UNITED STATES OF AMERICA,
CITY OF NEW YORK,
No. 13 - CV - 2416
WHEREAS, this Stipulation of Settlement resolves a civil action brought by the United States of America (“United States”) against defendant the City of New York (“City”), regarding the Fire Department of the City of New York’s (“FDNY”) compliance with the provisions of Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq., and its implementing regulations, 29 C.F.R. § 1630.1 et seq.; and
WHEREAS, the United States alleges that the FDNY, an agency of the City, discriminated against Gerald Snell (“Snell”) and other firefighters, in violation of 42 U.S.C. §§ 12112(a) and, 12112(b)(5)(A) and 29 C.F.R. § 1630.2(o)(3), by denying their requests for reasonable accommodation without engaging in an interactive process to, inter alia, identify any limitations resulting from their disabilities as well as potential reasonable accommodations, in positions that do not involve firefighting duties, that could overcome those limitations; and
WHEREAS, this matter was initiated by the charge filed by Snell (Charge Number 520-2006-03046) with the U.S. Equal Employment Opportunity Commission (“EEOC”) on July 27, 2006; and
WHEREAS, the EEOC investigated Snell’s charge and found reasonable cause to believe that discrimination occurred, and after the EEOC’s attempts at conciliation failed, the EEOC referred the charge to the United States Department of Justice, United States Attorney’s Office for the Eastern District of New York (“USAO-EDNY”); and
WHEREAS, the City denies having discriminated against Snell or other firefighters on the basis of disability or other classification protected under the foregoing laws and regulations; and
WHEREAS, as a result of ongoing discussions, the United States and the City (collectively, “the Parties”) have reached an agreement that is in the Parties’ best interests, and the United States believes that it is in the public interest, to resolve this matter on mutually agreeable terms without further litigation. Accordingly, the parties agree, based on this Stipulation of Settlement, to the entry of a judgment without trial or adjudication of any issues of fact or law raised in the United States’ complaint.
1. This Court has jurisdiction of the action under 42 U.S.C. § 2000e-5(f), 28 U.S.C. §§ 1331 and 1345. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391.
2. The United States has authority to initiate legal proceedings to enforce Title I of the ADA through litigation pursuant to 42 U.S.C. § 12117.
3. The City is a municipal corporation and a political subdivision created pursuant to the laws of New York. It is a person within the meaning of 42 U.S.C. § 12111(7) and 42 U.S.C. § 2000e(a), an employer within the meaning of 42 U.S.C. § 12111(5) and 42 U.S.C. § 2000e(b) and a covered entity within the meaning of 42 U.S.C. § 12111(2).
4. The FDNY is an agency of the City, with its headquarters located at 9 MetroTech Center, Brooklyn, New York. FDNY employs firefighters who, among other things, provide firefighting, emergency rescue and other emergency response services in New York City.
5. Gerald Snell (“Snell”) is an individual with a disability within the meaning of 42 U.S.C. § 12102. Snell is a former Fire Captain in the FDNY determined by the New York Fire Department Pension Fund to have been permanently disabled from firefighting duties as a result of pulmonary injuries relating to the search, rescue, recovery and/or cleanup operations at the World Trade Center site in New York City on or after September 11, 2001.
6. The “effective date” of this Stipulation of Settlement shall be the date on which it is “so ordered” by the Court. The parties shall not ask the court to “so order” this Stipulation of Settlement unless each of the following three conditions have been met: a) the parties have executed it; b) Snell has executed each of the documents described in paragraph 14 hereof and has returned the executed documents to the City’s counsel; and 3) Snell has not revoked his general release prior to the expiration of its revocation period.
7. FDNY agrees that it will comply with all of the requirements of the ADA, and that it will not discriminate against qualified firefighters with disabilities, in violation of the ADA.
8. FDNY agrees that, among other things, it will offer reasonable accommodations, including, where appropriate, reassignment, to firefighters with disabilities who are otherwise qualified, consistent with applicable law and in accordance with the reasonable accommodation procedures set forth in Attachment 1 hereto.
9. FDNY agrees to designate an EEO Office employee to address ADA compliance matters. This EEO Office employee shall hold the title of “Disability Rights Coordinator.”
10. The FDNY will ensure that all training manuals or written materials addressing its policies and practices relating to reasonable accommodations for a disability shall be consistent with the provisions of this Stipulation of Settlement.
11. Within ninety days of the effective date of this Stipulation of Settlement, FDNY will provide to current management employees two hours of training on the ADA. FDNY will also provide to newly-hired or newly-promoted management employees, within four months of hiring or promotion, two hours of training on the ADA.
12. In settlement of his claims of discrimination, and subject to the provisions of Paragraphs 13 and 14 below, the City will pay to Snell within sixty (60) days of the effective date of this Stipulation of Settlement, the sum of $7,049.06 in back pay, minus all applicable payroll deductions including pension contributions, which shall be deemed to have been earned in Calendar Year 2006, and which shall be pensionable.
13. Within one hundred twenty (120) days of the effective date of this Stipulation of Settlement, and subject to the provisions of Paragraph 14 below, Snell’s accidental disability pension will be adjusted to reflect the additional FDNY income in Calendar Year 2006 from the back pay award ($7,049.06). This pension adjustment will be retroactive to the date of Snell’s retirement (September 30, 2006).
14. Within fifteen (15) days of the parties’ execution of this Stipulation of Settlement, the City will send to Snell a copy of the signed Stipulation of Settlement, along with a Release of All Claims and a W-9 form to be executed by Snell. In order to accept the relief offered by the City, Snell must execute and return the Release of All Claims and the W-9, to the City, within thirty (30) days of his receipt of these documents and the Stipulation of Settlement. The City will not be required to pay any of the individual relief described herein in the event that Snell fails to sign or revokes his Release of All Claims
15. The City will send, by email, the United States copies of the Stipulation of Settlement, the Release of All Claims, the W-9 form, and any cover letter under which they are sent, on the same day that they are sent to Snell.
16. If Snell accepts the City’s remedial relief offer outlined in Paragraphs 12 and 13 above, the City will make the payments set forth in Paragraph 12 and 13 above within the timeframes set forth therein.
17. All consideration paid to Snell is inclusive of all attorney’s fees and costs, and will constitute the entirety of the payments to which Snell shall receive as a result of his claims of discrimination.
18. Six months following the effective date of this Stipulation of Settlement, and every six months there after for the duration of the reporting period, FDNY will provide the USAO-EDNY with a written report regarding compliance with it. These written reports shall include the number of reasonable accommodation requests made by firefighters during the previous six months, a description of the interactive process engaged in with respect to each such request, the status and/or disposition of each such request, and a copy of the FDNY’s most recent “Off-Line Position Database.” The duration of this reporting provision shall be for three (3) years from the effective date of this Stipulation of Settlement.
19. If the United States believes that this Stipulation of Settlement or any portion of it has been violated, it will raise its concerns in writing addressed to the Law Department (Attention: Kathleen M. Comfrey) and the Parties will attempt to resolve those concerns in good faith. If the parties are unable to resolve the concerns raised by the United States within thirty (30) days of FDNY’s receipt of the United States’ written statement of concerns, the USAO-EDNY may conduct an audit, limited to the concerns it has raised in writing, to ensure compliance with this Stipulation of Settlement. The United States will give FDNY thirty (30) days from the date it notifies the FDNY of any possible breach of this Stipulation of Settlement to cure that breach before seeking Court intervention and/or instituting an enforcement action. The duration of this auditing provision shall be three (3) years from the effective date of this Stipulation of Settlement.
20. This Stipulation of Settlement shall be binding upon the City, its agents, officials and employees, including FDNY and its agents, officials, and employees, and the New York City Fire Department Pension Fund and its agents, officials, and employees.
21. The individuals signing this Stipulation of Settlement represent that they are authorized to bind the Parties to it.
22. This Stipulation of Settlement constitutes the entire agreement between the United States and the City and FDNY on the matters raised herein 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 agreement, including its attachments, shall be enforceable.
23. Nothing contained herein shall be deemed to be an admission by the City that it has in any manner or way violated Snell’s or any firefighter’s rights in connection with the ADA.
24. This Stipulation of Settlement does not purport to remedy any other potential violations of the ADA or any other law that is not specifically addressed herein, nor does it affect the FDNY’s continuing responsibility to comply with all aspects of the ADA.
25. Nothing contained herein or in the allegations set forth in the complaint shall be deemed to constitute an admission that the City or the FDNY engaged in a pattern, policy or practice of the city or FDNY or either.
26. This Stipulation of Settlement shall remain in effect for three (3) years from its effective date. This Court shall retain jurisdiction over this Stipulation of Settlement for a period of three (3) years from the effective date.
Dated: Brooklyn, New York
April 8, 2013
Dated: Brooklyn, New York
April 8, 2013
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
Attorney for Plaintiff
By: /s/ Scott R. Landau
Scott R. Landau
Assistant U.S. Attorney
Dated: New York, New York
March ___, 2013
MICHAEL A. CARDOZO
Corporation Counsel for the
City of New York
100 Church Street
New York, New York 10007-2601
Attorney for Defendant
By: /s/ Kathleen M. Comfrey
Kathleen M. Comfrey, Esq.
Assistant Corporation Counsel
Kiyo A. MatsumotoMay 8, 2013
UNITED STATES DISTRICT JUDGE