SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES AND THE CAROLINE COUNTY, VIRGINIA COMMISSIONER OF THE REVENUE, IN HIS OFFICIAL CAPACITY

Press Release

1. Introduction
1. The parties to this Settlement Agreement (“Agreement”) are the United States and the Caroline County, Virginia Commissioner of the Revenue, in his official capacity (the “Commissioner”).  The United States and the Commissioner are collectively referred to in this Agreement as the “Parties.”
2. This Agreement resolves a Complaint that the United States filed under Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111–12117, and its implementing regulation, 29 C.F.R. Part 1630, in the United States District Court for the Eastern District of Virginia,No. 3:20-cv-00136-HEH (hereinafter “Civil Action”).
3. The facts and events giving rise to the issues raised in the Complaint occurred in 2015.
4. The United States alleges that in 2015, a former Caroline County Commissioner of the Revenue unlawfully failed to provide an employee (“Complainant”) with a reasonable accommodation and terminated her on the basis of disability.
5. The Commissioner expressly denies liability as to all the claims raised in the Complaint filed by the United States in this Civil Action, including any alleged failure to provide the Complainant with a reasonable accommodation under the ADA.  This Agreement represents a compromise settlement of disputed claims and shall not be construed as an admission of liability on the part of the Commissioner, in whole or in part, for any alleged wrongful act, omission, or violation of any federal or state statute, rule, policy, or regulation, including, but not limited to, any alleged violation of the ADA.
6. The Complaint filed by the United States in this Civil Action was filed against the Commissioner in his official capacity as the Commissioner of the Revenue for Caroline County, Virginia, and is not a lawsuit filed against him in his individual capacity.  The lawsuit filed in this Civil Action does not allege any wrongdoing by the current Commissioner, who was not in office during the time period when the events giving rise to the issues raised in the Complaint occurred in 2015.
7. To avoid the delay, uncertainty, inconvenience, and litigation expense of these claims, and in consideration of this Agreement’s mutual promises and obligations, the parties have agreed to resolve this matter as set forth herein.  The parties agree that it is in their best interest, and the United States believes that it is in the public interest, to voluntarily enter into this Agreement.
2. Background
   8. The United States alleges that the Commissioner is an employer within the meaning of 42 U.S.C. § 12111(5), and a covered entity within the meaning of 42 U.S.C. § 12111(2); 29 C.F.R. § 1630.2.
   9. Title I of the ADA, 42 U.S.C. §§ 12111–12117, and its implementing regulation, 29 C.F.R. Part 1630, prohibit covered employers from discriminating against qualified individuals on the basis of disability in employment practices.  42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4.
   10. Pursuant to Title I of the ADA, an employer discriminates against an otherwise qualified individual on the basis of disability when it fails to make “reasonable accommodations to the known physical or mental limitations” of the individual, unless the employer “can demonstrate that the accommodation would impose an undue hardship on the operation of the business . . . .”  42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a).
   11. The United States alleges that Complainant is an individual with a disability within the meaning of 42 U.S.C. § 12102; and 29 C.F.R. § 1630.2(g), (h), (i), (j) because she has physical impairments that substantially limit major life activities, including speaking, breathing, walking, and the operation of her respiratory system.
   12. This matter was initiated when Complainant filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that Caroline County and a former Commissioner of the Revenue discriminated against her based on her disability in 2015.
   13. The EEOC investigated the charge and found reasonable cause to believe that Caroline County and the former Commissioner violated the ADA.  After the EEOC’s attempts at conciliation failed, the EEOC referred the charge to the United States Department of Justice.
3. Non-Monetary Relief
14. Presentation:  Within one hundred and twenty (120) days of this Agreement’s effective date, the current Commissioner and the Caroline County Human Resource Manager who assists the Commissioner with personnel matters, including reasonable accommodation requests, shall attend a presentation on Title I of the ADA, including the obligation to engage in an interactive process as necessary to determine appropriate reasonable accommodations to the known physical or mental impairments of otherwise qualified applicants or employees with disabilities.  The presentation will be conducted by either the Mid-Atlantic ADA Center or the Job Accommodation Network.  The presentation will be hosted live at the Caroline County Administration Building or via videoconference, with an opportunity for questions and answers during the presentation.  However, the presentation may be recorded for use at any subsequent trainings.  A synchronous presentation provided via videoconference shall be considered “live.”  Within five (5) days of the presentation, the Commissioner or its designee shall provide counsel for the United States with a specific acknowledgment that the presentation has occurred, as well as the presentation date, the presenter’s name and employer, and the names and job titles of all attendees.
15. Scope of Additional Non-Monetary Relief:
1. The obligations set forth in Paragraphs 16 through 21 will attach and become effective during the Term of this Agreement, which is defined in Paragraph 38 below, only if the Commissioner has 15 or more employees, not counting the Commissioner himself, for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
2. Within thirty (30) days of hiring or terminating a full-time, part-time, temporary, on-call or seasonal employee during the Term of this Agreement, the Commissioner or its designee shall provide the United States with the employee’s hire or termination date and the Commissioner’s current employee roster to enable the United States to determine whether the Commissioner must comply with the obligations set forth in Paragraphs 16 through 21.
16. Reasonable Accommodation Obligation:  The Commissioner, by and through its officials, agents, or employees, will provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.  42 U.S.C. §§ 12112(a), 12112(b)(5).
17. Interactive Process Regarding Reasonable Accommodations:  The Commissioner will engage in an interactive process when an applicant or employee requests a reasonable accommodation or when the Commissioner has been advised (by an individual’s healthcare provider or otherwise) that an applicant or employee needs a reasonable accommodation.  The interactive process should, at a minimum, identify the limitations resulting from the disability and potential reasonable accommodations that may overcome those limitations.  29 C.F.R. § 1630.2(o)(3); 29 C.F.R. pt. 1630, app. at 403–04.
18. Policies, Practices, and Procedures:  The Commissioner will revise its reasonable accommodation policies, practices, and procedures to comply with Title I of the ADA.  The Commissioner will ensure that the revised policies, practices, and procedures:
1. Provide for the convening of an interactive process meeting where appropriate or necessary to clarify the applicant or employee’s disability-related limitations and identify potential reasonable accommodations for those limitations.  Any such meeting shall include the employer and the applicant or employee with a disability.
2. Preserve copies of all documents demonstrating all efforts to identify and provide requested reasonable accommodations to the Commissioner’s applicants or employees; and
3. Provide an effective and efficient process for receiving and responding to applicants’ or employees’ requests for reasonable accommodation and/or complaints of disability discrimination, including complaints alleging denial of reasonable accommodation requests.
19. To implement the policies, practices, and procedures described in Paragraph 18:
1. Within thirty (30) days of the triggering event described in Paragraph 15, the Commissioner shall send its revised policies, practices, and procedures to the United States for approval.  The United States shall review and provide comments on the Commissioner’s policies, practices, and procedures, and identify any additional provisions that should be included.  The Commissioner shall incorporate those comments.
2. Within fifteen (15) days of the United States’ final approval of revised policies, practices, and procedures, the Commissioner shall implement the revised policies, practices, and procedures, including by distributing copies of these policies, practices, and procedures to: (1) all County Human Resources employees who assist the Commissioner with personnel matters, including reasonable accommodations requests; and (2) all of the Commissioner’s employees.  The Commissioner shall also distribute these policies, practices, and procedures to such employees who are hired after the initial distribution within fifteen (15) days of their start date.  In addition, the Commissioner will post a link to those policies, practices, and procedures on the Commissioner’s employment-related websites, as well as on any intranet site(s) available only to the Commissioner’s employees.
20. Training:  If the triggering event described in Paragraph 15 occurs, the Commissioner will train all employees in any position described in Paragraph 14 and all supervisory employees working for the Commissioner, who did not previously attend the presentation described in Paragraph 14, within thirty (30) days of the triggering event.  After this training, the Commissioner shall also provide training to all employees subsequently hired or promoted into any position described in Paragraph 14 and any subsequently hired or promoted supervisory employees working for the Commissioner, within thirty (30) days of their start date.  The training shall include the topics described in Paragraph 14 and be conducted and documented in the manner described in Paragraph 14.
21. Reporting Requirements:  Six (6) months after the triggering event described in Paragraph 15 occurs, the Commissioner shall provide a written report to the United States regarding efforts to comply with this Agreement.  A final report shall also be provided thirty (30) days prior to the expiration of this Agreement.  Each report shall include, for the preceding period:
1. A specific acknowledgment that the Commissioner has, for the instant reporting period, complied with the training requirements set forth in Paragraph 20 above;
2. Notification of any request for reasonable accommodation made by any of the Commissioner’s applicants or employees, and a description of how the Commissioner handled the request.  Such notice will include, at a minimum, a description of the nature of the request, the name of the individual making the request, all documentation possessed by the Commissioner or Caroline County relevant to the handling of the request, and the resolution of the request;
3. Copies of the attendance logs maintained for the ADA presentation or trainings described in Paragraphs 14 and 20;
4. Notification of any written complaints, grievances, charges, or lawsuits under Title I of the ADA; and
5. Copies of any new or revised policies regarding Title I of the ADA.
22. Address:  All materials or notice provided pursuant to the requirements of this Agreement should be provided to the Department via electronic mail to cheryl.rost@usdoj.gov.  All confidential information provided to the Department shall be maintained in a confidential manner.
4. Individual Relief
23. Within three (3) days of the effective date of this Agreement, the United States shall send to the Complainant a Release of Claims (attached as Exhibit 1), which must be signed and returned to the Commissioner via email within seven (7) days of Complainant’s receipt of the Release of Claims (Exhibit 1).  The Complainant will subsequently return a notarized paper copy of the signed Release of Claims to the Commissioner.
24. Within twenty-one (21) days of receipt via email of the Complainant’s signed Release of Claims (Exhibit 1), the Commissioner shall pay to Complainant a total monetary sum of $75,000.00, payable to the order of Complainant and sent to the attention of her attorney, which includes:
    1. A monetary award in the gross amount of $25,000.00, which will be designated as back pay.  This gross amount shall be subject to any applicable federal, state, and local taxes, in addition to other payroll tax withholding deductions, and Caroline County will issue an IRS Form W-2 to Complainant for this amount.
    2. A monetary award of $50,000.00, which will be designated as compensatory damages.  This amount shall not be subject to withholding deductions.  
25. Within three (3) days of paying the total monetary sum outlined in Paragraph 24 above, the Commissioner shall send the United States written confirmation of payment to the Complainant via electronic mail to cheryl.rost@usdoj.gov.
5. Implementation
26. Consideration:  In consideration for the Agreement set forth above, the United States will file a Stipulation of Dismissal of the Civil Action signed by all parties, as set forth in Paragraph 27.  This Agreement fully and finally resolves EEOC Charge 438-2015-01203, filed by the Complainant against the Commissioner and Caroline County, Virginia, as well as the Complaint filed in the Civil Action.  Except as described in Paragraph 28, the United States releases and will take no further action against the Commissioner and/or Caroline County, Virginia, arising out of the facts alleged in EEOC Charge 438-2015-01203 or the facts alleged in the Complaint filed in the Civil Action.  The parties agree and acknowledge that this consideration is adequate and sufficient.
27. Voluntary Dismissal:  Within five (5) days of the Commissioner complying with Paragraphs 24–25, the United States will file a Stipulation of Dismissal of the underlying Civil Action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
28. Enforcement:  The United States may review the Commissioner’s compliance with this Agreement at any time during the Term, but not thereafter.  If, during the Term, the United States believes that the Commissioner has failed to comply adequately or in a timely manner with any requirement of this Agreement or that any requirement has been violated, the United States shall notify the Commissioner in writing and the parties shall attempt to resolve the issue in good faith.  If the parties are unable to reach a satisfactory resolution of the issue within thirty (30) days of the date the United States provides notice to the Commissioner, the United States may institute a civil action in the United States District Court for the Eastern District of Virginia, Richmond Division, to enforce this Agreement or the ADA.  The parties further acknowledge and agree that the United States District Court for the Eastern District of Virginia, Richmond Division, shall have exclusive jurisdiction to hear and determine any claims or disputes between the parties with respect to the Agreement or the General Release of Claims attached as Exhibit 1.
29. Severability:  If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect.
30. Non-Waiver:  Failure by the United States to enforce any provision or deadline in this Agreement will not be construed as a waiver of the right of the United States to enforce any provision of this Agreement.
31. Extensions:  The time frame for completion of any act required by this Agreement may be modified with the mutual written consent of the parties.
32. Successor Liability:  This Agreement shall be binding upon the Commissioner, its officials, agents, employees, successors, and any other person under the authority or control of the Commissioner.
33. Authority:  A signatory to this document in a representative capacity for the Commissioner represents that he or she is authorized to bind the Commissioner to this Agreement.
34. Entire Agreement:  This Agreement constitutes the entire agreement between the United States and the Commissioner on the matters raised herein 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 Agreement, including its attachments, is enforceable.
35. Limitation:  Except as described in Paragraph 26, this Agreement is not intended to remedy any other potential violations of the ADA or any other law by the Commissioner that is not specifically addressed in this Agreement.
36. Publicity:  A copy of this Agreement or any information contained herein may be made available to any person, and the Parties may provide a copy of this Agreement to any person upon request.
37. Effective Date:  The effective date of this Agreement is the date of the last signature below. 
38. Term:  The duration of this Agreement is fifteen (15) months from the effective date.
39. Costs:  Each party will assume its own costs and expenses, including attorneys’ fees.
40. Counterparts:  This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same Agreement, notwithstanding that each party is not a signatory to the original or the same counterpart.
41. Litigation Hold:  The parties agree that, as of the effective date of this Agreement, litigation is not “reasonably foreseeable” concerning the Civil Action.  To the extent that either party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matter described in Paragraph 2, the party is no longer required to maintain such a litigation hold.  Nothing in this Paragraph relieves either party of any other obligations imposed by this Agreement.