IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

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Press Release

CONSENT DECREE

I. Background

1. This Consent Decree resolves a civil action brought by Plaintiff United States against Defendant, the County of Erie, New York ("the County"), to enforce the provisions of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq., and its implementing regulation, 29 C.F.R. §§ 1630 et seq.
2. In its Complaint, the United States alleges that Defendant discriminated against Timothy Slawek, in violation of 42 U.S.C. § 12112 and 29 C.F.R. §§ 1630.2, 1630.4 and 1630.9, by failing to promote him from the position of Park Maintenance Worker I to the position of Park Maintenance Worker II based on disability.
3. This matter was initiated by a charge filed by Mr. Slawek (Charge No. 525-2009-00784) with the Equal Employment Opportunity Commission ("EEOC"). The EEOC investigated the charge and found reasonable cause to believe that the allegations of discrimination on the basis of disability were true. After the EEOC's attempts at conciliation failed, the EEOC referred the charge to the United States Department of Justice ("the Department").
4. The County has denied, defended, and disputed the allegations and claims contained in EEOC Charge No. 525-2009-00784 and this action, and the parties agree that this Consent Decree shall not and does not constitute an admission of negligence, wrongdoing, retaliation, or any violation of state or federal laws or regulations.
5. The United States and Defendant (collectively, "the parties") agree that it is in the parties' best interests, and the United States believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation. Accordingly, the parties agree to the entry of this Consent Decree without trial or further adjudication of any issues of fact or law raised in the United States' Complaint.

Accordingly, the parties hereby AGREE and the Court expressly APPROVES, ENTERS AND ORDERS THE FOLLOWING:

II. Jurisdiction and Venue

6. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 1331 and 1345. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391.
7. The United States has authority to initiate legal proceedings to enforce Title I of the ADA through litigation. 42 U.S.C. § 12117(a).
8. Defendant is a person within the meaning of 42 U.S.C. § 12111(7) and 42 U.S.C. § 2000e(a), an employer within the meaning of 42 U.S.C. §§ 12111(5) and 2000e(b), and a covered entity within the meaning of 42 U.S.C. § 12111(2) and 29 C.F.R. § 1630.2.

III. Injunctive Relief

9. Defendant, by and through its officials, agents, employees, and all persons in active concert or participation with Defendant 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.
10. Defendant shall provide training on all aspects of Title I of the ADA, including its responsibilities with respect to reasonable accommodations, to all current supervisors in the Department of Parks, Recreation & Forestry who participate in making personnel decisions and all department heads in the County's Executive Branch, within ninety (90) days of the entry of this Consent Decree, and every year thereafter for the term of this Decree. The trainings shall be conducted by trainers that Defendant has selected and the Department of Justice has approved. Defendant shall send via electronic mail the proposed curriculum for the training to the Department of Justice no later than thirty (30) days before the training date. Defendant shall adopt any changes to the curriculum made by the Department of Justice. Attendance logs shall be maintained of all employees who attend the training.
11. Defendant shall also provide training on all aspects of Title I of the ADA to all new supervisors in the Department of Parks, Recreation & Forestry who participate in making personnel decisions and all new department heads in the County's Executive Branch, whether by hire or promotion, after the entry of this Consent Decree within thirty (30) days of the start of their supervisory position, and every year thereafter for the term of this Decree. Defendant shall send via electronic mail the proposed curriculum for such trainings to the Department of Justice for approval within forty-five (45) days of the entry of this Decree. Defendant shall adopt any changes to the curriculum made by the Department of Justice. Defendant shall also notify the Department of Justice, no later than 30 days before a training date, of the trainer that Defendant has selected for such trainings. The Department of Justice shall have the authority to approve the trainers that Defendant has selected. Attendance logs shall be maintained of all employees who attend the training.
12. Defendant shall designate a County employee (or employees) to address ADA compliance matters. The designated employee shall serve as the primary contact on disability-related issues and concerns raised by applicants for County jobs and County employees, and shall have the authority to implement the requirements of this Consent Decree.
13. Six (6) months after the effective date of this Decree, and every six (6) months thereafter during the term of this Decree, the County shall provide a written report ("Report") to the Department regarding its efforts to comply with this Decree. The Report shall include, for the preceding six-month period:

    (a) A specific acknowledgment that the County has, for the instant reporting period, complied with the requirements of the Decree, including the training requirements specified in paragraphs (10)-(11) above;

    (b) All copies of the attendance logs maintained for the trainings described in paragraphs (10)-(11), above; and

    (c) Notification regarding any lawsuit, written complaint, charge, or grievance alleging that the County has violated Title I of the ADA.

    All information provided pursuant to the above reporting requirements under this Decree should be provided to the Department via overnight courier service to: Elaine Grant, U.S. Department of Justice, Civil Rights Division, Disability Rights Section, 1425 New York Avenue, N.W., Fourth Floor, Washington, D.C. 20530.

IV. Specific Remedial Relief

14. Within thirty (30) days of the effective date of this Consent Decree, the County shall offer Mr. Slawek the position of Park Maintenance Worker II at the Bureau of Forestry in the County's Department of Parks, Recreation & Forestry, with a remedial seniority date of June 1, 2009. If Mr. Slawek accepts this offer, the County shall make the position available for him to commence employment no later than 45 days from the effective date of this Consent Decree. The County shall apply the remedial seniority date of June 1, 2009 to salary increases (such that Mr. Slawek will be instated at the salary he would have been entitled to had he been hired on his remedial seniority date), all non-competitive job benefits that are based on time served in the position, and competitive seniority status for all purposes, with the exception of time served as a Park Maintenance Worker II for the purpose of determining promotion to a higher position (to the extent time served as a Park Maintenance Worker II is a relevant consideration). Mr. Slawek shall have the opportunity to transfer to a Park Maintenance Worker II position at another park when such a position next becomes available based upon Mr. Slawek's seniority calculated from the date of his initial hire.
15. Within thirty (30) days of the effective date of this Consent Decree, the County shall offer to pay Mr. Slawek a total monetary award of $22,486.17, which includes:

    (a) A monetary award of $21,099.74, which is designated as back pay. This monetary amount shall be subject to any applicable federal, state, and local taxes, in addition to other payroll tax withholding deductions, and the County shall issue an IRS Form W-2 to Mr. Slawek for this amount. The County shall separately pay all federal, state and local taxes due on the monetary award, i.e., the employer's payments shall not be deducted from the monetary award to Mr. Slawek.

    (b) A monetary award in the amount of $1,386.43, which is designated as accumulated interest on the back pay. This amount shall not be subject to withholding deductions, and the County shall issue an IRS Form 1099-INT to Mr. Slawek for this amount.

16. Within forty-five (45) days of the effective date of this Consent Decree, the County shall send to Mr. Slawek a copy of this signed Consent Decree, along with a letter, Release of Claims Form, and Election Form (attached as Exhibits 1, 2, and 3 respectively). In order to accept the relief offered by the County, Mr. Slawek must execute and return the Release of Claims Form (Exhibit 2) and the Election Form (Exhibit 3) to the County within thirty (30) days of his receipt of the County's letter (Exhibit 1).
17. The County shall send the United States a copy of Exhibits 1, 2, and 3 when they are sent to Mr. Slawek.
18. If Mr. Slawek accepts the County's remedial relief offer outlined in paragraph 15 above, the County shall pay the monetary sum within fifteen (15) days of receipt of his signed Release of Claims Form and Election Form.

V. Implementation and Enforcement

19. Failure by the United States to enforce any provision of this Consent Decree shall not be construed as a waiver of the United States' right to enforce other provisions of this Decree.
20. If any term of this Consent Decree is determined by any court to be unenforceable, the other terms of this Consent Decree shall nonetheless remain in full force and effect.
21. The United States may review compliance with this Consent Decree at any time. If the United States believes that this Consent Decree or any portion of it has been violated, it will raise its concerns with the County and the parties will attempt to resolve those concerns in good faith. The United States will give the County thirty (30) days from the date it notifies the County of any breach of this Consent Decree to cure that breach before filing a motion for contempt or taking any other enforcement action.
22. This Consent Decree shall be binding upon the County, its agents, and employees.
23. A signatory to this document in a representative capacity for Defendant represents that he or she is authorized to bind the Defendant to this Consent Decree.
24. This Consent Decree constitutes the entire agreement between the United States and the County 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 written Consent Decree, including its attachments, shall be enforceable.
25. This Consent Decree is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Consent Decree.
26. This Consent Decree does not affect the County's continuing responsibility to comply with all aspects of the ADA.
27. A copy of this Consent Decree or any information contained herein may be made available to any person, and the County shall provide a copy of this Consent Decree to any person upon request.
28. The parties agree that, as of the date of entry of this Consent Decree, litigation is not "reasonably foreseeable" concerning the matters described in paragraphs (1)-(3). To the extent that either party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described in paragraphs (1)-(3), 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 Consent Decree.
29. The effective date of this Consent Decree is the date the Court enters the Decree.
30. The duration of this Consent Decree will be three (3) years from the effective date.

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Exhibit 1

BY OVERNIGHT MAIL

[Name]
[Address]

Re: Slawek v. County of Erie, New York
Civil Action No. [ ]
EEOC Charge # 525-2009-00784

Dear Mr. Slawek:

The United States Department of Justice and the County of Erie, New York ("the County") have entered into a Consent Decree to resolve the charge you filed in this matter. A copy of the Consent Decree is enclosed.

Under the Consent Decree, the County is offering you a payment of $22,486.17 and an offer of employment as a Park Maintenance Worker II at the Bureau of Forestry, with a remedial seniority date of June 1, 2009. In order to accept the County's offer, you must sign and notarize the enclosed Release of Claims Form and Election Form and return them to the County within thirty (30) days of your receipt of this letter. You may return the forms by mail to:

Rodger P. Doyle, Jr.
Kenney Shelton Liptak Nowak LLP
The Calumet Building
233 Franklin Street
Buffalo, New York 14202

The remedial relief is offered to you on the following condition: if you accept it, you will be required to release the County from all claims you may have against it, arising out of EEOC Charge # 525-2009-00784 and Civil Action No. [ ] filed in the Federal District Court for the Western District of New York. Within fifteen (15) days of the County's receipt of your executed Release of Claims Form and Election Form, the County will forward you a check in the amount of $ [ ]. If you accept the offer of employment, the County will contact you about procedures for commencing employment.

If you have any questions concerning this letter or the Consent Decree, you may contact me at (716) 853-3801 or you may contact Elaine Grant at the Department of Justice at (202) 305-8686.

Sincerely,

Rodger P. Doyle, Esq.
Legal Counsel

Enclosure: Copy of Executed Consent Decree
                 Release of Claims Form
                 Election Form

cc: Elaine Grant, U.S. Department of Justice