DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-9-18
This Settlement Agreement is entered into by the City of Fairfax, Virginia (the "City"), and the United States of America, through the United States Department of Justice, Civil Rights Division, Disability Rights Section (the "Department of Justice").
A complaint was filed under title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ï½§ï½§ 12131-12134, with the Department of Justice against the City. The complainant,
Mr. William Tremble, alleged that he was denied an opportunity to serve as a volunteer firefighter with the City of Fairfax Volunteer Fire Department (the "Volunteer Fire Department") because he is deaf in his left ear.
On May 11, 1992, Mr. Tremble applied to the Volunteer Fire Department for a position as a volunteer firefighter. On July 13, 1992, he was accepted for the position by vote of the membership. He then underwent a medical examination, which found hearing loss in his left ear. By letter dated December 19, 1992, the Volunteer Fire Department informed Mr. Tremble that he did not meet the physical exam standards to perform the duties of a firefighter.
The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate fully the allegations of the complaint in this matter, to determine compliance with title II of the ADA and the Department of Justice's implementing regulation, to issue findings, and, where appropriate, to negotiate and to secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. ï½§ 12133, to bring a civil action enforcing title II of the ADA should the Department of Justice fail to secure voluntary compliance pursuant to Subpart F.
The City denies that it or the Volunteer Fire Department acted unlawfully in their actions regarding Mr. Tremble's application for the volunteer firefighter position. The City and the United States, desiring to resolve this matter without resort to litigation, agree as follows:
- The ADA applies to the City because it is a public entity as defined in 42 U.S.C. ï½§ 12131. The Volunteer Fire Department uses City property and receives assistance from the City.
- Title II of the ADA prohibits a public entity from aiding or perpetuating discrimination on the basis of disability, in the services, programs, or activities by any organization to which the public entity provides significant assistance, including voluntary associations such as the Volunteer Fire Department. 28 C.F.R. ï½§ 35.130(b)(v).
- The complainant, Mr. William Tremble, is an individual with a disability as defined in 42 U.S.C. ï½§ 12102, and 28 C.F.R. ï½§ 35.104.
- In 1992, the Volunteer Fire Department applied medical standards identical to the National Fire Protection Association ("NFPA") standards, NFPA 1582, section 3-3.1, to exclude Mr. Tremble from participation as a volunteer firefighter. The NFPA standards have since been modified and the hearing standard has been changed from a non-discretionary disqualifier to a discretionary criterion. Therefore, future applicants for volunteer firefighter positions with the Volunteer Fire Department will be individually assessed to determine their qualification for the position and their hearing impairments will not automatically exclude them from being volunteer firefighters.
- The City has a written policy stating that the City does not discriminate on the basis of disability. The policy applies to the Volunteer Fire Department. The policy identifies the City Manager as the person responsible for approving accommodations for individuals with disabilities. The effective date of the policy was June 15, 1992. Within 30 days of the effective date of this Agreement, the City will distribute the written policy to all members of the Volunteer Fire Department with a cover letter instructing such members to comply with the City's policy.
- If Mr. Tremble reapplies and qualifies for the position of volunteer firefighter the City will ensure that Mr. Tremble is given priority consideration for the next available position.
- The City agrees to pay to Mr. William Tremble the sum of $850.00, by certified check within 10 days from the effective date of this Settlement Agreement. The City will send the check to
Mr. Tremble by certified mail, return receipt requested. A copy of the check and transmittal letter will be sent to counsel for the Department of Justice within 10 days from the effective date of this Settlement Agreement.
- If the Department of Justice determines that this Settlement Agreement or any requirement thereof has been violated,
it may institute a civil action seeking specific performance of this Settlement Agreement and other appropriate relief in any appropriate Federal court.
- Failure by the Department of Justice to enforce the entire Settlement Agreement, or any provision thereof, shall not be construed as a waiver of the Department of Justice's right to enforce other deadlines and provisions of this Settlement Agreement.
- This Settlement Agreement is a public document. A copy of this Settlement Agreement or any information contained in it may be made available to any person by the City or the Department of Justice on request.
- The effective date of this Settlement Agreement is the date of the last signature below.
- This Settlement Agreement constitutes the entire agreement between the parties 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 Settlement Agreement does not purport to remedy any other potential violations of the ADA or any other Federal law. This Settlement Agreement does not effect the City's continuing responsibility to comply with all aspects of the ADA.
For the City:
For the United States:
John Wodatch, Chief
Irene Bown, Deputy Chief
Eve Hill, Attorney
Brenda Sheppard, Investigator
Disability Rights Section
Civil Rights Division
U.S. Department of Justice