Background and Jurisdiction
1. The parties to this agreement are the United States of America and Portable Practical Educational Preparation, Inc. (PPEP) (collectively the Parties).
2. PPEP is a public accommodation within the meaning of 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104, because it owns and operates a place of education in Tucson, Arizona. The facility provides educational opportunities to a variety of individuals. The place of education that PPEP owns and operates is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) and 28 C.F.R. § 36.104. Title III requires that public accommodations not discriminate against any individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, 42 U.S.C. § 12182.
3. This matter was initiated by a complaint against PPEP and filed with the U.S. Department of Justice, Civil Rights Division, and subsequently referred to the United States Attorneys Office for the District of Arizona, the jurisdiction in which the action took place. The complaint was investigated by the United States Attorneys Office for the District of Arizona under authority granted by Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12188. According to the complaint, PPEP violated Title III of the Americans with Disabilities Act (ADA) by failing to provide and pay for a qualified sign language interpreter necessary for effective communication between the complainant and PPEP staff during classes conducted on February 1, 2003, and February 8, 2003. A third organization named Community Outreach Program for the Deaf bore the cost of providing qualified sign language interpreters for the class.
4. The ADA and its implementing regulations require that public accommodations . . . furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. § 36.303(c); 42 U.S.C. § 12182(b)(2)(A)(iii).
5. The term qualified sign language interpreter as used here in shall mean: an interpreter who is able to interpret competently, accurately, and impartially for a patient or companion who is deaf or hearing impaired, both receptively and expressively, using specialized terminology necessary for effective communication in an educational setting. Someone who has only a rudimentary familiarity with sign language or finder spelling is not a qualified sign language interpreter under the 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 else signing and change their signed or finger spelled communication into spoken words is not a qualified sign language interpreter. See 28 C.F.R. §§ 35.104 and 36.104.
6. The Parties desire to settle this matter without resorting to litigation and have, therefore, entered into this Settlement Agreement.
The Parties agree as follows:
7. The Attorney General of the United States is authorized, pursuant to section 308(b)(1)(B) of the ADA, to bring a civil action under Title III, enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this Agreement, the Attorney General agrees to refrain from undertaking further investigation of this complaint or from filing civil suit under Title III of the ADA pursuant to the facts alleged in the Complaint, so long as PPEP carries out its obligations as set forth in this Agreement.
8. PPEP shall provide auxiliary aids and services, including qualified sign language interpreters, where necessary to ensure effective communication with individuals with disabilities, unless to do so would pose an undue burden. 28 C.F.R. § 36.303(c); 42 U.S.C. § 12182(b)(2)(A)(iii); and 28 C.F.R. 36.104. Any claim that the provision of auxiliary aids and services constitutes an undue burden shall be measured against the overall financial resources of PPEP against the cost to provide the auxiliary aid and service. PPEP shall not impose a surcharge on the persons using the auxiliary aids and services for the costs associated with providing auxiliary aids and services. 28 C.F.R. § 36.301(c).
9. PPEP will, within 30 days of the effective date of this Agreement, maintain a list of qualified sign language interpreters and/or agencies providing interpreter services for the purpose of fulfilling requests for interpreter services. In cases where an interpreter is needed to ensure effective communication, an interpreter will be provided upon five (5) business days notice. In cases where an individual requests an interpreter with less than five (5) business days notice, PPEP shall make every effort to secure interpreting services within the specified time frame.
10. Within seven (7) days of the effective date of this Agreement, PPEP will post a sign in its facilities, in a conspicuous location, where it can be seen by both students and staff, stating:
In compliance with the Americans with Disabilities Act, Portable Practical Educational Preparation, Inc., will provide auxiliary aids and services, including qualified sign language interpreters, when they are necessary for effective communication.
11. Within 30 days of the effective date of this Agreement, PPEP will incorporate the provisions of this Settlement Agreement into a written office policy, which will be distributed to all current and future employees.
12. PPEP agrees and will, within 30 days of the effective date of this Agreement, ensure that its staff participates in a mandatory training program about the ADA and the obligations to provide accommodations to students with disabilities, including the provision of auxiliary aids and services.
13. The ADA authorizes the United States Attorney General to seek a court award of
compensatory damages on behalf of individuals aggrieved as the result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(B); 28 C.F.R. § 36.504(a)(2). The ADA also authorizes the United States Attorney General to seek a civil penalty as a result of violations of the ADA. 42 U.S.C. § 12188(b)(2)(C); 28 C.F.R. § 36.504(a)(3). Within seven (7) days of the effective date of this Agreement, PPEP agrees to pay Community Outreach Program for the Deaf the sum of seven hundred dollars ($700.00). The payment is to be made by check payable to Community Outreach Program for the Deaf, and is to be delivered to the U.S. Attorneys Office, Attention: Ronald R. Gallegos, Two Renaissance Square, 40 N. Central Ave., Suite 1200, Phoenix, Arizona, 85004.
14. The Parties acknowledge and agree that each party will be responsible for paying their own attorneys fees and costs.
15. Failure by the Department to enforce this entire Agreement or any provision thereof shall not be construed as a waiver of its right to do so with regard to any other provisions of this Agreement.
16. The Department may review compliance with this Agreement at anytime. In the event that PPEP fails to comply in a timely fashion with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department as to a temporary modification of the relevant terms of this Agreement, the Department may take the position that such failure shall constitute a subsequent violation, within the meaning of 42 U.S.C. § 12188(b)(2)(C)(ii), and PPEP shall correct this noncompliance within thirty (30) days of being notified of the noncompliance. The Department agrees to provide written notice to PPEP of any such alleged noncompliance, and the Parties agree to refrain from the filing of any lawsuit premised upon such noncompliance if it is corrected within the thirty (30) day cure period.
17. If PPEP fails to take required corrective action described in paragraph 16 of this Agreement, without prior written approval of the Department, it shall be liable to the Department for a civil penalty of no less than one thousand dollars ($1000) for each required action not taken, in addition to any appropriate compensatory damages caused by PPEPs failure to comply. If the Parties dispute liability in any such situation, and cannot resolve the dispute, they may appeal to a court of competent jurisdiction to determine liability. In addition, the Department may seek enforcement of this Agreement under the ADA.
18. This Agreement is a public document. A copy of this document, or any information concerning its contents, may be made available to any person.
19. The effective date of this Agreement is the date of the last signature below, and it will remain in effect for two (2) years.
20. This Agreement constitutes the entire agreement between the U.S. Department of Justice and PPEP on the matters raised herein. This Agreement is limited to the facts set forth in paragraphs 1 through 3 above, and it does not purport to remedy any other potential violations of the ADA or of any other Federal Law. This Agreement does not affect PPEP's continuing responsibility to comply with all aspects of the ADA.
21. This agreement shall be binding on PPEP, its agents and employees. In the event PPEP seeks to transfer or assign all or part of its interest in any facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale PPEP shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement.
|PAUL K. CHARLTON
United States Attorney
District of Arizona
RONALD R. GALLEGOS
Assistant United States Attorney
John David Arnold, CEO
Portable Practical Educational Preparation, Inc.
February 24, 2005