.     “PONY Softball Rules” means the rules and regulations issued by PONY Headquarters for use by PONY softball leagues and PONY tournaments.

13.     “Qualified sign language interpreter” means an interpreter who is able to interpret competently, accurately and impartially, both receptively and expressively, using any specialized terminology necessary for the setting (i.e., baseball or softball), to a player who is deaf or hard of hearing. Someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter” under this Agreement. Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter.

REMEDIAL ACTIONS

14.     At the PONY Baseball, Inc., Fall 2006 Board of Directors meeting (“2006 Board Meeting”) PONY shall amend the PONY Baseball and Softball Rules to include the following language:

A. A request for reasonable modification to PONY [Baseball/Softball] Rules by an individual with a disability, or their representative, shall be accepted by any employee of PONY Headquarters and any PONY official with responsibility for organizing or supervising PONY games. PONY shall allow such a modification unless the modification would fundamentally alter an essential aspect of PONY’s [Baseball/Softball] program. If an official believes that a proposed modification would fundamentally alter an essential aspect of PONY’s [Baseball/Softball] program, the official should consult the PONY ADA Coordinator. The ADA Coordinator will, after an appropriate individualized inquiry that includes consideration of the player’s specific circumstances and the purpose of the rule, policy, or practice at issue, decide whether to allow the modification. Written notice shall be provided to the requestor of the modification within four (4) business days of the request. Although PONY will respond appropriately and in a reasonable amount of time to a request for reasonable modification regardless of when it is received, it is highly recommended that players and their families provide notice of such a request in league registration materials prior to the start of the season and in tournament registration materials prior to the start of a tournament.

B. PONY [Baseball/Softball] Rules do not limit players’ rights to sign language interpreters, or other auxiliary aids, during regular season and tournament games. Rules limiting persons allowed in team dugouts shall not apply to sign language interpreters. In situations where PONY’s [Baseball/Softball] Rules allow coaches to be in areas other than the dugout, a sign language interpreter shall be allowed to accompany coaches in order to provide communication to a player. Any concerns with the selection of sign language interpreters or the location of such interpreters during games shall be addressed to the PONY ADA Coordinator. Although PONY will respond appropriately and in a reasonable amount of time to a request for a qualified sign language interpreter or other auxiliary aid regardless of when it is received, it is highly recommended that players and their families provide notice of such a request in league registration materials prior to the start of the season and in tournament registration materials prior to the start of a tournament.

15.     Within two (2) months of the date of this Agreement PONY Headquarters will add the following language to league and tournament registration materials, by insertion of additional pages or otherwise:

PONY players who, because of a disability, need a reasonable modification to PONY’s rules, policies, or practices in order to participate fully and equally in PONY games should describe in the space below the modification needed and how the modification would avoid discrimination, including how the modification will address the player’s disability. [Note that PONY may refuse any request that will result in a fundamental alteration to an essential aspect of PONY’s program.]

PONY players who are deaf or substantially limited in hearing may use a sign language interpreter, or other auxiliary aid, during games. PONY and/or the local league shall ensure that any such player who requests a qualified sign language interpreter is provided with such an interpreter free of charge. If a player prefers to instead select and pay for his or her own sign language interpreter, or use an acquaintance as an interpreter (i.e., a family member), this is permitted under PONY rules. If you need a sign language interpreter, or other auxiliary aid, please provide the following information:

Describe the auxiliary aid that would provide effective communication based on your communication needs:

Do you want PONY and/or the local league to ensure that you have a qualified sign language interpreter free of charge? Yes ____ No ____

If you are providing your own sign language interpreter, please provide that individual’s contact information here:

16.     Within two (2) weeks of the effective date of this Agreement, PONY Headquarters shall designate one person to be PONY’s ADA Coordinator. This individual shall have knowledge of and receive training about title III of the ADA, shall attend the title III training described in paragraph 17 below, and shall, at least once a year, review PONY’s compliance with this settlement agreement, title III of the ADA (42 U.S.C. §§ 12181-12189), the regulation enforcing title III of the ADA (28 C.F.R. Part 36), and the ADA Title III Technical Assistance Manual. The ADA Coordinator shall ensure that auxiliary aids, including sign language interpreters, are available to players with hearing impairments pursuant to paragraphs 14B and 15 above. The ADA Coordinator shall also be responsible for ensuring that PONY responds promptly and properly to any request for reasonable modification, and that such requests are responded to in accordance with paragraph 14A. When the ADA Coordinator receives a request for auxiliary aid, or a PONY Official contacts the ADA Coordinator to recommend the denial of a modification request, the ADA Coordinator shall communicate directly with the requesting party, or the requesting party’s representative, to ascertain the nature of the player’s disability and the reason for the request. If after careful consideration of the request the ADA Coordinator denies a request for modification or auxiliary aid, he or she shall make every effort to work with the player to find an alternative that will allow the player to participate fully and equally in PONY’s games. The ADA Coordinator’s contact information shall be included in the PONY Rules and posted on PONY’s website.

17.      Within three (3) months of the date of this Agreement PONY Headquarters shall schedule a training on title III of the ADA for all members of the PONY Baseball, Inc., Board of Directors to be held at the 2006 Board Meeting. The training shall address ADA compliance regarding children with disabilities including, but not limited to, reasonable modification requests and requests for auxiliary aids, including interpreters.

18.     Within two (2) weeks of the 2006 Board Meeting, PONY Headquarters shall notify, via email, PONY league presidents, vice presidents, or league contacts of the above changes to PONY’s Rules, league registration materials, and tournament registration materials. PONY Headquarters shall also post such notification on its website within two (2) weeks of the 2006 Board Meeting.

19.     Six (6) months following the entry of this Agreement, and every six months thereafter for the duration of this Agreement, PONY Headquarters shall provide a written report to the Department regarding its efforts to comply with this Agreement. The report should describe each request by a player with a disability or their representative for reasonable modification or auxiliary aid about which the ADA Coordinator was consulted, including but not limited to requests related to a sign language interpreter, and PONY’s response to such requests. It should also include names and contact information for the individuals involved in making the request and all PONY Officials who participated in any decision-making related to responding to the request. Finally, the report shall contain a written statement of any decision and, in the case of a denial of any modification or auxiliary aid, an explanation of the reasons for such denial. In the event that the Department becomes aware of information suggesting or alleging PONY’s failure to comply with these decision-making or reporting requirements, the Department may request relevant documents and PONY agrees to provide such documents promptly upon request.

20.     Within thirty (30) days of the effective date of this Agreement, PONY will send a check payable to Beth Tokioka and James Tokioka, as parents and guardians of the minor Justin Tokioka and for the benefit of Justin Tokioka, for damages in the amount of $30,000.00 pursuant to 42 U.S.C. § 12188(b)(2)(B) and 28 C.F.R. § 36.504(a)(2). The check should be sent by certified mail to the address provided by the Department. A copy of the check and the accompanying letter shall be sent to counsel for the United States. Payment of attorney’s fees to Complainants counsel will be the subject of a separate agreement.

21.     PONY’s obligations under paragraph 20 shall be contingent upon PONY’s receipt of the executed release attached as Exhibit

ENFORCEMENT

22.     The Department may review compliance with this Agreement at any time. If the Department believes that PONY has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms and/or that PONY has violated title III of the ADA, the Department will so notify PONY in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution within thirty (30) days, or longer if by agreement of the parties, of the date it provides written notice to PONY of a breach of the Agreement and/or a violation of title III of the ADA, the Department may institute a civil action to enforce the Agreement and/or title III of the ADA. The court shall consider any violation of title III of the ADA to be a subsequent violation and may order civil penalties up to $110,000 for each violation. Provisions in this paragraph do not apply to PONY’s obligation to provide information promptly pursuant to the requirements in paragraph 19, above.

23.     For purposes of the immediately preceding paragraph, it is a violation of this Agreement for PONY to fail to comply in a timely manner with any of their requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.

24.     Failure by the parties to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of the parties’ rights to enforce other deadlines and provisions of this Agreement.

25.     This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party that is not contained in this written Agreement shall be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect PONY’s continuing responsibility to comply with all aspects of the ADA.

26.     This Agreement shall be binding on PONY, as well as its agents and employees.

27.     This Agreement shall be in full force and effect for a period of three (3) years after the effective date of this Agreement.

28.     The person signing for PONY represents that he or she is authorized to bind PONY to this Agreement.

29.     The effective date of this Agreement is the date of the last signature below.



For the United States:

_______________________________
EDWARD H. KUBO, JR.
United States Attorney
PJKK Federal Building
300 Ala Moana Blvd., #6-100
Honolulu, HI 96850






WAN J. KIM
Assistant Attorney General
Civil Rights Division

_____________________________  
JOHN WODATCH, Chief
RENEE M.WOHLENHAUS, Deputy Chief
David M. Booth, Trial Attorney
Jennifer Lakin, Trial Attorney
Disability Rights Section - NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Date:     8/17/06    

For PONY:
By:_____________________________
     Abraham Key, President
     PONY Baseball, Inc.


Date:     8/16/2006    


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EXHIBIT 1 
RELEASE OF ALL CLAIMS

For and in consideration of the acceptance of the relief offered by PONY pursuant to the Settlement Agreement between PONY and the United States of America and a separate agreement for attorney’s fees signed on the same day:

We, James Tokioka and Beth Tokioka, on behalf of ourselves and our son Justin Tokioka, a minor, release and discharge PONY, and their current, former, and future agents, employees, officials, and designees of and from any and all actions, causes of action, claims or demands, of whatever kind or nature related to Justin Tokioka’s participation in the 2005 Mustang Tournament in Hilo, Hawaii and our subsequent request that PONY modify its rules.

We acknowledge that a copy of the Settlement Agreement resolving the matter between the parties has been made available to us.

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

Signed this     16th     day of     August, 2006.    

___________________________________
James Tokioka

Social Security Number _______________

___________________________________
Beth Tokioka

Social Security Number _______________


Subscribed and sworn to before me this

    16th     day of     AUGUST    , 2006.

________________________________
Notary Public


My Commission expires on:         30 MAY 2008        




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