SETTLEMENT AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
THE [REDACTED] UNIFIED SCHOOL DISTRICT
USAO No. 2013VOO896; DJ Nos. 204-48-284, 169-12C-72

BACKGROUND

1. The parties to this Settlement Agreement are the United States of America ("United States") and the [REDACTED] Unified School District ("District").
2. This matter was initiated by two complaints (the "Retaliation Complaints") filed by the Complainant with the U.S. Department of Education Office for Civil Rights ("OCR") alleging that the District retaliated against [REDACTED] because [REDACTED] had previously filed complaints with OCR regarding the services provided by the District to English Learner and Special Education students. OCR commenced its investigation of the allegations of retaliation under the authority of Title VI of the Civil Rights Act of 1964 ("Title VI") and its implementing regulations, 34 C.F.R. Part 100; Section 504 of the Rehabilitation Act of 1973 (Section 504")¹; and Titles II and V of the Americans with Disabilities Act of 1990 ("Title II," "Title V," and "ADA," respectively) and their implementing regulations, 28 C.F.R. Part 35. The U.S. Department of Justice, including the U.S. Attorney's Office, Central District of California, (collectively "DOJ") opened a review of the Retaliation Complaints under Title II of the ADA and the Equal Educational Opportunities Act of 1974 ("EEOA"), 20 U.S.C. § 1701 et. seq. On May 20, 2013, OCR referred all allegations contained in the Retaliation Complaints to DOJ and administratively closed the Retaliation Complaints. On May 20, 2013, DOJ confirmed, in writing, that it had accepted the referral of the Retaliation Complaints from OCR and would proceed with the investigation.
3. After conducting an investigation, the United States found that the District violated the ADA, Title VI, and the EEOA by retaliating against the Complainant for engaging in protected activity. [REDACTED].
4. The District acknowledges that OCR received the aforementioned Retaliation Complaints, but refutes the allegations contained therein.
5. 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 dispute amicably and without litigation. The parties have therefore voluntarily entered into this Agreement.
6. By entering into this Agreement, the District does not concede that its prior conduct could give rise to a finding of liability under governing law, or that the specific terms contained herein are mandated by the Federal law cited in the Agreement or any other Federal law. Nothing herein shall be deemed to be an admission or acknowledgement by the District that it has violated the ADA, Title VI, or the EEOA, accompanying regulations, or any other Federal or State law.
7. The parties agree as follows:

   COVERAGE

8. The Attorney General bears responsibility for enforcing Titles II and V of the ADA, 42 U.S.C. §§ 12131 et seq., and 42 U.S.C § 12203, respectively; Title VI, 42 U.S.C. §§ 2000d et seq.; the EEOA, 20 U.S.C. §§ 1701 et seq.; and the relevant implementing regulations.
9. The District, located in [REDACTED], California, is a public entity under the ADA, and the District is an agency, special purpose district, or other instrumentality of a State or of a local government that receives Federal financial assistance within the meaning of Title VI. The District is a local education agency subject to the requirements of the EEOA.
10. The ADA provides that, "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act." 42 U.S.C. § 12203(a). Likewise, the Regulations implementing Title II of the ADA state that, "No private or public entity shall discriminate against any individual because the individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under an Act or this part." Nor may the entity, "coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part." 28 C.F.R. § 35.134(a) and (b).
11. The anti-retaliation provision of Title VI provides that, "No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Section 601of the [Civil Rights] Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing, under this part." 34 C.F.R. § 100.7(e). Similarly, the EEOA prohibits retaliation against individuals who report discrimination or complain about violations of the statute. See, e.g., Gomez-Perez v. Potter, 553 U.S. 474 (2008) (interpreting federal-sector provision of the Age Discrimination in Employment ("ADEA") to grant a right of action for retaliation); CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) (interpreting 42 U.S.C. § 1981 to grant a right of action for retaliation); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (interpreting Title IX of the Education Amendments of 1972 to grant a right of action for retaliation); see also Emeldi v. Univ. of Oregon, 673 F.3d 1218, 1223-24 (9th Cir. 2012) (adopting Title VII framework for Title IX retaliation); Poland v. Chertoff, 494 F.3d 1174, 1179-80 & n.1 (9th Cir. 2007) (recognizing the same standard for retaliation under the ADEA as Title VII).

    FACTUAL BACKGROUND

12. On March 29, 2010, October 24, 2010, and October 25, 2010, the Complainant, a [REDACTED] teacher at [REDACTED] High School ([REDACTED]), submitted three complaints to OCR (the "OCR Cases"), each of which alleged that the District failed to provide required accommodations and/or services to English Learner and/or Special Education students. On February 12, 2013, OCR met with the District's Superintendent to discuss on-going issues regarding implementation of the resolutions of the OCR Cases which the Complainant had brought to OCR's attention.
13. On March 27, 2013, OCR notified the District that the Complainant had filed a complaint alleging retaliation by the District arising from a March 1, 2013 meeting [REDACTED], and a subsequent memorandum issued [REDACTED] on March 21, 2013, regarding that meeting.
14. On April 10, 2013, the Complainant filed a second complaint with OCR alleging retaliation arising from an incident on April 5, 2013, in which the Complainant was injured while attempting to break up a fight between students in the bleachers of the [REDACTED] gym after a school assembly.

    [REDACTED]

15. After conducting a comprehensive investigation regarding the Complainant's first complaint of retaliation, the United States [REDACTED] found that the District retaliated against the Complainant for filing the OCR Cases with respect to the first complaint of retaliation. [REDACTED].

    GLOBAL RESOLUTION

16. The United States has not yet completed its investigation of the Complainant's second complaint of retaliation. Rather than litigate the first complaint and proceed to the United States' administrative determination on the second complaint, the District and the United States agree to resolve both complaints in this global settlement.

    ACTIONS TO BE TAKEN BY THE DISTRICT

    Retaliation Policy

17. Within sixty (60) days of the effective date of this Agreement, the District shall submit to the United States for review and approval a policy on retaliation that complies with the requirements of the ADA, Title VI, and the EEOA. Within five (5) days of the United States' approval, the District shall disseminate the policy to all District employees, including permanent, probationary, and temporary employees. Such dissemination shall occur, at a minimum, via electronic mail.
18. Within ten (10) days of the United States' approval of the District's policy on retaliation, the District shall post copies of this policy in every employee-only workspace throughout the District's offices including, but not limited to all administrative offices, school campuses, or any other ancillary building used by District employees.
19. Within ten (10) days of the United States' approval of the District's policy on retaliation, the District shall post and maintain this policy prominently on the staff page of its website [REDACTED].

    Retaliation Investigation Process

20. Within sixty (60) days of the effective date of this Agreement, the District shall submit for the United States' review and approval a retaliation investigation process ("RIP") to investigate retaliation complaints that shall be prompt, impartial, and comply with the requirements of the ADA, Title VI, and the EEOA. Within five (5) days of the United States' approval, the District shall institute this process with respect to all retaliation complaints that raise colorable claims of retaliation under the ADA, Title VI, and/or the EEOA. The RIP shall commence within five (5) business days of a complaint being filed with the individual responsible for investigating such complaints. Under no circumstances may an employee be required to file a retaliation complaint with any person in his or her direct line of supervision.

    Retaliation Training

21. Within sixty (60) days of the effective date of this Agreement, the District shall develop a training program (the "Retaliation Training") and submit it for review and approval by the United States. The District shall send to the United States, via electronic mail, the proposed curriculum for the Retaliation Training, as well as the name and contact information of the District's Chief Compliance Officer who will oversee the training. The District shall adopt any changes to the curriculum made by the United States, which the United States shall provide within thirty (30) days of receipt from the District.
22. Subsequent to the United States' approval of the Retaliation Training, the District shall provide the training to all [REDACTED] High School ([REDACTED]) employees, including permanent, probationary, and temporary employees, during the 2013 Fall Semester and every year thereafter no later than the Fall Semester for the term of this Agreement. At a minimum, the training shall address: (1) the requirements of Titles II and V of the ADA with respect to school districts, as well as Title VI and Section 1703(f) of the EEOA with respect to the District's obligations to provide appropriate services to English Learners, meaningful access to Limited English Proficient parents, and not to retaliate; (2) the RIP; (3) the District's resources for students, teachers, and staff on the civil rights issues covered by these statues; (4) the identity and contact information for the individual responsible for the RIP; and (5) reporting obligations under Paragraphs 25-26 of this Agreement.
23. The District shall maintain attendance logs reflecting the names and titles of the attendees for every session of the Retaliation Training conducted under this Agreement.

    Staff Safety Plan

24. Within thirty (30) days from the effective date of this Agreement, the District shall adopt and/or submit its Staff Safety Plan which, at a minimum, imposes uniform procedures to be followed in response to all serious threats to District staff and all attempted and completed assaults upon District staff.

    Reporting

25. Initial Report. One Hundred and Fifty (150) days from the effective date of this Agreement the District shall submit a report to the United States confirming its fulfillment to that date of the requirements set forth in this Agreement. The Report shall specifically address each action to be taken by the District under this Agreement, including: the creation, dissemination, and posting of the Retaliation Policy; the creation and application of the RIP, including notification to the United States of all complaints of retaliation that raise colorable claims under the ADA, Title VI, and/or Section 1703(f) of the EEOA and the action taken by the District pursuant to its RIP; the creation and performance of the Retaliation Training, including the dates of the training and all attendance logs associated with the training; the creation and dissemination of the Staff Safety Plan; and the relief to be afforded to the Complainant.
26. Subsequent Reports. Every June 30th following the due date of the first report and continuing for the term of this Agreement, the District shall submit a report to the United States regarding its compliance with the Agreement. The report shall include the following: (1) the dates of the District's Retaliation Training; (2) all attendance logs associated with the Retaliation Training; (3) notification to the United States of all complaints of retaliation including the name, title, and contact information of the individual making the complaint; and (4) the action taken by the District pursuant to its RIP.

    All reports pursuant to this Agreement shall be delivered to the undersigned counsel via electronic mail at robby.monteleone@usdoj.gov and via mail addressed as follows:

    United States Attorney's Office
    Civil Rights Unit Chief, Civil Division
    Room 7516 Federal Building
    300 North Los Angeles Street
    Los Angeles, CA 90012

    Relief to Complainant

27. Within ten (10) days of the effective date of this Agreement, the District shall permanently purge and destroy from its records any and all documents, if any, in the Complainant's personnel file or any and all site files concerning the Complainant relating to the incidents on February 21, 2013 and February 22, 2013 [REDACTED], and the events that occurred on April 5, 2013, whether such records be in electronic or paper format. The District will not use, rely upon, or refer to such events in any future employment action regarding the Complainant, other than as necessitated to accommodate, treat, or remedy injuries to the Complainant caused by such events.
28. Within ten (10) days of the effective date of this Agreement, the District shall place in the Complainant's personnel file a written acknowledgment that the Complainant did not [REDACTED] in connection with the incidents on February 21, 2013 and February 22, 2013 [REDACTED].
29. The Complainant will have the opportunity to inspect [REDACTED] personnel file to ensure District compliance with Paragraphs 27 and 28 after ten (10) days of the effective date of this Agreement. The Complainant will also be granted the opportunity to place in [REDACTED] personnel file any documentation underscoring the District's finding that [REDACTED] did not [REDACTED] as referenced in paragraph 28.
30. The District agrees that if [REDACTED] Administration needs to meet with the Complainant during [REDACTED] conference period, they will schedule a meeting with the Complainant and will not appear unannounced during [REDACTED] conference period.
31. The Complainant will be required to execute a release of all claims against the District on the facts upon which the Retaliation Complaints were filed with OCR and on which the [REDACTED] is based. Within thirty (30) days of the effective date of this Agreement or the execution of the Complainant's release of all claims against the District, whichever is later, the District shall pay damages to the Complainant in the amount of $25,000.00.

    Assurance Against Retaliation

32. The District shall not retaliate in violation of 42 U.S.C. §12203 against the Complainant or any person based on their cooperation with the Department's investigation of this matter, nor on the basis of any person's involvement in the administration of this Agreement.

    IMPLEMENTATION

33. In consideration for the terms set forth above, the United States will refrain from undertaking further action relating to the investigation of USAO No. 2013VOO896, and DJ Nos. 204-48-284 and 169-12C-72, or from filing a civil action alleging discrimination based on the facts set forth above, except as provided in paragraph 34, below.
34. The United States may review the District's compliance with this Agreement at any time. The District acknowledges that the United States, through its representatives and/or any consultant or expert it may retain, has the right to conduct on-site reviews of [REDACTED] to evaluate compliance with the terms of this Agreement upon giving reasonable notice and consultation with the District to minimize any disruption to the education process in this school. If the United States believes that this Agreement or any portion of it has been violated, the United States will raise its concerns with the District and will attempt to resolve its concerns with the District in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to the District, the United States may institute a civil action in the appropriate United States District Court to enforce this Agreement.
35. Failure by the United States to enforce any provisions or deadlines of this Agreement shall not be construed as a waiver of the United States' right to enforce other deadlines or provisions of this Agreement.
36. The signatory to this document in a representative capacity for the District represents that he is authorized to bind the School District to this Agreement throughout the duration of its term.
37. 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, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and the District shall engage in good faith negotiations within thirty (30) days in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
38. This Agreement constitutes the entire agreement between the United States and the District 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 agreement, including its attachments, shall be enforceable. This Agreement can only be modified or amended by mutual written agreement of the parties.
39. This Agreement does not affect the District's continuing responsibility to comply with all aspects of the ADA, Title VI, and the EEOA. The District understands and acknowledges that the United States, consistent with its responsibility to enforce the ADA, Title VI, and the EEOA, retains the right to investigate and, where appropriate, initiate judicial proceedings concerning any future alleged violations of these statutes by the District or any past violations of these statutes not covered by this Agreement. This right includes speaking directly, without District counsel, with District employees who are not administrators and have questions, concerns, or other information to raise with the United States regarding the District's obligations under these statutes or this Agreement.
40. The effective date of this Agreement is the date of the last signature below.
41. The duration of this Agreement will be three (3) years from the effective date.

¹Because Title II and its regulation shall not be construed to provide a lesser standard than the standards applied under [Section 504], 42 U.S.C. § 12201(a); 28 C.F.R. § 35.103(a), the protections of Title II can be greater, but not less, than the rights provided by Section 504.