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U.S.

Department of Justice
Civil Rights Division
Coordination and Review Section

P.O. Box 66118


Washington, D.C. 20035-6118

AUG 29 1994

XX

RE: Complaint Number XXXXXX

Dear Mr. Modica:

This letter constitutes our Letter of Findings in response


to the complaint filed by XX against the Town of
Henrietta, New York, under Title II of the Americans with
Disabilities Act of 1990 (ADA). Title II protects qualified
individuals with disabilities from discrimination on the basis of
disability in the services, programs and activities of a State or
local government. XX is alleged that the programs,
services, and activities provided in the Henrietta Town Hall are
not readily accessible to and usable by individuals with
disabilities. XX also alleged that the Town retaliated
against him because he complained about the lack of accessible
facilities. Specifically, XX alleged that his job
description was changed and he was moved to another work site,
which was allegedly inaccessible. In conducting this
investigation we reviewed information supplied by XX ,
as well as information provided by the Town of Henrietta.

Section 35.140 of the regulation implementing Title II


states that no qualified individual with a disability shall, on
the basis of disability, be subjected to discrimination in
employment under any service, program, or activity conducted by a
public entity. This section requires an employer to provide a
reasonable accommodation for any qualified employee with a
disability.

Section 35.149 of the Title II regulation requires a public


entity to ensure that no qualified individual with a disability
shall, because the facilities are inaccessible to or unusable by
such individuals, be excluded from receiving the benefits of the
services, programs or activities.
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Section 35.150(a) of the Title II regulation requires that a


public entity operate each of its programs so that, when viewed
in its entirety, the program is readily accessible to and usable
by individuals with disabilities. Section 35.150(b) lists a
number of methods that a public entity may use to make its
programs accessible. These methods include reassignment of
services to accessible buildings, assignment of aides to
beneficiaries, home visits, and alteration of existing
facilities. Structural changes in existing facilities are
required only when there is no other feasible way to make the
program accessible. Section 35.150(a) states that actions are
not required if they would result in undue financial and
administrative burdens or in a fundamental alteration in the
nature of the program or activity.

Section 35.134 of the Department of Justice's implementing


regulation prohibits retaliation against any individual because
that individual has opposed any practices alleged to be unlawful
by Title II or for participating in a complaint investigation.

This Department has completed its investigation of the


complainant's allegations. The issues raised have been
successfully resolved based on the actions taken by the Town of
Henrietta to comply voluntarily with the requirements of Title
II. The results of the investigation are summarized below.

Issue I: Alleged Retaliation

XX worked as an employment counselor for the


Town of Henrietta. In November 1992, he was reassigned from his
worksite at the Town Hall to a new location in a local high
school. XX viewed this reassignment of his worksite as
a form of retaliation. He alleged that his activism in seeking
to bring the Town of Henrietta into full compliance with the ADA
and his advocacy of issues important to persons with disabilities
led to the reassignment. XX alleged that he
encountered serious problems entering the local high school
building and that, once inside, he did not have access to his
office or to restrooms. He added that it was difficult to move
about the facility because of the building's layout and that the
doorknobs prevented access to the offices he used.

The Town denied that XX reassignment was in


retaliation for asserting rights protected by the ADA. The Town
stated that it made the transfer to a new worksite as a means of
providing counseling services at a location closer to the clients
XX served. Since XX clients were primarily
high school students, Town officials believed that he would be

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more effective working in the local high school, as opposed to


the Town Hall.

The Town also moved immediately to resolve the accessibility


problems XX is encountered at his new worksite. Based
upon documentation submitted by the complainant and the Town, and
as clarified in interviews with XX, these problems were
resolved. XX expressed satisfaction with the Town's
response and the adjustments to make his worksite readily
accessible.

Before this aspect of the investigation was finished,


XX passed away on May 25, 1993. However, in response
to his allegations, the Department examined fully the other
issues raised in his complaint. These issues follow:

Issue II: Access to the Henrietta Town Hall

The complainant alleged that several areas of the Town Hall


were not readily accessible to persons with disabilities. The
balance of this letter describes the alleged problems, the
actions taken by the Town to address them, and the resolution of
each.

A. Entrance to Town Hall

The complainant alleged that the doors to the Town Hall were
too heavy to open unassisted. Because of weather conditions,
lighter doors were not an option. The Town recognized this and
made plans to install power-assisted doors. Power-assisted doors
were installed at all entrances to the Town Hall in October 1993,
providing accessibility to the building for individuals with
mobility impairments and others who have difficulty opening
doors.

The Town also redesigned and altered the sidewalk area and
ramps leading to the building at the rear entrance, making it
easier for individuals with disabilities to enter.

B. Programs, Services and Activities

Although the investigation determined that the programs,


services and activities conducted inside the Town Hall are
accessible to persons with disabilities, the complainant
described problems with the counters at which business is carried
out, stating that some counters are too high for persons in
wheelchairs. As a consequence, the Town built what it describes
as "knee holes" that allow individuals in wheelchairs to see over
the counter and to access the services provided in the Town Hall.

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C. Water Fountain

The complainant alleged that there was an inaccessible water


fountain outside the Town Supervisor's office. The Town
installed a cup dispenser to provide access. The complainant
asserted that because the dispenser next to the water fountain
was frequently out of cups, it was often inaccessible to
individuals with disabilities. The Town acknowledged that cups
are frequently taken by employees or others who are not disabled,
and said it would monitor the cup supply. As a permanent
solution, the Town installed a new, accessible water fountain.

D. Restrooms

The complainant alleged that the Town Hall's bathrooms were


inaccessible. The investigation disclosed that there are two
bathrooms for employees on the main floor. Persons with
disabilities may use these. The Town has made some adjustments
to make them accessible and plans to post signage to clearly
indicate that they are available to persons with disabilities, as
well as employees. A consultant who evaluated the Town Hall's
facilities made several recommendations for improving the
restroom services, which have been accepted. The consultant's
report and recommendations are discussed below.
E. Town Supervisor's Office

The complainant alleged that the entrance to this office is


too narrow for someone in a wheelchair to enter. The Town does,
however, provide access to the programs in the office. The door
is always open and the staff person sitting in the outer office
is available to respond to the needs of persons who use
wheelchairs, as well as arrange for direct contacts with the Town
Supervisor, which are held in an accessible room.

F. Access to Town Park Baseball Fields

The complainant alleged that because of the installation of


a one foot-high curb surrounding the baseball fields, without
curb cuts, he was unable to attend local games played in this
location. Before the curb was installed, XX was able
to roll up the grassy slope to the baseball diamonds. With the
new curbs, it became difficult, if not impossible, for him to
continue attending these activities. The Town acknowledged that
some of the fields were inaccessible to individuals using
wheelchairs or those with other mobility impairments. The Town
has made plans, and budgeted funds, for providing direct access
to the ballfields. It will construct several five foot-wide
paths going from the parking lot, which has accessible parking,

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to the ballfields. Once there, an individual in a wheelchair


will approach a pad wide enough for viewing all activities
conducted on the ballfields. The Town planned to have this
project completed in November 1993. Because of the weather, lack
of staff and other priorities, the Director of Parks and
Facilities has now committed to completing this alteration by the
Fall of 1994.

G. Other Activities

The Town of Henrietta commissioned a study of the Town


Hall's accessibility by the Rochester Center for Independent
Living. The study examined all public and common use areas of
the building for adherence to the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG).
Although strict adherence to ADAAG is not necessarily required in
existing facilities where the standard is one of "program
accessibility" (i.e., ensuring that programs rather than
individual facilities are accessible), the Town has nevertheless
made plans to implement the recommendations of this study.

In response to suggestions by the Department, the Town of


Henrietta has taken steps to notify members of the public and its
employees regarding their rights and the protections afforded by
the ADA. The notice describes the accommodations available for
individuals with disabilities who wish to use the services
offered or participate in activities conducted in the Town Hall.
The notification includes steps to effectively communicate with
individuals with hearing and visual impairments and describes the
availability of services, e.g., interpreters, for qualified
individuals seeking services. The notice identifies the
person(s) responsible for ADA matters, and the availability of
grievance procedures for prompt and equitable resolution of
complaints alleging any actions prohibited by the ADA. The Town
will also ensure that appropriate signage is installed in and
around the Town Hall directing individuals with disabilities into
the facility. The Town has taken steps to consult with persons
with disabilities whenever program changes or construction are
planned, to identify any accessibility problems.

Conclusion

This letter contains our determination with respect to the


allegations raised in the administrative complaint filed by
XX . We find that the Town of Henrietta is in
compliance with the ADA because it has taken appropriate steps to
provide access to its programs, services and activities and will
communicate these efforts to the community. These actions, when
completed, successfully resolve the issues raised in the
complaint to the Department of Justice. The Town will submit a
written report to the Department no later than October 15,
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1994, describing the progress of the actions planned above to


provide accessibility to individuals with disabilities.

If you are dissatisfied with our determination, you may file


a complaint presenting your allegations of discrimination in an
appropriate United States District Court under Title II of the
ADA.

You should be aware that no one may intimidate, threaten, or


coerce anyone or engage in other discriminatory conduct against
anyone because he or she either has taken action or participated
in an action to secure rights protected by the ADA. Any
individual alleging such harassment or intimidation may file a
complaint with the Department of Justice. We would investigate
such a complaint if the situation warrants.

Under the Freedom of Information Act, 5 U.S.C. 552, we may


be required to release this letter and other correspondence and
records related to the complaint in response to a request from a
third party. Should we receive such a request, we will safe-
guard, to the extent permitted by law, release of information
that could constitute an unwarranted invasion of your or
another's privacy.

If you have any questions regarding this letter, please


contact Thomas Esbrook at (202) 307-2940.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

cc: Mr. James R. Breese


Supervisor
Town of Henrietta

Mr. William H. Walker, Jr.

Mrs. Gene McGinnis

Mr. William Dykstra

01-03395

U.S. Department of Justice

Civil Rights Division


Coordination and Review Section
P.O. Box 66118
Washington, D.C. 20035-6118

AUG 29 1994

Mr. James R. Breese


Supervisor
Town of Henrietta
475 Calkins Road
P.O. Box 999
Henrietta, New York 14467-0999

RE: Complaint Number XX

Dear Mr. Breese:

Enclosed is the Letter of Findings (LOF) resolving a


complaint filed with the Department of Justice by XX
XX under Title II of the Americans with Disabilities Act.
We appreciate your willingness to resolve this matter in a
voluntary manner. As discussed with Mr. William Walker, Town
Attorney, and Mr. William Dykstra, Director of Parks and
Facilities, the Department requires a written report that
describes your progress in completing all projected improvements
to provide access to the Town's programs, services, and
activities for individuals with disabilities. Please submit a
report to the Department no later than October 15, 1994, that
includes information on the following planned activities that are
referenced in the LOF:

- Installation of a new, accessible water fountain in the Town


Hall.

- Construction of accessible paths to the Town ballfields.

- Signage for the accessible restrooms.

- A description of all actions taken in response to the


recommendations of the study conducted for the Town by the
Rochester Center for Independent Living.

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The Department will monitor your adherence to the proposed


changes until they are completed. If you have any questions or
need further information, please contact Mr. Thomas Esbrook of my
staff at (202) 307-2940.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

Enclosure

cc: Mr. William Walker


Town Attorney

Mr. William Dykstra


Director of Parks and Facilities

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