THE UNITED STATES OF AMERICA, Plaintiff,
KAREN SMITH, Intervening Plaintiff,
TOWN OF NEW CHICAGO, INDIANA, Defendant,
JAMES GUNNING, individually and
in his official capacity as Chief
of Police for the Town of New
Chicago; CHARLES EDMAISTON,
and DAVID HUTTON, individually and
in their individual capacities as
Commissioners for the New Chicago
Metropolitan Police Commission,
Defendants added by
Case No. 2:99-CV-461-JM
On October 13, 1999, the United States filed its Complaint against the Defendant, the Town of New Chicago, Indiana ("Town"), alleging, in sum, that the Town retaliated against Ms. Karen Smith in violation of Section 503 of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. ï½§ 12203, for having previously filed a charge of employment discrimination against the Town under the ADA, 42 U.S.C. ï½§ 12101 et seq. On January 13, 2000, the Court granted Ms. Smith's Motion to Intervene as a
Plaintiff in this action. Ms. Smith's Complaint in Intervention alleges essentially the same violation as that alleged by the United States, while adding additional related causes of action under the ADA and the United States Constitution and naming certain individuals as defendants. The Town has denied all material allegations in the United States' and the Plaintiff-Intervenor's Complaints.
The United States, the Plaintiff-Intervenor and the Town desire to settle the action between them without the burden of prolonged litigation. This Consent Decree resolves all allegations raised by the United States and the Plaintiff-Intervenor in their Complaints, as well as any other related pending claims by Ms. Smith against the Town. The parties agree that this Court has jurisdiction over them and over the subject-matter of this action. These parties waive, for the purpose of this Decree only, a hearing and findings of fact and conclusions of law on all issues raised by the United States and the Plaintiff-Intervenor in their Complaints.
It is therefore ORDERED, ADJUDGED AND DECREED as follows:
A. PROSPECTIVE RELIEF
- The Town, by and through its officials, agents, employees, and all persons in active concert or participation with the Town, is enjoined from engaging in any act or practice that has the purpose or effect of unlawfully discriminating against any employee or applicant for employment on the basis of disability in violation of the ADA.
- The Town, by and through its officials, agents, employees, and all persons in active concert or participation with the Town, is enjoined from retaliating against Ms. Smith or any other person who: (1) opposes or has opposed policies or practices he or she believes to discriminate on the basis of disability; (2) has filed an EEOC charge; or (3) has participated in or cooperated with the initiation, investigation, litigation, or resolution of this or any other action brought against the Town alleging discrimination on the basis of disability.
- The Town shall post notices on all employee bulletin boards at the New Chicago Town Hall and Police Department, in the form of Appendix A. The notices shall remain posted for one year from the date of entry of this Consent Decree by the Court.
B. INDIVIDUAL REMEDIAL RELIEF
- The Town shall pay Ms. Smith the total of $42,500.00, which is comprised of backpay, with interest (representing approximately the difference between the amount of compensation she would have received if she had continued her employment by the Town after February 2, 1998 until the commencement of this litigation, and the amount she actually received in other employment during that time), compensatory damages for all claims contained in the United States' and the Plaintiff-Intervenor's Complaints, and expenses she incurred in contesting the charges brought against her by the Town which led to the termination of her employment as Dispatcher.
- Ms. Smith has advised the Town that she would decline an offer of reinstatement to her former full-time position as Dispatcher, including the position of "IDACS (Indiana Data and Communications System) Coordinator.")
- Within sixty days of the entry of this Consent Decree by the Court, the Town shall submit to the United States a written proposed plan of training it shall provide to all Town officials (including those who are elected) and employees regarding the anti-discrimination and anti-retaliation provisions of the ADA. This proposed training plan shall include, at a minimum, a detailed outline of each topic to be discussed, the material(s) to be used and disseminated, and the instructor(s). A sample of all material(s) to be used shall be attached to the proposed training plan.
All aspects of the training plan, including the instructor(s), are subject to approval by the United States. Upon receipt of the proposed training plan by the United States, the United States shall review the plan and shall make any modification(s) it deems necessary and appropriate. The United States shall notify the Town in writing whether any modification(s) to the training plan shall be made, and the specific modification(s) to be made, if any. The Town shall conduct the training within thirty days of its receipt of and in accordance with the above notification by the United States. A representative of the United States shall be entitled to observe the training.
- Within thirty days of the entry of this Consent Decree by the Court, Ms. Smith shall provide to the undersigned counsel for the Town an executed Release Form in the form attached as Appendix B.
- Within twenty-one days of the Town's receipt of Ms. Smith's executed Release Form, Ms. Smith shall be paid the total amount described in paragraph four. Payment shall be forwarded to Ms. Smith in care of her undersigned counsel via certified mail, return receipt requested, for receipt within the twenty-one days described above. A copy of any check and any accompanying correspondence shall be mailed to the United States. Any amount to be paid separately as reimbursement for attorney's fees pursuant to paragraph four shall be coordinated directly between the undersigned counsel for the Town and for Ms. Smith.
- Within thirty days of the entry of this Consent Decree by the Court, the Town shall remove from Ms. Smith's personnel file all negative references to her or her work performance and shall provide her with a suitable and appropriate positive letter of reference for the purpose of any future application for employment she may submit with respect to other employers. The content of said letter shall be coordinated between counsel for the Town and counsel for Ms. Smith.
- The parties shall attempt to resolve informally any disputes that may arise under this Consent Decree. If an informal resolution cannot be achieved, the party raising the issue(s) in dispute shall provide written notice to the others of the nature of the dispute(s) and the corrective action sought. If within fourteen days of such notice corrective action has not been taken to the satisfaction of the party raising the issue(s), the matter may be presented to this Court for resolution.
- The Court shall retain jurisdiction over this Consent Decree for the purposes of resolving any disputes that may arise between the parties under this Decree and entering such orders as may be appropriate.
- This Consent Decree shall terminate three years from the date of its entry. Before its termination, any party may move, for good cause shown, to extend the duration of the Decree.
- Within thirty days after entry of this Consent Decree by the Court, the Town shall make available for inspection and copying, within fourteen days after notice of a request by the United States, all documents relevant to the Town's compliance with and implementation of this Decree.
- During the term of this Consent Decree, the Town shall notify the United States if any individual brings any lawsuit, complaint, charge, or grievance alleging retaliation by the Town or any of its agents in violation of the ADA. Such notification shall be provided in writing within ten days of when the Town has received notice of the allegation and shall include, at a minimum, information describing the nature of the allegation, the name of the individual bringing the allegation and any documentation possessed by the Town relevant to the allegation.
- The parties shall bear their own costs, including attorneys' fees (except what is referred to in paragraph four, above), except that the parties retain the right to seek costs for any matter that, in the future, may arise from this Consent Decree and require resolution by the Court. Ms. Smith and her counsel have agreed to waive any right they otherwise may have to attorneys fees under any statute or common law applicable to this action.
BILL LANN LEE
Assistant Attorney General
Civil Rights Division
STEVEN E. BUTLER
United States Department of Justice
Civil Rights Division
Disability Rights Section
Post Office Box 66738
Washington, D.C. 20035-6738
Telephone: (202) 514-8887
Facsimile: (202) 305-9775
JULIE B. DOUGLAS
IVAN E. BODENSTEINER
Attorneys for Plaintiff-Intervenor
Douglas & Ferngren
7 Napoleon Avenue
Valparaiso, Indiana 46383
Telephone: (219) 464-1162
Facsimile: (219) 464-0941
ANDREW P. WIRICK
DEBRA G. RICHARDS
Attorneys for Defendants
Hume, Smith, Geddes, Green & Simmons
54 Monument Circle, Fourth Floor
Indianapolis, Indiana 46204
Telephone: (317) 632-4402
Facsimile: (317) 632-5595
United States Attorney
Northern District Of Indiana
It is so ORDERED, this _____ day of ________,2000.
____________________________APPENDIX A NOTICE TO EMPLOYEES
UNITED STATES DISTRICT JUDGE
This Notice is posted under a Consent Decree entered in the case United States, et al. v. Town of New Chicago, Indiana, et al. Title I of the Americans with Disabilities Act of 1990 ("ADA") prohibits employment discrimination on the basis of disability. The ADA makes it unlawful to discriminate against a qualified individual with a disability because of that disability in connection with the application, hiring, promotion, transfer, assignment, discharge, compensation, job training, and other terms, conditions and privileges of employment. The ADA also makes it unlawful to retaliate against an individual because that individual has opposed any act or practice made unlawful by the ADA or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA.
The Equal Employment Opportunity Commission ("EEOC") is the federal agency primarily responsible for investigating individual charges of employment discrimination under the ADA. Any individual who believes that he or she has been discriminated against in violation of the ADA, or who desires more information on the ADA or other employment discrimination statutes, can contact the EEOC as follows:
Equal Employment Opportunity Commission
Indianapolis District Office
101 West Ohio Street, Suite 1900
Indianapolis, Indiana 46204-4203
The Town of New Chicago supports and will comply with the ADA in all respects.
____________________________APPENDIX B RELEASE FORM United States, et al. v. Town of New Chicago, et al.
TOWN COUNCIL PRESIDENT
STATE OF INDIANA
For and in consideration of the payment of a monetary award (backpay, compensatory damages and costs, including attorneys fees) pursuant to the provisions of the Consent Decree entered by the Honorable [name], United States District Judge, on [date], 2000 in United States, et al. v. Town of New Chicago, Indiana, et al., I, Karen K. Smith, hereby release and forever discharge the Town of New Chicago from those legal and equitable claims raised in the United States' and Plaintiff-Intervenor's Complaints in United States, et al. v. Town of New Chicago, Indiana, et al., as well as any other related pending claims I have against the Town of New Chicago.
This Release constitutes the entire agreement between myself and the Town of New Chicago without exception or exclusion. I acknowledge that a copy of the Consent Decree in this action has been made available to me.
I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.
Signed this _____ day of ________, 2000.
Karen K. Smith
Sworn and subscribed to before me this _____day of ____________, 2000.
My commission expires:____________>