VOLUNTARY COMPLIANCE AGREEMENT
THE UNITED STATES OF AMERICA
WHEREAS, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181 et seq., provides, among other things, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation," 42 U.S.C. § 12182(a); and
WHEREAS, the term "public accommodation" under Title III of the ADA includes "a postgraduate private school, or other place of education," 42 U.S.C. § 12181(7)(J); and
WHEREAS, the United States Attorney's Office for the Southern District of New York (the "United States"), received a complaint, described in a letter from the United States to Mercy College (the "College") dated January 23, 2015 (the "Complaint") alleging discrimination on the basis of disability at the College, and investigated the Complaint pursuant to its authority under 42 U.S.C. § 12188(b); and
WHEREAS, the United States and the College share the goal of resolving the Complaint and ensuring that the College operates in compliance with Title III of the ADA; and
WHEREAS, in light of the actions taken by the College to date to comply with the ADA, and the actions that the College has agreed to take as set forth in this agreement (the "Agreement"), the United States has decided to take no further enforcement action at this time with respect to the Complaint;
NOW, THEREFORE, IT IS HEREBY AGREED, BY AND BETWEEN THE UNITED STATES OF AMERICA AND THE COLLEGE, AS FOLLOWS:
I. APPLICATION AND PARTIES BOUND
- The United States Attorney's Office is responsible for administering and enforcing Title III of the ADA, 42 U.S.C. §§ 12181-12189, and the relevant regulations implementing Title III, 28 C.F.R. Part 36.
- The complainant, a veteran who sustained wartime injuries, has a physical and mental impairment that substantially limits one or more major life activities, including sleeping, concentrating, thinking, and communicating. Accordingly, he has a disability within the meaning of 42 U.S.C. § 12102 and 28 C.F.R. § 36.104.
- The College is located in Westchester, New York, and is a postgraduate private school, and thus a "public accommodation" under Title III of the ADA. 42 U.S.C. § 12181(7)(J).
- Under Title III of the ADA, no person who owns, leases (or leases to), or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. 42 U.S.C. § 12182(a).
- The United States has determined that:
- The Complainant is a four and a half year veteran of the United States Marine Corps veteran who served in Afghanistan. He left military service in 2014.
- As a result of his service, Complainant was prescribed a service animal, a dog.
- In 2014, Complainant registered for classes at Mercy College, and has generally attended classes at the Dobbs Ferry campus, accompanied by his service dog.
- On or about November 18, 2014, Complainant was required to attend class at the Yorktown campus of Mercy College.
- When Complainant arrived for class that morning, accompanied by a classmate, a male security guard stopped him and advised him that the dog could not enter the building in which classes would be held.
- When Complainant explained that the dog was a service animal, the male security guard objected that "service dogs are only allowed for blind people."
- When Complainant and the male security guard spoke with a security supervisor at the College, the supervisor concurred that service dogs are only permitted on the campus for blind people.
- During the time that Complainant was in the school building, a security guard directed him to contact the head of security, Cesar Robles, and that the dog could not remain in the building.
- Complainant called Robles, who advised him that Robles needed to "certify" the service animal. Complainant explained that the dog had already been certified, and had already been attending classes with him at the Dobbs Ferry campus. Complainant then went back to his class.
- Although the service dog remained with Complainant, the incident was embarrassing, stressful, and distracting --- Complainant missed a substantial portion of class that day as a result of the extended negotiations with Mercy College officials.
- Complainant filed a complaint with the President of Mercy College, requesting an investigation and an apology. To date, Complainant has never been apprised of any investigation and received no apology.
- The website of Mercy College does not provide any information about service animals or set forth a service animal policy.
- The ADA requires the College to make reasonable modifications in policies, practices, or procedures where necessary to provide students with disabilities with access to goods, services, facilities, privileges, advantages, and accommodations. See 28 C.F.R. § 36.302; 28 C.F.R. § 36.303. The ADA further requires that a public accommodation, such as the College, permit the use of a service animal by an individual with a disability. 28 C.F.R. § 36.302(c).
II. ACTIONS TO BE TAKEN BY THE COLLEGE
- The College shall not discriminate against any individual on the basis of disability, including individuals who use service animals, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of the College in violation of the ADA, 42 U.S.C. § 12182, and the relevant implementing regulations, 28 C.F.R. Part 36.
- Within 30 days of the effective date of this Agreement, the College shall adopt the Service Animal Policy annexed hereto as Exhibit A, and post it on the College's website.
- Within 90 days of the effective date of this Agreement, the College shall conduct training on Title III of the ADA to all security personnel who may interact with students, prospective students, and campus visitors. The training shall also provide information on service animals.
- The College shall notify the United States when it has completed the training required under Paragraph 9. The College shall create and maintain an attendance sheet that documents the name of each individual who attends the trainings, his/her title, and the date he/she attended the training. Copies of such attendance sheets shall be provided to the United States within 10 days of any request for them.
- The College shall provide an apology to the Complainant, in the form attached hereto as Exhibit B.
III. GENERAL PROVISIONS
- During the term of this Agreement, the United States may review the College's compliance with this Agreement or Title III of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with the College, and the parties will attempt to resolve the concerns in good faith. The United States will provide the College 30 days from the date it notifies the College of any breach of this Agreement to cure that breach. If the United States is unable to reach a satisfactory resolution of the issue(s) raised within 30 days of the date that it provides notice to the College, it may institute a civil action in the appropriate United States District Court to enforce this Agreement or Title III of the ADA against the College after the notice and cure periods provided above have expired.
- All documents or communications to be provided to the United States, or the College pursuant to this Agreement shall be in writing and delivered by email or overnight mail to the following persons and addresses (or such other person as may be designated in writing):
Chief, Civil Rights Unit
U.S. Attorney's Office, Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007
General Counsel, Mercy College
Dobbs Ferry, NY 10522
- In consideration for the College's timely performance of all of its obligations under this Agreement, the United States agrees to take no further action with respect to the Complaint, except as provided in the Enforcement portion of this Agreement. Nothing in this Agreement shall limit the rights of the complainant to bring his own action seeking relief.
- The United States reserves the right to investigate any complaint it receives concerning the College, to initiate future compliance reviews concerning the College with respect to any aspect of the College or its operation not expressly addressed in this Agreement, and to investigate and commence a civil action with respect to any violation of the ADA. In the event the United States receives and investigates an ADA complaint concerning the College, or commences any future compliance review concerning the College, nothing in this Agreement shall limit the scope of any investigation or compliance review of the College or preclude the United States from seeking relief beyond that required under this Agreement.
- A copy of this Agreement shall be made available to any person upon request.
- The Effective Date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is one year from the Effective Date.
- This Agreement memorializes the commitments made by the College and the terms under which the United States has agreed to resolve this matter without further review or enforcement action. This Agreement is not intended to certify or signify, however, that the College is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect the College's continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
- This Agreement does not constitute an admission by the College of non-compliance with any provision of the ADA.
- The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.
- Failure by the United States to enforce the entire Agreement, with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
- This Agreement constitutes the entire agreement between the parties relating to the compliance review, 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 Agreement, shall be enforceable.
New York, New York
April 29, 2016
New York, New York
February 12, 2016
FOR THE UNITED STATES
United States Attorney for the
Southern District of New York
By: /s/ David J. Kennedy
DAVID J. KENNEDY
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2733
FOR THE COLLEGE:
By: /s/ Irene Buckley
POLICY REGARDING SERVICE ANIMALS
FOR PEOPLE WITH DISABILITIES
Mercy College committed to making reasonable modifications in policies, practices, and procedures to permit the use of service animals by persons with disabilities. Service animals play an important role in ensuring the independence of people with disabilities, and it is therefore our policy to welcome to the College any animal that is individually trained to assist a person with a disability.
What is a Service Animal?
Service animals include any dog that is individually trained to do work or perform tasks for individuals with disabilities, including a physical, sensory, psychiatric, intellectual, or other mental disability. Service animals do not always have a harness, a sign, or a symbol indicating that they are service animals. A service animal is not a pet. Service animals assist people with disabilities in many different ways, such as:
- Guiding people who are blind or have low vision and retrieving dropped objects for them;
- Alerting people who are deaf or hard of hearing to sounds and the presence of others;
- Carrying and picking up items, opening doors, or flipping switches for people with disabilities who have limited use of hands or arms, limited use of their legs, or limited ability to bend or stoop;
- Pulling wheelchairs;
- Alerting people with disabilities to the onset of medical conditions such as seizures, protecting them and cushioning them if they fall, reviving them, and performing other tasks that reduce the risk of disability-related injury;
- Doing work or performing tasks for persons with traumatic brain injury, intellectual disabilities, or psychiatric disabilities, such as reminding a person with depression to take medication or waking him up, alerting a person with anxiety to the onset of panic attacks, orienting people with schizophrenia to reality, and helping people with intellectual or cognitive disabilities to locate misplaced items, find places, or follow daily routines; and
- Providing physical support and assisting people with physical disabilities with stability and balance.
Requirements with Regard to Service Animals:
Most of the time, people with disabilities who use service animals may be easily identified without any need for questioning. If we can tell by looking, it is our policy not to make an individual feel unwelcome by asking questions. If we are unsure whether an animal meets the definition of a service animal, it is our policy to ask the individual only two questions at the point that the individual seeks entry to the College or any of its buildings:
- Is the dog a service animal required because of a disability?
- What work or task has the dog been trained to perform?
If the individual says yes to the first question and explains the work or tasks that the animal is trained to perform, we will welcome the person and service animal to the College without asking any additional questions about his or her service animal. We will not ask an individual questions about his or her disability. We will not ask an individual to show a license, certification, or special ID card as proof of their animal’s training. We must permit service animals to accompany individuals with disabilities to all areas of the College normally used by students or other members of the public and will treat individuals with service animals with the same courtesy and respect that we afford to all of our students.
Mercy College Responsibilities:
Mercy College has the right to exclude a service animal from the College if the dog is out of control and the handler does not take effective action to control it, or the dog is not housebroken. We will not exclude a particular service animal based on past experience with other animals or based on fear unrelated to an individual service animal’s actual behavior. Each situation will be considered individually.