Loading...
HomeMy WebLinkAboutContract 619511 SETTLEMENT AGREEMENT by and between the City of Fort Worth, Texas CFW Dr. Joel Fitzgerald, Sr., residing at 13665 Random Ridge View, Colorado Springs, CO 80921 Plaintiff WHEREAS, Plaintiff filed a lawsuit against CFW styled Joel F. Fitzgerald, Sr. v. City of Fort Worth, Texas, Cause No. DC-19-08184, in the 191st Civil District Court, Dallas County, Texas retaliation in violation of the Texas Whistleblower Act; WHEREAS, CFW has denied and continues to deny and dispute the allegations contained in the Action; WHEREAS, Plaintiff and CFW attended mediation with the Hon. Jeff Kaplan (Retired) on July 3, 2024and reached a tentative agreement to settle the Action without any further proceedings; WHEREAS, on August 13, 2024, the City Council for the CFW approved settlement of the Action as tentatively agreed at the July 3, 2024 mediation. NOW, THEREFORE, in consideration of the foregoing and in consideration of the terms, covenants, promises and conditions set forth below, the parties agree as follows: 1. Payment.CFW agrees that on before September 6, 2024, provided that CFW has received the following: (1) this Agreement executed by Plaintiff; and (2) a valid, complete and current IRS Form W-9 from Plaintiff a. CFW will make a payment totaling Five Million, Two Hundred Thousand Dollars and Zero Cents ($5,200,00.00 that will be distributed to Plaintiff and Plaintiff 2 i. onecheck payable to Kennedy Law P.C. Client Trust Account (IOLTA) (Tax ID 46-0710817) in the amount of One Million, One Hundred Sixty Thousand, Three Hundred Twelve Dollars and Zero Cents ($1,160,312.00), less any applicable withholdings and deductions, as wage-based damages for which an IRS Form W-2 will be issued, which CFW shall report as it would generally report the payment of wages; and ii. one check payable to Kennedy Law P.C. Client Trust Account (IOLTA) (Tax ID 46-0710817) in the gross amount of Four Million, Thirty-Nine Thousand, Six Hundred Eighty-Eight Dollars and Zero Cents ($4,039,688.00) for which an IRS Form 1099 will be issued. 2. Tax Liability. Plaintiff acknowledges and agrees that CFW has made no representations to Plaintiff regarding the tax consequences of any amounts received by Plaintiff or his legal counsel pursuant to this Agreement. Plaintiff and his legal counsel agree to bear all tax consequences, if any, attendant upon the payment of the above-recited sums. Plaintiff and his legal counsel further agree to hold CFW harmless from and against any tax or tax withholdings claims, amounts, interest, penalties, fines or assessments brought or sought by any taxing authority or governmental agency regarding the above recited sums. In the event CFW receives written notice that any claim or assessments for taxes, withholding obligations, penalties and/or interest arising out of this settlement are being or will be made against CFW, CFW shall promptly, after receipt of such written notice, notify Plaintiff by letter sent to counsel for Plaintiff. If it is finally determined that CFW is required to pay both its tax obligation and the tax obligation of Plaintiff or his legal counsel regarding any settlement amount paid to the Kennedy Law Firm P.C. Client 3 Trust Account (IOLTA), then Plaintiff will indemnify CFW for payment of Plaintiff obligation and any related assessed interest and penalties. 3. Dismissal of the Action. Within 3 business days following its receipt of the Payment, Plaintiff will file a Notice of Nonsuit with Prejudice, and a proposed Order of Dismissal with Prejudice dismissing all claims in the Action, with prejudice against refiling and taxing costs and fees to the party incurring same. 4. General Release and Waiver and Covenant Not to Sue. In exchange for the consideration described in this Agreement, Plaintiff warrants that there are no other corresponding charges, claims or grievances of any nature pending in any federal, state, municipal agency, court or tribunal which are not addressed in this Agreement, and agrees to forever waive, release, and discharge CFW, including its divisions, affiliates, and its respective benefit plans, and, collectively, its officials, officers, directors, employees, attorneys, other legal representatives, insurers, fiduciaries, and causes of action, obligations for damages (including, but not limited to, compensatory, exemplary, reinstatement and any and all other demands which the Plaintiff may have against the Released Parties arising out of Plaintiff CFW, to the effective date of this Agreement. This includes but is not limited to a release of all rights and claims Plaintiff may have related to: (a) the Action or that could have been raised in the Action or any charge or grievance; (b) Anti-Discrimination Statutes, such as Title VII of the Civil Rights Act of 1964, as amended (prohibits discrimination in employment based on race, color, national origin, religion, sex or pregnancy); the Civil Rights Act of 1991 (prohibits discrimination); Section 1981 of the Civil Rights Act of 1866 (prohibits 4 discrimination); the Americans with Disabilities Act, 42 U.S.C. §12101, et seq., the American with Disabilities Act Amendments Act of 2008, and Chapter 21 of the Texas Labor Code (prohibits discrimination and retaliation); the Age Discrimination in Employment Act (prohibits discrimination based on age); the Older Workers Benefit Protection Act; the Genetic Information Non-Disclosure Act; the Equal Pay Act; (c) Federal and State Employment Statutes, such as the Fair Labor Standards Act; the Family Medical Leave Act; the National Labor Relations Act; the Worker Adjustment and Retraining Notification Act; the Plaintiff Retirement Income Security Act; the Consolidated Omnibus Budget Reconciliation Act; the Texas Whistleblower Act; and/or any other federal, state, local, or municipal statute, law, constitution, ordinance or regulation; (d) Other Laws and Claims, such implied or express employment contracts; public policy or tort claims; retaliatory discharge claims; negligent hiring, retention or supervision claims; defamation claims; wrongful discharge claims; intentional infliction of emotional distress claims; invasion of privacy claims; intentional interference with contract claims; negligence claims; detrimental reliance claims; any covenant of good faith and fair dealing claims; loss of consortium claims; promissory estoppel claims; personal injury claims; common law claims; claims for compensatory or punitive damages; claims for back pay; claims relating to legal restrictions on CFW Plaintiffs or any other claim arising out of or relating to Plaintiff CFW to the date of this Agreement; and (e) Benefit Plans, such as any CFW pension plans, stock option, bonus, incentive compensation, commission, medical, dental, life insurance, retirement, disability, and other compensation or benefit plans. Notwithstanding the foregoing, nothing in this Agreement shall constitute a release by Plaintiff of vested retirement benefits, if any, Plaintiff earned during the period of any active employment under any CFW qualified retirement plans, as determined under the official terms of those plans. Plaintiff is releasing only those claims that can be released by law and Plaintiff is not releasing any claims that arise after signing this Agreement. In addition, Plaintiff agrees never to sue the Released Parties in any forum for any claim covered by the above waiver and release language. If Plaintiff violates this General Release and Waiver by suing any of the Released Parties and should such litigation be found to violate the 5 provisions of this Agreement, Plaintiff shall be liable to CFW defending such litigation. 5. No Re-Hire. Plaintiff acknowledges that CFW has no obligation to rehire Plaintiff at any time in the future; and that Plaintiff will not apply for or otherwise seek employment, reinstatement, re-hire, temporary assignment or work as an independent contractor, consultant or vendor with the CFW at any time and expressly waives purely contractual and is in no way involuntary, discriminatory or retaliatory. 6. Employment Verification. Plaintiff agrees to direct employment verification inquiries to the CFW Job Verification system, 1-855-901-3099 or http://www.cccverify.com/. Plaintiff acknowledges that information released by CFW in response to requests to verify From the date of execution of this Agreement, Plaintiff agrees not to seek employment verification or a reference from CFW through any current or former employee. Plaintiff understands and agrees that CFW cannot assume responsibility for what any employee of CFW (current or former) might say to a prospective employer if a prospective employer contacts, for any reason, any person or entity other established policies and procedures regarding requests for verification of employment. Notwithstanding this Agreement, CFW agrees that nothing thing in this Agreement shall prevent Plaintiff from utilizing any employment reference or recommendation received from a current or former CFW employee prior to the date of execution of this Agreement. 7. No Other Pending Claims. Plaintiff represents and warrants that other than the Action, Plaintiff has filed no other pending claims, lawsuits, charges, grievances or causes of 6 action of any kind against CFWor any Released Party and that, to the best of Plaintiff Plaintiff possesses no claims (including claims under the Fair Labor Standards Act, or wage claims, and workers compensation claims) other than those related to the Action (all of which Plaintiff is releasing by this Agreement). Plaintiff further represents and warrants that Plaintiff has received any and all compensation to which Plaintiff may have been entitled (including overtime), and that Plaintiff is not aware of any facts or circumstances constituting a violation by CFW of any wage payment laws. Plaintiff further represents and warrants that Plaintiff has not suffered any on-the-job injury while employed by CFW for which Plaintiff has not already filed a claim. 8. Communications with Government Agencies. Nothing in this Agreement precludes Plaintiff from filing an administrative complaint, cooperating or participating in an investigation or proceeding, or otherwise communicating with the Equal Employment Opportunity fety other federal, state or local agency charged with the enforcement of any laws. However, Plaintiff acknowledges that the consideration provided in this Agreement shall be the sole relief provided for the claims released in this Agreement, and Plaintiff expressly acknowledges and agrees to waive any and all rights to recover personal monetary damages or other recovery against CFW for any claim released in this Agreement. Plaintiff further agrees to never seek or accept any personal damages, remedies, or other relief with respect to any claim released in this Agreement and waives the right to any individual monetary recovery in any action or lawsuit initiated by the EEOC, the NLRB, or any other federal, state or local agency charged with the enforcement of any laws, except for any right Plaintiff may have to receive a payment from a government agency (and not CFW) for information provided to the government agency. 7 9. No Admission of Liability. It is understood and agreed by the parties that this Agreement represents a compromise settlement of disputed claims, and that the promises and payment in consideration of this Agreement shall not be construed to be an admission of any liability or wrongdoing by any party to any other party or to any other person. 10. Medicare. Plaintiff conditional payments for medical treatment and medical service rendered in connection with any and all injuries or claims being released in this Agreement. This settlement is based upon a good faith determination of the parties to resolve a disputed claim. The parties have not shifted responsibility of medical treatment to Medicare, and the parties made every effort to adequately Plaintiff warrants Plaintiff is not a Medicare Beneficiary, and there are no outstanding Medicare or Medicaid claims or rights of recovery of conditional payments based on Plaintiff benefits. In the event Medicare asserts such a claim or right of reimbursement now, or at any point in the future, all such claims or rights of reimbursement shall be satisfied from among the proceeds of this settlement, and no additional monies shall ever be requested from or paid by the Released Parties. 11. No Waiver of Vested Rights. Notwithstanding anything else in this Agreement, Plaintiff and CFW agree that this Agreement shall not affect, alter, or extinguish any vested right that Plaintiff may have with respect to COBRA, any pension, or other retirement benefits to which Plaintiff is entitled by virtue of Plaintiff CFW, and nothing in this Agreement shall prohibit Plaintiff from enforcing such rights. 12. Other Representations and Warranties. a. Plaintiff represents and warrants necessary power and authority to enter and perform this Agreement and that it is the lawful owner of all right, title, and 8 interest in and to every claim and other matter that it has released through this Agreement. b. Plaintiff agrees he will not take any action that would interfere with the performance or implementation of this Agreement or that would adversely affect any of the rights provided for in this Agreement, but rather Plaintiff shall use best efforts, cooperate fully, execute any and all necessary documents, and take any and all additional actions necessary to give full force and effect to the provisions and terms of this Agreement. c. Plaintiff agrees this Agreement was mutually drafted with each Party having had the opportunity for counsel of its choice to review the Agreement. This 13. Plaintiff and CFW agree that neither party owes the other any costs or fees, except as otherwise provided in this Agreement. 14. Binding and Contractual Nature of Agreement. This Agreement shall be binding upon the heirs, assigns, administrators, executors, beneficiaries, legal representatives, affiliates, subsidiaries, parents and successors of all parties and shall inure to the benefit of all parties or their heirs, assigns, administrators, executors, beneficiaries, legal representatives, affiliates, subsidiaries, parents and successors. Plaintiff and CFW agree that this Agreement constitutes a contract, and that unless otherwise specified, any action for breach of this Agreement shall be limited to an action for breach of contract, and Plaintiff retains no right to institute litigation, or file any charges, lawsuits or complaints against the Released Parties for events that occurred prior to the date the Agreement is signed. Should any party commence litigation to enforce the terms of this Agreement, the prevailing party in such litigation shall be entitled to recover its reasonable 15. Interpretation and Governing Law. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against any of the parties. This Agreement is made and entered into in the State of Texas, and shall in all respects be interpreted, 9 enforced and governed by and under the laws of the State of Texas without regard to its conflict of law provisions. Venue for any lawsuit to enforce or interpret this Agreement shall be in an appropriate court located in Tarrant County, Texas after mediating the dispute with Hon. Jeff Kaplan (retired). 16. Entire Agreement/Severability. This Agreement constitutes and contains the entire settlement and understanding between the parties concerning the subject matter of this Agreement, and supersedes all prior negotiations, proposed agreements or understandings, if any, among the parties concerning any of the provisions of this document. The parties agree that if any provision of this Agreement is held to be invalid, the invalidity shall not affect other provisions or applications of this Agreement. 17. Waiver. No waiver of the breach of any of the terms or provisions of this Agreement shall be a waiver of any preceding or succeeding breach of this Agreement. 18. Execution of Agreement. This Agreement may be executed in one or more counterparts, and/or by electronic .pdf format or facsimile signature, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. 19. Voluntary Agreement. Plaintiff understands and agrees as follows: a. Plaintiff has carefully read and fully understands all the provisions of this Agreement, which is written in a manner that Plaintiff clearly understands; b. Plaintiff is entering into this Agreement knowingly, voluntarily, and with full knowledge of its significance, and has not been coerced, threatened, or intimidated into signing this Agreement; c. By this Agreement, Plaintiff is advised to consult with an attorney before signing this Agreement. Plaintiff is represented by an attorney, has consulted with an attorney before signing this Agreement, and Plaintiff Agreement; d. Plaintiff has been given 21 days/a reasonable time to consider this Agreement and understands that any change or modification to the Agreement will not extend the 10 21-day consideration period; Plaintiff agrees that CFW has made no threats or promises to induce him to sign earlier; and, e.Plaintiff is not otherwise entitled to the payment and other consideration described in this Agreement. 20.Time for revocation. Plaintiff has a full seven (7) calendar days following Plaintiff Plaintiff may revoke this Agreement only by giving written notice of Plaintiff CFW Courtney B. Perez, Carter Arnett Bennett & Perez, PLLC, 8150 N. Central Expy, Suite 500, Dallas, TX 75206, which must be received by midnight on the seventh day following execution of this Agreement. The remainder of this page is intentionally left blank. AGREED TO BY: Joel F. Fitzgerald, Sr. Dated: CITY OF FORT WORTH: APPROVED: Date: Assistant City Manager CITY OF FORT WORTH APPROVED AS TO FORM: 11 Date: Christopher A. Troutt Senior Assistant City Attorney ATTEST: Date: Jannette Goodall, City Secretary 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. Date: Sr. Property & Casualty Adjuster City of Fort Worth Human Resource Department, Risk Management Division