SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE CITY OF CALUMET CITY, ILLINOIS AND THE CITY OF CALUMET CITY FIREFIGHTERS PENSION BOARD 1. The parties to this Agreement are the United States of America, the City of Calumet City, and the City of Calumet City Firefighters Pension Board. The United States of America is re- ferred to hereinafter as the "United States." The United States Department of Justice is referred to hereinafter as the "Department." 2. The City of Calumet City, its agents, employees, officials, and designees, are referred to hereinafter as the "City." The City of Calumet City Firefighters Pension Board is referred to hereinafter as the "Pension Board." Mr. Jonathan Wall is referred to hereinafter as "Mr. Wall." Mr. Timothy McGannon is referred to hereinafter as "Mr. McGannon." The Equal Employment Opportunity Commission is referred to hereinafter as the "EEOC." Title I of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C.  12111 et seq., is referred to hereinafter as the "ADA." The parties hereby agree as follows: FACTUAL AND JURISDICTIONAL BACKGROUND 3. Mr. John Wall filed a charge of discrimination with the EEOC on August 24, 1993, alleging that he was discriminated against on the basis of disability in violation of title I of the ADA because he was denied employment as a firefighter with the Calumet City Fire Department. The written application form completed by Mr. Wall for a City firefighter position required him to reveal whether he was an individual with a disability. After he passed all of the City's employment tests and was ranked number one on the eligibility list for firefighter, Mr. Wall was required by the City to undergo a preemployment medical examina- tion administered by the City of Calumet City Firefighters' Pension Board. At the time that Mr. Wall's application was pro- cessed, the rules and regulations of the Police and Fire Commission of the City of Calumet City required, as a condition of employment, that each City firefighter applicant pass a medical examination administered by a physician for the Pension Board. After Mr. Wall completed the Pension Board's medical examination, the City advised Mr. Wall that he would not be hired as a firefighter by the City because he had failed the Pension Board's physical. 01-05118 On June 23, 1994, the EEOC issued its determination that there was reasonable cause to believe that the City violated title I of the ADA. The EEOC found that Mr. Wall is a qualified individual who can perform the essential functions of the firefighter position, and that he was not hired because he was regarded as having a disability, spina bifida occulta and spondylolysis. After conciliation efforts between the City and the EEOC failed, the EEOC referred Mr. Wall's Charge to the Department with a recommendation that the Department file suit. 4. Mr. Timothy McGannon filed a charge of discrimination with the EEOC on June 20, 1994, alleging that he was discriminated against on the basis of disability in violation of title I of the ADA because he was denied employment as a firefighter with the Calumet City Fire Department. The written application form completed by Mr. McGannon for a City firefighter position re- quired him to reveal whether he was an individual with a disabil- ity. After he passed all of the City's employment tests and was ranked number three on the eligibility list for firefighter, Mr. McGannon was required by the City to undergo a preemployment medical examination administered by the City of Calumet City Firefighters' Pension Board. At the time that Mr. McGannon's application was processed, the rules and regulations of the Police and Fire Commission of the City of Calumet City required, that as a condition of employment, that each City firefighter applicant pass a medical examination administered by a physician for the Pension Board. After Mr. McGannon completed the Pension Board's medical examination, the City advised Mr. McGannon that he would not be hired as a firefighter by the City because he had failed the examination. On September 21, 1994, the EEOC issued its determination that there was reasonable cause to believe that the City violated title I of the ADA. The EEOC found that McGannon is a qualified individual who can perform the essential functions of a firefighter position and that he was not hired because he was regarded as having a disability, mild obstructive lung disease. After conciliation efforts between the City and the EEOC failed, the EEOC referred Mr. McGannon's Charge to the Department of Justice with a recommendation that the Department file suit. 5. Title I of the ADA applies to the City and the Pension Board because each is a person within the meaning of 42 U.S.C.  12111(7) and an employer within the meaning of 42 U.S.C.  12111(5)(a). 2 01-05119 6. The United States alleges that the City violated title I of the ADA by, among other ways: a) requiring applicants for employment as a firefighter, including Mr. Wall and Mr. McGannon, to complete an employment application that inquired about the existence of a disability. See 42 U.S.C.  12112(d)(2)(A) and (d)(3); 29 C.F.R.  1630.13 (a) and 1630.14(b); b) requiring, as a condition of employment, that each applicant for a City firefighter position, including Mr. Wall and Mr. McGannon, undergo a preemployment medical examination. The regulations to title I of the ADA provide that, at the preemployment stage "it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inqui- ries as to whether an applicant is an individual with a disabili- ty or as to the nature or severity of such disability." See 29 C.F.R.  1630.13; and c) requiring applicants for a firefighter position with the City, including Mr. Wall and Mr. McGannon, to pass, as a condition of employment, a Pension Board medical examination that is not job-related and consistent with business necessity and that screens out individuals with disabilities based upon disability. See 29 C.F.R.  1630.7 and 1630.14(b). 7. The United States alleges that the Pension Board violated title I of the ADA by administering to firefighter applicants, including Mr. Wall and Mr. McGannon, a preemployment medical examination that screened out applicants on the basis of disability in violation of title I of the ADA. GENERAL AGREEMENT 8. The parties have determined that their respective interests can be met without engaging in protracted litigation to resolve this dispute and have therefore voluntarily entered into this Agreement. 9. The City and the Pension Board each 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 either party. The City and the Pension Board also agree that they will abide by all of the requirements of title I of the Americans with Disabilities Act of 1990 (ADA), as amended. 3 01-05120 10. The City also specifically agrees that: a) It will inquire of a firefighter applicant only about his or her ability to do the job in question and not to inquire, on application forms or otherwise, whether an applicant is an individual with a disabil- ity; b) It will require medical examinations of firefighter applicants only after a conditional offer of employment has been extended; and c) To the extent that the City requires its firefighter applicants to undergo medical examinations after such individuals have been given a bona fide conditional offer of employment, it will use the results of such medical examinations in a manner that is job-related and consistent with business necessity in conformity with title I of the ADA. SPECIFIC RELIEF TO BE OFFERED BY THE CITY Mr. Jonathan Wall 11. On or before December 15, 1995, the City will offer $17,000 to Mr. Wall as compensatory damages for injuries sustained as a result of the City's actions. 12. The City's offer to Mr. Wall will be made in a letter, the contents of which will be the same as in Exhibit 1 attached hereto. The offer letter will advise Mr. Wall that in order to accept the relief offered, he must return an executed Release, the contents of which will be the same as in Exhibit 2 attached hereto, to the City in care of its counsel within thirty (30) days of his receipt of the offer letter. 13. Mr. Wall does not seek job relief from the City and, accord- ingly, none has been requested by the Department on his behalf. 14. The City will send to the undersigned counsel for the United States a copy of the offer letter and release that it sends to Mr. Wall. If Mr. Wall accepts the City's offer, the City will send a copy of the executed release and a copy of the check indicating that the monetary award has been paid to the under- signed counsel for the United States. If Mr. Wall accepts the City's offer, the City will pay Mr. Wall the monetary award within forty five (45) days of receiving his release. 4 01-05121 Mr. Timothy McGannon 15. On or before December 15, 1995, the City will offer $19,000 to Mr. McGannon as compensatory damages for injuries sustained as a result of the City's actions. 16. On or before December 15, 1995, the City shall, in writing, extend to Mr. McGannon an offer of employment for the next available firefighter position with the City, contingent upon successful completion of the City's firefighter physical examination and the Illinois firefighters' certification. Mr. McGannon need not accept the job relief offered to him by the City in order to accept the monetary award. 17. If Mr. McGannon accepts the City's offer of employment, the Pension Board will afford him creditable service in the Pension Fund as of the approximate date that he would have been employed absent the alleged discrimination -- June 1, 1993 -- provided that Mr. McGannon pays into the Pension Fund the amount that he would have contributed had he been employed without interruption since that date. 18. The City's offer to Mr. McGannon will be made in a letter, the contents of which will be the same as in Exhibit 3 attached hereto. The offer letter will advise Mr. McGannon that in order to accept the relief offered, he must return an executed Release, the contents of which will be the same as in Exhibit 4 attached hereto, to the City in care of its counsel within thirty (30) days of his receipt of the offer letter. 19. The City will send to the undersigned counsel for the United States a copy of the offer letter and release that it sends to Mr. McGannon. If Mr. McGannon accepts the City's offer, the City will send a copy of the executed release and a copy of the check indicating that the monetary award was paid to the undersigned counsel for the United States. If Mr. McGannon accepts the City's offer, the City will pay Mr. McGannon his monetary award within forty five (45) days of receiving his release. NOTIFICATION 20. The City will notify the undersigned counsel for the Department when it has completed the actions described in paragraphs 11-19. 21. Within thirty (30) days of receiving from the City a copy of the offer letters to be sent to Mr. Wall and Mr. McGannon by the City according to this Agreement, the United States will issue to both Mr. Wall and Mr. McGannon a notice of right to sue on EEOC charges No. 210-93-3677 and 210-94-2983, respectively, pursuant to 42 U.S.C.  12117(a) and 42 U.S.C.  2000e-5(f)(1). 5 01-05122 IMPLEMENTATION 22. The Attorney General is authorized, pursuant to Section 107(a) of Title I, 42 U.S.C.  12117(a), to institute a civil action against a 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 secure an acceptable conciliation agreement. These preconditions exist with respect to EEOC charges No. 210- 93-3677 and 210-94-2983. In consideration for the offer of relief to Mr. Wall and Mr. McGannon, as set forth above, the Attorney General will not institute any civil action alleging employment discrimination on the basis of EEOC charges No. 210 93-3677 and 210-94-2983, filed by Mr. Wall and Mr. McGannon. OTHER PROVISIONS 23. The Department of Justice may institute a civil action in the appropriate U.S. District Court to enforce this Agreement, if the Department believes that this Agreement or any requirement thereof has been violated. The Department may review compliance with this Agreement at any time. If the Department believes that this Agreement or any portion of it has been violated, it will raise its concern(s) with the City and/or the Pension Board and the parties will attempt to resolve the concern(s) in good faith. The City and/or the Pension Board will be given twenty-one (21) days to cure any breach of this Agreement prior to the insti- tution of any enforcement action. 24. Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any provision herein shall not be construed as a waiver of its right to do so with regard to other provisions of this Agreement. 25. A signatory to this document in a representative capacity for either party represents that he or she is authorized to bind that party to this Agreement. 26. This Agreement is a public document and constitutes the entire agreement between the parties on the matters raised here- in. No other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained or referenced in this written Agreement, shall be enforceable. Copies of this Agreement shall be made available to any person by either party upon request to that party. 6 01-05123 EFFECTIVE DATE/TERMINATION DATE 27. The effective date of this Agreement is the date of the last signature below. For the City of Calumet City: For the United States of America: (Signature) By:___________________________ Jerry Lambert, Attorney Deval L. Patrick Stinespring, Lambert & Assoc. Assistant Attorney General 2602 Flossmoor Road Flossmoor, Illinois 60422 (Signature) (708) 799-0190 City Attorney By:_________________________ John L. Wodatch Dated: Dec. 11, 1995 (handwritten) L. Irene Bowen Alyse S. Bass Disability Rights Section For the Calumet City Civil Rights Division Firefighters Pension Board: U.S. Department of Justice (signature) P.O. Box 66738 By:_________________________ Washington, D.C. 20035-6738 Cary J. Collins, Attorney (202) 616-9511 Massucci, Blomquist, Brown & Collins Dated: Dec. 13, 1995 (handwrit.) 2200 West Higgins Road Suite 145 Hoffman Estates, Ill. 60195 DATED: December 8, 1995 (handwritten) 1 01-05124 EXHIBIT 1 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mr. Jonathan Wall 218 Timrick Drive Munster, Indiana 46321 Re: Jonathan Wall v. City of Calumet City EEOC Charge No. 210-93-3677 Dear Mr. Wall: The United States, the City of Calumet City ("City") and the City of Calumet City Firefighters' Pension Board ("Pension Board") have entered into a Settlement Agreement with the intent of resolving the above-captioned matter. A copy of the Settlement Agreement is enclosed. Pursuant to the Settlement Agreement, the City is offering you $17,000, which shall be considered compensatory in nature. In order to accept the City's offer to you, you must execute the enclosed Release and return it to the City within thirty (30) days of your receipt of this letter. You may return the Release by mail or in person to: Jerry L. Lambert, Esq. Stinespring, Lambert & Associates 2602 Flossmoor Road Flossmoor, Illinois 60422 As set forth in paragraph 21 of the Settlement Agreement, the United States will, within thirty (30) days after it receives a copy of this letter, issue to you a notice of your right to sue on EEOC charge No. 210-93-3677. If, however, you accept the relief being offered to you by the City pursuant to the Settlement Agreement, and so signify your acceptance by executing the enclosed Release, you will thereby agree not to exercise your right to file suit on that charge. 01-05125 If you have any questions concerning the Settlement Agree- ment or the City's offer to you, you may call collect, station- to-station, or write to the following attorney at the U.S. Department of Justice: Alyse S. Bass Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 616-9511 Sincerely, Jerry Lambert Enclosures 3 01-05126 EXHIBIT 2 RELEASE OF ALL CLAIMS For and in consideration of the acceptance of the relief offered to me by the City of Calumet City ("City"), pursuant to a Settlement Agreement between the United States of America and the City, including, specifically, an offer of $17,000 as compen- satory damages: I, Jonathan Wall, release and discharge the City, the Calumet City Board of Fire and Police Commissioners and the Board of Trustees of the City of Calumet City Firefighters Pension Board and their current, former, and future agents, employees, officials, and designees, of and from all legal and equitable claims, known or unknown, arising out of EEOC charge No. 210-93- 3677, which I filed with the Chicago Office of the Equal Employ- ment Opportunity Commission on or about August 24, 1993. I further agree that I will not exercise my right to institute against the above entities any civil action alleging employment discrimination on the basis of EEOC charge No. 210-93-3677 or any of the facts alleged therein. I understand that the payment that is being offered to me does not constitute an admission by any party of the validity of any claim raised by me or on my behalf. This Release constitutes the entire agreement between the City, the Pension Board and myself, without exception or exclusion. I acknowledge that a copy of the Settlement Agreement between the City and the United States of America resolving the matter between them has been made available to me. I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED. Signed this day of , 199 . Jonathan Wall Social Security Number Subscribed and sworn to before me this day of , 199 . Notary Public My Commission expires: 01-05127 EXHIBIT 3 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mr. Timothy R. McGannon 15348 Haney Road South Holland, Illinois 60473 Re: Timothy McGannon v. City of Calumet City EEOC Charge No. 210-94-2983 Dear Mr. McGannon: The United States, the City of Calumet City ("City") and the City of Calumet City Firefighters' Pension Board ("Pension Board") have entered into a Settlement Agreement with the intent of resolving the above-captioned matter. A copy of the Settlement Agreement is enclosed. Pursuant to the Settlement Agreement, the City is offering you a monetary amount of $19,000, which shall be considered compensatory in nature. In addition, the City is extending to you an offer of employment for the next available firefighter position contingent upon your successful completion of the City's firefighter physical examination and the Illinois firefighters' certification. You need not accept the job relief offered to you by the City in order to accept the monetary award. If you accept the City's offer of employment, and successfully complete the requirements for the position, the Pension Board will also afford you creditable service in the Pension Fund as of the approximate date that you would have been employed absent the alleged discrimination -- June 1, 1993 -- provided that you pay into the Pension Fund the amount that you would have contributed had you been employed without interruption since that date. In order to accept any part of the City and Pension Board's offer to you, you must execute the enclosed Release and return it to the City within thirty (30) days of your receipt of this letter. You may return the Release by mail or in person to: 01-05128 Jerry L. Lambert, Esq. Stinespring, Lambert & Associates 2602 Flossmoor Road Flossmoor, Illinois 60422 As set forth in paragraph 21 of the Settlement Agreement, the United States will, within thirty (30) days after it receives a copy of this letter, issue to you a notice of your right to sue on EEOC charge No. 210-94-2983. If, however, you accept any of the relief being offered to you pursuant to the Settlement Agreement, and so signify your acceptance by executing the enclosed Release, you will thereby agree not to exercise your right to file suit on that charge. If you have any questions concerning the Settlement Agree- ment or the City or Pension Board's offer to you, you may call collect, station-to-station, or write to the following attorney at the U.S. Department of Justice: Alyse S. Bass Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 616-9511 Sincerely, Jerry Lambert Enclosures 2 01-05129 EXHIBIT 4 RELEASE OF ALL CLAIMS For and in consideration of the acceptance of any of the relief offered to me by the City of Calumet City ("City") and the City of Calumet City Firefighters' Pension Board ("Pension Board") pursuant to a Settlement Agreement between the United States of America the City and the Pension Board, including, specifically, an offer of: (1) $19,000 and (2) the agreement of the City that it will extend to me an offer of employment for the next available firefighter position, contingent upon my successful completion of the City's firefighter physical examination and the Illinois firefighters' certification. I am aware that I need not accept the job relief offered to me by the City in order to accept the monetary award. If I accept the City's offer of employment, and successfully complete the requirements for the position, the Pension Fund will afford me creditable service in the Pension Fund as of the approximate date that I would have been employed absent the alleged discrimination -- June 1, 1993 -- provided that I pay into the Pension Fund the amount that I would have contributed had I been employed as a Calumet City firefighter without interruption since that date. I, Timothy McGannon, release and discharge the City, the Calumet City Board of Fire and Police Commissioners and the Board of Trustees of the City of Calumet City Firefighters Pension Board and their current, former, and future agents, employees, officials, and designees, of and from all legal and equitable claims, known or unknown, arising out of EEOC charge No. 210-94- 2983, which I filed with the Chicago Office of the Equal Employ- ment Opportunity Commission on or about June 20, 1994. I further agree that I will not exercise my right to institute against the above entities any civil action alleging employment discrimina- tion on the basis of EEOC charge No. 210-94-2983, or any of the facts alleged therein. I understand that the payment to be made to me, the job offer, any other relief that is being offered to me does not constitute an admission by the City or the Pension Board of the validity of any claim raised by me or on my behalf. This Release constitutes the entire agreement between the City, the Pension Board and myself, without exception or exclusion. I acknowledge that a copy of the Settlement Agreement between the City and the United States of America resolving the matter between them has been made available to me. 01-05130 I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED. Signed this day of , 199 . Timothy McGannon Social Security Number Subscribed and sworn to before me this day of , 199 . Notary Public My Commission expires: 2 01-05131