STIPULATION AND [PROPOSED] ORDER RE: RESOLUTION OF PLAINTIFF'S MOTION FOR CONTEMPT AND RELATED CLAIMS;
RETENTION OF JURISDICTION:
FURTHER [PROPOSED] ORDERS TO PERALTA COMMUNITY COLLEGE TO REMEDIATE ACCESS BARRIERS FROM OPERATIVE CONSENT DECREE;
SELF-EXECUTING SANCTIONS
STIPULATION AND [PROPOSED] ORDER
MAXINE M. CHESNEY, Senior District Judge.
Plaintiff Janice Payne ("Plaintiff") and Defendant Peralta Community College District ("Defendant") (collectively, "the Parties"), by and through their respective counsel of record, hereby stipulate to terms to establish compliance with the Amended Consent Decree issued in this matter.
The Parties hereby stipulate and agree as follows:
WHEREAS, Plaintiff Janice Payne filed a Complaint in this action on August 4, 2016, to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and California civil rights laws, and to obtain recovery of damages for discriminatory experiences, denial of access, and denial of civil rights against Defendant relating to disability discrimination in Defendant's programs, services and activities as of February 6, 2016, and continuing. Plaintiff has alleged that Defendant violated Title II of the ADA, the Rehabilitation Act of 1973, sections 51, 54, and 54.1 of the California Civil Code, and section 11135 of California Government Code by failing to provide full and equal access to the users of the facilities at 900 Fallon Street, Oakland, California, known as Laney College;
WHEREAS, on March 29, 2018, the Court issued by order a Consent Decree reflecting an agreement between the Parties, Docket 26, and on October 23, 2018, the Court ordered the Amended Consent Decree, Docket 30. Both Consent Decrees contain identical terms except for the addition of an exhibit to the Amended Consent Decree;
WHEREAS, Plaintiff filed a Motion for an Order Holding Defendant in Civil Contempt ("Contempt Motion"), which was argued by the Parties and heard by the Court on May 24, 2019, at 9:00 a.m.;
WHEREAS, the Court's Order after Hearing dated May 31, 2019, Docket 45, stated that the hearing on the Contempt Motion was held and that "Parties will attempt to resolve matter" with a joint status report due on July 12, 2019;
WHEREAS, pursuant to the Court's May 31, 2019, Order, the Parties began to meet and confer efforts to reach resolution of the violations alleged in the Contempt Motion;
WHEREAS, the Parties submitted Joint Status Reports to the Court on July 12, 2019, August 9, 2019, October 1, 2019, October 15, 2019, and October 30, 2019, reporting their efforts to develop (1) a remediation plan and timeline for compliance with the Amended Consent Decree; (2) damages owed to Plaintiff; (3) attorneys' fees owed to Plaintiff; and (4) a provision for self-executing penalties for future failure to comply;
WHEREAS, the Parties have reached agreement on each of those issues, as outlined below. Good Cause exists to enter this Stipulation and [Proposed] Order because this agreement puts Defendant in compliance with its Consent Decree obligations on the most realistically expeditious time frame; fairly compensates Plaintiff for her injuries resulting from Defendant's violation of the Amended Consent Decree and her attorney fees and costs required to enforce the Amended Consent Decree; and establishes a plan for managing future violations, should they arise, in a manner that is most cost-effective for the Parties and the Court; and
WHEREAS, for and in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the Parties have agreed to fully resolve the Contempt Motion and related claims and disputes arising from the violation of the Amended Consent Decree, which may otherwise subject the District to injunctive relief, liability for damages, penalties, fines, and attorneys' fees and costs.
THEREFORE, IT IS HEREBY STIPULATED AND FULLY AND FOREVER SETTLED by the Parties, as follows:
I. Remediation Plan
Defendant shall perform the following work and implement the following policies, procedures and training on the time frame specified below. All work shall be performed in compliance with the ADA Standards for Accessible Design and/or the California Building Code Title 24-2 Chapter 11B, whichever is more stringent for a given element.
I. BUILDING G
RESTROOM
A. Consent Decree Directive Remediation Timeline
(Consent Decree Deadline)
"Laney College represents Plaintiff may opt-in to receive N/A
that the restroom in the A the bathroom key for use
Building breezeway is now outside of regular business
open during business hours." hours with reasonable notice
Dkt. 30, Attach. A(I)(1)(a) and subject to a signed
(March 29, 2018) statement outlining reasonable
terms and conditions for use
of the bathroom key,
including but not limited to,
promising not to abuse use of
the bathroom key.
B. Consent Decree Directive Remediation Timeline
(Consent Decree Deadline)
"If any DSPS student reports Adopt procedure which The District represents that
that access to the Building G provides that if Laney College Remediation Items was
restroom causes them is open to the public for COMPLETED on August
difficulty or discomfort or District or College-sponsored 27, 2019.
otherwise presents a barrier to events outside of regular
equal access, DSPS will business hours, that security
provide the student a key to staff must ensure that the
the locked staff restroom restroom is open for such
adjacent to the A Building events.
breezeway under reasonable
terms and conditions." In addition, a student may
Dkt. 30, Attach. A(I)(1)(a) independently contact DSPS,
(March 29, 2018) during regular business hours,
to request that the restroom be
open for other events.
II. THEATRE BUILDING
A. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"The Theatre Building chair 1. The lifts will be The District represents that
lift will be kept unlocked at all independently operable at all Remediation Items 2 and 3
times, allowing people with times. were COMPLETED on
disabilities independent access August 19, 2019.
2. The Director of Facilities
"The Theater Building chair and College Operations will The District represents that
lift locking mechanism will be responsible for responding Remediation Item 1 was
now be placed on `by pass' to a request for assistance COMPLETED on
mode to facilitate access for with the lifts. The police September 20, 2019.
disabled persons." officer on duty is the back-up
Dkt. 30, Attach. A(II)(2)(b) person responsible. They The District represents that
(March 29, 2018) shall each be directed to be on Remediation Items 4 and 5
call to assist in use of the were COMPLETED on
chair lift. November 6, 2019.
3. The phone numbers for the The District represents that
Director of Facilities and the lifts were converted to
College Operations and police keyless operation on
dispatch on call shall be November 6, 2019.
posted at both the upper and
lower points of entry of each
lift for the purposes described
above.
4. These two individuals will
be directed to acknowledge
receipt of the within live
minutes of being noticed; the
individual or their designee
will be on the scene within 15
minutes.
5. Revise procedures to
reflect the above and direct to
designated staff.
B. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"A sign will be placed 1. Ensure signage is placed at The District represents that
adjacent the chair lift warning top and bottom of lift for each Remediation Items 1, 2, and
that the chair lift is for lift. 3 were COMPLETED on
exclusive use of disabled August 30, 2019.
persons and that unauthorized 2. Ensure additional signage
use of the chair lift is unsafe. has been added next to the
This placement of a mechanism for the chair lift
permanent sign will be on the top level.
incorporated into the Laney
College Signage Project as 3. Ensure the platform lift
detailed below in Section IV. and chair lift have necessary
signage in all locations.
C. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"Door No. TH 114 will be 1. Add signage that reads: The District represents that
replaced and fitted with ADA "If the doors are not operating Remediation Item 1 was
paddles. properly, the Laney Business COMPLETED on August 5,
Appropriate signage will be Office, Facilities Specialist 2019.
affixed to this door will be contacted at 510-599-9411
Dkt. 30, Attach. A(II)(2)(d) to place a service work
(March 29, 2018) order to mitigate the door
issues."
2. Repair Doors The District represents that
Remediation Item 2 was
COMPLETED on
September 11, 2019.
III. MUSIC ROOM
A. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
Room G 189A (music Complete construction of The District represents that
performance classroom): Amended Diagram 1, a copy this Remediation Item was
"remove all architectural of which is attached hereto as COMPLETED on August
barriers to access to the area Exhibit A to this Stipulation. 29, 2019.
in and around the piano to
ensure that students with
mobility disabilities can
perform at the piano in the
same manner as able-bodied
students. A schematic of the
agreed remediation is attached
as Exhibit 1."
Dkt. 30, Attach. A(II)(2)(e)
(January 22, 2018)
IV. DOORS
A. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"[H]ire an outside contractor 1. All covered doors subject The District represents that
to repair [as] necessary and to the Consent Decree have Remediation Item 1 was
maintain the exterior and been identified through a COMPLETED on August
ADA paddled doors [the survey., A list of doors subject 30, 2019.
`Master Door Contract.'] to these "doors provisions," is
Dkt. 30, Attach. A(III)(2)(a) attached hereto as Exhibit B
(February 28, 2018) to this Stipulation. Doors
governed by these doors
provisions include ADA
paddled doors and doors
which provide access to the
public, e.g., classrooms,
administrative areas,
bathrooms, and other public
spaces. Defendant represents
that the Door List at Exhibit B
identifies all such doors on the
campus.
2. Until a 3-year contract to The District represents that
comply with this provision of Remediation Item 2 was
the Consent Decree is COMPLETED on
adopted, Defendant shall September 30, 2019.
deploy interim designees or
contractors to inspect,
maintain, and repair doors
identified in Exhibit B as
provided in the Consent
Decree
3. District to evaluate the The District represents that
feasibility of making all Remediation Item 3 was
subject doors ADA paddled COMPLETED on
doors. September 30, 2019.
4. Doors identified through Remediation Item 4 shall be
the inspection in Item 1 to repaired by December 31,
require repair shall be repaired 2019.
consistent with section IV.D
below.
B. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"[T]he doors numbered G171, 1. Make Door G170-191 The District represents that
G 190 and the door to the paddled and operational. Remediation Item 1 was
women's restroom in the COMPLETED on October
cafeteria will be given priority 31, 2019.
for compliance within the
schedule of work within the 2. Make women's restroom The District represents that
Master Door Contract door in cafeteria operational. Remediation Item 2 was
currently on-going." Dkt. 30, COMPLETED on August
Attach. A(III)(2)(b) (February 29, 2019.
28, 2018)
3. Relocate button on The District represents that
women's restroom door in Remediation Item 3 was
cafeteria and make door COMPLETED on October
operational. 31, 2019.
C. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"PERALTA will retain, on a 1. Adopt 3-year door The District represents that
three-year contract cycle, an inspection, maintenance, and this Remediation Item was
outside contractor to inspect, repair contract as provided in COMPLETED on October
repair, and maintain for the the Consent Decree. The 31, 2019.
purposes of ADAAG and contract will cover the doors
Title 24 compliance, the identified in Exhibit B of this
Exterior and ADA paddled Stipulation:
doors on the Laney College
Campus." (a) To inspect, maintain and
Dkt. 30, Attach. A(III)(1)(b) repair such doors on a
(February 28, 2018) quarterly basis, in addition to
repairs and maintenance
issues that are brought to its
attention at other times;
(b) Check the door pressure,
opening force and closing
speed of such doors on a
monthly basis; and
(c) Repair and/or adjustment
of such doors shall be
performed within four hours
of receiving notice, and in no
case later than one business
day following the report of
any such door being out of
compliance, except in
situations when relevant parts
are not readily available.
D. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"PERALTA agrees that the 1. Adopt procedure to The District represents that
repair and/or adjustment of perform all repairs and/or Remediation Item 1 was
ADA paddled doors and adjustments of ADA paddled COMPLETED on May 14,
exterior steel doors shall be doors and exterior steel doors 2019.
performed within four hours within four hours of receiving
of receiving notice, and in no notice, and in no case later
case later than one business than one business day
day following the report of an following the report of an
ADA paddled or exterior door ADA paddled or exterior door
being out of compliance, being out of compliance,
except in situations when except in situations when
relevant parts are not readily relevant parts are not readily
available." available.
Dkt. 30, Attach. A(III)(1)(e)
(February 28, 2018) 2. Adopt procedure that The District represents that
streamlines connection to Remediation Items 2 and 3
vendor to repair door when were COMPLETED on
notice is provided; all November 6, 2019.
designated employees, such as
facilities and maintenance
staff, as well as vendors, who
receive notice of
malfunctioning door, must
understand the importance of
prioritizing repair of the door
and must in fact prioritize
door repair.
3. Any failure to comply with
the letter of this requirement
shall be documented in real-time.
4. Train designated Remediation Item 4
employees and vendors on the completed by November 30,
above procedures. 2019.
V. SIGNAGE
A. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"[U]pdate disabled access Sally Swanson or other The District represents that
signage and other signage on Defendant-designee shall the walk-through was
the Laney College Campus." conduct a walk-through of the COMPLETED on
Dkt. 30, Attach. A(IV)(1)(a) campus to certify the September 5, 2019.
(April 30, 2018) previously designed campus-wide
GNU signage package The District represents that
complies with accessibility transmittal of the Sally
standards. A copy of this Swanson-certified signage
certified signage package shall package, Exhibit C to this
be attached to this Stipulation Remediation Plan, was
as Exhibit C. COMPLETED on October
4, 2019.
Install signage provided in
Exhibit C by March 20, 2020.
VI. SWIMMING POOLS
A. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"[M]aintain the swimming Install working, compliant The District represents that
pool lift in working order." lifts for both pools. this Remediation Item was
Dkt. 30, Attach. A(V)(1)(a) COMPLETED on
(March 29, 2018) November 6, 2019.
VII. ELEVATORS
A. Consent Decree Directive Remediation Timeline
(Decree Timeline for
Completion)
"Until the elevators in the Adopt "gold level" service The District represents that
Tower Building are replaced, contract for elevators, which this Remediation Item was
PERALTA shall establish a provides for frequent COMPLETED on
maintenance policy to check inspection, maintenance, and September 20, 2019.
the closing speed of the repair.
Tower elevator doors on a
monthly basis for the purposes
of maintaining such doors in
compliance with the ADA
and/or Title 24, whichever is
more stringent." Dkt. 30,
Attach. A(III)(1)(f) (February
28, 2018)
II. Plaintiff's Damages and Attorneys' Fees and Costs
Defendant shall pay $215,000.00 (two-hundred fifteen thousand and zero dollars) to Plaintiff in full compensation for Plaintiffs personal injuries of any kind arising from Defendant's alleged failure to comply with the Amended Consent Decree or any law governing the same, and in compensation for Plaintiff's attorneys' fees and costs reasonably expended in enforcing the Amended Consent Decree through the date of the full execution of this Stipulation. The check shall be delivered to Plaintiff's counsel on or before November 27, 2019. Failure to do so shall be deemed a violation of this Stipulation and [Proposed] Order to which Liquidated Sanctions, infra, shall apply.
In addition, Defendant shall pay any and all outstanding fees claimed by ADR Services and/or Justice Lambden for his work in assisting the resolution of these issues incurred on or after October 14, 2019 through November 13, 2019.
III. Release of Claims
Plaintiff agrees to accept said conditions in this Stipulation and [Proposed] Order in full settlement and compromise of the Contempt Motion and related claims and further agrees that same shall fully and forever discharge and release all claims and causes of action, whether now known or now unknown, including but not limited to under Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131 et seq.), § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), California Government Code § 11135, and California's Unruh Civil Rights Act (California Civil Code § 51 et seq.), and Disabled Persons Act (Civil Code section 54 et seq.), which Plaintiff has, or might have or could have asserted, against the District, its officials, employees, representatives or agents, by way of the Contempt Motion or arising out of the incidents which are the subject thereof, including but not limited to any injunctive relief, monetary damages, penalties, fines, attorneys' fees and costs.
Civil Code section 1542. This Stipulation and Agreement includes an express waiver by the Parties of California Civil Code section 1542, which states:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
Therefore, the Parties expressly acknowledge that this release is intended to include in its effect, without limitation, all claims and causes of action that they do not know or suspect to exist in their favor arising out of the Contempt Motion or the incidents which are the subject thereof; and that this release contemplates the extinguishment of all such claims and causes of action.
Except as separately agreed by the Parties in this Stipulation and [Proposed] Order, and otherwise set forth herein, Plaintiff and Defendant shall bear their own costs and attorneys' fees.
It is understood and agreed that this Stipulation and [Proposed] Order is a compromise of disputed claims and that nothing herein shall be construed as an admission of liability by any Party, or as a finding of contempt against Defendant. The Contempt Motion is fully settled and resolved.
IV. Liquidated Sanctions
The Parties agree that it is in their mutual interest to establish liquidated sanctions for failure to comply with this Stipulation and [Proposed] Order and to fully account for any related future claims by Plaintiff arising from violation of the Amended Consent Decree and this Stipulation and [Proposed] Order during the term of this Agreement in order to prevent future lengthy and expensive disputes over the nature and extent of any further injunctive relief, monetary damages, penalties, fines, attorneys' fees and costs ("sanctions") for violation of the Amended Consent Decree and this Stipulation and [Proposed] Order. Therefore, the Parties agree:
A. For each day or partial day that Defendant is out of compliance with any provision of the Remediation Plan above, Defendant will pay $100.00 (one hundred dollars) to the Court and separately, if Plaintiff is enrolled as a student at the time of the violation, $200.00 (two hundred dollars) to Plaintiff. The total daily payment by Defendant will be $300 (three hundred dollars) regardless of how few or how many provisions of the Remediation Plan stand in violation.
B. Defendant must provide proof of compliance with the Remediation Plan on or before each of the deadlines provided in the Remediation Plan. Failure to provide proof of compliance on any given item shall constitute a separate violation of the Remediation Plan.
C. The Parties agree that this [Proposed] Order approving the Remediation Plan shall supersede the terms of the Amended Consent Decree to the extent stated in this Stipulation and [Proposed] Order, such that compliance with the Remediation Plan shall constitute compliance with the Amended Consent Decree. The Parties expressly acknowledge that the status report requirements of Paragraph 6(d) of the Amended Consent Decree, Therefore, the Parties agree that any sanction paid to Plaintiff under this provision would be compensatory for Defendant's continued violation of her civil rights; and that any sanction paid to the Court would be compensatory for Defendant's failure to comply with the Amended Consent Decree as amended by this Stipulation.
D. Defendant acknowledges that it has agreed to the scope of remediation and the schedule under the Remediation Plan for purposes of complying with the Amended Consent Decree, and its agreement constitutes an acknowledgment that it is capable of complying with the Court's Order herein. Defendant's failure to comply with this remedial Order would, for each day or partial day of noncompliance, comprise an intentional failure to act in a way which hinders or obstructs the court in its administration of justice in this matter. The Parties further agree that the sanction is coercive, in that the sanction will cease as soon as Defendant comes into compliance with the Remediation Plan.
E. For each period that Defendant sanctions are triggered under this Stipulation and Agreement, payment of Plaintiff's sanctions is due in full in the office of Plaintiff's Counsel within 30 days of Defendant coming into compliance with the Remediation Plan. Payment of the Court's Sanctions is due in full in the office of the Court Clerk within 30 days of Defendant coming into compliance with the Remediation Plan. Failure to pay sanctions when due constitutes an independent violation of this Agreement, for which the daily sanctions apply as specified in Section A.
F. The Parties further agree that this section is intended to be self-executing. In case of dispute over whether Defendant violated the Remediation Plan, the burden to establish compliance and/or that it did not have fair notice lies with Defendant. Defendant is not precluded from raising defenses to a claim of violation, including but not limited to 28 C.F.R. § 35.133, "isolated or temporary interruptions in service or access due to maintenance or repair." However, nothing in this section is intended to reduce Defendant's obligations under the Remediation Plan. Either Party may request a mutually agreeable neutral party ("Neutral") to determine whether Defendant violated any provision of the Remediation Plan for purposes of this section. The Neutral shall be Justice James Lambden unless he is not available. If the Parties cannot agree upon a Neutral within two weeks of one Party giving notice to the other that a Neutral is necessary, the Parties will turn to the Court to select a Neutral.
G. Any Party's request for resolution of a dispute over whether Defendant has violated the Remediation Plan must be resolved by the Neutral within 30 days from the date of the request, unless the Parties agree in writing to an extension. The decision of the mutually-agreed Neutral shall be final. The Parties shall reduce the Neutral's decision to a stipulation and proposed order to be submitted for the Court's signature. All costs for the Neutral to perform services pursuant to this section shall be borne solely by Defendant.
H. The foregoing provisions shall govern any future allegation, claim, complaint, or dispute by Plaintiff for injunctive relief, damages, penalties, fines, and or attorneys' fees related to any violation of the terms of the Remediation Plan or the Amended Consent Decree; the purpose of the Stipulation and Agreement is to avoid any further litigation between the Parties over the Remediation Plan and the Amended Consent Decree, including by way of a contempt motion or another civil suit for injunctive relief, damages, penalties, fines, and/or attorneys' fees.
I. By signing below, Plaintiff represents that she does not know, and is not aware, of any experiences or circumstances which may constitute discrimination on the basis of disability, as a result of which she could or intends to file or initiate another civil suit or legal proceeding of any kind against Defendant for injunctive relief, damages, penalties, fines, and/or attorneys' fees.
J. In the event that Plaintiff knows or becomes aware of any experiences or circumstances which may constitute discrimination against her on the basis of disability that is not covered by this, she will provide Defendant with not less than 30 days' notice before she files or initiates another civil suit or legal proceeding of any kind against Defendant for disability discrimination claims, including injunctive relief, damages, penalties, fines, and/or attorneys' fees.
V. Attorneys' Fees, Litigation Expenses and Costs
The attorneys' fees provision of the Amended Consent Decree shall apply to this Stipulation and [Proposed] Order, so that actions taken by Plaintiff's Counsel reasonably necessary to enforce this Stipulation and [Proposed] Order and/or the Amended Consent Decree shall be compensable. Any disputes over fees and costs will be resolved by the Neutral or the Court.
VI. JURISDICTION AND DURATION OF COURT'S ORDER
The terms of the Amended Consent Decree as amended by this Stipulation and [Proposed] Order shall be in effect for five years from the date of the Court's signature on the [Proposed] Order. The Court shall retain jurisdiction to enforce the terms of this Order.
VII. VOLUNTARY AGREEMENT
Each Party affirms and acknowledges that she/he/it has read, fully appreciates, and understands the words, terms, and provisions of this Stipulation and Agreement, is entirely satisfied with the settlement described, and has duly executed this Agreement voluntarily and of her/his/its full free will and accord. Each Party had an opportunity to review and consult with their respective legal counsel on this matter.
IN WITNESS WHEREOF the Parties hereto have executed the Stipulation and Agreement as dated below.
Dated: November 15, 2019 DEFENDANT
________
Regina Stanback Stroud, Ed.D.
Chancellor
PERALTA COMMUNITY COLLEGE DISTRICT
Dated: November 14, 2019 PLAINTIFF
________
JANICE PAYNE
IT IS SO STIPULATED.
Dated: November 15, 2019 Respectfully submitted,
LOZANO SMITH
/s/ Steve Ngo
Sloan R. Simmons
Steve Ngo
Attorneys for Defendant
PERALTA COMMUNITY COLLEGE DISTRICT
Dated: November 14, 2019 Respectfully submitted,
DERBY, McGUINNESS & GOLDSMITH, LLP
________
Celia McGuinness
Steven L. Derby
Attorneys for Plaintiff
JANICE PAYNE
[PROPOSED] ORDER
Pursuant to the stipulation and agreement of the Parties, and for good cause shown,
IT IS SO ORDERED.
EXHIBIT A
EXHIBIT B
EXHIBIT C
