PREET BHARARA
United States Attorney
Southern District of New York
By: DAVID J. KENNEDY
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel. No. (212) 637-2733
Fax No. (212) 637-0033
Email: david.kennedy2@usdoj.gov

UNITED STATES DISTRICT COURT
southern DISTRICT OF NEW YORK

WHEREAS, this Consent Decree resolves a civil action brought by Plaintiff United States against Defendant the City of New York (“City”), to enforce the provisions of Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111 et seq., and its implementing regulations, 29 C.F.R. § 1630.1 et seq.;

WHEREAS, the United States alleges that the City, through the New York City Police Department (“NYPD”) discriminated against Regina Sessoms-Skeete (“Skeete”), a person with a disability, in violation of 42 U.S.C. §§ 12112(a) and (d)(2), by engaging in a pre-employment medical examination without first providing a conditional offer of employment, and in failing to provide Skeete with a reasonable accommodation to her request to attend the medical examination at an alternative site;

WHEREAS, this matter was initiated by the charge filed by Skeete (Charge Number 520-2006-02862) with the U.S. Equal Employment Opportunity Commission (“EEOC”) on July 26, 2006;

WHEREAS, the EEOC investigated Skeete’s charge and found reasonable cause to believe that the allegations of discrimination on the basis of disability were true, and after attempts at conciliation failed, the EEOC referred the charge to the United States Department of Justice;

WHEREAS, the City and the NYPD agree and acknowledge that the ADA, in 42 U.S.C. § 12112(d)(2)-(3), provides that employers “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability,” unless it is “after an offer of employment has been made,” although the employer “may condition an offer of employment on the results of such examination,” provided certain other conditions are met;

WHEREAS, the City and the NYPD agree and acknowledge that the NYPD required Skeete to undergo a medical examination prior to extending her a written conditional offer;

WHEREAS, the City and the NYPD deny any and all liability arising out of the allegations in the Complaint;

WHEREAS, as a result of ongoing discussion, the United States and the City (collectively, “the parties”) have reached agreement 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;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 2000e-2 and 28 U.S.C. § 1345. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391.
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. The City and NYPD are persons within the meaning of 42 U.S.C. § 12111(7) and 42 U.S.C. § 2000e(a), and the City 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).

INJUNCTIVE RELIEF

4. The NYPD, by and through its officials, agents, employees, and all persons in active concert or participation with NYPD 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. Specifically, within 30 days of the effective date of this Consent Decree, the NYPD shall adopt a policy that provides that:

   (a)   the NYPD shall not conduct any pre-employment medical or psychological testing of applicants for School Crossing Guard positions, before making a conditional offer of employment;

   (b)   the NYPD will make inquiries of an applicant for a School Crossing Guard position only about his or her ability to perform a job in question and will not inquire during the application process, including on application forms or materials, whether an applicant is an individual with a disability;

   (c)   the NYPD will not make any inquiry as to the medical or psychological condition or history of an applicant for a School Crossing Guard position before a conditional offer of employment has been extended;

   (d)   to the extent that NYPD requires medical or psychological examinations for all entering School Crossing Guard employees, such examinations will be conducted only after a conditional offer of employment has been extended;

   (e)   to the extent that the NYPD requires all applicants for School Crossing Guard positions to undergo medical or psychological examinations after such individuals have been given a bona fide conditional offer of employment, the NYPD will use the results of such medical and psychological examinations in a manner that is job-related and consistent with business necessity in compliance with Title I of the ADA.

5. The NYPD will (i) provide training on Title I of the ADA, including the duty to make reasonable accommodations, to all NYPD Employee Management Division (“EMD”) and Applicant Processing Division (“APD”) supervisory employees who participate in making hiring decisions for School Crossing Guard positions, within ninety (90) days of the effective date of this Consent Decree; and (ii) issue a memorandum, within 30 days of the effective date of this Consent Decree, to the Deputy Commissioner of Personnel, directing that conditional offers of employment must be issued to applicants for School Crossing Guard positions before they are asked to report for medical or psychological testing of any kind; the Deputy Commissioner of Personnel will then instruct and advise all EMD and APD staff who participate in the recruiting and hiring process for School Crossing Guard positions concerning that directive.

INDIVIDUAL RELIEF

6. Skeete shall execute and deliver to Defendant’s attorney (a) the Affidavit Concerning Liens attached hereto as Exhibit A; (b) the General Release attached hereto as Exhibit B; and (c) a substitute Form W-9, attached hereto as Exhibit C.  Following receipt of these documents, the City will pay Skeete $65,000.00 (sixty-five thousand dollars) in compensatory damages within ninety (90) days of the effective date of this Consent Decree.  The City shall provide documentary evidence of having paid Skeete by mailing a photocopy of the check evidencing payment together with proof of mailing to undersigned counsel for the United States.
7. The NYPD shall extend a conditional offer of employment to Skeete as a School Crossing Guard within ten (10) days of the effective date of this Consent Decree.
8. The NYPD shall provide Skeete with all APD-required forms associated with the background investigation within ten (10) days of the effective date of the Consent Decree.  Within thirty (30) days of the effective date of this Consent Decree, the NYPD shall arrange for Skeete to meet with her assigned APD investigator, at a time and location in New York City acceptable to Skeete and the NYPD, to begin the background investigation.
9. Because NYPD policy requires updated medical examinations for applicants where more than two years has passed since their last medical examination was conducted, and because Skeete has not yet undergone the drug testing normally required for School Crossing Guards, the City may require Skeete to undergo the medical examination normally required for School Crossing Guards (vision, hearing, EKG, blood pressure, and drug test) at a time and location in New York City that is acceptable to Skeete and the NYPD.  The NYPD and Skeete will schedule the medical examination described in this Paragraph within thirty (30) days of the effective date of this Consent Decree.  If the offered location(s) is/are not acceptable, this deadline may be extended by mutual agreement of the parties.
10. Skeete has provided the NYPD and/or the New York City Law Department with authorizations for the release of relevant medical records.  The NYPD and/or the Office of the Corporation Counsel of the City of New York shall promptly request the records from Skeete’s care providers pursuant to the authorizations.
11. The NYPD shall conduct a psychological examination of Skeete within sixty (60) days of receiving Skeete’s medical records from Skeete’s care providers as described in Paragraph 10, above, at a time and location in New York City acceptable to Skeete and the NYPD.
12. The NYPD shall make a decision on whether Skeete is qualified for the School Crossing Guard position within thirty (30) days of completion of the background investigation and examinations described in Paragraphs 8–11 above, unless this deadline is extended by mutual written agreement of the parties.  If the NYPD determines that Skeete is qualified for the position, she will be hired into the next incoming class of School Crossing Guards and will receive an assignment to a vacant position in the precinct of her residence or an adjacent precinct at that time.
13. For and in consideration of the relief being provided to her as described in paragraphs 6–12 of this Consent Decree, Skeete releases and discharges the City and the NYPD from the claims identified in the Complaint filed in this case and the complaint Skeete filed with the EEOC, Charge Number 520-2006-02862.  This release shall not be construed to extend to any claims that may arise after the effective date of this Consent Decree.

ENFORCEMENT

14. The United States may review compliance with this Consent Decree for a period of one year and may enforce this Consent Decree if the United States believes that the Consent 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, the United States will raise its concerns with the City and the parties will attempt to resolve the concerns in good faith. The United States will give the City thirty (30) days to cure the violation prior to instituting any court action, starting from the date that the United States notifies the City of any violation of this Consent Decree.
15. 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 Consent Decree.
16. This Consent Decree does not purport to remedy any other potential violations of the ADA or any other law that is not specifically addressed herein, nor does it affect the City’s continuing responsibility to comply with all aspects of the ADA.
17. This Consent Decree shall remain in effect for one year from the effective date.  The Court shall retain jurisdiction to enforce this Consent Decree.
18. The effective date of this Consent Decree is the date on which the Court enters this Consent Decree.
19. This Consent Decree constitutes the entire agreement between the parties. 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 shall be enforceable.
20. This Consent Decree shall be binding on the City, its agents and employees.
21. The individuals signing this Consent Decree represent that they are authorized to bind the parties to this Consent Decree.