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HomeMy WebLinkAboutResolution - 2004-R0130 - Resolution Agreeing To Settlement Claim - Sharlett Chowning - 03_04_2004Resolution No. 2004-RO130 March 4, 2004 Item No. 45A RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an agreement in settlement of a claim asserted against the City of Lubbock by Sharlett Chowning. Passed by the City Council this ATTEST: Reliecca Garza, City Secretary APPROVED AS TO CONTENT: 4th day of March , 2004. 1 MARC Mc , MAYOR Quincy Whj&FAssistant City Manager APPROVED AS TO FORM: L• V as a ..r, aat Office Practice Section LLC:dk/.RES ccdocs RES-Chowning Settlement February 27, 2004 Resolution No. 2004-RO130 March 4, 2004 Item No. 45A COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is entered into by and between the City of Lubbock, ("City") and Sharlett Chowning, ("Claimant".) RECITALS WHEREAS, Claimant was employed by the City; and WHEREAS, in March 2003, Claimant was terminated from her employment with the City as part of a Reduction in Force; and WHEREAS, the Claimant alleged her employment was terminated as a result of age and sex discrimination; and WHEREAS, the Claimant has filed an employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC); such complaint being issued charge number 361-2003-00587; and WHEREAS, the EEOC investigated such complaint and issued a predetermination letter, attached as Exhibit A; and WHEREAS, the City denies any liability to Claimant for any claim or cause of action, but is willing to settle all claims asserted by Claimant to avoid the inconvenience, distractions, uncertainties and expenses attendant to litigation and trial, in exchange for the consideration and releases set forth below. 1. IN CONSIDERATION of the payment by the City to the Claimant, of the sum of FOUR HUNDRED THOUSAND and No/100 Dollars ($400,000.00), Claimant does hereto enter into this Settlement Agreement and does hereby release, acquit, and forever discharge the City, its respective predecessors, successors, assigns, owners, City Council, partners, members, managers, employees, directors, legal representatives, insurers, independent contractors, agents and attorneys (the "Releasees"), of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, including but not limited to any hospital, medical, insurance, Medicare or Medicaid liens, whether statutorily provided or otherwise, expenses, services, actions, causes of action, or suit in equity, of whatsoever kind or nature, whether heretofore or hereafter accruing, which Claimant now has or may hereafter have, whether known or unknown, arising out of the injuries suffered by Claimant, admitted or suffered as of, or related to, her termination of employment with the City. The parties agree that the compensation paid to Claimant shall be allocated as ONE HUNDRED THOUSAND and No/100 Dollars ($100,000.00) for lost income and THREE HUNDRED THOUSAND and No/100 Dollars ($300,000.00) for other compensatory d amages. It i s a greed t hat n o p art i s t o b e c onsidered as a xemplary or punitive damages. 2. Payment s hall b e m ade by t wo checks. O ne c heck s hall b e from t he C ity p ayable t o Sharlett Chowning and the other check shall be issued from St. Paul Insurance Company payable to Sharlett Chowning and her attorney Willie Schmerler. The checks shall be delivered within seven (7) days after this Settlement Agreement is executed by Claimant. The City shall "deliver" its check by making it available for personal receipt by the Claimant. Should the City fail to deliver its check in timely manner, the City will owe and it agrees to pay interest on any unpaid amounts at an annual percentage rate of 10 percent, compounded daily. 3. Immediately upon Claimant's receipt of the checks from the City and St. Paul, Claimant agrees to fax a letter to the EEOC, attached as Exhibit `B" to this Settlement Agreement. K 4. Claimant hereby agrees to pay any outstanding liens, claims, or rights of subrogation that may now exist or hereafter exist arising out of or relating to this occurrence. 5. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring due to Claimant's termination from employment with the City including, but not limited to, all claims, demands, causes of actions of any nature, whether in contract or in tort, or arising out of, under or by virtue of any statute or regulation, that are recognized by law or that may be created or recognized in the future by any manner, including, without limitation, by statute, regulation, or judicial decision, for past, present and future damage or loss, or remedies of any kind that are now recognized by law or that may be created or recognized in the future by any manner, and including but not limited to the following: all actual damages, all exemplary and punitive damages, all penalties of any kind or statutory damages. Claimant hereby declares that she fully understands the terms of this Settlement Agreement and voluntarily accepts the above stated sum for the purpose of making full and final settlement of any and all the injuries, damages, expenses, and inconvenience above mentioned. 6. This Settlement Agreement may be pled as a full and complete defense to any action, suit, or other proceeding, which may be instituted, prosecuted or attempted for, upon, or in respect of any of the claims released hereby. The Claimant agrees that any such proceeding would cause irreparable injury to the party against whom it is brought and that any court of competent jurisdiction may enter an injunction restraining prosecution thereof. 3 7. The Claimant agrees to indemnify and hold the City harmless for the damages suffered by the City, and persons, firms, corporations, or other persons or entities protected by this Settlement Agreement by reason of any breach of any provision of this Settlement Agreement. The damages shall include not only the amount of any judgment that maybe rendered against said City, persons, firms, corporations, or other entities, or any of them, by reason of a breach of this Settlement Agreement, but shall also include all damages suffered by them, including the cost of attorneys' fees and other costs and expenses of instituting, preparing, prosecuting, defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and costs to them of attorneys' fees and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action or action to recover damages resulting from the breach of this Settlement Agreement, whether taxable or otherwise. 8. Claimant hereby represents and warrants that she, and she alone, owns the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement (the "Claimed Rights"), and that she has not transferred, conveyed, pledged, assigned or made any other disposition of the Claimed Rights. Claimant agrees to indemnify and hold harmless the Releasees from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorney's fees, incurred in the defense of any such claim that any person who claims an ownership, including any liens whether statutory or otherwise, in the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement. 4 9. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the Claimant, Releasees, and their heirs, legal representatives, successors or assigns. 10. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 11. This Settlement Agreement states the entire agreement of the parties with respect to the matters discussed herein, and supersedes all prior or contemporaneous oral or written understandings, agreements, statements or promises. 12. This Settlement Agreement may not be amended or modified in any respect except by a written instrument duly executed by all of the parties to this Settlement Agreement. 13.If this Settlement Agreement does not become effective for any reason, it shall be deemed negotiations for settlement purposes only and will not be admissible in evidence or usable for any purposes whatsoever. 14. This Settlement Agreement has been and shall be construed to have been drafted by all parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 15. If any portion or term of this Settlement Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Settlement Agreement shall not be affected and shall remain fully in force and enforceable. 16. Each party has consulted with whatever consultants, attorneys or other advisors each deems appropriate concerning the effect of this Settlement Agreement and assumes the risk arising from not seeking further or additional consultation with such advisors. 5 17. Each party assumes the risk of any mistake of fact or law with regard to any aspect of this Settlement Agreement, the dispute described herein, or any asserted rights released by this Settlement Agreement. 18. Claimant, by entering into this Settlement Agreement, acknowledges that this settlement is a compromise of a disputed claim as to the liability of the Releasees for the Claimant's injuries and damages, if any, and the payment made herein is not to be construed as an admission of liability on the part of the Releasees. It is -understood that the existence of any liability or wrongdoing has been, and continues to be, expressly denied by the Releasees. 19. Each party further states that this Settlement Agreement, including the foregoing release, has been carefully read and each party understands the contents thereof and has signed the same as their own respective free act and has not been influenced in making this settlement by any representative of a party or parties released. 20. It is further understood that the provisions of this Settlement Agreement are contractual and not mere recitals and that the laws of the State of Texas shall govern this Settlement Agreement. 0 EXECUTED this STATE OF TEXAS § COUNTY OF LUBBOCK § day of )'-�) 0A e-L , 2004. f� SHARLETT -CHOWNfNb Before me, the undersigned authority, personally appeared SHARLETT CHOWNING, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed. " Notj Pulac otli KATHY M. WILLIAMSON My Commission expires: jo- ZU- 2,07 Notary Public. State of Texas My Commission Expires 10-20.2007 �! CITY OF LUB11196 z Mayor STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared MARC MCDOUGAL, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. LINDA B. HART Notary Public, State of Texas Not Public My Commission Expires My Commission expires: S' — () 7 June 30, 2007 aslL:/Litigation/Settlement Agreements/Chowning — Compromise Settlement Agreement030104 VA Resolution No. 2004-RO130 Exhibit " A " `�pl fJyA[OY� 4 F ZA - p `•/i1„� 9Jvhrir co`�� Resolution No. 2004-RO130 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION E1 Paso Area Office 300 E. Main Dr., suite 500 El Paso, TX 79901-1331 (915)534-6700 T rY (915) 534-6710 FAX (915) 534-6701 October 23, 2003 Mr. Scott Snider, Director of H. R. for: the City of Lubbock P.O. Box 2000 / 1625 13`l' Street Lubbock, TX 79457 / Phone # (806) 775-2311 RE: EEOC Charge Number: 361-2003-00587 Sharlett Chowning v The City of Lubbock Dear Mr. Snyder: OCT 2 7 noaj rnft ftwftFS In the above styled charge, Charging Party alleges unlawful discrimination in violation of Title VU of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967, as amended, in that she was laid off from her job, and replaced by her subordinate, a younger male, due to sex, female, and her age, 48. Charging Party alleges that this male was given a promotion and a salary almost equal to what she had made. Charging Party alleges that the reason given for her discharge, was due to a reduction in force (REF), based on the City Policy, also because her job was no longer essential. This letter comes to share the evidence upon which the Area Director will issue his determination as to the merits of the allegations. It is shared with you in order to insure you are provided a fair opportunity to rebut the information in the file, and present any new or additional information you wish the Area Director to consider. In order to prove discrimination the EEOC / employee must first establish a prima facie case. In this instant charge, Charging Party is an older, (over 40), female, she was discharged / laid off, she was qualified for her position, others not in Charging Party's class remained in their positions, and Charging Party was replaced by a younger, (under 40), male. After this, the respondent must provide a legitimate non-discriminatory reason for Charging Party's allegations. Respondent indicates that Charging Party was laid off as the result of a RIF, due to budget cuts, and that Charging Party's position was no longer essential. Respondent also cites performance concerns. Based on the evidence, which includes: 1) Responses and Exhibits, provided by Respondent, (The City of Lubbock), to the EEOC's first request for information; 2) An on -site investigation at the Respondent's work site; Page Two - Pre -Determination Letter Charge No. 361-2003-00587 3) Additional information requested and provided by the Respondent based on the on - site and interviews; 4) Information provided by the Charging Parry's Attorney, to include testimony provided during Charging Party's grievance hearing; this testimony was provided, while the witnesses were under oath. The Respondents legitimate non-discriminatory reason, does not stand up to the scrutiny, based on the evidence. The evidence indicates: 1) Charging Parry's job duties and responsibilities were not eliminated, but consolidated with those of her direct report, Mr. Mark Yearwood, a younger male, who Charging Party had hired and trained. Mr. Yearwood was assigned Charging Party's job duties, (including responsibility for the direction of the department), given her office, and given a raise to within $812.00 of Charging Party's pay level. His salary was $103,396.80. The only duty that was not handled by Mr. Yearwood was that he did not attend managing director meetings. It appears that the articulated reason for including Charging Party in the layoff is false. 2) During grievance hearings, and based on the same evidence, the City found in favor of male employees, and reversed their terminations, paid them back -pay and returned them to work. However, Charging Party was not reinstated in the same manner. Similarly situated males were treated more favorably. 3) The City did not follow it's own RIF procedures. The City hired a retired Judge at the rate of $200.00 per hour to determine the issues, and the City Attorney told Charging Party that she needed to hire an attorney. 4) Charging Party had worked for the City for approximately 17 years. The City never disputed the fact that Charging Party was qualified for her position, including the position remaining after her REF. 5) Tommy Gonzalez, (Hispanic male), Interim City Manager, was responsible for the Charging Party being RIF'ed. The other members of the committee of individuals put together by Mr. Gonzalez, disagreed with him and pointed out that if Charging Party was terminated, he would be treating her differently than other similarly situated male department heads. It appears that the Managing Director of Aviation, a white male, was retained while one of his Assistant Directors was selected for the REF. Page Three - Pre -Determination Letter Charge No. 361-2003-00587 6) Charging Party's position was not eliminated, only the job title was changed. 7) During Mr. Gonzalez testimony, under oath, he testified: a) That most of the past performance issues, regarding Charging Party, were issues 3-5 years old. b) That he did not eliminate Charging Party's job position, the job duties, or the job responsibilities; He just changed the job title. c) That both Charging Party and Yearwood, her replacement could perform the job that remained. d) That Quincy White was Charging Parry's Supervisor, and felt that she performed adequately and preferred to have Charging Party remain rather than Yearwood. e) That Yearwood was given a raise to within $812.00 of Charging Parry's salary. f) That it cost approximately $36,000.00 more to terminate Charging Party instead of Yearwood, since Charging Party was paid longevity pay due to her tenure. This would not have had to been paid to Yearwood. g) That Mr. Gonzalez could not name even one persons job saved by terminating Charging Party. h) That Mr. Gonzalez testified that he performed an analysis on RIF criteria, but e-mail evidence indicates otherwise. 8) Yearwood testified that he is doing Charging Parry's job, with few exceptions, and states that it is too much for one person. Therefore, the City is going to promote two other employees, give them supervisory authority and pay raises, in order to handle the job duties that remained after Charging Party's termination. 9) Mary House, the Managing Director of H. R. and Quincy White, Assistant City Manager testified that the City's selection standards applying to RIF's were not followed with respect to the decision to terminate Charging Party. They indicated that performance was not to be a factor and that Charging Parry's job was not eliminated. Both preferred retaining Charging Party. The testimony continued to indicate that there was gender discrimination. House testifies that it was inconsistent with the City's selection standards to base a REF decision on the amount of money an employee makes, or to promote a subordinate into the Managing Directors position. White testified that Gonzalez never liked the fact that Charging Party made more money than him, but had no problem with other male employees who made more money than him. The only purely objective analysis, performed by the Budget Department, determined that Mark Yearwood should have been the one RIF'ed. 10) Mr. Gonzalez never inquired about the performance of Mark Yearwood, Charging Party's replacement. 11) Mr. Gonzalez never considered terminating any men in Charging Parry's salary range and he treated similarly situated male employees differently under identical circumstances. 2" CUl - P_013 0 Page Four - Pre -Determination Letter Charge No. 361-2003-00587 12) Initially, 17 employees were terminated in the RIF, 10 men, and 7 women. Only women, (two), were terminated from the Managing Director level. Of the 10 men terminated, 5 have been given their job back, or a comparable job. Two of the men were eligible for retirement. Of the 7 women, only one has been given back her job. Therefore, of the 17 terminated, 50% of the men were returned to work, while only 14% of the women returned. Based on the evidence in the file, the Area Director is prepared to issue a Letter of Determination indicating reasonable cause to believe that the Charging Party was unlawfully laid off / RIF'ed from her position because of her age and her sex. If you have any other evidence or information you wish the Area Director to consider, please submit it to my office not later than November 7, 2003. Thereafter the Agency will determine what additional investigative or other actions are appropriate. Thank you for your cooperation and attention to this matter. Please call me at (915) 534-6681 or Enforcement Supervisor Jose Gurany at 534-6688 if any discussion is necessary. Respectfully, Carl D. Frede Jr. EEOC Investigator