SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
PUSH MY SWING, INC.
CAMDEN, SOUTH CAROLINA
D.J. No. 202-67-109
I. BACKGROUND AND PARTIES
A. The parties to this Settlement Agreement (“Agreement”) are the United States of America and Push My Swing, Inc. (“Push My Swing”), located in Camden, South Carolina.
B. This matter was initiated by a complaint filed with the United States Department of Justice against Push My Swing, D.J. No. 202-67-109, alleging violations of title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181-12189, and its implementing regulation, 28 C.F.R. Part 36.
C. The Attorney General is authorized to investigate alleged violations of title III of the ADA, and to bring a civil action in federal court if the United States is unable to secure voluntary compliance in any case that involves a pattern or practice of discrimination or that raises issues of general public importance. 42 U.S.C. § 12188(b).
D. Push My Swing provides child care services at one location. Push My Swing is a public accommodation, as defined in section 301(7)(e) of the ADA, 42 U.S.C. § 12181(7)(K), and its implementing regulation, 28 C.F.R. § 36.104.
E. The ADA prohibits public accommodations, including child care centers, from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods and services. 42 U.S.C. § 12182(a). Ensuring that child care centers do not discriminate against persons with disabilities is an issue of general public importance.
F. In the complaint, a parent seeking to enroll her child, who has a mobility disability and wears leg braces, alleges that Push My Swing denied the child admission to the child care center on the basis of disability. Push My Swing initially accepted the child’s application and a check of $25 for the deposit. However, Push My Swing later denied the child admission to the center, stating that its insurance company would not cover her if she fell down, and returned the check to the parent.
G. Push My Swing denies each of the allegations in the preceding paragraph. Furthermore, it asserts that at all times it acted consistently with the ADA.
H. In consideration of the terms of this Settlement Agreement, and in particular the provisions in Section II, the Attorney General of the United States agrees to refrain from undertaking further action in this case, except as provided in Section II(I).
I. The parties agree to resolve this matter as set forth below.
II. TERMS OF AGREEMENT
A. Push My Swing agrees not to discriminate against any child on the basis of disability; that is, it agrees to provide all children with disabilities with an equal opportunity to attend the child care center and to participate in all programs, services, or activities to the extent of nondisabled applicants and/or children.
B. Push My Swing will not refuse to admit any child on the basis of the disability or disabilities unless it concludes that the child poses a “direct threat” as defined by 28 C.F.R. § 36.208, and/or the child’s participation would result in a “fundamental alteration” of the program, service, or activity, as defined by 28 C.F.R. § 36.302.
C. Push My Swing will not use insurance coverage or lack thereof to justify exclusion of individuals with disabilities. A public accommodation may not rely on limitations on coverage to justify exclusions of person with disabilities. Any exclusion must be based on legitimate safety concerns rather than the terms of the insurance contract.
D. The ADA requires that any determination to exclude an individual from participation in a service or activity must be based on an objective standard. A public accommodation may establish neutral eligibility criteria as a condition of receiving goods or services. Accordingly, Push My Swing may adopt a neutral safety policy that is applied fairly to all persons and is not based on myth or stereotype about disability.
E. Push My Swing has adopted the policy, entitled “Push My Swing Nondiscrimination Policy (“Policy”), which is attached hereto as Appendix A and is incorporated herein by reference. Push My Swing further agrees not to modify the Policy, for the duration of this Agreement, without the prior written consent of the Department. Push My Swing will print and maintain copies of the Policy in a central location, provide the Policy to any interested party requesting it, and will incorporate the Policy into its standard operating policies in accordance with applicable state and local law and the ADA.
F. When informed that a child who has applied to the Center has disabilities, Push My Swing will advise the child’s parents, guardians, or caretakers of the Nondiscrimination Policy, and advise that Push My Swing will comply with the policy and all applicable federal, state, and local laws.
G. Push My Swing will maintain a record at its office of all such admission inquiries on behalf of children with disabilities and the disposition of such inquiries for a period of three years from the date of the inquiry.
H. Push My Swing will not retaliate against or coerce in any way any person who is trying to exercise his or her rights under this Agreement or the ADA.
I. Complaints. During the term of this Agreement, Push My Swing will notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging that Push My Swing discriminated against them on the basis of disability. Such notification must be provided in writing via certified mail within fifteen (15) days of when Push My Swing has received notice of the allegation and will include at a minimum, the nature of the allegation, the name of the individual bringing the allegation, and any documentation possessed by Push My Swing relevant to the allegation.
J. Enforcement of Agreement. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that any requirement therein has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will specifically notify Push My Swing’s Director in writing and it will attempt to resolve the issue or issues in good faith. The United States will give Push My Swing thirty (30) days from the date it notifies Push My Swing of any breach of this Agreement to cure that breach, prior to instituting any court action. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to Push My Swing, it may institute a civil action in federal district court to enforce the terms of this Agreement or title III and may, in such action, seek any relief available under the law.
K. Term of the Agreement. The Agreement shall become effective as of the date of the last signature below and shall remain in effect for three years from that date.
L. Entire Agreement. This Agreement, and any appendices attached, constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Agreement or attachments, shall be enforceable regarding the matters raised herein.
M. Copies Available. A copy of this Agreement may be made available by the United States or Push My Swing to any person and will be provided by the United States in hard copy upon request.
N. Resolution of Claims. This Agreement fully and finally resolves any and all of the allegations of the complaint in this case. It does not purport to remedy other potential violations of the ADA by Push My Swing.
O. Binding Effect. This Agreement shall be binding on Push My Swing, its agents, and employees. In the event Push My Swing 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 Push My Swing shall obtain the written accession of the successor or assign to any obligations remaining under this Agreement for the remaining term of this Agreement.
P. Non-waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
Q. Signatory. A signatory to this document in a representative capacity for Push My Swing represents that he or she is authorized to bind that party to this Agreement.
|For Push My Swing, Inc.:||For the United States of America:
GRACE CHUNG BECKER
Acting Assistant Attorney General
for Civil Rights
MS. LULA V. CALDWELL
Push My Swing, Inc.
714 Lafayette Avenue
Camden, SC 29020-3522
JOHN L. WODATCH, Chief
PHILIP L. BREEN,
Special Legal Counsel
RENEE M. WOHLENHAUS,
ROBERT J. MATHER,
Disability Rights Section - NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
|Date ________________________||Date 8/14/2008
PUSH MY SWING
Push My Swing will not deny admission to, terminate enrollment of, or otherwise discriminate against, any child because of that child's disability.
Push My Swing will review this policy yearly and assure at all times that the Center meets the requirements of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12181-89 and its implementing regulation, 28 C.F.R. pt. 36.
Lula V. Caldwell, Director
November 7, 2008