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HomeMy WebLinkAboutContract 54689 CITY SECRETARY MITRACT NO. RELEASE AND COVENANT NOT TO SUE THIS RELEASE AND COVENANT NOT TO SITE is made and entered into by and between Erica Williams and the City of Fort Worth, Texas. ARTICLE I-DEFINITIONS As used in this Agreement, the following terms shall have the definition indicated in this Article. I.I. "Agreement" shall mean this Release and Covenant Not to Sue. 1.2. "Williams"shall mean Erica Williams. 1.3. "City" or"the City" shall mean the City of Fort Worth. 1.4. "Department" Shall mean the City of Fort Worth Police Department. 1.5. "Parties"shall mean Williams and the City, collectively. 1.6. "Party" shall mean Williams or the City, individually. 1.7. "EEOC Charge" shall mean the charge of discrimination Williams filed against the City with the Equal Employment Opportunity Commission, Charge No.: 450- 2019-05251. 1.8. "Appeal" shall mean the appeal of indefinite suspension that Williams filed against the City with the Police Officer's and Firefighter's Civil Service Commission, CSC-13-2019. ARTICLE II- RECITALS AND PURPOSE 2.1. Williams was initially employed by the City in April 2008 as a 911 Operator. In 2016, she transitioned to become a Police Officer. Williams,was indefiniteVzuspended RELEASE AND COVENANT NOT TO SUES( �y uoWORTH, ?n from the Department—the equivalent of a termination---on July 11, 2019 for violations related to incorrect Family and Medical Leave Act(FMLA)paperwork that was submitted to the Department. The stated basis for the suspension included the Chief of Police's conclusion that violations of General Orders 410.02 B(6), 410.02 (B)(12), 703.00 (B)(2), and 704.00(F)(1)(I), Fort Worth Local Civil Service Rule 12.5(6), and Texas Penal Code Chapter 37.10(a)(1)had been committed. Williams denies the violations related to General Order 410.02 (B)(6), General Order 704.00(F)(1)(I), Fort Worth Local Civil Service Rule 12.5(6), and Texas Penal Code Chapter 37.10(a)(1). 2.2. On July 19, 2019, Williams appealed her indefinite suspension. Additionally, on July 17, 2019, Williams filed an EEOC claim,primarily alleging that she was subjected to a hostile work environment based on her race and gender by her field training officer and that she was subjected to retaliation for filing a complaint against that officer. The City vigorously denies Williams's allegations in the EEOC Charge and the Appeal, and asserts that its actions were motivated entirely by legitimate, non- discriminatory business reasons. 2.3. The Parties desire to settle, in the manner set forth herein, any and all claims or controversies between them in order to avoid the expense and uncertainty of litigation and to buy their peace. NOW, THEREFORE, upon the execution of this Agreement and in consideration of the mutual promises and agreements contained herein, the Recitals contained herein, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree to the following: RELEASE AND COVENANT NOT TO SUE PAGE 2 ARTICLE III- TERMS OF AGREEMENT 3.1. Consideration. A. In consideration for settlement of the Appeal, Williams agrees to dismiss the Appeal and to complete any mandatory requirements, including academy training missed during her absence from the Department, and, the City agrees enter into an Order to be signed by the Hearing Examiner which states: 1. that all charges in Williams'pending appeal are not sustained except that violations of General Order 410.02(B)(12) and 703.00(B)(2) are sustained, 2. that the Hearing Examiner does not sustain the following violations: General Order 410.02(B)(6), General Order 704.00(F)(1)(1), Fort Worth Local Civil Service Rule 12.5(6), and Texas Penal Code Chapter 37.10(a)(1), 3. that Officer Williams' indefinite suspension shall be overturned and reduced to a 30-day suspension without pay, and 4. that Officer Williams be restored to the position or class of service from which she was suspended (less 30 days), along with full compensation for the actual time lost as a result of the indefinite suspension at the rate of pay provided for the position or class of service from which she was indefinitely suspended (less 30 days) and restoration of or credit for any other benefits lost as a result of the indefinite suspension, including sick leave, vacation leave, and service credit in a retirement system (less 30 days). In this regard, the parties agree to submit the attached Order of the Hearing Examiner in CSC-13-2019 to the hearing examiner for signature and entry. Williams will be expected to return to work on the I't business day after the Order is entered. The City also agrees to accommodate a temporary assignment working in the East evening shift under Sgt Katherine Friex with Tuesday, Wednesday and Thursday off. Williams understands and agrees that she is required to bid for a permanent position as they become available and that these assignments are awarded based on seniority. Once RELEASE AND COVENANT NOT TO SUE PAGE 3 Williams has obtained a permanent assignment, she will fulfill the duties of the permanent position and will no longer be required to fulfill the duties related to the temporary assignment unless such duties overlap and are required by the permanent position. The City agrees that Williams may ride with other officers as a refresher. Further, the Department anticipates that it will be able to accommodate Williams' request to have her refresher be with Bobby Smith and/or De'andre Green. However, if scheduling conflicts arise, the Department will work with Williams to provide the opportunity for her to ride with officers to ensure the transition is as smooth as possible. B. As consideration for settlement of the EEOC Charge, Williams agrees to dismiss the EEOC Charge in accordance with section 3.3 of this agreement and the City agrees to add a memo to William's Civil Service file indicating that the Fitness for Duty evaluation in April 2018 resulted in Williams returning to work. Both parties want to ensure Williams has sufficient training to be proficient with her weapon. The City agrees that Williams will be provided with additional training by an instructor on an one-to-one basis in relation to shooting, taser, and PAT training. Only after this additional training will Williams be required to qualify with her weapon. Williams agrees that the consideration expressed in this section is sufficient consideration for the promises and covenants made by her in this Agreement. Further, Williams acknowledges that this is a complete and final release and that no additional money is to be paid to her on account of any appeal of her indefmite suspension, charge of discrimination, cause of action, or claim she may have against the City arising or accruing at any time up to and including the effective date of this agreement. RELEASE AND COVENANT NOT TO SUE PAGE 4 3.2. Release of All Claims and Disputes and Covenant Not to Sue. Williams, for herself and on behalf of her attorneys, heirs, assigns, successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, FOREVER DISCHARGES, AND COVENANTS NOT TO SUE the City and its employees, agents, attorneys, insurers, and council members, in their official and individual capacities,including their successors and assigns,and any other person or entity who or which may be liable through or on behalf of the City, from and for any and all claims, complaints, obligations, promises, agreements, causes of action, debts, demands, costs, losses, damages, and expenses (including, without limitation, attorney's fees) whatsoever,pied or unpled, other than any arising from a breach of this Agreement,under any municipal, local, state, or federal law, common or statutory, for any actions or omissions whatsoever, whether known or unknown, fixed or contingent, liquidated or unliquidated, specifically including, but not limited to, this EEOC Charge and Appeal, any claim Williams may have against the City regarding her employment, her suspension, or any subsequent application for employment, if any, which existed or may or could have existed prior to, or contemporaneously with, the execution of this Agreement, including, but in no way limited to, claims brought or which could have been brought pursuant to the Texas Government Code,the Texas Local Government Code, the Texas Labor Code, the Texas Commission on Human Rights Act, the Family Medical Leave Act, the Americans with Disabilities Act,Title V11 of the Civil Rights Act of 1964,42 U.S.C. § 1981,and 42 U.S.C. § 1983. Williams represents that no other action or suit with respect to the matters encompassed by the Appeal and EEOC charge referenced herein or to related RELEASE AND COVENANT NOT TO SUE PAGE 5 matters occurring at any time up to and including the effective date of this agreement has been or will be filed in or submitted to any court, administrative agency, or legislative body. If any other related complaint was filed prior to the effective date of this agreement, Williams agrees that it too is covered by the terms of this agreement and, by signing this agreement, withdraws and dismisses each with prejudice. The provisions in this section apply only to claims related to Williams' employment with the City of Fort Worth, and do not extend to any other matter or claim that may arise after the date that this Agreement is signed. 3.3. Dismissal of EEOC Charge. For the same consideration set out in section 3.1, above, Williams will inform the EEOC that she wishes to withdraw her Charge of Discrimination, No. 450-2019-05251, by submitting a fully-executed EEOC Form 154 to the following address by August 14, 2020: Equal Employment Opportunity Commission Dallas District Office 207 South Houston Street, 3rd Floor Dallas, TX 75202 3.4. Order Resolving Appeal. Williams agrees to present the attached ORDER OF THE HEARING EXAMINER IN CSC-13-2019 to the Hearing Examiner for entry as soon as practicable. The parties agree to sign and submit any documents or motions required to effectuate the entry of the Order. 3.5. Taxes. Williams will be responsible for the payment of taxes, if any, owed on any payment made to her, as described herein in section 3.1. The City will issue Williams a Form W-2, Wage and Tax Statement, or electronic wage report to report back pay as wages for the 2020 tax year. In the event the IRS assesses taxes on Williams for RELEASE AND COVENANT NOT TO SUE PAGE 6 any Of the payments described in section 3.1 and Williams fails to timely pay them, Williams agrees to indemnify the City from any liability to the IRS for those unpaid taxes and any associated penalties and interest. This indemnification clause shall have the broadest scope and shall include all of the City's costs and attorneys' fees. Williams shall immediately provide notice of any claim by any entity for unpaid taxes related to the payments set out in section 3.1, by mailing a copy of the claim to the City. The Parties will report, as may be required by law, their respective payment and receipt of the amounts described herein. Williams acknowledges that the City has made no representations to her regarding the tax consequences of any amount or benefit received by her pursuant to the terms of this Agreement. 3.6. No Admission of Liability. Williams understands and agrees that this Agreement is made for the sole purpose of resolving the differences between the Parties. The City specifically denies and disclaims any liability to Williams, and this Agreement shall not, in any way,be construed as an admission of liability by the City. 3.7. Entire Agreement. The Parties agree that this Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, arrangements, or undertakings between the Parties relating to the subject matter. No oral understandings, statements, promises, or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed orally, and any changes or amendments must be signed by all Parties affected by the change or amendment. RELEASE AND COVENANT NOT TO SUE PAGE 7 3.8. Governing Law_ It is understood and agreed that this Agreement shall be governed by and construed and enforced in accordance with, and subject to, the laws of the State of Texas, to the extent not preempted by federal law. 3.9. Counterparts. It is understood and agreed that this Agreement may be executed in multiple originals and/or counterparts, each of which shall be deemed an original for all purposes, but all such counterparts together shall constitute one and the same instrument. 3.10. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. 3.11. Severability. If any section,paragraph,sentence,clause,or phrase contained in this Agreement shall become illegal,null, or void, or shall be found to be against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null, or void, or against public policy, the remaining sections, paragraphs, sentences, clauses, or phrases contained in this Agreement shall not be affected thereby. Furthermore, in lieu of each such section, paragraph, sentence, clause, or phrase, there shall be added automatically as a part of this Agreement another section, paragraph, sentence, clause, or phrase as similar as may be possible which is legal, valid, and enforceable. 3.12. Waiver. The waiver of any breach of any provision hereunder by any Party to this Agreement shall not be deemed to be a waiver of any preceding or subsequent breach hereunder. 3.13. Representations. The Parties hereto, and their authorized agents or representatives, if any, hereby acknowledge and expressly warrant and represent, for RELEASE AND COVENANT NOT TO SUE PAGE 8 themselves and for their predecessors,successors, assigns,heirs, executors, administrators, and legal representatives, that they(a) are legally competent and authorized to execute this Agreement; (b)have not assigned,pledged, or otherwise in any manner, sold or transferred, either by instrument in writing or otherwise, any right,title, interest, or claim that the Party may have by reason of any matter described in this Agreement; (c) have read and understand the effect of this Agreement; (d) are or have had the opportunity to be represented by independent legal counsel of their choice; (e) have received all additional information requested prior to executing this Agreement; (f) execute this Agreement of their free will and accord for the purposes and consideration set forth herein, without reliance upon any statement, representation, or inducement of any other Party or person not contained herein; (g) have the full right and authority to enter into this Agreement and to consummate the transfers and assignments contemplated herein; (h) are authorized to sign this Agreement on behalf of any of the Parties hereto; and (1) will execute and deliver such further documents and undertake such further actions as may reasonably be required to effect any of the agreements and covenants in this Agreement. 3.14, Aeknowledgements. By executing this Agreement, Williams acknowledges that (a) she has consulted with her attorneys before executing this Agreement; (b) she has been given a reasonable time to consider this Agreement; (c) any and all questions regarding the terms of this Agreement have been asked and answered to her complete satisfaction; (d) she has read this Agreement and fully understands its terms and their import; (e) except as provided by this Agreement, she has no contractual right or claim to the benefits described herein; (f) the consideration provided for herein is good and RELEASE AND COVENANT NOT TO SUE PAGE 9 valuable; and (g) she is entering into this Agreement voluntarily, of her own free will, and without any coercion,undue influence,threat, or intimidation of any kind or type whatsoever. EXECUTED this day of 2020. (5Erica Willia BEFORE ME, the undersigned Notary Public, on this day personally appeared Erica Williams, a person whose identity is known to me, and acknowledged to me that she has read the foregoing Release and Covenant Not to Sue, and that she executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the day of 1 , 2020. n. Notary Public S1tate Qf—Texas 10?4iAL.FDvII�DS APPROVED AS TO FORM: ='_ °� _` �+iy Jotary ID 125i� 3o77 j �Z ��z Bog Expires August20,2021 /j y', _. � Conswella Edwards Attorney for Erica Williams ®FFMAL Rt=Cri�aIL��,I MY SFCrRETAP!f' rT wom, RELEASE AND COVENANT NOT TO SUE PAGE 10 EXECUTED this t-✓ `day of 2020. CITY OF FORT WORTH By: �— Jay.Chapa Assistant City Manager THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public,personally appeared Susan Alan's, a person whose identity is known to me, and acknowledged to me that she is an Assistant City Manager for the City of Fort Worth; that she is duly authorized to execute this Agreement; and that she executed the Agreement in the name of and on behalf of the City of Fort Worth in said capacity, for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the 3 day of , 2020. otary Public, State of exas APPROVED AS TO FORM: j `�pPYnr �' SELENA ALA / O i r Notary Public, State of Texas z�rFo ,i��� Comm. Expires 03-31-2024 f ` rrrr„`N Notary ID 132422528 Jan se Dudash Attorney for City of Fort Worth ram '$ R j �M - ANW ld P. Gonzales,.A . City Secretary ;,r - "r RELEASE AND COVENANT NOT TO SUE PAGE 11 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. -mt Deirdre O'Neal-Mills Senior Risk Management Analyst RELEASE AND COVENANT NOT TO SUE PAGE 12 CSC-13-2019 THE CITY OF FORT WORTH § IN THE MATTER OF THE FIREFIGHTERS' AND § APPEAL OF POLICE OFFICER POLICE OFFICERS' § ERICA WILLIAMS CIVIL SERVICE COMMISSION § INDEFINITE SUSPENSION ORDER OF THE HEARING EXAMINER IN CSC-13-2019 This matter came on for public hearing on August_,2020. Both parties appeared through counsel. The parties have represented that they are in agreement to forego a hearing on the merits of this appeal pursuant to the following findings of the Hearing Examiner: After due consideration of the facts and evidence, the Hearing Examiner sustains the following violations: General Order 410.02(B)(12) and 703.00(B)(2). The Hearing Examiner does not sustain the following violations: General Order 410.02(B)(6), General Order 704.00(F)(1)(I),Fort Worth Local Civil Service Rule 12.5(6), and Texas Penal Code Chapter 37.10(a)(1). Therefore, the Hearing Examiner finds that Officer Williams' indefinite suspension shall be overturned and reduced to a 30-day suspension without pay, that Officer Williams be restored to the position or class of service from which she was suspended (less 30 days), along with: 1. Full compensation for the actual time lost as a result of the indefinite suspension at the rate of pay provided for the position or class of service from which she was indefinitely suspended (less 30 days); and 2. Restoration of or credit for any other benefits lost as a result of the indefinite suspension, including sick leave, vacation leave, and service credit in a retirement system (less 30 days). Any and all back pay due shall be mitigated in compliance with the Meet and Confer Labor Agreement expiring September 30, 2020 and the Fort Worth Local Civil Service Commission Rules. Appeal CSC-13-2019 is hereby concluded in its entirety and this matter is now closed. SIGNED the day of 2020. WILLIAM HARTSFIELD Hearing Examiner