- The parties to this Settlement Agreement ("Agreement") are the United States of America and the State of Arizona, on behalf of the Arizona Department of Revenue ("DOR") and Arizona Department of Administration ("DOA") (collectively "the Departments").
- In March 1993, XX XXX ("XXX") submitted an application with DOR for an EDP Librarian Control Coordinator I position ("EDP Job"). Prior to receiving an offer of employment, XXX was instructed to submit to a physical examination, which occurred on June 2, 1993.
- The last week of June 1993, XXX was offered the EDP Job. DOR then called XXX and retracted the employment offer because DOA had determined that XXX could not work alone due to her diabetes. The EDP Job would require XXX to be alone from 7:00 a.m. to 7:30 a.m. daily, one week out of every three weeks.
- On September 2, 1993, XXX filed a charge of discrimination under the Americans with Disabilities Act of 1990 ("ADA") with the Equal Employment Opportunity Commission ("EEOC"). On January 6, 1995, the EEOC made a reasonable cause finding that the Departments had violated the ADA. After conciliation attempts failed, the EEOC referred the matter for review to the Department of Justice ("DOJ").
- DOJ claims that the Departments violated the ADA by (1) requiring XXX to take a physical examination prior to making a job offer, and (2) failing to make reasonable accommodations related to the restriction that XXX could not work alone due to her disability.
- The parties enter into this Agreement in order to avoid litigation and hereby agree as follows.
- The Departments agree to pay XXX the sum of $80,000.00, less wage related deductions the Departments deem appropriate. The funds shall be payable to XX XXX and shall be delivered to the U.S. Attorney’s Office, Attention: Ronald R. Gallegos, 4000 U.S. Courthouse, 230 North First Avenue, Phoenix, Arizona , no later than fourteen (14) days after this Agreement becomes effective.
- The Departments agree that all hiring, promotion practices, and other terms and conditions of employment shall be maintained and conducted in a manner which does not discriminate on the basis of disability in violation of the ADA.
- The Departments agree that there shall be no discrimination or retaliation of any kind against any person because of opposition to any practice declared unlawful under the ADA or because of the filing of a charge, giving of testimony or assistance, or participation in any manner in any investigation, proceeding, or hearing under the ADA.
- The Departments agree to provide to Bruskay a reference letter in the form attached as Exhibit A to this Agreement.
- The Departments in an effort to ensure a work environment free of discrimination based on disability, shall take the following corrective actions:
- Within one hundred and fifty five (155) days of the effective date of this Agreement, The Departments agree to: (I) review any existing employment policies and practices, and the EEOC's guidelines on disability discrimination; (ii) update its policies and procedures on disability discrimination as may be applicable; and (iii) distribute its updated policies and procedures to all management and supervisory personnel. As a part of the updating of policies and procedures above, the Departments agree to, at a minimum, institute, or add to its employment policies, as may be applicable, written procedures which address the following:
- Designation of position or person to whom complaints of discrimination may be brought;
- A statement that the Departments will thoroughly investigate all complaints of discrimination;
- A statement that employees and other individuals may raise concerns or complaints (without retaliation) about matters, whether alleged, perceived or actual, made unlawful by the ADA;
- A statement that all managers and supervisors of the Departments must comply with the Departments' policies and procedures and the laws dealing with discrimination; and that any manager or supervisor who violates any such policies, procedure, or law shall be subject to appropriate disciplinary action up to and including discharge; and
- A statement that discrimination based on disability will not be tolerated.
- The Departments shall post the policies and procedures on discrimination based on disability in a prominent place frequented by all personnel, thereby making it available to all employees, for a period of two (2) years from the effective date of this Agreement.
- Training - To help insure an environment free of discrimination based on disability, the Departments agree to take the following actions:
- Within two-hundred and fifteen (215) days after the effective date of this Agreement, the Departments shall provide training on disability discrimination to all employees in a supervisory or managerial capacity. Thereafter, during the duration of this Agreement, all newly-hired or newly-assigned supervisory and managerial personnel shall receive the same training within sixty (60) days of the date of hire or assignment.
- The training shall include what constitutes discrimination because of disability. The training shall be designed to provide general, authoritative coverage of the judicial interpretations of employment discrimination laws.
- The training session shall contain no less than two hours of instruction on the subject of discrimination based on disability. All attendees shall register at the time of attendance.
- The Departments shall select a qualified instructor to provide the required training. The name, address, telephone number, and resume of the proposed instructor and proposed course outline, along with the dates of the proposed seminar shall be provided to counsel for the United States at least sixty (60) days prior to the scheduled instruction date. The instructor shall be a person acceptable to DOJ. DOJ shall have thirty (30) days from the receipt of the instructor's name and course outline to accept or reject the proposed instructor and/or the contents of the instruction session. In the event DOJ does not approve the designated instructor, DOJ shall designate the person to render the instruction at a rate not to exceed $2,000.00, which shall be paid by the Departments. DOJ may designate a representative to attend and participate in the instruction session provided for the benefit of the Departments' management staff.
- The Departments shall pay for all services of the consultant/lecturer. If duplicative training sessions are required at any time covered by this Agreement to accommodate staffing requirements, the Departments shall be responsible for any additional costs to provide such duplicative sessions; it is permissible for the Departments to videotape the first seminar-training session for subsequent training of newly-hired or newly-assigned supervisory and managerial personnel.
- The Departments agree to submit to counsel for the United States a copy of its policies and procedures on discrimination based on disability within fifteen (15) days of distributing and posting of the policies and procedures.
- The Departments agree, throughout the duration of this Agreement, to file a report with counsel for the United States, which sets forth: the training completed, the registry of persons attending, and a list of managerial and supervisory personnel, within thirty (30) days of completion of each training session.
- The Departments shall provide affidavits to counsel for the United States indicating all locations where the notice to all employees called for in paragraph 11(b) was posted, and that the required notice was posted during the period required by this Agreement. These affidavits are to be submitted three months after of the effective date of this Agreement, and every six months thereafter.
- DOJ is authorized to bring civil actions under the ADA. In consideration of the Agreement as set forth above, DOJ agrees to refrain from undertaking further investigation or from filing a civil suit under the ADA against the Departments related to the facts set forth in paragraphs 2 through 5 above.
- DOJ may review compliance with this Agreement at any time. Any violation of this Agreement shall be considered a violation of the ADA. If DOJ believes that this Agreement or provisions thereof have been violated, it may institute a civil action in the Federal District Court for Arizona, or any other appropriate federal district court. However, before instituting a civil action in federal district court, the Departments will be given written notice of the violation by DOJ, and thirty (30) days to cure the violation. The written notice will be sent to the Personnel Director for the State of Arizona. For any alleged violations of this Agreement for which DOJ institutes a civil action, DOJ may seek damages for each subsequent violation.
- This Agreement is a public document. The Departments shall provide a copy of this Agreement to any person upon request.
- This Agreement shall become effective as of the date of the last signature below. This Agreement shall terminate three (3) years from its effective date.
- This 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 Agreement is limited to the facts as set forth in paragraphs 2 through 5 and it does not purport to remedy any other potential violations of the ADA any other federal, state or local law. This Agreement does not affect the Departments' continuing responsibility to comply with all aspects of the ADA.
- Each person signing this Agreement in a representative capacity represents that he or she is authorized to bind the entity to this Agreement.
FOR THE UNITED STATES:
______________________________ Dated: ____________
JOSÉ de JESUS RIVERA
United States Attorney
District of Arizona
DEPARTMENT OF REVENUE
______________________________ Dated: ____________ARIZONA DEPARTMENT OF ADMINISTRATION
RONALD R. GALLEGOS
Assistant U.S. Attorney
230 North First Avenue, Suite 4000
Phoenix, Arizona 85025-0085
Telephone: (602) 514-7743
______________________________ Dated: ____________
APPROVED AS TO FORM:
Attorney for the Departments
I acknowledge by my signature below that the above Settlement Agreement between the United States and the State of Arizona resolves any claims I may have arising out of the facts described in paragraphs 2 through 5 above.
Dated: __________ ________________________________
Subscribed to and sworn to before me on this _____ day of March, 1998.
My Commission Expires:______________________________