Consent Order | Department of Justice Press Releases




UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA



UNITED STATES OF AMERICA,
Plaintiffs,

v.

BOARD OF SUPERVISORS OF BERN TOWNSHIP, PENNSYLVANIA,

Defendants.

_____________________________________

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No. 2:05- cv - 03483
HONORABLE R. BARCLAY SURRICK

JURY TRIAL DEMANDED


CONSENT DECREE

I. Introduction

This matter is before the Court for entry of this judgment by consent of the United States and the Board of Supervisors of Bern Township, PA to effectuate a compromise and settlement of all claims in the above-captioned civil action. After review and consideration, the Court believes that entry of this judgment is in the interest of justice.

This Consent Decree ("Decree") resolves a civil action brought by the United States Department of Justice against the Board of Supervisors of Bern Township [“Bern Township”] for declaratory, injunctive and other monetary relief to enforce the provisions of title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111-12134 and its implementing regulations, 29 C.F.R. Part 1630. The United States alleges that Bern Township violated the ADA when it failed to consider Marvin Gilmer’s request for reasonable accommodation and otherwise maintained a practice of denying requests for accommodation because of its policy of requiring certain employees on medical leave to obtain a release “without limitation” before they could return to work.

This Decree is entered into by Defendant without admission that any of Defendant’s acts or omissions, past or current, is in violation of any law. Therefore, this Decree shall not serve as evidence for purposes of litigation against Defendant except for actions to enforce or modify the Decree. Bern Township denies that any of its actions violated the ADA.

The parties agree that settlement of this matter without further litigation is in the public interest and that entry of this Consent Decree is the most appropriate means of resolving the matter. Accordingly, they agree to the entry of this Consent Decree without trial or further adjudication of any issues of fact or law. The parties further agree that the entry of this Decree resolves all issues raised in the United States' Complaint.

In resolution of this action, the parties hereby AGREE and the Court expressly APPROVES, ENTERS AND ORDERS THE FOLLOWING:

II. Jurisdiction and Venue

1.     This Court has jurisdiction over this action. The parties agree that venue is appropriate.

2.     The United States has authority to initiate legal proceedings to enforce title I of the ADA through litigation. 42 U.S.C. § 12117.

3.     Bern Township is a body corporate and politic created under the laws of the State of Pennsylvania. The Township is governed by the Board of Supervisors.

4.     Bern Township is an employer within the meaning of Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and covered a covered entity within the meaning of Section 101(2) of the ADA, 42 U.S.C. §12111(2).


III. Injunctive Relief

5.     Bern Township, by and through its officials, agents, employees and all persons in active concert or participation with Bern Township in the performance of employment or personnel functions, shall not engage in any act or practice that discriminates against any employee or applicant for employment on the basis of disability in violation of title I of the ADA.

6.     Bern Township agrees that Part 16, Section 5 of the Collective Bargaining Agreement, 2003-2007, between Bern Township and Teamsters Local Union No. 429, and any similar language in future contracts, will be construed in conformity with the requirements of the ADA, and that the Collective Bargaining Agreement does not bar Bern Township from providing reasonable accommodations to a qualified employee with a disability, specifically including employees returning from medical leave who may have limitations that require a reasonable accommodation in order for them to perform their jobs.

7.     Bern Township will adopt and implement the Reasonable Accommodation Policy attached to this Decree.

IV. Individual Relief

8.     Bern Township will pay Marvin Gilmer $75,000.00. Of this sum, $35,000.00 is back pay; $40,000.00 is reimbursement for out of pocket expenses and for emotional distress allegedly suffered as a result of Bern Township’s actions.

9.     Effective January 1, 2004, Bern Township will increase Marvin Gilmer’s retirement benefits to $753.06 per month, with 100% survivor benefits. Bern Township will pay Mr. Gilmer $2,438.00, minus applicable taxes, for back pension benefits due. The increased benefit will commence with the July, 2006 payment.

10.     Bern Township shall pay to Mr. Gilmer the full amount of the total monetary award specified in paragraph 8, minus any applicable taxes, within 21 days of its receipt of the Release of Claims form.

Enforcement

11.     The United States may review compliance with this Consent Decree at any time and may enforce this Consent Decree if the United States believes that the Decree or any requirement thereof has been violated. If the United States believes that this Consent Decree or any portion of it has been violated, it will raise its concern(s) with Bern Township and the parties will attempt to resolve the concern(s) in good faith. The United States will give Bern Township thirty (30) days from the date it notifies the Township of any breach of this Consent Decree to cure that breach, prior to instituting any court action.

12.     Failure by the United States to enforce any provision of this Decree shall not be construed as a waiver of its right to enforce other provisions of this Decree.

13.     This Consent Decree does not purport to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Consent Decree. This Consent Decree does not affect Bern Township’s continuing responsibility to comply with all aspects of the ADA.

14.     This Consent Decree shall remain in effect for one year from the effective date. The United States may petition the Court, at any time during the duration of this Consent Decree, to reopen the case for the purpose of enforcing the Decree, and the Court shall retain jurisdiction to enforce this Consent Decree. This decree will expire without further order from the Court one year from the date of entry and approval.

15.     This Decree shall be binding on the Defendant, its agents and employees.

16.     The effective date of this Consent Decree is the date on which the Court enters this Consent Decree.

17.     This Consent Decree constitutes the entire agreement between the parties relating to United States v. Board of Supervisors of Bern Township, Civil Action No. 2:05-cv-03483, and EEOC Charge No. 170 A 11300, and no other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Consent Decree, including its attachments, shall be enforceable.

18.     The individuals signing this Consent Decree represent that they are authorized to bind the parties to this Consent Decree.

SO ORDERED this     29th     day of     June    , 2006.

/s/
United States District Judge


AGREED AND CONSENTED TO:

Respectfully Submitted,

ALBERTO R. GONZALES
Attorney General
WAN J. KIM
Assistant Attorney General
Civil Rights Division

PATRICK L. MEEHAN
United States Attorney
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
215-861-8200

JOHN L. WODATCH
Chief, Disability Rights Section

________________________
PHILIP L. BREEN, Special Legal Counsel
ALLISON J. NICHOL, Deputy Chief
LAURA F. EINSTEIN, Trial Attorney
KATHLEEN WOLFE, Trial Attorney
ANAT EHRLICH, Trial Attorney
Civil Rights Division - Disability Rights Section
United States Department of Justice
950 Pennsylvania Avenue NW - NYA
Washington, DC 20530
202-514-9583

Attorneys for the United States


_____________________________
GEORGE C. CUSH
Supervisor, Bern Township
1069 Old Bernville Road
Reading, PA 19605

For Bern Township






GUIDELINES FOR REASONABLE ACCOMMODATIONS

Introduction and Overview

Bern Township will provide reasonable accommodations to employees and job applicants with disabilities. This policy statement describes basic procedures for processing requests for accommodations.

A reasonable accommodation is a modification to a job that will enable a person with physical or psychological limitations to perform the essential functions of a job. Reasonable accommodations may include, but are not limited to, (a) making existing facilities physically accessible to individuals with disabilities; (b) job restructuring (e.g. relieving the employee of the requirement to perform certain job functions), modification of work schedules or place of work, extended leave, telecommuting, reassignment to a vacant position; and (c) acquisition or modification of equipment or devices.

The Request Process

Job Applicants

Job applicants who seek accommodations in the application process may make requests for a reasonable accommodation to the individual identified in the appropriate vacancy announcement as the point of contact or other officials they have dealt with in the application process.

Employees

An Employee, who believes he/she may need a reasonable accommodation to perform their job should submit a request to the supervisor. The employee, supervisor and _______ shall meet promptly to discuss the request, and determine whether a reasonable accommodation is available. A request for accommodation may be made verbally or in writing.

The discussion with the employee and supervisor(s) may address: (1) the job functions of the employee’s position, (2) the job‑related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation, (3) potential accommodations and an assessment of the effectiveness of those accommodations in enabling the employee to perform the essential functions of the job, (4) the preference of the employee and selection and implementation of the accommodation that is appropriate for the employee and the employer and (5) the overall needs of the workplace. The cost of an accommodation or the overall impact of the accommodation on the workplace can be a consideration. The accommodation need not be the most expensive, nor must it be exactly what the employee requested, but it must be effective.

Supervisors may request medical documentation to establish that an employee has a disability.

If an employee has concerns about disclosing his or her disability to a supervisor, the employee may send the request in the first instance directly to ________. Employees should understand, however, that it may become necessary to disclose that information to the supervisors in order to facilitate the provision of the reasonable accommodation.

Requests for accommodations will be kept confidential. Written requests for accommodations, along with any medical or other documentation provided, will be kept in files separate from the employee's personnel file. Access to information pertaining to requests for accommodation is strictly limited to those employees with an identifiable need to review the information.

Return to Work after Medical Leave

Bern Township may require employees returning to work following an extended medical leave to obtain certification that they are fit to perform their job. Where the release to work includes limitations, the certification will be treated as a request for accommodation and be handled in accordance with the procedures in this guideline.

Where the Township has concerns that an employee’s present ability to perform essential job functions may be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, we can ask employees to provide additional information from their phsyician or submit to a medical examination. Any inquiries or examination, however, will be limited in scope to the medical condition at issue, and what is needed to make an assessment of an employee's ability to work.

Time Lines

Supervisors who receive requests for accommodation should respond to them promptly. The discussions between supervisors and the employee should commence immediately, and employees should provide all necessary medical information as soon as possible.

Retaliation.

A supervisor may not retaliate against an employee who has requested an accommodation.

Relation of Procedures to Statutory and Collective Bargaining Claims

Bern Township’s reasonable accommodation policy is in addition to statutory and collective bargaining protections for persons with disabilities. If you have questions, you should consult an attorney or your union representative.



March 23, 2007