SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT
BETWEEN THE UNITED STATES OF AMERICA
AND THE SUNSHINE CHILD CENTER, INC.
BACKGROUND
1. This action was commenced as the result of a complaint filed with the Public Access Section (now the Disability Rights Section) of the Civil Rights Division of the Department of Justice by Brenda Brock ("Ms. Brock"), alleging that the Sunshine Child Center, Inc., of Gillett, Wisconsin, and its director, Ms. Lu Arndt (collectively referred to as "the Center"), had violated title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-12189, and the Department of Justice's title III implementing regulation ("the regulation"), 28 C.F.R. Pt. 36, by: (1) failing to remove barriers to access at its facilities; (2) refusing to provide its services to the complainant's daughter, Belinda Brock ("Belinda"), in the most integrated setting appropriate to the child's needs; (3) providing or attempting to provide Belinda with services separate from and unequal to services provided to children without disabilities; and (4) failing to modify existing policies, practices, and procedures where necessary to allow Belinda to participate fully in its services.
2. The Department of Justice investigated the complaint pursuant to § 308(b) of the ADA, 42 U.S.C. § 12188(b). The investigation revealed that several barriers to access exist at the Center, including, but not limited to: (1) an absence of any parking spaces designated as accessible to persons with disabilities; (2) entrances that can be accessed only by climbing stairs and which do not have ramps; (3) a second floor wholly inaccessible to persons with mobility impairments, since it can be reached only by climbing stairs and there is no elevator in the facility; and (4) at least three restrooms almost entirely inaccessible to persons with mobility impairments.
3. The Center is located in an existing facility. It has submitted to the Department of Justice evidence of its financial condition which indicates that removal of most of these barriers is not readily achievable.
4. The investigation further revealed that Belinda, who has cerebral palsy, attended the Center for two years. In June, 1993, Ms. Brock removed her from the Center, just before Belinda's fourth birthday, because of the Center's allegedly discriminatory actions.
5. As the result of her disability, Belinda required diaper changing at an older age than most non-disabled children. Additionally, in June, 1993, she was fitted for braces, which she needed in order to walk.
6. The Center has a policy of providing its services to children aged three and younger in one part of its facility, and to children aged four and older in another part. Diaper changing is routinely provided as a service to children aged three and younger.
7. Ms. Brock's complaint states that she removed her daughter from the Center for two reasons. First, Ms. Brock claims that the Center intended to require Belinda, after her fourth birthday, to remain in the section of its facility reserved for children aged three years old and younger. She claimed that the Center intended to impose this requirement because Belinda required diaper changing, and the only facilities available for that purpose were in the section of the building occupied by the younger children. The Center denies Ms. Brock's allegation. It states that after her fourth birthday Belinda would have had her diapers changed in the portion of the building reserved for the younger children, but at all other times would be offered the Center's services with children of her own age. The Center asserts that it made this decision because the only space available for diaper changing was in the portion of the building reserved for the younger children, and in an attempt to ensure Belinda's privacy.
8. Ms. Brock further states, as her second reason for removing Belinda from the Center, that the Center's director, Lu Arndt, refused to allow Center staff to put on and to remove Belinda's braces when necessary. The Center admits that it was unwilling to provide this service. It claims that its insurance coverage prohibited provision of such a service, and that § 36.306 of the title III regulation, 28 C.F.R. § 36.306, says that such a service is not required by the ADA.
9. During the course of this investigation, the Department also learned that the Center plans to construct a new facility in which to provide its services. Construction is scheduled to be completed by approximately June of 1997.
THE PARTIES
10. The parties to this agreement are the United States of America and the Sunshine Child Center, Inc. ("the Center"), a non-profit corporation incorporated under the laws of the State of Wisconsin.
11. In order to avoid costly litigation, the parties agree as follows:
IN GENERAL
12. Belinda Brock is an individual with a disability within the meaning of 42 U.S.C. § 12102(2)(a) and 28 C.F.R. § 36.104.
13. The Center is a place of public accommodation within the meaning of 42 U.S.C. § 12102(7)(k) and 28 C.F.R. § 36.104 ("definition of public accommodation"), and is located in an existing facility.
14. As a public accommodation, the Center has and, at the time the events which allegedly resulted in Belinda's being removed from the Center, had an obligation to refrain from discrimination on the basis of disability. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). Discrimination includes the following:
A. A failure of an existing facility to remove architectural barriers to access where it is readily achievable to do so. 42 U.S.C. § 12182(b) (2)(A)(iv); 28 C.F.R. § 36.304(a).
B. A failure to offer persons with disabilities services in the most integrated setting appropriate to their needs. 42 U.S.C. § 12182(b)(1)(B); 28 C.F.R. § 36.203(a).
C. A failure to make reasonable modifications to existing policies, practices, and procedures when necessary to afford services to persons with disabilities, where such modifications would not fundamentally alter the nature of the goods or services being offered at a place of public accommodation. 42 U.S.C. § 12182(b)(ii)(A)(iii); 28 C.F.R. § 36.302(a).
D. Offering persons with disabilities benefits which are not equal to benefits offered to persons without disabilities. 42 U.S.C. § 12182(b)(1)(A)(ii); 28 C.F.R. § 36.202(b).
E. Offering to persons with disabilities benefits which are separate from those offered to persons without disabilities, unless such action is necessary to provide any person with a disability or class of persons with a disability with services. 42 U.S.C. § 12182(b)(1)(A)(iii); 28 C.F.R. § 36.202(c).
OFFER OF RE-ADMISSION TO BELINDA BROCK
15. The Center shall, within ten days of the effective date of this agreement, offer Belinda Brock re-admission to the Center. If the Center's enrollment is limited by State or local licensing requirements, and if the Center's enrollment for children in Belinda Brock's age group is at capacity on the date when re-admission is required under the terms of this agreement, then the Center may offer such re-admission on a "drop-in" basis. Under such circumstances, however, the Center shall place Belinda Brock's name in the first position on its waiting list for regular admission for children in her age group, and shall offer such admission immediately following any child's withdrawal from the Center.
MODIFICATION OF POLICIES, PRACTICES, AND PROCEDURES
16. The Center shall modify its existing policies, practices, and procedures as follows in order to fulfill its obligation under paragraph 15 of this agreement:
A. The Center shall ensure that staff are instructed in the manner of putting on and removing braces which Belinda Brock may be required to wear because of her disability. The Center shall not require that instruction in this task be explained by a physician, but shall permit a parent or other individual familiar with assisting Belinda with this task to instruct staff.
B. The Center shall provide this service to Belinda Brock under the same terms as it presently provides medication to children who attend the Center. The Center shall not require any parent or guardian of Belinda to sign any document other than or in addition to documents which other parents or guardians are required to sign in order to have medication administered to their children, as a condition for Belinda Brock's receiving this service.
17. The Center shall provide diaper changing to children with disabilities who require the service more frequently and/or at a later age than children who do not have disabilities. The Center shall be permitted to provide this service to children who are four years of age and older in that portion of its facility occupied by children younger than four years of age, but only to the extent necessary to ensure privacy. This paragraph does not alter or affect the Center's obligation to provide other services to such children in the same manner as and in the same location within its facility where services are provided for children of comparable age.
18. The Center shall provide the services in paragraphs 16 and 17 of this agreement for all children whose disabilities require them, shall make other reasonable modifications to its policies, practices, and procedures in order to offer the full and equal enjoyment of its goods and services to children with disabilities enrolled in the Center, including Belinda Brock, and shall not exclude applicants for enrollment in the Center who require such reasonable modifications.
POLICY OF NONDISCRIMINATION ON THE BASIS OF DISABILITY
19. Within thirty days of the effective date of this agreement, the Center shall publish the policy of non-discrimination on the basis of disability that appears as Appendix A to this agreement (which it provides to all parents and guardians of children who attend the Center), in any newspaper serving Gillett, Wisconsin, in the newspaper of any other community from which the Center can reasonably anticipate receiving an application to participate in its services, and in any other written material which the Center uses to advertise its services.
REMOVAL OF ARCHITECTURAL BARRIERS
20. The Center shall submit to the Department, within thirty days of the effective date of this agreement, its plans for taking the following barrier removal measures in the first floor restrooms:
A. installing grab bars that comply with §§ 4.26.2 and 4.26.3 of the Standards (or which comply as nearly as possible with the Standards, if the configuration of any restroom will not permit full compliance), at one toilet in each restroom;
B. lowering one mirror, paper towel dispenser, and/or hand dryer in each restroom to comply with §§ 4.2.5, 4.27.2, and 4.19.6 of the Standards;
C. insulating any exposed pipes beneath lavatories or sinks in each restroom to comply with §§ 4.19.4 and 4.24.6 of the Standards; and
D. installing hardware complying with § 4.13.9 of the Standards on each restroom door and hardware complying with §§ 4.27.4 of the Standards on sinks and lavatories in each restroom.
21. The Center shall complete all of the barrier removal measures in paragraphs 20(A) through (D) within thirty days of the Department of Justice's approval of the plans submitted by the Center, or by January 31, 1996, whichever is the later date. Within ten days thereafter, the Center shall provide to the Department proof that such barrier removal has been accomplished.
22. In addition, with respect to the restroom located on the second floor of the Center, the Center agrees to make the modifications listed in paragraphs 20(A) through (D) as soon as practicable; however, such modifications shall be made within no more than sixty days after:
A. receiving a request that modifications be made to the restroom from an employee with a disability who is assigned to work primarily on the second floor; or
B. relocating activities currently carried out on the first floor to the second floor.
23. The requirements of paragraphs 20(A) through (D), 21, and 22(A) and (B) shall not limit or define the Center's obligation to make reasonable accommodations for employees or candidates for employment under title I of the ADA.
PARKING
24. Within ten days of the effective date of this agreement, the Center shall publish to all parents or guardians of children enrolled in the Center a statement requesting that patrons of the Center, other than those with disabilities or those who have children with disabilities, refrain from parking in the on-street parking space that is near the Center's front entrance and adjacent to a curb ramp. This statement shall be published in writing and shall be posted in a conspicuous location near the Center's front entrance.
NEW CONSTRUCTION
25. The Center agrees that within fifteen days of the date on which they are approved by the relevant State and/or local authority, the Center will provide to the Department copies of the plans for the construction of its new facility. If the Department determines that these plans fail to comply in any manner with the ADA Standards for Accessible Design, which apply strictly to new construction, then the Center shall, within thirty days of having received notification of this determination, modify its plans in accordance with all recommendations by the Department.
EFFECTIVE DATE
26. This agreement shall become effective as of the date of the last signature below, and shall terminate upon completion of the Center's new facility. This agreement shall be binding on all of the Center's successors in interest, and the Center has a duty to so notify all such successors in interest.
ENFORCEMENT
27. The Attorney General is authorized, pursuant to section 308(b)(1)(B) of the ADA, 42 U.S.C. § 12188(b)(1)(B), to bring a civil action enforcing the ADA in any situation where a pattern or practice of discrimination is believed to exist or a matter of general public importance is raised. In consideration of the terms of this agreement set forth above, the Attorney General agrees to refrain from taking more formal enforcement action in this matter, as long as the Sunshine Child Center, Inc. complies with this agreement. In the event that the Center fails to comply in a timely fashion with any requirement of this agreement, all terms of this agreement shall become enforceable in federal district court, and the Attorney General is authorized to seek civil penalties, pursuant to 42 U.S.C. § 12188(b)(2)(C). Failure by the Department of Justice to enforce this entire agreement with regard to any deadline herein shall not be construed as a waiver of its right to do so with regard to future deadlines and provisions of this agreement.
28. The Department may review compliance with this agreement at any time. If the Department believes that this agreement or any requirement thereof has been violated, it may institute a civil action for relief in federal district court. If the Department demonstrates in such a civil action that this agreement or any provision of the ADA has been violated, it shall be entitled to recover civil penalties and compensatory damages on behalf of any person(s) aggrieved by the Center's noncompliance.
29. This document is a public agreement. A copy of this agreement or any information contained herein may be made available to any person. The Center or the Department of Justice shall provide a copy of this agreement to any person upon request.
SCOPE OF AGREEMENT
30. This agreement, including the Appendix to it, constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement shall be enforceable. This agreement is limited to the facts set forth in paragraphs 1 through 9, and it does not purport to remedy any other potential violations of the ADA or any other federal law. This agreement does not affect the Center's continuing responsibility to comply with all aspects of the ADA.
31. A signor of this document in a representative capacity for a partnership, corporation, or other such entity, represents that he or she is authorized to bind such partnership, corporation or other entity to this agreement.
For the United States:
Deval L. Patrick
Assistant Attorney General
Civil Rights Division
By:
Date:
John L. Wodatch
L. Irene Bowen
Christopher J. Kuczynski
Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 307-0663
For The Sunshine Child Center, Inc.
By:
Date:
Lu Arndt, Director
APPENDIX A
Policy of Non-Discrimination
Sunshine Child Center, Inc. does not discriminate in its personnel practices, intake and services on the basis of race, color, national origin, sex, religion or disability (in compliance with Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and Wisconsin statutes). The Center will provide services to children with disabilities in the most integrated setting appropriate to their needs, and will make any reasonable modification to its existing policies, practices, and procedures necessary to ensure full participation in its services by persons with disabilities.
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February 7, 2001