SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA, THE STATE OF ARIZONA,
THE ARIZONA DEPARTMENT OF TRANSPORTATION AND
THE YUMA ELEMENTARY SCHOOL DISTRICT NO. 1

  1. The parties to this Settlement Agreement are the United States of America, the State of Arizona ("State"), the Arizona Department of Transportation ("ADOT") and Yuma Elementary School District No. 1 ("Yuma").

  2. Title I of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12111 et seq., is referred to as "title I" or the "ADA."

    The parties hereby agree as follows:

    Jurisdiction

  3. The State of Arizona, the Arizona Department of Transportation, and the Yuma Elementary School District No. 1 are persons and employers as defined by title I, section 101, 42 U.S.C. § 12111(7) and section 101, 42 U.S.C. § 12111(5)(a), respectively.

    Background

  4. Between January 1979 and August 1992, Ms. Betty Hunt was employed to drive a school bus for Yuma. Ms. Hunt last drove a school bus on October 11, 1991.

  5. In 1988, Ms. Hunt was diagnosed as a diabetic and in October 1991, Ms. Hunt's doctor prescribed insulin injections to supplement the oral insulin she had been using to control her diabetes.

  6. In June 1992, Ms. Hunt's doctor advised her that he was unable to certify that she met the ADOT's physical standards for a school bus driver because she had now become an insulin-dependent diabetic.

  7. On August 10, 1992, Yuma notified Ms. Hunt that it could not renew her contract for the 1992/1993 school year because she had failed to obtain the ADOT's certification to drive a school bus.

  8. According to Yuma, it was precluded from lawfully renewing Ms. Hunt's contract as a bus driver because she did not satisfy ADOT's physical requirements for certification as a bus driver.

  9. Arizona Administrative Rule R17-4-607 provided, until May 8, 1998, that persons who use insulin to control a diabetic condition were not qualified to operate a school bus.

    Ms. Hunt's Charge Against Yuma

  10. On August 25, 1992, Ms. Hunt filed a charge (No. 350-93-1557) with the Equal Employment Opportunity Commission ("EEOC") alleging that Yuma's refusal to renew her school bus driver contract for the 1992/1993 school year violated the ADA.

  11. Ms. Hunt alleged that the violation occurred on August 10, 1992. Since Ms. Hunt's charge (No. 350-93-1557) was filed on August 25, 1992, and within 300 days of the alleged discriminatory act, it is timely.

  12. On November 23, 1993, the EEOC issued a letter of determination finding there is reason to believe that: Ms. Hunt is a qualified individual with a disability; Yuma discriminated against Ms. Hunt on the basis of her disability when it refused to renew her contract as a school bus driver; Ms. Hunt did not pose a direct threat to the safety of others by working as a school bus driver; and Yuma discriminates against a class of similarly situated qualified individuals with disabilities in its application of ADOT's diabetes regulation.

  13. After conciliation failed on January 28, 1994, the EEOC, as authorized by section 107(a) of title I, 42 U.S.C. § 12117(a), referred Ms. Hunt's charge to the United States Department of Justice with a recommendation that a civil action be filed under the ADA.

    Ms. Hunt's Charge Against The State And ADOT

  14. On December 2, 1992, Ms. Betty Hunt filed a second charge (No. 350-93-0335) with the EEOC alleging that the State and ADOT licensing regulations violated title I of the ADA because the regulations precluded Yuma from renewing her school bus driver contract.

  15. Ms. Hunt also alleged that the violation occurred on August 10, 1992. Since Ms. Hunt's charge (No. 350-93-0335) was filed on December 2, 1992, and within 300 days of the alleged discriminatory act, it is timely.

  16. On November 23, 1993, the EEOC issued a letter of determination finding there is reason to believe that: Ms. Hunt is a qualified individual with a disability; ADOT's minimum standards for certification of school bus drivers exclude on the basis of disability a broad class of individuals who are insulin-using diabetics; ADOT discriminated against Ms. Hunt and a class of similarly situated qualified individuals with disabilities on the basis of disability; and the ADA preempts ADOT's regulations.

  17. After conciliation failed on March 3, 1994, the EEOC, as authorized by section 107(a) of title I, 42 U.S.C. § 12117(a), referred Ms. Hunt's charge to the United States Department of Justice with a recommendation that a civil action be filed under the ADA.

    United States' Allegations

  18. The United States alleges that the State, ADOT and Yuma violated title I of the ADA, among other ways: by applying physical standards whereby individuals who use insulin to control their diabetes are automatically excluded from consideration for school bus driver vacancies; by failing or refusing to make an individualized assessment to determine if hiring insulin-using diabetics as school bus drivers would in fact pose a direct threat to the health and safety of others in the workplace; by failing or refusing to consider whether any reasonable accommodations are available to allow insulin-using diabetics to drive school buses; by failing or refusing reasonably to accommodate Ms. Hunt's known physical limitations to enable her to perform the essential functions of a school bus driver; and by failing and refusing to take appropriate action to remedy the effects of the discriminatory treatment of Ms. Hunt.

  19. The State, ADOT and Yuma deny that any action they have taken constitutes a violation of title I of the ADA. This Agreement shall not be construed as an admission of liability by the State or ADOT or Yuma.

  20. The parties have determined that their respective interests can be met by resolving this dispute and have therefore voluntarily entered into this Agreement.

    General Agreement

  21. The State and ADOT agree to adopt by June 1, 1998, the following individual procedures to determine whether to issue or renew a commercial driver license ("CDL") for use in intrastate commerce to individuals who require insulin to control their diabetes.

    1. Upon receiving a conditional offer of employment, each such individual will be required to be examined annually by a board certified/eligible endocrinologist. This examination cannot be used as a basis for withdrawing the offer if the endocrinologist attests that the applicant:

      1. is free from insulin reactions (an individual is free of insulin reactions if he or she does not have severe hypoglycemia or hypoglycemia awareness, and had no more than one documented, symptomatic hypoglycemic reaction per month in the previous twelve months or from the date he or she started using insulin injections whichever is later);

      2. is able to demonstrate and has demonstrated the willingness to monitor and manage his/her diabetes; and

      3. is not likely to suffer any diminution in his or her current driving ability due to his or her diabetes;

    2. Upon hire these individuals will be required:

      1. to carry a source of rapidly absorbable glucose at all times while driving in the State of Arizona;

      2. to self-monitor their blood glucose one hour before and approximately every four hours while driving, or while on duty prior to driving, by using a portable glucose monitoring device with a computerized memory;

      3. to maintain blood glucose logs and to submit these logs on the request of the endocrinologist and/or the medical examiner, or when otherwise directed by an authorized agent of ADOT;

      4. to provide a copy of the endocrinologist certification referred to in Paragraph 21(a) to the medical examiner at the time any medical examination required by ADOT's regulations R17-4-607 is conducted;

      5. to provide a copy of the endocrinologist certification referred to in Paragraph 21(a) to ADOT;

      6. to retain a copy of the endocrinologist certification referred to in Paragraph 21(a) on his or her person while driving.

    Remedial Relief For Ms. Hunt

  22. At the time this Agreement is signed by the parties, the State and ADOT will offer a monetary amount of $10,000.00 to Ms. Hunt in full settlement of all claims Ms. Hunt may have pursuant to this Agreement. This payment will be sent to Ms. Betty Hunt at 1480 South 7th Avenue, Yuma, AZ 85364.

  23. This offer to Ms. Hunt will be made in a letter, the contents of which will be the same as in Exhibit 1 (see attached). The letter will advise Ms. Hunt that in order to accept the payment offered, she must return a signed and notarized Release, the contents of which will be the same as in Exhibit 2 (see attached), to the State in care of its counsel within thirty (30) days of her receipt of the offer letter.

  24. The State will send to the undersigned counsel for the United States a copy of the offer letter and Release that it sends to Ms. Hunt. If Ms. Hunt accepts the State's offer, the State will send a copy of the signed and notarized release to the undersigned counsel for the United States.

  25. The State will notify the undersigned counsel for the United States when it has completed the actions described in Paragraph 21.

  26. Within thirty (30) days of receiving from the State a copy of the offer letter to be sent to Ms. Hunt by the State and ADOT according to this Agreement, the United States will issue to Ms. Hunt a notice of right to sue on EEOC charge No. 350-93-0335 under section 107, 42 U.S.C. § 12117(a) and 42 U.S.C. § 2000e-5(f)(1).

  27. Within ninety (90) days of the signing of this Agreement, Yuma shall offer Ms. Hunt a school bus driver position, or a mutually acceptable equivalent position, with seniority for all purposes, except promotion, as if she had remained in that position since August 10, 1992. Prior to reinstatement, Ms. Hunt shall demonstrate that she is currently qualified for a school bus driver position under the nondiscriminatory standards established in accordance with this Agreement.

  28. This offer to Ms. Hunt will be made in a letter, the contents of which will be the same as in Exhibit 3 (see attached). The letter will advise Ms. Hunt that in order to accept the relief offered, she must return a signed and notarized Release, the contents of which will be the same as in Exhibit 3 (see attached), to Yuma in care of its counsel within thirty (30) days of her receipt of the offer letter.

  29. Yuma will send to the undersigned counsel for the United States a copy of the offer letter and Release that it sends to Ms. Hunt. If Ms. Hunt accepts Yuma's offer, Yuma will send a copy of the signed and notarized release to the undersigned counsel for the United States.

  30. Within thirty (30) days of receiving from Yuma a copy of the offer letter to be sent to Ms. Hunt by Yuma according to this Agreement, the United States will issue to Ms. Hunt a notice of right to sue on EEOC charge No. 350-93-1557 under section 107,42 U.S.C. § 12117(a) and 42 U.S.C. § 2000e-5(f)(1).

    Implementation

  31. The Attorney General is authorized, by section 107(a) of title I, 42 U.S.C. § 12117(a), to institute a civil action against a state or local government employer when the EEOC has determined that there is reasonable cause to believe that a charge of employment discrimination is true, and the EEOC has been unable to obtain a conciliation agreement. These preconditions exist as to EEOC charge No. 350-93-0335. In consideration for the relief offered by the State and ADOT to Ms. Hunt, as set forth above, the Attorney General will not institute any civil action alleging employment discrimination by the State and the ADOT on the basis of EEOC charge No. 350-93-0335 filed by Ms. Hunt.

  32. The preconditions identified in Paragraph 31 above also exist as to EEOC charge No. 350-93-1557. In consideration for Yuma's offering relief to Ms. Hunt, as set forth above, the Attorney General will not institute any civil action alleging employment discrimination by Yuma on the basis of EEOC charge No. 350-93-1557 filed by Ms. Hunt.

    Other Provisions

  33. Any party to this agreement may institute a civil action in the appropriate United States District Court or state court to enforce this Agreement, if the party believes that this Agreement or any requirement thereof has been violated. The United States may review compliance with this Agreement at any time. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with the State and/or Yuma and the parties will attempt to resolve the concern(s) in good faith. The State and/or Yuma will be given twenty-one (21) days to cure any breach of this Agreement prior to the institution of any enforcement action.

  34. Failure by the United States to enforce this entire Agreement or any of its provisions shall not be construed as a waiver of its right to enforce other provisions of this Agreement.

  35. A person signing this document in a representative capacity for any party is authorized to bind that party to this Agreement.

  36. This Agreement is a public document and constitutes the entire agreement between the parties on this matter. Any statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained or referred to in this written Agreement, shall not be enforceable. Copies of this Agreement shall be made available to any person by any party upon request to that party.

  37. The State, ADOT and Yuma hereby release and further discharge each other and their respective successors, agents, employees, representatives and assigns from any and all claims, demands, obligations, losses, causes of actions, damages, penalties, costs, expenses, attorneys' fees, liabilities and indemnities of any nature whatsoever, whether known or unknown arising out of the claims and actions which are subject of this agreement.

  38. Effective Date and Termination Date

  39. The effective date of this Agreement is the date of the last signature below.

  40. This Agreement shall terminate two (2) years from the date the State, ADOT and Yuma have notified the United States in writing of their compliance with the provisions of this Agreement.

    On behalf of the State of
    Arizona and the Arizona
    Department of Transportation


    ____________________________      Dated:______________
    Russell K. Pierce
    Motor Vehicle Division Director
    Arizona Department of Transportation
    1275 West Washington Street
    Phoenix, Arizona 85007-2926

    On behalf of Yuma Elementary School District No 1.

    ___________________________      Dated:_____________
    Pamela Walsme
    Attorney, Yuma Elementary
    School District No. 1
    231 West Morrison Street
    Yuma, Arizona 85364

    For the United States of America

    Bill Lann Lee
    Acting Assistant Attorney
    General for Civil Rights

    Janet A. Napolitano
    United States Attorney

    ____________________________      Dated:_____________
    L. Irene Bowen, Deputy Chief
    Eugenia Esch, Attorney
    Disability Rights Section
    Civil Rights Division
    U.S. Department of Justice
    P.O. Box 66738
    Washington, DC 20035-6738
    (202) 514-3816