SETTLEMENT AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND THE NORWICH FAMILY YMCA, NORWICH, NEW YORK
UNDER THE AMERICANS WITH DISABILITES ACT

    PARTIES

  1. The parties to this Settlement Agreement are the United States of America (“United States”) and the Norwich Family YMCA (hereinafter “YMCA”).
  2. The United States Department of Justice (“United States”) is the federal agency responsible  for enforcing Title III of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. § 12181 et seq.

BACKGROUND

  1. This matter was initiated by a complaint filed with the United States against the YMCA alleging violations of Title III of the ADA, 42 U.S.C. §§ 12181-12189, and its implementing regulations, 28 C.F.R. Part 36.  Specifically, the Complainant, an individual with developmental disabilities and a hearing impairment, who, at the relevant time, resided at the Valley Ridge Center for Intensive Rehabilitation (VRCIT), alleges that the YMCA:  (1) discriminated against him on the basis of his disabilities and his association with other disabled individuals by denying him a membership at the YMCA and access to its facilities; (2) utilized a method of administration that had the effect of discriminating against him on the basis of his disability and/or his association with other disabled individuals; and (3) based on stereotypes and generalizations, improperly relied upon 28 C.F.R. § 36.208 in imposing invasive and overly burdensome eligibility criteria with regard to his application for membership, which had the effect of discriminating against him on the basis of his own disability and/or his association with other disabled individuals. 

JURISDICTION

  1. As a person who has a developmental disability and a hearing impairment, Complainant is an individual with a disability within the meaning of the ADA.   See 42 U.S.C. § 12102; 28 C.F.R. § 36.104.
  2. The YMCA facility is a place of “public accommodation” because it is a place of public gathering, exercise and recreation and YMCA is therefore a public accommodation obligated to comply with the requirements of Title III of the ADA.  See 42 U.S.C. § 12181(7)(D),(L); 28 C.F.R. § 36.104.
  3. The Attorney General is responsible for enforcing Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189, and the relevant regulations implementing Title III, 28 C.F.R. pt. 36.
  4. The Attorney General of the United States 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 has reasonable cause to believe that a person or group of persons has been discriminated against in violation of the ADA and the discrimination involves a pattern or practice of discrimination or raises issues of general public importance.  42 U.S.C. § 12188(b).
  5. The ADA prohibits public accommodations from discriminating against an individual on the basis of disability in the full and equal enjoyment of its goods, services, privileges, advantages, or accommodations.  42 U.S.C. §§12182(a) & 12182(b)(1)(A)(i); 28 C.F.R. §§ 36.201(a) and 36.202(a).  Title III also prohibits an entity from utilizing “standards or criteria… that have the effect of discriminating on the basis of disability.”  42 U.S.C. § 12182(b)(1)(D). 

FINDINGS

  1. As a result of its investigation, the United States determined that the YMCA:  (1) was aware, through the application process and by complainant’s attendance at the YMCA through a temporary guest pass, that the Complainant was a person with disabilities; and as a result, (2) denied the Complainant a full and equal opportunity to participate in, and benefit from, the YMCA’s goods, services, facilities, privileges, advantages, or accommodations within the meaning of 42 U.S.C. §§12182(a) and 12182(b)(1)(A)(i), and 28 C.F.R. §§ 36.201(a) and 36.202(a) on the basis of his disablities.  The United States further finds that the YMCA improperly used screening criteria with regard to the Complainant’s membership application that had the effect of discriminating against him on the basis of his disability and/or his association with other disabled individuals. 
  2. The YMCA has cooperated in the United States’ investigation and has committed to fully comply with the ADA.
  3. The United States and the YMCA have determined that the complaint filed with the United States can be resolved without litigation, and have proposed and agreed to the terms of this Agreement.

REMEDIAL ACTION

  1. Consistent with the ADA, the YMCA will not discriminate against any individual on the basis of disability in the full and equal enjoyment of the YMCA’s goods, services, facilities, privileges, advantages, or accommodations by excluding such individual or providing unequal treatment to persons with disabilities.  42 U.S.C. § 12182.
  2. Consistent with the ADA, the YMCA will not impose screening or admissions criteria, or application requirements on individuals with disabilities that differ from those screening or admissions criteria, or application requirements, that the YMCA uses for any other member of the public applying for a membership at the Norwich Family YMCA.
  3. Within sixty (60) days of the effective date of this Agreement, the YMCA shall post and maintain a sign of conspicuous size and print near the main entrance stating:

THE NORWICH FAMILY YMCA WELCOMES MEMBERS WITH DISABILITIES

  1. Within sixty (60) days of the effective date of this Agreement, the YMCA shall add to its website that under “Our Strategies” it will not discriminate on the basis of disability and it will add to its website that it welcomes members with disabilities.  The notice shall direct persons desiring more information about the ADA to visit the U.S. Department of Justice’s website at www.ada.gov.
  2. Within sixty (60) days of the effective date of this Agreement, the YMCA shall draft and implement written policies and procedures for the provisions of its services, facilities and accommodations to persons with disabilities, and shall submit it to the United States for review and approval. 
  3. Within sixty (60) days of the effective date of this Agreement, the YMCA will post a copy of the policy in a conspicuous area of the YMCA where members of the public can readily read the policy and will include on its website a statement of the policy.
  4. Within sixty (60) days of the effective date of this Agreement, and annually thereafter, the YMCA will provide mandatory ADA training for all of its Department Directors and Coordinators.  This training will be provided by one of the ADA Technical Centers, such as the Northeast ADA Center.  The training will be sufficient in duration and content to train the YMCA’s Department Directors and Coordinators in the policies and procedures established in Paragraph 16 above. 
  5. Within thirty (30) days of completing the mandatory training set forth in Paragraph 18 above, the YMCA’s Department Directors and Coordinators will then train those employees of the YMCA whom they supervise.  In training the YMCA staff, the YMCA Department Directors and Coordinators will distribute any and all written training materials received during the mandatory ADA training program described in Paragraph 18 above. 
  6. The YMCA Department Directors and/or Coordinators will provide the training specified in Paragraph 19 to new YMCA employees within thirty (30) days after the commencement of their employment.
  7. Five (5) months after the effective date of this Agreement, and annually thereafter during the term of this Agreement, the YMCA will provide a certification to the United States that the required trainings described in Paragraphs 18 – 20 were completed.

CIVIL PENALTY

  1. Within forty-five (45) days of the entry of this Agreement, pursuant to 42 U.S.C. § 12188(b)(2)(B), the YMCA shall pay  to the United States three thousand five hundred ($3,500.00) by Fed Wire Electronic Funds Transfer (“EFT”) in accordance with current electronic funds transfer procedures, referencing U.S.A.O. file number 2015V00763 and Consolidated Debt Collection System number 2015977301.  The YMCA should use www.pay.gov to process this payment.  Attached is a brochure that explains how to use pay.gov. 

COMPENSATORY RELIEF AND RELEASE FOR COMPLAINANT

  1. Within fifteen (15) days of the effective date of this Agreement, pursuant to 42 U.S.C. § 12188(b) (2) (B), the YMCA shall pay to the Complainant four thousand ($4,000.00) dollars.  This payment will be made by check and mailed to Complainant’s counsel at Disability Rights New York, 25 Chapel Street, Suite 1005, Brooklyn, New York 11201.
  2. Within ten (10) days of the effective date of this Agreement, the United States will deliver to counsel for the Practice, a release signed by the Complainant.  The release will be in the form of Attachment A.

ENFORCEMENT

  1. During the term of this Agreement, the YMCA will notify the United States if any individual brings any lawsuit, complaint, charge or grievance alleging that the YMCA denied its services to any individual with a disability.  Such notification must be provided in writing via certified mail within fifteen (15) days of the day when the YMCA received oral or written notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by the YMCA or any of its employees or staff relevant to the allegation.
  2. In consideration of the terms of this Agreement, the United States agrees to refrain from undertaking further investigation or filing a civil suit in this matter, except as provided in Paragraph 27 below.
  3. The United States may review compliance with this Agreement at any time.  If the United States believes that the YMCA has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written authorization from the United States for a modification of the relevant terms, the United States will so notify the YMCA in writing, and will attempt to resolve the issue or issues in good faith.  If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to the YMCA, 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 law.
  4. For purposes of the immediately preceding Paragraph, it is a violation of this Agreement for the YMCA to fail to comply in a timely manner with any of the requirements in this Agreement without obtaining sufficient advance written authorization from the United States for an extension of the relevant time frame imposed by the Agreement.
  5. Failure by the United States to enforce this Agreement with regard to any deadline or any other provision herein shall not be construed as a waiver of the United States’ right to enforce other deadlines and provisions of this Agreement.
  6. This Agreement shall be binding on the United States and on the Norwich YMCA, its directors, employees, and staff.
  7. This Agreement constitutes the entire agreement between the United States and the YMCA 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 the continuing responsibility of the YMCA to comply with all aspects of the ADA.
  8. The person signing this Agreement for the YMCA represents that he or she is authorized to bind the YMCA to this Agreement and is acting pursuant to a vote by, and authorization of, the Norwich YMCA’s Board of Directors and is fully authorized to execute this Agreement on behalf of the Norwich YMCA.
  9. This Agreement will remain in effect for three (3) years from its effective date.
  10. All parties consent to the United States’ disclosure of this Agreement, and information about this Agreement, to the public.
  11. A copy of this document or any information contained in it will be made available to any person, on request, by the YMCA or the United States.
  12. The effective date of this Agreement is the date of the last signature below.

UNITED STATES OF AMERICA

 

 

DATED: Dec. 21, 2016

RICHARD S. HARTUNIAN
United States Attorney
Northern District of New York


/s/ Cathleen B. Clark
CATHLEEN B. CLARK
Assistant United States Attorney

THE NORWICH FAMILY YMCA

DATED: 10/6/, 2016

 

 

 

DATED: 10/6/, 2016

By: /s/ James Miller
Director, Norwich Family

 

Harris Beach, PLLC
119 East Seneca Street
Ithaca, NY 14850      

/s/ Edward C. Hooks
Edward C. Hooks, Esq.
Attorney for Norwich Family YMCA