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HomeMy WebLinkAboutContracts & Agreements_139-2024SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and General Release ("Agreement") is entered into between the City of Redlands ("City"), its past or present council members, directors, governing body, employees, agents, predecessors, attorneys, divisions, departments, representatives, insurers, successors in interest and assigns, and all persons acting by, through, under and/or in concert with any of them (collectively, the "Defendants"), on the one hand, and Lissette Atkinson ("Atkinson" or "Plaintiff") on the other. The Defendants and Atkinson are collectively referred to as the "Parties" or individually as a "Party" with reference to the following: RECITALS A. Atkinson was employed by the City as an Animal Control Officer; B. Atkinson's employment with the City ended on November 8, 2021, when Atkinson voluntarily resigned her employment; C. Atkinson filed a complaint with the California Civil Rights Department ("CRD")/Equal Employment Opportunity Commission ("EEOC") against the City (hereinafter "Administrative Charges"), alleging that she was asked impermissible non -job -related questions and given a negative recommendation on the basis of her disability, and the CRD issued Atkinson a Right to Sue notice dated October 25, 2022; D. On November 3, 2022, Atkinson filed a lawsuit against the Defendants in San Bernardino County Superior Court, Case No. CIVSB2224706 (hereinafter "Lawsuit"). The operative Second Amended Complaint filed on August 8, 2023 alleges (1) failure to accommodate in violation of the Fair Employment and Housing Act ("FEHA"), (2) failure to provide an interactive process in violation of the FEHA, (3) disability discrimination in violation of the FEHA, (4) failure to provide protected leave in violation of the California Family Rights Act, (5) retaliation in violation of the FEHA, (6) failure to prevent discrimination and retaliation in violation of the FEHA, (7) defamation, (8) intentional interference with prospective economic opportunity, (9) negligent interference with prospective economic opportunity, and (10) intentional infliction of emotional distress related to her employment with the City and seeking damages for lost earnings and benefits and emotional distress; E. Defendants categorically deny any and all of the claims and allegations asserted by Atkinson against Defendants but have been forced to incur significant fees and costs as a result of Atkinson's Lawsuit and therefore wish to avoid incurring any additional litigation expenses; F. This Agreement is intended to be a full, complete and final settlement of each and every claim, cause of action, appeal, or liability, whether known or unknown, Atkinson may have or may have had against Defendants prior to and up through the date Atkinson executes this Agreement, including, but not limited to the Administrative Charges, and the Lawsuit and any other claims by Atkinson arising out of, or in any way related to Atkinson's employment with the City and/or separation from such employment. 1 12507225.1 RE035-049 NOW THEREFORE, and in consideration for the promises contained herein, and other good and valuable consideration, receipt of which is acknowledged by the execution of this Agreement, and to avoid unnecessary litigation, it is agreed by and between the Parties as follows: I. WAIVER AND RELEASE A. No Admission of Liability. This Agreement and compliance with this Agreement shall not in any way be construed as an admission by Defendants or Atkinson of the truth of any allegations, or an admission of any unlawful acts or other liability whatsoever against each other or against any other person or entity. Defendants and Atkinson specifically disclaim any liability to, against each other, or against any other person or entity, on the part of themselves, any related person or any related predecessor corporation or its or their agents, representatives or successors in interest and assigns. This Agreement cannot be used by a Party to demonstrate any admission of liability or wrongdoing by another Party. B. Plaintiff's Release of Claims. Atkinson hereby and forever releases and discharges Defendants, and any past and/or present parent, subsidiary and/or affiliated entities, as well as any past and/or present direct or indirect successors, officers, officials, current and former directors, current and former trustees, heirs, predecessors, assigns, agents, insurers, employees, lay volunteers or representatives, attorneys and representatives, of each and every party, and each of them, past and present ("Releasees"), from any and all causes of action, judgments, liens, indebtedness, damages, losses, claims, liabilities, and demands of whatsoever kind or character, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, whether or not it has been brought before any state or federal court or before any state or federal agency or other governmental entity, including, but not limited to, all of Atkinson's claims arising from or related to or attributable in whole or in part to Atkinson's employment relationship with the City, whenever those claims may have occurred. Atkinson understands and agrees that this Agreement extends to all disputes or claims of every nature and kind, known or unknown, suspected or unsuspected, past, present or future, arising from or attributable to the above -referred matters and disputes. Atkinson understands and expressly agrees that this Agreement also extends to any other matter, event, or claim occurring prior to the date of execution of this Agreement. Atkinson understands and agrees that she is waiving any rights she has, may have had, or may have, to pursue any and all remedies available to her under any employment -related or other cause of action against Releasees, including, without limitation, any claims for discrimination, harassment, and/or retaliation, claims under the California Fair Employment and Housing Act (California Government Code section 12900, et seq.), the California Family Rights Act (California Government Code section 12945.2), the Unruh and George Civil Rights Acts (California Civil Code section 51, et seq.), all provisions of the California Labor Code and any wage orders or similar directives or authorities issued by any federal or state authority having enforcement powers, the Constitution of the United States, the Constitution of the State of California, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.), the Age Discrimination in Employment Act (29 U.S.C. § 621, et seq.), the Equal Pay Act (29 U.S.C. § 206(d)), the Fair Labor Standards Act (29 U.S.C. § 201, et seq.), the Family and Medical Leave Act (29 U.S.C. § 2601, et seq.), the Employment Retirement Income Security Act of 1974 (29 U.S.C. § 1001, et seq.), Page 2 of 7 12507225.1 RE035-049 Sections 1981-88 of Title 42 of the United States Code (42 U.S.C. § 1981, et seq.), the American with Disabilities Act (42 U.S.C. § 12101, et seq.), claims of retaliation or whistle -blowing (including but not limited to California Labor Code section 1102.5, et seq. and Government Code section 12653), claims for breach of any type of contract, including written, oral or implied and, including, but not limited to the Contract, breach of any covenant, promise or representation pertaining to PLAINTIFF's employment, whether expressed or implied, and all other claims arising in contract, tort or equity or under any other statute, whether federal, state or local up to the date of execution of this Agreement (collectively referred to as "Released Claims"). This Agreement does not limit Atkinson's ability to bring an administrative charge with an administrative agency, but Plaintiff expressly waives and releases any right to recover any type of personal relief from Defendants, including monetary damages or reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by Atkinson or on Atkinson's behalf by an administrative agency, related in any way to the matters released herein. Furthermore, nothing in this Agreement prohibits Atkinson from reporting possible violations of law or regulation to any government agency or entity, including but not limited to the Equal Employment Opportunity Commission, the California Civil Rights Department, the Department of Labor and/or the Department of Justice, or making other disclosures that are protected under the whistleblower provisions of law. Atkinson does not need prior authorization of Defendants to make any such reports or disclosures and is not required to notify Defendants that she has made such reports or disclosures. C. Civil Code Section 1542 Waiver. Atkinson hereby waives any and all rights that she may have pursuant to California Civil Code section 1542, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. 1. Atkinson hereby expressly waives the provisions of California Civil Code section 1542 and further expressly waives any right to invoke said provisions now or at any time in the future. 2. Atkinson recognizes and acknowledges that factors which have induced her to enter into this Agreement may turn out to be incorrect or to be different from what she had previously anticipated, and she hereby expressly assumes any and all of the risks thereof and further expressly assumes the risks of waiving the rights provided by California Civil Code section 1542. G. Release of All Claims Pursuant to Any MOU. Atkinson hereby expressly waives any and all claims now and forever that she has or may have to rights or benefits pursuant to the Memorandum of Understanding between the City of Redlands and the Redlands Civilian Safety Employee Association (the "MOU"), covering the years 2017 through 2023 or any other MOUs between the City of Redlands and the Redlands Civilian Safety Employee Association. Atkinson Page 3 of 7 12507225.1 RE035-049 also hereby expressly waives all claims now and forever that she has or may have that are or would be pursued by the Redlands Civilian Safety Employee Association with the Public Employment Relations Board ("PERB"). Moreover, Atkinson specifically acknowledges and agrees that she waives any and all voting rights she may believe she has or she may have regarding any current or future Redlands Civilian Safety Employee Association claims, issues, matters and/or PERB charges or matters. H. Effective Date. The Effective Date of this Agreement shall be the last date on which all of the following occurs: (1) all Parties have signed this Agreement and (2) the Agreement has been fully approved by the City's City Council as specified in Section III(A) below. I. Representation of No Pending Claims. Atkinson represents that, other than the claims described herein, she has not filed any lawsuits, complaints, appeals, claims, applications, or charges against Defendants or the Releasees with any state or federal court, or local, state, or federal agency, or administrative or quasi -administrative tribunal or person, based on any events occurring on or prior to the date of execution of this Agreement. II. PAYMENT AND DISMISSAL The Parties agree that upon execution of this Agreement, the Parties shall perform the following acts: A. Plaintiff and/or her counsel, Luna Legal Firm, shall sign and forward to Defendants' attorneys, Liebert Cassidy Whitmore, 401 West A Street, Suite 1675, a request for dismissal of the Lawsuit with prejudice. Liebert Cassidy Whitmore shall not file the dismissal until payment of the Settlement Proceeds, described in Section II(B)(3) below. The payment of Settlement Proceeds is contingent on Liebert Cassidy Whitmore's receipt of the request for dismissal with prejudice of the Lawsuit. B. The City shall pay to Atkinson the total sum of one hundred seventy five thousand dollars ($175,000) (the "Settlement Proceeds") to be paid as directed below: 1. One hundred seventy five thousand dollars ($175,000) shall be made payable to "Luna Legal Firm P.C. c/o Lissette Atkinson" as damages for alleged injuries and attorneys' fees, to be reported on Form 1099s as required by law. 2. The payment of the Settlement Proceeds shall be made by the City within 30 days of the Effective Date of this Agreement, provided that: (1) Atkinson or Luna Legal Firm have tendered the signed request for dismissal and (2) both Atkinson and Luna Legal Firm have provided completed Form W-9s prior to payment. C. The City agrees that it shall pay the entirety of the June 27, 2024 mediation fees paid by Plaintiff in the amount of six thousand three hundred seventy five dollars ($6,375) made payable to Luna Legal Firm P.C. c/o Lissette Atkinson within thirty (30) days of the Effective Date Page 4 of 7 12507225.1 RE035-049 of this Agreement provided that: (1) Atkinson or Luna Legal Firm have tendered the signed request for dismissal and (2) both Atkinson and Luna Legal Firm have provided completed Form W-9s prior to payment. III. GENERAL PROVISIONS A. City Council Approval. The Parties understand and agree that this Agreement is contingent upon approval by the City of Redlands' City Council and will not become effective and enforceable unless and until the City Council approves the Agreement. B. No Representation of Tax Liabilities. No Party, including the attorneys for any Party, has made any representations or warranties regarding whether the Settlement Proceeds are subject to taxation. Defendants do not bear any responsibility for tax liability that may arise as a result of the Settlement Proceeds. Atkinson agrees to assume any responsibility for payment of taxes for any of the Settlement Proceeds. Atkinson agrees to indemnify and hold Defendants and all Releasees harmless from any and all tax liability which may become due as a result of the Settlement Proceeds under this Agreement. Plaintiff agrees to be liable for indemnifying and holding Defendants, their agents, attorneys and assigns, harmless from any and all tax liability which may become due as a result of the Settlement Proceeds under this Agreement and/or for any liability that may be incurred as a result of any dispute over payment of the Settlement Proceeds arising between Plaintiff and her counsel, Luna Legal Firm. D. Each Party to Bear Own Fees and Costs. Aside from what is specifically provided for in this Agreement, each Party shall bear their own costs, expenses and attorneys' fees incurred in connection with the proceedings and/or events resulting in and/or preceding this Agreement, or in connection with any other claims made or investigated by either Party against the other in any forum (civil, criminal, administrative or quasi -administrative), and each of the Parties hereto expressly waives any claim for recovery of any such costs, expenses or attorneys' fees from the other Party. Attorneys for all Parties to this Agreement do likewise expressly waive any claim for recovery of costs, expenses and/or attorney's fees from the opposing Party(ies). Neither Party shall be deemed a "prevailing party" by virtue of executing this Agreement. E. No Prior Assignments. Atkinson represents that she has not assigned or transferred, or purported to assign or transfer, to any person or entity, any claim or any portion thereof or interest therein against Defendants. F. Enforcement. This Agreement is made and entered into in the State of California, and shall be governed, interpreted, and enforced under the laws of the State of California. The Parties agree that jurisdiction and/or venue of any action involving the validity, interpretation, or enforcement of this Agreement or any of its terms, provisions, or obligations, or claiming breach thereof, shall exist exclusively in a court or government agency located within the County of San Bernardino, State of California. The Parties further agree that this Agreement may be used as evidence in any subsequent proceeding in which any of the Parties allege a breach of this Agreement or seek to enforce its terms, conditions, provisions, or obligations. G. Covenant to Effectuate Agreement. Each Party hereto agrees to do all things and execute and deliver all instruments and documents necessary to fulfill and effect the provisions of this Agreement and to protect the respective rights of the Parties to this Agreement. Page 5 of 7 12507225.1 RE035-049 H. Covenant not to Sue. To the extent peti!litted by applicable law, Atkinson promises not to file any lawsuits in any court, or any demand for arbitration, against any of the Releasees as it relates to any Released Claims. I. Waiver of Terms of Agreement. No waiver by any Party of any breach of any term or provision of this Agreement shall be construed to be, nor be, a waiver of any preceding, concurrent or succeeding breach of the same, or any other term or provision hereof. No waiver shall be binding unless in writing and signed by the Party to be charged or held bound. It is further understood and agreed that if, at any time, a breach of any term of this Agreement is asserted by any Party hereto, that Party shall have the right to seek specific performance of that term and/or any other necessary and proper relief, including, but not limited to, damages. J. No Duress or Undue Influence. The Parties represent and agree that they have carefully read and fully understand all of the provisions of this Agreement, and that they are voluntarily, without any duress or undue influence on the part of or on behalf of any Party, entering into this Agreement. K. Consultation with Counsel. The Parties affirm that, prior to execution of this Agreement, they have consulted with their respective legal counsel/representatives concerning the terms and conditions set forth herein, and that they understand the advice provided to them. L. Entire Agreement. This Agreement contains all of the terms and conditions agreed upon by the Parties hereto regarding the subject matter of this Agreement. Any prior agreements, promises, negotiations, or representations, either oral or written; relating to the subject matter of this Agreement, not expressly set forth in this Agreement, are of no force or effect. This Agreement may not be modified unless agreed to and signed by the Parties. M. Interpretation. This Agreement has been jointly negotiated and drafted by counsel for the Parties. The language in this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any of the Parties. N. Severability. In the event that any one or more provisions of this Agreement shall be declared to be illegal, invalid, unenforceable, and/or void by a court of competent jurisdiction, such provision or portion of this Agreement shall be deemed to be severed and deleted from this Agreement but this Agreement shall in all other respects remain unmodified and continue in force and effect. O. No Precedent. This Agreement is in no way intended, and shall in no way be construed, to restrict rights guaranteed to Defendants under local, state or federal law, rule, policy or agreement or to establish a precedent in this or any other matter, now or in the future. P. Non -Disparagement. Atkinson agrees not to disparage Defendants. "Disparage" as used herein shall mean any communication, oral or written, of false information or the communication of information with reckless disregard to its truth, or falsity. Nothing in this Agreement prevents Atkinson from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Atkinson has reason to believe is unlawful. Page 6 of 7 12507225.1 RE035-049 R. Confidentiality and Disclosure of Terns. Except as disclosed to the Court herein, the Parties each agree to maintain the confidentiality of the negotiations underlying this Agreement to the extent permitted by law, and agree that they shall not voluntarily and publicly discuss the negotiations that led to this Agreement. This provision shall not extend to any information related to the negotiations of this Agreement that Defendants may be required to disclose pursuant to the requirements of the Ralph M. Brown Act, Government Code section 54950, et seq., the California Public Records Act, Government Code section 6250, et seq„ Civil Code section 1670.11, and Code of Civil Procedure section 1001 and Government Code section 12964.5 as expanded by SB 331, City of Redlands Municipal Code section 2.60.030, or the provisions of any other law or regulation requiring disclosure of information by public entities. S. Execution of Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy or facsimile transmission of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed. PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND RELEASE INCLUDES A RELEASE BY LISSETTE ATKINSON OF ALL KNOWN AND UNKNOWN CLAIMS, IN WITNESS WHEREOF, the Parties hereto have executed the Settlement Agreement and General Release, Dated: 07/01 /2024 By: Dated: By: 12507225.1 RE035-049 LISSETTE ATKINSON CITY OF REDLANDS EDDIE TEJEDA, MAYOR Page 7 of 7 Doc ID: 6c7fa640130e4f3bcd09d3df484e405c8f2da797 R. Confidentiality and Disclosure of Terms. Except as disclosed to the Court herein, the Parties each agree to maintain the confidentiality of the negotiations underlying this Agreement to the extent permitted by law, and agree that they shall not voluntarily and publicly discuss the negotiations that led to this Agreement. This provision shall not extend to any information related to the negotiations of this Agreement that Defendants may be required to disclose pursuant to the requirements of the Ralph M. Brown Act, Government Code section 54950, et seq., the California Public Records Act, Government Code section 6250, et seq., Civil Code section 1670.11, and Code of Civil Procedure section 1001 and Government Code section 12964.5 as expanded by SB 331, City of Redlands Municipal Code section 2.60.030, or the provisions of any other law or regulation requiring disclosure of information by public entities. S. Execution of Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy or facsimile transmission of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed. PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND RELEASE INCLUDES A RELEASE BY LISSETTE ATKINSON OF ALL KNOWN AND UNKNOWN CLAIMS. IN WITNESS WHEREOF, the Parties hereto have executed the Settlement Agreement and General Release. Dated: By: Dated: 1 / 3 / Z� ATTEST: t Clerk 12507225.1 RE035-049 By: LISSETTE ATKINSON CITY EDDIE EJEDA, ; 'YOR Page 7 of 7