SCOTT R. LASSAR

United States Attorney

JOAN LASER

Assistant United States Attorney

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

L. IRENE BOWEN, Deputy Chief

EDWARD MILLER

PHYLLIS COHEN

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

Post Office Box 66738

Washington, D.C. 20035-6738

\(202\) 514-3422

Attorneys For Plaintiff United States of America

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v\.

VASQUEZ FUNERAL HOME,

Defendant.

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No. 99 C 1794

Judge Gettleman

[PLAINTIFF UNITED STATES' POST TRIAL BRIEF]{.underline}

Table of Contents

Table of Authorities iii

Table of Authorities

[Cases]{.underline}

Anderson v. City of Bessemer City, 470 U.S. 564 (1985) 9, 10

Bragdon v. Abbott, 524 U.S. 624 (1998) 18, 21-28

Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990) 30

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984) 21

Cloutier v. Prudential Ins. Co. of America, 964 F.Supp. 299 (N.D. Cal.
1997) 16

D.B. v. Bloom, 896 F. Supp. 166 (D.N.J. 1995) 29

Doe v. D.C., 796 F. Supp. 559 (D.D.C. 1992) 30

Emmel v. Coca-Cola Bottling Company of Chicago, 95 F.3d 627 (7^th^ Cir.
1996) 3, 11, 13

Howe v. Hull, 873 F. Supp. 72 (N.D. Ohio 1994) 30

In re Chavin, 150 F.3d 726 (7^th^ Cir. 1998) 9, 10

Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d
Cir. 1997) 21

Johanson v. Huizenga Holdings, Inc., 963 F.Supp. 1175 (S.D. Fla. 1997)
17

Kotev v. First Colony Life Ins. Co., 927 F.Supp. 1316 (C.D. Cal. 1996)
16

Mid-American Waste Systems, Inc. v. City of Gary, 49 F.3d 286 (7^th^
Cir. 1995) 13

Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir.
1997),\
cert. denied, 523 U.S. 1003 (1998) 21

Perfetti v. First National Bank of Chicago, 950 F.2d 449 (7^th^ Cir.
1991) 13

Riemer v. Illinois Dept. of Transp., 148 F.3d 800 (7th Cir. 1998) 27

School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 279 (1987) 27

Special Educ. Services v. RREEF Performance Partnership-I,L.P., No. 95 C
6468, 1995 WL\
745964 (N.D. Ill. Dec 11, 1995) 17

United States v. Gregory, 871 F.2d 1239 (4th Cir. 1989), cert. denied,\
493 U.S. 1020 (1990) 3, 9, 10, 30

United States v. Lashmett, 965 F.2d 179 (7^th^ Cir. 1992) 10

United States v. Scott, 660 F.2d 1145 (7^th^ Cir. 1981), cert. denied,
455 U.S. 907 (1982) 13

United States v. Watson, 87 F.3d 927 (7^th^ Cir. 1996) 10

[Statutes and Regulations]{.underline}

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189 passim

28 C.F.R. § 36.104 22, 24, 25

28 C.F.R. § 36.201(a) 28

28 C.F.R. § 36, App. B, at 598 (1994) 20, n.7

[Other Authorities]{.underline}

9A C. Wright & A. Miller, Fed. Prac. & Proc.: Civil 2d § 2586 (1995) 10

Americans With Disabilities Act, Hearings Before the Senate Committee on
Labor and Human\
Resources and the Subcommittee On the Handicapped 101st Cong., 1st Sess.
(May 9, 1989) 19

Fed.R. Evid. 613. 10

Webster's Ninth New Collegiate Dictionary 615 (1990). 26

I. [Introduction]{.underline}

The United States alleges that the Vasquez Funeral Home discriminated
against Mr. Pompello Medina and the Medina family in violation of title
III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12181-12189, by charging an additional fee for conducting funeral
services for Mr. Pompello Medina, a person who died of AIDS, that was
not charged to persons without disabilities. Trial of these allegations
was held on December 30, 1999.

Many of the essential facts of this case are not disputed, including the
following: on October 1, 1995, Mr. Medina died of complications from
AIDS. [See]{.underline} [Final Pretrial Order]{.underline}, Appendix A.
The next day the Medina family contacted the Vasquez Funeral Home and
received a written quote for funeral services. [Id]{.underline}. At the
time he prepared this quote, Mr. Raymond Vasquez, the owner and sole
employee of the Vasquez Funeral Home, did not know the cause of death of
Mr. Medina. [Id]{.underline}. After learning of the cause of death, Mr.
Vasquez prepared a final, written contract that was \$100 more than the
original quote and specifically listed an "AIDS kit" as an itemized
charge. [Id]{.underline}.

While these facts are undisputed, several central facts remain
contested, leaving the Court with two vastly different and virtually
unreconcilable stories. To resolve this dichotomy, the Court will be
required to make credibility determinations as to which witnesses are
believable and which are not; which witnesses have motives to misstate
the facts; which witnesses have misrepresented facts in the past; and,
finally, which story is more internally consistent and credible.

The first story was told by Sandra Medina Izaguirre, daughter of Mr.
Pompello Medina, and Elva Medina, Mr. Medina's wife of 20 years ("the
Medinas"). FF 5-6.^1^[^1] Both witnesses confirmed that on the day Mr.
Medina died, Sandra Medina Izaguirre telephoned Mr. Vasquez, told him
that the Medina family wanted Mr. Medina to be buried in Mexico, and
requested and received a fixed quote for funeral services which included
transport to Mexico. FF 9, 10, 13, 14; GX 7. Mr. Vasquez made this quote
before knowing the cause of Mr. Medina's death. FF 27. Sandra Izaguirre
and Elva Medina explained that they paid for these services, in cash,
the day before the visitation services at the Defendant's business. FF
11, 12. When they arrived at the visitation, however, Mr. Vasquez's
attitude had changed \-- he now knew the cause of death, and he now
publicly and callously demanded an additional \$100 from the Medinas
because Mr. Medina had died of AIDS. FF 16, 17, 27. Mr. Vasquez
explicitly told the family that the extra charge was because Mr. Medina
had AIDS and that Mr. Vasquez had to use an "AIDS kit." FF 18, 21, 27,
35, 36.

Supporting the Medinas' story is documentary evidence. The final
contract is \$100 more than the estimate, the exact amount demanded by
Mr. Vasquez. GX 8. That same contract differs in another important way
from the estimate; it includes an itemized listing of an "AIDS kit." GX
7, GX8. Further, Mr. Vasquez, with advice of counsel, signed a statement
admitting this charge, and admitting that the charge was made in
violation of the ADA. GX 12; FF 39-44.

While admittedly both the Medinas and Mr. Vasquez have an interest in
telling a story

that supports their position, the Court also heard from an impartial
witness with no interest in the outcome of this matter. To rebut Mr.
Vasquez's testimony, the United States offered the testimony of Lenore
Bragaw, a public interest attorney. Ms. Bragaw testified clearly and
convincingly that Mr. Vasquez admitted to her in a telephone
conversation a few weeks after the incident that the \$100 was because
Mr. Medina died of AIDS; that he didn't know he couldn't make this
charge; and that he would send a check refunding this amount to the
family because he now knew it was improper. FF 35, 36. While Mr. Vasquez
denied ever even speaking to Ms. Bragaw, her testimony was unimpeached
and the questioning from the Defendant made clear that Mr. Vasquez was
not being truthful about his contacts with Ms. Bragaw.

The story told by these three witnesses and by the documents was
unimpeached, internally consistent, logical, and most of all highly
credible. It amply demonstrates that at Mr. Medina's wake on the night
of October 3, 1995, Mr. Raymond Vasquez demanded an additional fee of
\$100 because Mr. Medina died of AIDS.

The opposing story comes from only one witness: Mr. Raymond Vasquez, the
owner and operator of the Vasquez Funeral Home. Mr. Vasquez maintains
that the additional fee was not because Mr. Medina died of AIDS, but
rather was for a different service: burial in Mexico versus burial in
the United States. While he admits the additional fee was charged only
after he learned of the cause of death, and further admits listing an
AIDS kit on the final bill, Vasquez maintains that AIDS had nothing to
do with the additional fee.

As a result, the Court is faced with two stories that are in
irreconcilable conflict. Therefore, credibility may be the most
important issue before the Court. [Emmel v. Coca-Cola Bottling Company
of Chicago]{.underline}, 95 F.3d 627, 630 (7^th^ Cir. 1996) (witness
credibility in discrimination cases often crucial). If Mr. Vasquez is to
believed, then all three witnesses offered by the United States \--
Sandra Izaguirre , Elva Medina, and Lenore Bragaw\-- lied on the stand.
On the other hand, if they are credible and believable, then Mr.
Vasquez's explanation must be rejected.

However, close examination of all the evidence reveals that Mr.
Vasquez's testimony as to numerous matters is also irreconcilable with
his own prior sworn statements, both written and oral; it is far more
likely that it is Mr. Vasquez's story that should be rejected. Mr.
Vasquez's testimony is filled with inconsistencies and conflicts with
prior testimony in material respects; fundamentally, it is simply not
believable. Further, the only non-testimonial evidence offered in its
favor \-- limited documentary evidence \-- is of little probative value
and is itself suspect, given the Defendant's questionable explanation
for the recent disappearance of the vast majority of its business
records.

Because of the overwhelming credibility of Plaintiff's witnesses and
believability of Plaintiff's allegations, the United States respectfully
urges that the Court enter a judgment in Plaintiff's favor.

II\. [The Evidence at Trial Demonstrates That the United States Has
Proven its Factual Allegations and That the Defendant's Story Is Simply
Not Credible]{.underline}

A. The United States' Witnesses Are More Credible than Mr. Vasquez and
Their Testimony and the Weight of the Evidence Demonstrates That Mr.
Vasquez Committed Illegal Discrimination

Through the combination of undisputed facts, testimony of credible
witnesses, and even admissions from the Defendant, the United States
demonstrated at trial by a preponderance of the evidence that the
Vasquez Funeral Home required that the Medina family pay an additional
fee for funeral services because Mr. Medina died of AIDS. None of the
three witnesses offered by the Plaintiff were impeached in any way, and
the only evidence offered to dispute their testimony came from Raymond
Vasquez \-- who admitted at least twice on the stand that prior
statements made by him were false, and whose testimony was also riddled
with inconsistencies and conflicted with other evidence.

The testimony of the United States' first two witnesses, Elva Medina
Izaguirre and Sandra Medina Izaguirre, was beyond reproach. Their
testimony established that the decision to have Mr. Medina buried in
Mexico had been made before the Vasquez Funeral Home was ever contacted,
and that in fact Mr. Medina himself had decided he wanted to be buried
in Mexico before his death. FF 7. Consistent with that decision, Mrs.
Medina asked her daughter Sandra to contact several funeral homes for
her, since Mrs. Medina does not speak English, and to obtain prices for
funeral services and for shipping her husband\'s remains to Mexico. FF
9.

Elva Medina and Sandra Medina Izaguirre both testified that on October
2, 1995, the day before the wake \-- and before Mr. Vasquez picked up
Mr. Medina\'s remains from the hospital \-- Mrs. Medina paid the full
price Mr. Vasquez had quoted Sandra Medina Izaguirre over the telephone.
FF 11. Both further testified that during the wake on October 3, 1995,
Mr. Vasquez demanded an additional \$100 for extra materials he said he
was forced to use once he found out Mr. Medina had died from AIDS. FF
16, 17, 27. This is fully consistent with the testimony of Lenore Bragaw
(FF 34-37); with GX 9 (the check from the Vasquez Funeral Home to Elva
Medina for \$100 dated October 5, 1995); and with Mr. Vasquez\'s own
testimony that he was paid at the wake. This is also consistent with Mr.
Vasquez\'s own admission that he asked the family why they had not told
him that Mr. Medina had died from AIDS.^2^[^2] FF 16. While Elva and
Sandra Medina testified that it was during that very conversation in
which Mr. Vasquez demanded the additional \$100, Mr. Vasquez tried to
minimize the importance of that discussion by denying it was a
"conversation":

Q (by Velarde): Okay. Was anything else discussed at the time?

A: No, no conversation. I did discuss with her because at that time I
did come back from the hospital with the remains, and I told her, I
says: \"You should have told the funeral director he had AIDS.\" She
forgot to tell me that. I didn\'t have any conversation. She didn\'t say
anything. I didn\'t say anything. (45/14-20)

Further, while initially denying emphatically that he spoke with Sandra
Medina the night of the wake, Mr. Vasquez became less and less certain
of that fact under questioning, buttressing the Medinas\' version of
their conversation with him that night.

Q (by the Court): Okay. On the night of the funeral, do you remember
speaking to the daughter?

A: No.

Q: Is it your testimony that you did not speak --- that you are sure you
did not speak to the daughter?

A: I\'m positive I didn\'t.

Q: So as far as you know, you never spoke to the daughter?

A: It\'s a good possibility I never did, no.

Q: Well, is it a possibility or is it your best recollection?

A: To my best recollection I never spoke with her and she never called
me on the phone. (70/20 - 71/8)^3^[^3]

Not only is the testimony of Elva and Sandra Medina consistent,
unimpeached, and

supported by documentary evidence, but it was supported by a neutral
witness, Lenore Bragaw. Ms. Bragaw confirmed that, in conversations with
her, the Defendant himself had admitted that he demanded an additional
\$100 from the Medinas because Mr. Medina died of AIDS. Ms. Bragaw also
established that she asked the Defendant, both in writing and in two
telephone calls, to respond to the allegations of discrimination, and
that his response was to admit the allegations but to explain that he
"didn't know" it was illegal. FF 36.

While Mr. Vasquez denied ever having a conversation with Ms. Bragaw, it
is clear that she had very little, if any, motive to misrepresent, and
her cross-examination by the Defendant seemed to confirm that it was Mr.
Vasquez that was not being candid. For example, while Mr. Vasquez
testified without hesitation that he had no recollection of any
conversation with Ms. Bragaw, defense counsel had the following
exchanges with Ms. Bragaw:

Q (by Mr. Velarde): Didn't you subsequently call Mr. Vasquez and he
asked you to call his lawyer?

A: Yes. First\--he called me first and we had a conversation.
(102/25-103/3).

Q (by Mr. Velarde): Didn't you tell him (Mr. Vasquez) the \$100 wasn't
enough, he should return the full amount of the funeral services?

A: I believe in our second conversation he said something like: "Well,
what is it that you want?" And I said: "Well, you know, we could
probably settle this if you reimburse the cost of the funeral or we
could work, you know, something out." (105/1-7).

Q (by Mr. Velarde): Did you also send him (Mr. Vasquez) a clipping from
the newspaper stating that somebody else had paid money based on the
same facts?

A: \...I think the letter was to you, the second letter, stating that
these issues \-- I'm sorry. The question was why did we think he had
done anything wrong and what exactly we were getting at. And I enclosed
a newspaper clipping, I believe it was to his attorney, saying this is
what I was talking about, this sort of issue had been brought before,
had come to the attention of the Justice Department before. Yes, I did
send a clipping. (105/15-25).

Thus, Defense counsel asked about and elicited from the witness facts
that were not otherwise in the record and that confirmed that Mr.
Vasquez's testimony \-- that he had never spoken to Ms. Bragaw \-- was
untrue.

Further, the consistency of Ms. Bragaw's testimony supports her
credibility. She testified that her office's normal procedure would have
been to write Mr. Vasquez and explain the allegations and ask him
whether the allegations were true, defeating Mr. Vasquez's allegations
that "no one had ever asked" him where the extra \$100 came from and
that he never had an opportunity to raise his story before. FF 47, 48.
The normal procedure would have been to invite Mr. Vasquez to contact
her, buttressing her testimony that they did, in fact talk.
[Id.]{.underline} Her testimony also explained that in at least two
conversations with the Defendant the Defendant never stated that the
extra \$100 was for a "different service" but instead explicitly
admitted the ADA violation: that the extra charge was for an AIDS kit.
FF 35, 36, 46-48. As Ms. Bragaw testified in response to a question from
the Court, Mr. Vasquez admitted that the \$100 was for an AIDS kit and
that he "didn't know" that he couldn't impose that charge. FF 35, 36.

In addition to admitting the illegal charge to Ms. Bragaw, the Defendant
made the same admission to the United States during its investigation of
this matter. GX 12; FF 38-44. On May 19, 1998, the Defendant signed a
settlement agreement with the United States and the Defendant regarding
the allegations raised in the current litigation. [Id.]{.underline} Mr.
Vasquez signed the agreement voluntarily and with advice of counsel, had
read each and every paragraph of the agreement before signing it, and
had the opportunity to make any changes that he thought were appropriate
prior to signing it. [Id.]{.underline}

In the agreement, Mr. Vasquez admitted that during the investigation of
these allegations, the Department of Justice established that the
Vasquez Funeral Home charged the complainant more to embalm a person who
died from AIDS-related complications than it charged other clients who
did not die of AIDS. GX 12, ¶ 3; FF 40, 43. Mr. Vasquez also admits that
there is no reasonable basis for charging more to embalm bodies
harboring an infectious disease, including AIDS, than those that do not.
GX 12, ¶ 7-8; FF 41.

Mr. Vasquez asserts that paragraph 3 of the agreement was not true when
he signed it. FF 44. As a result, the Court must determine when Mr.
Vasquez lied: either to the United States during its investigation of
this matter, or on the stand. Given that Mr. Vasquez's trial testimony
was self-serving, and in light of the weight of contradictory evidence,
the United States urges that Mr. Vasquez's testimony be rejected and
that the Court instead believe the statements made in the Settlement
Agreement.

The three witnesses offered by the United States were honest and
credible, and they told a consistent story that was buttressed by
documentary evidence. The only evidence offered to directly rebut their
story came from testimony by Mr. Vasquez. However, that testimony must
be rejected since it is filled with inconsistencies, inaccuracies, and
is simply not believable.

B. Vasquez's Testimony Is Inconsistent With Prior Statements and
Internally Inconsistent

Defendant Vasquez's testimony is riddled with internal inconsistencies,
and it conflicts directly with prior sworn testimony, statements, and
actions. His testimony is therefore not credible and should be given
little, if any, weight. [Anderson v. City of Bessemer City]{.underline},
470 U.S. 564, 575 (1985) (documents may contradict witness's story or
the story may be so internally inconsistent or implausible that
reasonable factfinder would not credit it); [In re Chavin]{.underline},
150 F.3d 726, 728 (7^th^ Cir. 1998) (whether to believe witness depends
on internal consistency of witness's testimony and consistency with
other evidence, common knowledge and the laws of nature). 9A C. Wright &
A. Miller, Fed. Prac. & Proc.: Civil 2d § 2586 (1995) (same).

Mr. Vasquez's trial testimony was not only internally inconsistent, but
also conflicted with his prior statements. "Prior inconsistent
statements can severely undermine the credibility of a witness, by
showing either a flimsy recollection of events or worse, a propensity to
lie \..." [United States v. Watson]{.underline}, 87 F.3d 927, 931 (7^th^
Cir. 1996), quoting [United States v. Lashmett]{.underline}, 965 F.2d
179, 182 (7^th^ Cir. 1992); Fed.R. Evid. 613. His testimony was also so
internally inconsistent and implausible as to be incredible. [City of
Bessemer City]{.underline}, 470 U.S. at 575; [Accord]{.underline} [In re
Chavin]{.underline}, 150 F.3d at 728.

Vasquez testified that he *never* spoke with Sandra Medina Izaguirre. FF
58. However, he later testified that he could not remember if he ever
spoke with her. [Id.]{.underline} Later still, he testified that he was
*positive* he did not speak with her the night of the wake.
[Id.]{.underline} Finally, Vasquez testified that it was a "good
possibility" that he never spoke with her, [Id.]{.underline}, and it was
his "best recollection" that he never spoke with her. [Id.]{.underline}.

Mr. Vasquez testified that he found out that the body would be sent to
Mexico for burial while he was filling out the death certificate with
Mrs. Medina, approximately five to ten minutes after he wrote up the
estimate. FF 26. Although he testified that shipping the body to Mexico
would be an additional charge to the family, and that he "scratches on
\[the worksheet\] all the time," he never adjusted the worksheet for
shipping to Mexico nor wrote up a new estimate for Mrs. Medina because
"\[i\]t didn't dawn on \[him\]. FF 25-26.

Although Elva Medina does not speak English, Vasquez testified that he
conversed with her in English the day she came in to make funeral
arrangements. FF 62. Further, Vasquez testified that he conversed with
her in English regarding a number of very specific areas, including that
she asked about his funeral prices, Trans. 42/7-17; she accepted his
price quote, Trans. 43/12-14; he then got additional information from
her, such as her husband's date of birth, Social Security number, the
name of the hospital, etc., Trans. 43/15-20 ; and she then "inquired"
about sending the body to Mexico, Trans. 43/21-23. Mr. Vasquez does not
speak Spanish, and he does not have anyone in the funeral home who
speaks Spanish. Trans. 70/12-19.

Vasquez testified that he provided Elva Medina with a written estimate
for funeral services before he learned the body was to be shipped to
Mexico. FF 26. Vasquez testified that when he wrote the estimate he did
not know at which cemetery the funeral would take place, but that the
funeral would be in Chicago and that he did not need to know where the
funeral would take place to write up the estimate. FF 32. However,
Vasquez also testified that there are a number of "extra things" that
are additional costs to the families that are not included in the basic
funeral price. FF 28-30.

Perhaps most troubling, Vasquez's testimony contradicted his own Answer
to the United States' Interrogatory #9, GX 3, and indicates that Vasquez
either lied on the stand or lied in response to Interrogatories.^4^[^4]
"Answers to interrogatories are evidence." [Emmel]{.underline}, 95 F.3d
at 635. Interrogatory #9 asked the Defendant to "\[i\]dentify each
person for whom Defendant was asked to provide services where Defendant
was aware, made aware, or suspected that the person had AIDS or HIV. For
each person identified, provide the name, address and telephone number
of the person requesting or contracting for services from the
Defendant." Vasquez's notarized response, and signed by his counsel,
states: "I have no recollection of any at this time." However, at trial
Vasquez testified that he has provided services for approximately 10
people who died from AIDS or HIV, FF 54, Trans. 73/18-22, including four
or five prior to Mr. Medina. Trans. 46/22-25; 75/1-4. Vasquez was aware
that his answers to the United States' interrogatories were under oath
but "\[i\]t didn't even dawn on \[him\]" to go through his records when
he answered the interrogatories. Trans. 96/9-22.

Vasquez is an experienced businessman who has owned and operated his own
funeral home for 27 years. Trans. 72/7-13. His explanation for the
discrepancy between his sworn answer to Interrogatory \# 9 and his
testimony at trial is simply not plausible. [See]{.underline} [In re
Chavin]{.underline}, 150 F.3d at 729 (experienced businessman's
explanation for failure to answer questions correctly ridiculous).

C. Vasquez's Eleventh-hour Explanation Is Pretextual and an
After-the-Fact Rationalization

Prior to his deposition on October 18, 1999, Vasquez had never explained
the \$100 discrepancy between his worksheet estimate and the final
contract. FF 45-50. Vasquez had numerous opportunities to give an
explanation for the difference in price, including at the start of the
Department of Justice's investigation when he received a letter from the
Department which asked for Vasquez's response to the allegations.
[See]{.underline} GX 13. Vasquez testified that he did not provide an
explanation because he "did not know where they were coming from,"
Trans. 65/18-21, although he also admitted that the Department of
Justice's letter, GX 13, stated that the allegation that was being
investigated was that he imposed an additional fee for burial
arrangements for persons with AIDS . Trans. 65/10-17. Yet in addition to
the allegation spelled out in the Department's letter, Vasquez admitted
to conversations with "someone" who told him he had hurt the Medina
family by writing "AIDS kit" on the bill. Trans. 59/23 - 60/4. It
strains credulity to be expected to believe that a businessman would
risk the expense and uncertainty of litigation without first offering an
explanation of his actions.

Vasquez's eleventh-hour explanation is a "pretextual after-the-fact
justification." [Perfetti v. First National Bank of
Chicago]{.underline}, 950 F.2d 449, 456 (7^th^ Cir. 1991). See,
[Emmel]{.underline}, 95 F.3d at 634 (failure to express
non-discriminatory explanation earlier despite several opportunities to
do so gives rise to inference that later expressed reason pretextual);
[Mid-American Waste Systems, Inc. v. City of Gary]{.underline}, 49 F.3d
286, 288 (7^th^ Cir. 1995) (noting district court's finding that reason
for terminating contract for operating landfill was "concocted" after
the fact and is pretextual). Vasquez's last-minute explanation of the
\$100 difference between the worksheet estimate, GX 7, and the final
contract, GX 8, supports a finding that this explanation is a mere
pretext. [Perfetti]{.underline}, 950 F.2d at 456 (finding of pretext
supported where testimony internally inconsistent or contradicts other
aspects of \[defendant's\] case). [See also]{.underline} [United States
v. Scott]{.underline}, 660 F.2d 1145, 1168 (7^th^ Cir. 1981), [cert.
denied]{.underline}, 455 U.S. 907 (1982).

D. Even If The Court Believes Vasquez's Story That The \$100 Was For a
Different Service, it Is Clear That Vasquez Demanded Payment of The
\$100 Because He Learned That Mr. Medina Died of AIDS

Even if the Court believes that \$100 difference between the estimate
and the final contract would normally be paid for funeral services of
the type requested by the Medina family, it is clear from the evidence
that the only reason Mr. Medina demanded this additional payment was
because Mr. Medina died of AIDS. Mr. Vasquez admitted that when he
provided the family with a quote for services, he did not know the cause
of Mr. Medina's death. FF 27. He also maintains that as he was preparing
the estimate \-- before Mrs. Medina left \-- he learned that the funeral
would take place in Mexico. FF 26. Even if the Court believes his
testimony, it is clear that at that moment Mr. Vasquez could have
changed the estimate or written a new estimate to indicate to the
Medinas that the funeral would cost an additional \$100. On the
contrary, Mr. Vasquez did nothing, demonstrating that he did not demand
or even expect that the \$100 would be paid. FF 26. It was only after
Vasquez learned that Mr. Medina had AIDS that he confronted the family,
demanded to know why they had not told him of Mr. Medina's HIV status,
and sought the additional \$100. FF 16, 17. Thus, even if the Court
believes Vasquez's testimony that his "usual prices" support the
additional fee, it is factually proven that the only reason he really
demanded this fee was a discriminatory one.

E. Defendant's Exhibits Do Not Support His Story and Should Be Given
Little Weight

In an effort to support Vasquez's new found explanation that the \$100
extra charge was for a different service, Mr. Vasquez offered selected
invoices from his business records. These invoices purport to show that
the Defendant charges only two prices for funeral services that differ
by \$100, and that that difference, and not an AIDS kit, is the source
of the \$100 Mr. Vasquez sought from the family.

First, the Court should give these invoices little weight, if any. The
records the Defendant produced at trial are only a tiny fraction of the
Defendant's business records that should have been maintained. The
Defendant offered numerous invoices as exhibits from its records.
[See]{.underline} DX 2 and DX 3. These documents fall into two
categories: a small, select group of invoices from 1995 and invoices
after October 1996. While the Defendant testified that he does "about 55
funerals a year" (p. 73, lines 7-17), he offered only a handful of
invoices from 1995, the year Mr. Medina died, and no invoices between
January and October 1996, the period immediately after Mr. Medina's
death. The remaining files \-- obviously crucial to test the Defendant's
story \-- were not offered at trial (or produced in discovery) because
the Defendant asserts that they were "lost in a flood." FF 61; 58/6-15.
Not surprisingly, the only records which survived this calamity mildly
support Defendant's story.^5^[^5] Even these records were not produced
until after the close of discovery and many were not produced until
after the Defendant's deposition, even though some of them were in
possession of defense counsel. [See]{.underline} GX 11, ¶ 2; FF 31;
[Defendant's Response to Plaintiff's Motion in Limine]{.underline} ¶¶
4-7. Given this background, along with the Defendant's other lapses in
credibility, questions remain about whether the "lost" records were
indeed destroyed in a flood; such questions should be resolved against
Mr. Vasquez, since he was the custodian of the records and it is their
absence which helps his story.

More fundamentally, many of Defendant's records are simply lacking in
probative value. The Defendant was unable to produce the price list that
was in effect at the time of Mr. Medina's funeral, ([see]{.underline}
[Parties' Joint Stipulation Regarding Documents and Defendant's Answers
to Interrogatories and Request to Admit]{.underline} ¶ 3; FF 60), nor
did it ever produce the underlying files of which these invoices were
only a small part. As a result, it is impossible to tell if these
invoices match Mr. Medina's price list (which itself might have told us
whether Mr. Medina's story is true). Further, the United States believes
that these missing documents could have yielded important other
information to rebut Defendant's last-minute explanation.

Defendant's other exhibits, those dated from October 1996 forward, are
simply not relevant to this case. Defendant has admitted that it raised
its prices in January 1996. [See]{.underline} GX 10. Therefore, those
documents cannot prove what Defendant's pricing practices were in
October, 1995.

Finally, some of Mr. Vasquez's exhibits actually conflict with his
story. Mr. Vasquez's testimony is that there are only two prices: one
for a local funeral that costs \$1650, and one for a funeral out of the
country which cost \$1750 in 1995 (and was later raised to \$1850). FF
25; Trans. 78/13-14. However, some of the invoices don't support this
testimony. FF 28, 30. Further, as noted earlier, Vasquez admitted that
there are many items that can make a price vary, such as a limousine or
other items.^6^[^6] Thus, his own testimony both undermines his
explanation and demonstrates that these limited invoices cannot be
relied upon for demonstrating any consistent business conduct.

III\. The Vasquez Funeral Home Committed Illegal Discrimination Against
Elva Medina and Sandra Medina Because They Associated with a Person with
a Disability

The Americans with Disabilities Act forbids a public accommodation from
excluding or otherwise denying goods, services, or other opportunities
to people who have an association or relationship with an individual
with a disability. 42 U.S.C. § 12182(b)(1)(E); [Accord]{.underline}
[Cloutier v. Prudential Ins. Co. of America]{.underline}, 964 F.Supp.
299, 301 (N.D. Cal. 1997). Family members have been recognized as being
included in the relationship or association cause of action. [Kotev v.
First Colony Life Ins. Co.]{.underline}, 927 F.Supp. 1316 (C.D. Cal.
1996) (spouse of HIV positive person has association claim under 42
U.S.C. § 12182(b)(1)(E)); [Johanson v. Huizenga Holdings]{.underline},
Inc., 963 F.Supp. 1175 (S.D. Fla. 1997) (father of a disabled minor has
association claim under 42 U.S.C. § 12182(b)(1)(E) by virtue of his
relationship with his son).

In order to establish that the Defendant illegally discriminated against
the Medinas because of their relationship with Mr. Medina, the United
States must show that Vasquez is a public accommodation and that it
discriminated against the Medinas because of their relationship with a
person with a disability. [Special Educ. Services v. RREEF Performance
Partnership-I,L.P.]{.underline}, No. 95 C 6468, 1995 WL 745964 \*2 (N.D.
Ill. Dec 11, 1995). The evidence presented at trial shows that the
United States has proven each of these elements.

A. The Vasquez Funeral Home Is a Public Accommodation under the ADA

The first element of the United States' association or relationship
discrimination claim is that the Vasquez Funeral Home is a public
accommodation under the ADA. The definition of public accommodation is
as follows:

The following private entities are considered public accommodations for
purposes of this subchapter, if the operations of such entities affect
commerce \--

\...

\(F\) a\...funeral parlor\...or other service establishment.

42 U.S.C. § 12181(7). "Private entity" is, in turn, defined as "any
entity other than a public entity\..." 42 U.S.C. § 12181(6).

It cannot credibly be contested that the Vasquez Funeral Home is a
public accommodation. Mr. Vasquez himself admitted that he operates a
business that is open to the public; that he advertises that business to
the public, and that he purchases and sells products both intra- and
inter-state. Trans. 48/19\--49/9. It is also beyond dispute that he
operates a funeral parlor \-- which is specifically listed as an example
of a public accommodation under the statute. Trans. 41/16\--24.
Consequently, the Vasquez Funeral Home is a public accommodation as
defined by the ADA. 42 U.S.C. § 12181(7).

B. The Vasquez Funeral Home Discriminated Against the Medinas Because of
Their Association with a Person with a Known Disability

Evidence presented at trial demonstrates that Vasquez committed illegal
discriminated against the Medinas because of their association with a
person with a disability. First, it is clear that Mr. Medina was an
individual with a disability. It is undisputed that Mr. Medina was
infected with the AIDS virus at the time of his death and that AIDS was
the cause of his death. FF 4. It also cannot be disputed that, prior to
his death, Mr. Medina was a person with a disability because of the AIDS
infection. [Bragdon v. Abbott]{.underline}, 524 U.S. 624, 631 (1998)
(holding that at every stage of the disease, including the asymptomatic
stage, persons with HIV or AIDS are individuals with disabilities under
the ADA). Defendant argues, however, that Mr. Medina lost his status as
an individual with a disability at the moment of his death.

The goal and purpose of the ADA instructs that the Defendant's proposed
limitation of the ADA's coverage should be rejected, since it would
frustrate the remedial purpose of the Act. The Act covers virtually
every activity of the average American: their education, employment,
public and private commercial activity, housing, health care, retirement
care, and other areas. [See]{.underline}, [e.g.]{.underline}, 42 U.S.C.
§ 12101 (findings by Congress that persons with disabilities suffer
discrimination in virtually every daily activity that must be addressed
by a clear and comprehensive national action addressing these
activities.). As one court has stated:

It is important to keep in mind that lawmakers made clear that the ADA
was norm-changing legislation, akin to the legislative turning points in
this country\'s struggle to overcome racial discrimination. President
Bush referred to the Act as a \"historic new civil rights Act.\" Senator
Tom Harkin, the champion of the Act, announced it to be the \"20th
century Emancipation Proclamation for all persons with disabilities,\"
while Senator Dole called it \"the most comprehensive civil rights
legislation our Nation has ever seen.\" Unlike other legislation
designed to settle narrow issues of law, the ADA has a comprehensive
reach and should be interpreted with this goal in mind.

[Anderson v. Gus Mayer Boston Store of Delaware]{.underline}, 924 F.
Supp. 763, 771 (E.D. Tex. 1996) (citations omitted). The Act's stated
purpose was "to provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals." Not only does
the ADA prohibit direct discrimination against people with disabilities,
the Act also prohibits discrimination against people with a record of
disability (but no actual disability); people who are wrongly perceived
as having a disability; and people who associate with persons with
disabilities. 42 U.S.C. §§ 12102(2)(A); 12102(2)(B); 12182(b)(1)(E).

Legislative history indicates that Congress intended to prevent this
exact type of discrimination from occurring against the families of
deceased persons who had disabilities, including after the person with a
disability has died. Committee testimony and statements of Senators
indicate that Congress was concerned about discrimination against family
members of persons that had died of HIV and AIDS by funeral homes that
refused to provide funeral services to the persons with HIV and AIDS.
[Americans With Disabilities Act, Hearings Before the Senate Committee
on Labor and Human Resources and the Subcommittee On the
Handicapped]{.underline} 101st Cong., 1st Sess. (May 9, 1989). One
witness testified that she was a foster parent to babies who were
HIV-positive, and that when one of the babies died, the
[family]{.underline} "had considerable difficulty finding funeral homes
that would provide a decent service and burial" including demands from
at least one funeral home for additional fees to bury the baby.
[Id.]{.underline} (Testimony of Betty Corey). Key Senators explained
that the proposed legislation would prevent this exact type of
discrimination. For example, Senator Kennedy stated: "I think the one
thing we can do is to try and meet the particular challenge which you
have put to us so that it doesn\'t happen to other
[families]{.underline}, and that is what we are going to do."
[Id.]{.underline} (Senator Kennedy) (emphasis added).^7^[^7]

Moreover, the Department of Justice has consistently construed Title III
to prohibit the exact type of discrimination here alleged by funeral
homes against the families of deceased persons who died of HIV or AIDS.
The Department issued technical assistance, in the form of a letter
dated May 23, 1994 and appended hereto as Exhibit A, regarding the
question of whether funeral homes could impose increased fees in cases
involving bodies harboring infectious diseases. As that letter makes
clear:

Since the OSHA regulation and CDC guidelines require that
[all]{.underline} bodies be treated as if harboring an infectious
disease, the imposition of an additional embalming fee only in cases
where a body is known to be harboring such a disease would violate the
ADA. Imposition of such an additional fee impermissibly treats persons
with disabilities and/or persons known to have a relationship or
association with persons with disabilities differently from others who
seek the services of a funeral home.

Exhibit A at 2. The letter makes clear that the Department of Justice
has construed consistently since at least 1994 that the death of a
person with a disability does not dissolve the family members'
association claim of discrimination. [Id.]{.underline}

As the Supreme Court has emphasized, the Department of Justice\'s
interpretations of Title III are \"entitled to deference,\" because the
Department is \"the agency directed by Congress to issue implementing
regulations, see 42 U.S.C. § 12186(b), to render technical assistance
explaining the responsibilities of covered individuals and institutions,
§ 12206(c), and to enforce Title III in court, § 12188(b).\" [Bragdon v.
Abbott]{.underline}, 524 U.S. 624, 646 (1998). [See also]{.underline}
[Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837, 843 & n.11 (1984). The Department\'s
Technical Assistance materials, such as the attached letter, are also
entitled to deference. [See]{.underline} [Bragdon]{.underline}, 524 U.S.
at 646; [Paralyzed Veterans of Am. v. D.C. Arena L.P.]{.underline}, 117
F.3d 579, 584-585 (D.C. Cir. 1997), [cert. denied]{.underline}, 523 U.S.
1003 (1998); [Innovative Health Sys., Inc. v. City of White
Plains]{.underline}, 117 F.3d 37, 45 & n.8 (2d Cir. 1997). Thus, this
Court should defer to the Attorney General\'s interpretation and reject
the limitation sought by the Defendant.

This legislative and regulatory history indicate that the focus of the
association claim is not on the person with the disability, but rather
on the Defendant's perceptions or misperceptions of that person
[and]{.underline} on the way the Defendant treated the individuals who
associated with that person. For example, if a child is denied access to
a day care center because her parent is or was HIV positive, that
exclusion is discriminatory, regardless of whether the parent is still
living. If the parent was not present at the time of the discrimination,
or lived in another state (or even another country), the act of
exclusion would still be discriminatory. Similarly, if that parent had
once been infected with a contagious disease that was a disability and
was then cured, the subsequent exclusion of that same child from the day
care center because the parent at one time had a contagious disease
would be illegal discrimination against the child because of her
relationship with a person with a disability. In these examples, the day
care center would not escape liability by arguing that the parent lived
out of state, was out of the country, or was no longer infected with the
disease. Neither should the day care center be allowed to escape
liability because the parent has died.

It is clear that, under [Bragdon]{.underline}, if the Medinas had
visited the Defendant in the moments before Mr. Medina died and been
forced to pay an additional fee because of Mr. Medina's disability, then
the Defendant would have violated the ADA. [Bragdon]{.underline}, 524
U.S. at 631; 42 U.S.C. § 12182(b)(1)(E). It is equally clear that since
the Defendant's motives and the discriminatory effect of its actions do
not change because of the person's death, neither should the
prohibitions against discrimination. Instead, it is enough to show that
the Medinas were discriminated against because of their association with
Mr. Medina, a person infected with the AIDS virus.

Further support for this argument comes from the statutory and
regulatory coverage of funeral homes. The ADA prohibits discrimination
by public accommodations. 42 U.S.C. § 12182. Funeral homes are listed
specifically as a type of public accommodation both in the statute
itself and in the regulation implementing Title III. [See]{.underline}
42 U.S.C. § 12181(7)(F) (specifically listing "funeral parlors" as
public accommodation); 28 C.F.R. § 36.104 (defining "Place of Public
Accommodation" as "a facility, operated by a private entity whose,
operations affect commerce and fall within at least one of the following
categories\...(6) A..funeral parlor\...or other service
establishment."). The specific listing of funeral homes demonstrates a
congressional and regulatory intent to prevent funeral homes engaging in
the type of association discrimination alleged in the present case.

The United States has demonstrated by a preponderance of the evidence
that the Medinas were forced to pay an additional fee for funeral
services because of the HIV status of their family member. FF 4-21, 27,
34-37. Consequently, the United States respectfully requests that the
Court enter judgment on its behalf on the association claim.

IV\. The Vasquez Funeral Home Committed Illegal Discrimination Against
Mr. Pompello Medina in Violation of the ADA

In order to prevail on its claim of illegal discrimination under the
ADA, the United States must prove by a preponderance of the evidence the
following: that the Vasquez Funeral Home is a place of public
accommodation; that Mr. Pompello Medina was an individual with a
disability; and that the Defendant discriminated against Mr. Medina in
violation of the ADA. 42 U.S.C. § 12182. Evidence produced at trial
demonstrates that the United States has carried its burden on each of
these elements.

A. The Vasquez Funeral Home Is a Public Accommodation under the ADA

The first element of the United States' direct discrimination claim is
that the Vasquez Funeral Home is a public accommodation under the ADA.
As noted earlier, it is beyond dispute that the Vasquez Funeral Home is
a public accommodation as defined by the ADA. 42 U.S.C. § 12181(7). See
infra at Section III A.

B. At All Times Relevant to The Complaint, Pompello Medina Was a Person
With a Disability as Defined by The ADA

The second element of the United States' claim is that Mr. Medina was,
at the time of the alleged discrimination, an individual with a
disability as defined by the ADA. A preponderance of the evidence
establishes this fact. As discussed earlier, Mr. Medina's status as a
person with AIDS means that he was an individual with a disability under
the Supreme Court's [Bragdon]{.underline} decision. [Bragdon v.
Abbott]{.underline}, 524 U.S. 624, 631 (1998). That status should not
stop, where, as here, the Defendant continued to act on that basis.

To draw an analogy, if an African American individual dies and is denied
funeral services by a funeral home because that funeral home refuses to
provide services to anyone who is not white, the funeral home could not
defend a race discrimination case brought by the family by arguing that,
since the person has died, he is no longer an African-American, and
therefore no discrimination occurred. Indeed, at least one court has
already recognized that claims for this exact kind of discrimination are
valid, even where the person has died. In [Scott v. Eversole
Mortuary]{.underline}, 522 F.2d 1110, 1111-13 (9th Cir. 1975), the
plaintiffs, family members of Native Americans, brought a race
discrimination case against the defendant after the defendant refused to
provide funeral services for Native American members of their families
because of the race of both the claimants and the decedents. Clearly,
the discrimination occurred after the Native American had died, and the
reason for the discrimination was the race of the dead person.
[Id.]{.underline} The court held that allegations^8^[^8] that the
defendant refused to provide funeral services to the deceased were
sufficient to make out federal claims of race discrimination.
[Id.]{.underline} at 1113. The fact that the allegations were that it
was the [deceased's]{.underline} race that was the reason for the
discrimination did not have any effect on the court's decision; in the
same way, the fact that it in the present case it is the deceased's
disability that led to the discriminatory action should not allow the

Defendant to escape liability.

Further justification for rejecting the limitations sought by the
Defendant come from the clear congressional and regulatory intent to
impose broad and comprehensive prohibitions against discrimination
against persons with disabilities, up to and even after their death.
First, the Supreme Court's analysis in [Bragdon]{.underline} is contrary
to the limitation sought by Defendant. In [Bragdon]{.underline}, the
Court made clear that because of its pervasive nature and severity, HIV
infection is an impairment during every stage of the disease. "HIV
infection must be regarded as a physiological disorder with a constant
and detrimental effect on the infected person\'s hemic and lymphatic
systems from the moment of infection. HIV infection satisfies the
statutory and regulatory definition of a physical impairment during
every stage of the disease." [Id.]{.underline} at 637; [see
also]{.underline} [Kotev v. First Colony Life Ins. Co.]{.underline}, 927
F.Supp. 1316, 1320 (C.D. Cal. 1996) (holding explicitly: "A person who
is HIV positive or has AIDS is considered disabled under the ADA.").
Admittedly, the [Bragdon]{.underline} Court was more concerned with the
time at which a person becomes disabled (the beginning of the
disability) rather than the question of when a person ceases to be
disabled. Nonetheless, the Court did acknowledge that "the disease
follows a predictable and, as of today, unalterable course."
[Id.]{.underline} at 633. Implicitly, the Court's analysis included the
period after a person's death. "Given the pervasive, and invariably
fatal, course of the disease, its effect on major life activities of
many sorts might have been relevant to our inquiry." 524 U.S. at 637.
Despite the fact that the Court knew that death was inevitable, it did
not see fit to limit ADA protection only to those infected individuals
still alive. Instead, the Court chose to base its decision on the life
of the disease, not the life of the individual carrier. This Court
should adopt that same approach. Further, there is no indication in the
Supreme Court's opinion that any limitation based on the life of the
individual carrier was appropriate. Therefore, this Court should not
adopt the limitation sought by the Defendant.

Given the overall breadth of the ADA and its coverage, together with the
broad protections for persons with AIDS enunciated by the Supreme Court
in [Bragdon]{.underline}, it defies logic to assert that the prohibition
against discrimination against an individual with AIDS stops at the
moment of death; instead, those protections must extend during the life
of the disease (which includes the period when transmission to another
person is possible). Congress could not have intended to prohibit
discrimination by funeral homes up to the point of a person's death, and
then suddenly end that prohibition and allow discrimination in the
provision of funeral services after an individual's death. If it is
illegal for a medical provider to impose discriminatory burdens on a
person with AIDS before that person dies (524 U.S. at 629, 637), it must
be equally illegal for a funeral home operator to impose similar burdens
after death. The prohibition against discrimination against such an
individual must also continue, or the promise of the ADA will be partly
defeated.^9^[^9]

Even if the Court decides that a deceased person can never be an
"individual with a disability" under the first prong of the statute's
definition of disability, it is clear that the Defendant has regarded
Mr. Medina as having a disability. 42 U.S.C. § 12102(2)(C). The

"regarded as" prong of the definition of disability "reflected
Congress\' concern with protecting the handicapped against
discrimination stemming not only from simple prejudice, but also from
'archaic attitudes and laws' and from 'the fact that the American people
are simply unfamiliar with and insensitive to the difficulties
confront\[ing\] individuals with handicaps.'" [School Bd. of Nassau
County, Fla. v. Arline]{.underline}, 480 U.S. 273, 279 (1987) (quoting
S.Rep. No. 93-1297, p. 50 (1974), U.S.Code Cong. & Admin. News 1974, p.
6400). Under that prong, an individual has a disability if he can
demonstrate that the entity treated him as if he had a substantial
impairment of a major life activity. [Riemer v. Illinois Dept. of
Transp.]{.underline}, 148 F.3d 800 (7th Cir. 1998).

The evidence amply demonstrates that the Defendant treated Mr. Medina as
if he had a disability. It is clear that the Defendant was focusing on
Mr. Medina's illness and not his life status; put another way, by using
an AIDS kit,^10^[^10] the Defendant was treating Mr. Medina as if he
were alive and carrying a contagious disease. Further, the United States
has demonstrated factually that the Vasquez Funeral Home charged an
additional fee for this AIDS kit that was not charged to others. Facts,
¶¶ 4-24, 34-36. It is equally clear that it was Mr. Medina's infection
with the AIDS virus that was the reason for this disparate treatment.
[Id.]{.underline} By using universal precautions, and explicitly
demonstrating his belief that such precautions were necessary, the
Defendant demonstrated his belief that Mr. Medina was an individual with
AIDS (and therefore, an individual with a disability) even after his
death.

Vasquez's treatment of Mr. Medina was no different than the defendant's
treatment of the

plaintiff in [Bragdon v. Abbott]{.underline}. In [Bragdon]{.underline},
the defendant refused to provide the plaintiff Abbott with dental
services that were equivalent to those provided to the general public,
and instead required that the work be done in a hospital, and that the
plaintiff bear the additional costs of using the hospital's facilities.
524 U.S. at 629. In the present case, Vasquez likewise required that the
Medinas pay an additional price for the same services because of Mr.
Medina's HIV status. In other words, Vasquez "regarded" Mr. Medina the
same as the defendant Dr. Bragdon treated the plaintiff Abbott. It is
therefore clear that the Defendant has regarded Mr. Medina as a person
with a disability, satisfying the third prong of the definition of
disability. 42 U.S.C. § 12102(2)(C).

C. The Vasquez Funeral Home Discriminated Against Mr. Medina in
Violation of the ADA

The United States has alleged in its Complaint that the Defendant
committed discrimination on the basis of disability in violation of
section 302(a) of the ADA, 42 U.S.C. § 12182(a), and its implementing
regulation, 28 C.F.R. § 36.201(a), because the Defendant failed to
provide its services in an equal manner. [Complaint]{.underline}, ¶ 15.
As noted earlier, four witnesses have testified to the following: that
the Vasquez Funeral Home, before knowing the cause of death, quoted one
price for the provision of funeral services for Mr. Medina. After
learning that Mr. Medina was an individual with AIDS, the Defendant
demanded an additional \$100.00 be paid. The facts also demonstrate that
this additional fee was demanded because Mr. Medina died of AIDS. Such
actions are illegal and constitute violations of the ADA. 42 U.S.C. §§
12182(b)(1)(A)(ii), 12182(b)(2)(A)(i), 12182(b)(2)(A)(ii) .

Thus, the United States has established that: Mr. Medina was a person
with a disability and that the Defendant violated the ADA by
discriminating against Mr. Medina because of his disability. Because Mr.
Medina was discriminated against by the Defendant, his wife Elva Medina,
as his heir and/or successor in interest, should properly receive any
compensation for the damages suffered by Mr. Medina.

V. Damages and Penalties

Under the ADA, in an action brought by the United States, the Court may
award monetary damages to aggrieved persons. 42 U.S.C. § 12188(b)(2)(B).
In the present case, it is clear that the Medinas have suffered damages
as a result of the Defendant's actions. Both Sandra Medina Izaguirre and
Mrs. Median obviously loved and cared for their father very much. His
death was a time of pain and mourning, and during this difficult time,
the Defendant confronted them and made them feel as if Mr. Medina was
untouchable. Sandra testified that, on the night of her father's wake,
Vasquez made her feel as if her father was an outcast and couldn\'t be
treated like anyone else because he had AIDS. The Defendant did this
publicly \-- at the wake, in front of other mourners, when the family
was already in deep pain from the loss of Mr. Medina. FF 65.

Sandra was only 19 years old at the time, was pregnant, and had just
lost her father. FF 64. Mrs. Medina had lost the father of her children
and the man she was married to 20 years. FF 65. The Defendant's words
and actions caused them deep pain, and as a result, the Defendant should
pay compensatory damages.

The United States requests that this Court award Elva and Sandra Median
\$10,000 each as a compensatory damage award. This amount is a
reasonable award, based on the facts of the case. [Cf.]{.underline}
[D.B. v. Bloom]{.underline}, 896 F. Supp. 166, 172 (D.N.J. 1995)
(awarding \$25,000 in compensation for HIV-positive plaintiff's pain,
humiliation, and emotional distress, caused by dentist office's refusal
of treatment); [Doe v. D.C.]{.underline}, 796 F. Supp. 559, 573 (D.D.C.
1992) (awarding \$25,000 in compensation for HIV-positive firefighter's
emotional suffering, caused by District's withdrawal of job offer)
(Rehabilitation Act); [Howe v. Hull]{.underline}, 873 F. Supp. 72, 74
(N.D. Ohio 1994) (jury award of \$62,000 in compensatory damages to
HIV-positive plaintiff, caused by hospital's refusal of admission);
[Cain v. Hyatt]{.underline}, 734 F. Supp. 671, 686 (awarding \$65,000 in
compensation for mental anguish and humiliation suffered by HIV-positive
attorney, caused by his termination from employment).

In addition, the ADA gives the Court the power to assess a civil penalty
against an entity found in violation of Title III in an amount not to
exceed \$50,000 for a first violation. 42 U.S.C. § 12188(b)(2)(B). Here,
a civil penalty would be wholly appropriate, given Defendant's actions
as a whole. The United States requests that the Court order that the
Defendant pay a civil penalty not to exceed the \$50,000 statutory
maximum.

Finally, the Defendant should be enjoined from engaging in any action
that has the purpose or effect of unlawfully discriminating against any
individual on the basis of disability or association with a person with
a disability. To ensure nondiscrimination, United States requests that
the Court order that the Defendant maintain copies of all records
indicating funeral services provided to the public and provide these
documents to the United States on a quarterly basis for at least three
(3) years from the date of the Court's order. [See]{.underline} [United
States v. Gregory]{.underline}, 871 F.2d 1239, 1246 (4th Cir. 1989),
[cert. denied]{.underline}, 493 U.S. 1020 (1990) (\"\[d\]istrict courts
clearly have the authority and should exercise the power to grant
injunctive relief, even after apparent discontinuance of unlawful
practices.\").

Respectfully submitted,

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

L. IRENE BOWEN, Deputy Chief

Disability Rights Section

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

EDWARD MILLER

PHYLLIS M. COHEN

Trial Attorneys

Disability Rights Section

Civil Rights Section

U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 514-3882

Facsimile: (202) 305-9775

Counsel for Plaintiff

United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that today I served a copy of Plaintiff United States\'
Post Trial Brief upon Defendant Vasquez Funeral Home in [United
States]{.underline} v. [Vasqeuz Funeral Home]{.underline}, Civil Action
No. 93-C-7741 (N.D. Ill.), by mailing it via first class, return receipt
requested to Defendant's counsel at the following address: Cesar A.
Velarde, Esq., 1624 West 18th Street, Chicago, Illinois 60608.

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

PHYLLIS COHEN

Attorney

Disability Rights Section

Civil Rights Section

U.S. Department of Justice

1425 New York Avenue, N.W., Suite 4040

Post Office Box 66738

Washington, D.C. 20035-6738

[^1]: ^1^References to "FF" are to the United States' Proposed Findings
    of Fact, filed contemporaneously with this Brief. References to
    "Trans. pp/ll" refer to the Trial transcript of this action, where
    "pp" is the page number and "ll" are the line number. References to
    "GX" are to Government Exhibits and references to "DX" are to
    Defendant's exhibits. "Complaint" refers to the United States
    original complaint, on file with the Court.

[^2]: ^2^Vasquez's testimony that the family should have told him the
    cause of death is confusing, since OSHA regulations and CDC
    guidelines mandate that funeral homes treat all persons as
    potentially infected with HIV and/or other blood-borne pathogens and
    as a result adhere rigorously to the use of universal precautions.
    See GX 12, ¶¶ 4-6.

[^3]: ^3^By his own testimony Mr. Vasquez's was similarly confused
    regarding his memory of conversations with Mrs. Medina.
    [See]{.underline} FF 57.

[^4]: ^4^This is not the only instance where the Court must decide
    whether to believe Vasquez's court testimony or prior signed
    statements. In 1998, Vasquez signed a settlement agreement admitting
    the allegations of discrimination; in testimony, he tried to disavow
    that prior statement by saying that it was false. FF 44. In the end,
    it is Mr. Vasquez's credibility that is diminished.

[^5]: ^5^While some of these records tend to support Defendant's story,
    they are not dispositive and often conflict with his testimony. See
    FF 28-31.

[^6]: ^6^Vasquez admitted that the price can vary, stating that: "Those
    are extra things." FF 28. He mentioned that if a person doesn't need
    crucifixes, for example, then you would deduct that cost from the
    bill. [Id.]{.underline} These admissions undermine his entire
    explanation.

[^7]: ^7^Regulatory language also supports this analysis. The Preamble
    to the regulation implementing Title III of the ADA states: " The
    individuals covered under this section include any individuals who
    are discriminated against because of their known association with an
    individual with a disability. For example, it would be a violation
    of this part for a day care center to refuse admission to a child
    because his or her brother has HIV disease." 28 C.F.R. § 36, App. B,
    at 598 (1994). The actual presence or absence of the brother is
    unimportant, as is whether the brother is alive or dead. Instead,
    the focus of this regulatory language is on the person being
    discriminated against (the family member) and the perceptions or
    misperceptions of the defendant (the day care center).

[^8]: ^8^The complaint alleged that the mortuary refused to conduct
    funeral services "solely and only because of the racial derivation
    of the deceased. If this is true, the appellees\' motive was evil
    beyond description, inspired by nothing more than their belief that
    their mortuary would in some way be contaminated if they performed
    funeral services for the lifeless bodies of three human beings,
    albeit of the Indian race." 522 F.2d at 1117 (Ely, J., concurring).

[^9]: ^9^One final argument bolstering the United States' contention
    that the term "individual with a disability" can include deceased
    persons is the dictionary definition of "individual." Webster's
    defines individual as: "A particular being or thing as distinguished
    from a class, species, or collection: as (1) a single human being as
    contrasted with a social group or institution\..." [Webster's Ninth
    New Collegiate Dictionary]{.underline} 615 (1990). Nowhere does this
    definition distinguish between the life or death of a person. Thus,
    the plain meaning of the word defeats the limitation sought by the
    Defendant.

[^10]: ^10^As noted earlier, federal regulations and guidelines mandate
    that funeral homes treat all persons as potentially infected with
    HIV and/or other blood-borne pathogens and as a result adhere
    rigorously to the use of universal precautions. See GX 12, ¶¶ 4-6.