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

COMPLAINT

NOW COMES Plaintiff, United States of America, and respectfully alleges, upon information and belief:

1. This action is brought by the United States (hereinafter "Plaintiff"), against the County of Erie, New York (hereinafter "Defendant"), to enforce the statutory and regulatory provisions of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., which incorporate, through 42 U.S.C. § 12117(a), the powers, remedies, and procedures set forth in Title VII of the Civil Rights Act of 1964, as amended, including 42 U.S.C. § 2000e-5.
2. This Court has jurisdiction of this action under 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 1331 and 1345.
3. This Court has authority to grant a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202, and authority to grant equitable relief and monetary damages pursuant to 42 U.S.C. § 12117(a).
4. Venue is appropriate pursuant to 28 U.S.C. § 1391.
5. Defendant is a person within the meaning of 42 U.S.C. § 12111(7) and 42 U.S.C. § 2000e(a).
6. Defendant is 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.
7. On June 15, 2009, Mr. Timothy Slawek filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that Defendant discriminated against him in violation of the ADA by refusing to promote him to a Park Maintenance Worker (PMW) II position and denying him a reasonable accommodation.
8. Pursuant to 42 U.S.C. § 2000e-5, incorporated by reference in 42 U.S.C. § 12117(a), the EEOC investigated Mr. Slawek's charge and found reasonable cause to believe that Defendant discriminated against him in violation of the ADA. After attempting unsuccessfully to reach a voluntary resolution of the charge, the EEOC referred the matter to the United States Department of Justice.
9. Mr. Slawek is an individual with a disability within the meaning of 42 U.S.C. § 12102 and 29 C.F.R. § 1630.2. Mr. Slawek has monocular vision, and is substantially limited in, at minimum, the major life activity of seeing.
10. Mr. Slawek began working for Defendant's Department of Parks, Recreation & Forestry in 1999.
11. Mr. Slawek began working for Defendant's Department of Parks, Recreation & Forestry as a Park Maintenance Worker I in 2006.
12. Defendant's Department of Parks, Recreation & Forestry consists of twelve parks, including golf courses.
13. Mr. Slawek's job duties as a PMW I include, but are not limited to, grounds keeping, trash pick-up, cleaning facilities, transporting equipment and materials, and cutting lumber.
14. In 2009, Mr. Slawek's work performance as a PMW I was well-regarded by his supervisors.
15. At present, Mr. Slawek's work performance as a PMW I continues to be well-regarded by his supervisors.
16. In May 2009, Mr. Slawek applied for a promotion to a PMW II position with Defendant's Department of Parks, Recreation & Forestry.
17. The PMW II position includes some supervisory responsibilities over PMW Is.
18. The notice of vacancy for the PMW II position states, under a section entitled "special requirements," "Possession of a valid New York State Commercial Driver's License (CDL) appropriate for Class of vehicle operated."
19. Mr. Slawek is unable to obtain a Commercial Driver's License (CDL) due to his disability.
20. The vacancy announcements to which Mr. Slawek applied were for PMW II vacancies located at Elma Meadows Golf Course, Ellicott Creek Park, and Grover Cleveland Golf Course.
21. With his application, Mr. Slawek submitted a letter, addressed to the Commissioner for the Department of Parks, Recreation & Forestry, in which Mr. Slawek stated, "As per our previous discussions, I am hoping that my disability preventing me from obtaining a CDL will not interfere with my potential upgrade."
22. After the time period for the PMW II applications closed, Mr. Slawek was told by management of the Department of Parks, Recreation & Forestry that he was not selected for promotion to a PMW II position because he cannot drive commercial motor vehicles that require a CDL.
23. Mr. Slawek met with the Commissioner to request reconsideration for the promotion.
24. Defendant refused to promote Mr. Slawek to the PMW II position because he could not drive commercial motor vehicles that require a CDL.
25. In June 2009, Mr. Slawek submitted to Defendant's Office of the Disabled a form entitled "Request for Reasonable Accommodations under the ADA."
26. On the above referenced form, Mr. Slawek requested to be "upgraded to Park Maintenance Worker II."
27. Mr. Slawek was asked by Defendant's Office of the Disabled to have a physician fill out a "Physician Medical Certification for Request for Reasonable Accommodation."
28. Mr. Slawek's physician filled out the above-referenced "Physician Medical Certification for Request for Reasonable Accommodation."
29. The form asks, "Are accommodations needed?" The physician indicated in the affirmative, checking a box stating, "If the patient's condition suggests an accommodation is necessary to enable her to perform her job functions, please identify the accommodation requested."
30. On the above referenced form, the physician wrote, "Patient fully qualified for work; however unable to obtain CDL [due] to chronic but controlled visual issue."
31. Defendant did not engage in an interactive process with Mr. Slawek regarding his request for a reasonable accommodation.
32. After Mr. Slawek submitted the above referenced documents to Defendant, in September 2009, Defendant's Office for the Disabled sent Mr. Slawek a letter stating that, "Possession of a CDL is a requirement of the position of PMW II. As a result, you do not meet the minimum qualifications for the position." The letter further stated that, "[A] reasonable accommodation is not warranted at this time and your file with the Office of the Disabled will be closed."
33. Defendant maintains that driving commercial motor vehicles that require a CDL is a qualification standard for the position of PMW II.
34. Defendant maintains that driving commercial motor vehicles that require a CDL is a selection criterion for the position of PMW II.
35. When Mr. Slawek applied for a promotion to the PMW II position, there were approximately eight PMW IIs who did not have CDLs.
36. When Mr. Slawek applied for a promotion to the PMW II position, there were approximately 16 PMW IIs and IIIs who had CDLs.
37. Upon information and belief, when Mr. Slawek applied for a promotion to the PMW II position, there were approximately 58 licensed vehicles in Defendant's Department of Parks, Recreation & Forestry.
38. Of the 58 licensed vehicles in Defendant's Department of Parks, Recreation & Forestry, there were approximately two commercial motor vehicles that require a CDL to operate.
39. Not all PMW IIs drive commercial motor vehicles that require a CDL in the course of performing job tasks for Defendant.
40. Some PMW IIs and IIIs who have CDLs perform the job task of driving commercial motor vehicles that require a CDL.
41. Upon information and belief, when Mr. Slawek was denied a promotion, the PMW IIs who drove commercial motor vehicles that require a CDL in the course of performing job tasks for Defendant drove these vehicles on average less than 16 hours per year.
42. Defendant's Department of Parks, Recreation & Forestry directs PMW IIs and IIIs to perform job tasks at parks other than the parks where they are regularly assigned.
43. PMW IIs and IIIs have performed the job task of driving commercial motor vehicles that require a CDL at parks other than the park where they are regularly assigned.
44. Upon information and belief, when Mr. Slawek applied for the position of PMW II, he was the most senior applicant (with respect to seniority with Defendant's Department of Parks, Recreation & Forestry) who applied for a PMW II position at Elma Meadows Golf Course.
45. Upon information and belief, the primary job duty of a PMW II at Elma Meadow Golf Course is grounds keeping.
46. Driving commercial motor vehicles that require a CDL is a job task that is rarely, if ever, performed at Elma Meadows Golf Course.
47. As of 2012, at least three PMW IIs had still not obtained CDLs, but remained in the PMW II positions.
48. At least one of the PMW II vacancies to which Mr. Slawek applied was filled by promoting a PMW I who was less qualified than Mr. Slawek.

    Cause of Action
    Count I - Title I of the Americans with Disabilities Act

49. The allegations of the foregoing paragraphs are hereby re-alleged and incorporated herein by reference.
50. Defendant's conduct as described in this Complaint constitutes discrimination on the basis of disability in violation of Title I of ADA, 42 U.S.C. § 12111, et seq., and its implementing regulation, 29 C.F.R. Part 1630, as set forth below.

    (a) By using qualification standards and/or or other selection criteria that are not consistent with business necessity and that screened out Mr. Slawek from a promotion to a PMW II position, and where performance of the job can be accomplished by reasonable accommodation, Defendant's conduct constitutes discrimination in violation of Title I of the ADA. 42 U.S.C. §§ 12112(a) and (b).

    (b) By failing to promote Mr. Slawek, who was a qualified applicant with a disability for the PMW II position, on the basis of disability, and/or because Defendant needed to provide a reasonable accommodation to Mr. Slawek, Defendant's conduct constitutes discrimination in violation of Title I of the ADA. 42 U.S.C. §§ 12112(a) and (b).

    (c) By failing to provide a reasonable accommodation to Mr. Slawek, who was an otherwise qualified applicant with a disability for the PMW II position, for his known disability, where such an accommodation was available and did not pose an undue hardship, Defendant's conduct constitutes discrimination in violation of Title I of the ADA. 42 U.S.C. §§ 12112(a) and (b).

    Prayer for Relief

    WHEREFORE, the United States prays that this Court:

    (a) Grant judgment in favor of the United States and declare that Defendant has violated Title I of the ADA, 42 U.S.C. § 12111 et seq., and its accompanying regulation;

    (b) enjoin Defendant and its agents, employees, successors and all persons in active concert or participation with it, from engaging in discriminatory employment policies and practices against applicants and employees based on disability;

    (c) require Defendant to modify its policies, practices, and procedures as necessary to bring its employment practices into compliance with Title I of the ADA and its accompanying regulation;

    (d) order Defendant to train its supervisors and human resource staff regarding the requirements of the ADA;

    (f) enjoin Defendant from failing or refusing to take other appropriate measures to overcome the effects of its discriminatory policies and practices;

    (g) award Mr. Slawek:

    (i) an offer of promotion to the next vacant PMW II position with Defendant comparable to the positions to which he applied;

    (ii) back pay with interest;

    (iii) retroactive seniority with all associated rights and benefits;

    (iv) back pension/retirement benefits with interest;

    (v) compensatory damages, including damages for pain and suffering, for injuries suffered as a result of Defendant's failure to comply with the requirements of Title I of the ADA pursuant to and within the statutory limitations of Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a; and

    (h) order such other appropriate relief as the interests of justice require.

    Jury Demand

    Plaintiff United States requests a trial by jury as to all counts.

    FOR THE UNITED STATES OF AMERICA

    ERIC H. HOLDER, JR.
    Attorney General of the United States