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HomeMy WebLinkAbout12-116 - Narog Kelly - Settlement and Release of All Claims12 -116 Council Approval N/A SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims, (hereinafter collectively referred to as "Agreement is made and entered into by and among Kelly Narog and the City of Tukwila (hereinafter collectively referred to as the "parties" to this Agreement). RECITALS A. WHEREAS, Kelly Narog (hereinafter referred to as "Ms. Narog filed a claim for damages against her former employer, the City of Tukwila (hereinafter referred to as "the City for disability and medical leave discrimination, and B. WHEREAS, the City of Tukwila denies that any unlawful discrimination took place during Ms. Narog's employment with the City, and C. WHEREAS, Ms. Narog and the City wish to avoid the costs and uncertainty of further litigation of the claims herein; NOW, THEREFORE, the parties agree and covenant as follows: IN CONSIDERATION of the mutual promises, covenants and undertakings set forth in this Agreement, the parties agree to the following terms and conditions for the release and final resolution of all related and derivative claims up to the date of this Agreement; NO ADMISSION OF LIABILITY. It is understood and agreed that this Agreement is the compromise of a disputed claim and that the payment made is not to be construed as an admission of liability on the part of the parties hereby released, and that said parties deny liability thereof and intend merely to avoid litigation and buy their peace. 2. SETTLEMENT PAYMENT. The parties agree that payment will be made by the City to Ms. Narog within five business days following receipt of the executed settlement and release agreement in the amount of One Hundred Thousand Dollars ($100,000.00) (hereinafter SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 1 pavt-" 10163.1 fh062204 referred to as "Settlement Funds in consideration of the promises contained herein. The Settlement Funds will be paid in the form of a check payable to "MacDonald Hoague Bayless in Trust for Kelly Narog" totaling the gross amount of the settlement ($100,000.00), and delivered to Katherine Chamberlain, MacDonald Hoague Bayless, 705 Second Avenue, Suite 1500, Seattle, WA 98104. The Settlement Funds are characterized by Ms. Narog as follows: $33,036.93 for attorneys fees and costs; $8,142.71 for wages; and $58,820.36 for general damages. The wage payment is a one -time severance for past, future, and career loss; wages are not allocated to any particular pay period. 3. TAX OBLIGATIONS. If any taxing authority determines that any portion of the Settlement Funds provided in Paragraph 2 is taxable to Ms. Narog, Ms. Narog agrees to pay all taxes, penalties and interest assessed and to hold harmless and indemnify the City, its agents, officers, or managers for all amounts assessed against Ms. Narog. The City makes no representation as to the taxability of the amounts paid to Ms. Narog. 4. RESIGNATION BY MS. NAROG. Ms. Narog agrees she will submit her voluntary resignation of employment with the City of Tukwila effective on January 31, 2011. The resignation will be promptly delivered to the City's attorney. The City agrees that upon receipt of the voluntary resignation, all documentation in Ms. Narog's personnel file will reflect that her resignation was voluntary, and any prior documentation indicating she resigned in lieu of termination will be removed. 5. ELIGIBILITY TO RE -APPLY FOR EMPLOYMENT. The City agrees that Ms. Narog's personnel file will reflect that she is eligible to re -apply for future employment with the City. In turn, Ms. Narog agrees that she will not seek or apply for employment with the City in the future. Ms. Narog further agrees to waive any and all rights SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 2 10163.1 th062204 she may have to be re -hired or reinstated by the City under all applicable civil service rules and /or collective bargaining agreements and/or applicable laws. 6. FUTURE JOB REFERENCES. The City agrees that in the future, should any prospective employer or individual or entity request employment history or job reference information from the City pertaining to Ms. Narog, that the City will make the following reply: "Per City policy, the City of Tukwila will not voluntarily release any employment history information or documents concerning Ms. Narog except to confirm her dates of employment, her salary amount, and that she is eligible to re -apply for employment, unless there is a requirement to provide documents pursuant to law or court process." Thereafter, the City shall only release information verifying Ms. Narog's dates of employment, her salary amount, and that she is eligible to re -apply for employment unless it is required to give a further response pursuant to a legal requirement or in response to court process, including, but not limited to, responses to subpoenas, court orders, or court discovery rules. 7. LETTER OF EMPLOYMENT. In further consideration of the settlement agreed to by the parties, the City agrees to provide to Ms. Narog the attached letter, on City of Tukwila letterhead, signed by the Human Resources Director, reciting the dates of Ms. Narog's employment, her salary amount, and positive comments she received in her performance evaluations during her employment with the City. 8. TRAINING. The City agrees to continue on -going personnel training about disability accommodations and discrimination for all members of the fire department. 9. MUTUAL NON DISPARAGEMENT. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal, public or business reputation, SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 3 ka_� 10163.1 th062204 practices, or conduct of Ms. Narog, the City, or the City's employees, directors, and/or officers. The City agrees to specifically instruct the following persons about their obligations under this Paragraph: Nick Olivas, Diann Martinez, Diane Jaber, and Christy O'Flaherty. 10. RELEASE OF ALL CLAIMS AND HOLD HARMLESS AGREEMENT. Kelly Narog, being of lawful age, and for the sole consideration of One Hundred Thousand and 00 /100 Dollars ($100,000.00), and in consideration of the performance of Paragraphs 1 through 9 of this Agreement, does hereby on behalf of herself, and anyone claiming through her or on her behalf, including but not limited to, her past, present, and future spouses, relatives, agents, attorneys, representatives, heirs, executors, administrators, successors and assigns releases, acquits and forever discharges the City of Tukwila, a municipal corporation, its officers, managers, agents, employees, servants, successors, heirs, executors, and administrators from any and all claims, actions, expenses and compensation whatsoever, which she now has or which she could have brought or initiated to date on account of or in any way arising or growing out of all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from her contact with and/or employment with and separation from employment with the City of Tukwila, which existed or may have existed at any time up to the date of this Agreement. This release includes, but is not limited to, any and all claims asserted or that could have been asserted by Ms. Narog, whether known or unknown, in any federal, state or local court, commission, department, or agency against the City and /or its employees and agents. It is understood that this release includes, but is not limited to, any claims for wages, overtime, bonuses, benefits, stock options, emotional distress, compensatory damages, or damages of any kind whatsoever, under any federal, state or local employment, contract, or tort law, regulation, SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 4 pax—") 10163.1 fh062204 ordinance or executive order, including, but not limited to the Age Discrimination in Employment Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. 1981, the Family Medical Leave Act, the Employee Retirement Income Security Act, the Older Workers' Benefit Protection Act, the Washington Law Against Discrimination, any claim for breach of contract, express or implied, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, or any other common law claim. Ms. Narog hereby declares that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Agreement it is understood and agreed, that she is relying wholly upon her judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefore and is made without reliance upon any statement or representation of the party hereby released or its representatives or by any physician or surgeon by it employed. Ms. Narog represents and warrants that she is the sole owner of the actual or alleged claims, rights, causes of action, and other matters which are released herein, that the same have not been assigned, transferred, or disposed of in fact, by operation of law, or in any manner, and that she has the full right and power to grant, execute and deliver the releases, undertakings, and agreements contained herein. In consideration of the payment of the above sum, Ms. Narog represents, warrants and agrees that she will satisfy any and all lien claims against the above settlement sum, or any settlement or recovery arising out of the incident, casualty or events which occurred as above described, except for any lien regarding employer -owed payroll taxes. In further consideration of the payment of the above sum, Ms. Narog agrees to indemnify the City, its attorneys of SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 5 10163.1 th062204 record, and its liability insurance carriers or self insured organizations, and agrees to hold the same harmless against any claim, suit, action or demand asserting a lien against said settlement funds, including the expenses of investigation, attorneys' fees and other costs of litigation. The City agrees that, if any such claim, suit, action or demand asserting a lien against said settlement funds is asserted against the City, it will provide notice to: (a) Ms. Narog within seven (7) calendar days, at her address last known to the City, informing her of the alleged lien so she may respond to the alleged lien holder; and (b) the alleged lien holder within seven (7) calendar days, informing the lien holder that Ms. Narog is responsible for satisfying the lien. 11. Ms. Narog represents that neither she nor anyone else acting through her or on her behalf has caused to be filed any lawsuit, complaint, derivative claim, charge or grievance against the City or its officers, managers, agents or employees, that is currently pending with any local, state, or federal agency, court, or union, including but not limited to the Equal Employment Opportunity Commission, the Washington State Human Rights Commission, or in any other forum. Ms. Narog agrees that she will not cause or encourage any legal or administrative proceedings to be maintained or instituted against the City regarding any cause of action that she or her spouse may have for anything occurring through the date of this Agreement and that if a commission, agency, or court assumes jurisdiction of such claim, complaint or charge against the City, she will request the commission, agency or court to withdraw from the matter. 12. INDUCEMENTS. The parties acknowledge that no other person or entity, nor any agent or attorney of any person or entity, has made any promise, representation, or warranty whatsoever, express or implied, not contained in this written Agreement concerning the subject matter hereof, to induce the parties to execute this Agreement. The parties further acknowledge SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 6 10163.1 fh062204 that they have not executed this Agreement in reliance upon any such promise, representation or warranty not written herein. 13. VOLUNTARY EXECUTION. In executing this Agreement, the parties acknowledge that they have consulted with their duly licensed and competent attorneys, and that they have executed this Agreement after independent investigation, voluntarily without fraud, duress or undue influence, and they exclusively consent that this Agreement be given full force and effect according to each and every one of its express terms and provisions. 14. ENTIRE AGREEMENT. This Agreement contains the entire understanding between the parties and supersedes any prior understandings and agreements between the parties with respect to the subject matter hereof. There are no other representations, agreements, arrangements or understandings, verbal or written, between and among the parties relating to the subject matter of this Agreement. 15. SEVERABILITY. The provisions of this Agreement are severable, and if any part of it is found to be unlawful or unenforceable, the other provisions of this Agreement shall remain fully valid and enforceable to the maximum extent consistent with applicable law. 16. BINDING NATURE OF AGREEMENT. Except as otherwise herein provided, this Agreement shall be binding upon and inure to the benefit of the parties, their successors, heirs and assigns. 17. APPLICABLE LAW. This Agreement shall be construed and interpreted under the laws of the State of Washington. 18. NOTICE OF BREACH. Before initiating litigation regarding the application and interpretation or alleged breach of this Agreement, the party claiming breach of this Agreement must provide written notice to the other party, including the facts giving rise to the alleged SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 7 10163.1 th062204 breach and identification of witnesses. The other party has 15 days to respond. If the parties are not able to resolve the dispute within 30 days after the notice is served, litigation may commence at the expiration of the 30 day period. 19. AUTHORITY TO SIGN. Each of the parties signing hereto warrants that it has the full authority to sign this Agreement binding their marital community, themselves, or the governmental entity upon and on behalf of said individual who is signing. 20. AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) RIGHTS. Ms. Narog agrees that she has been advised to consult with an attorney and a tax advisor prior to executing this Agreement, and that, in fact, she has had the opportunity to consult with an attorney and a tax advisor of her choice as to the subject matter and effect of this Agreement. Ms. Narog agrees she has been provided the opportunity to consider for twenty -one (21) days whether to enter into the Agreement, and has taken as much of this time as desired prior to signing the Agreement, and that she has knowingly and voluntarily chosen to enter the Agreement on this date. Ms. Narog understands that she may revoke the Agreement at any time during the period of seven (7) days following the execution of the Agreement. The Agreement shall become effective following expiration of this seven (7) day period. Ms. Narog acknowledges that she has carefully read and fully understands all aspects of the Agreement, that she has not relied upon any representations or statements not set forth herein or made by the City of Tukwila or its agents or representatives and that she enters into the Agreement freely and without duress of any kind or nature. Ms. Narog understands that the Agreement waives important legal rights, including those under the Age Discrimination in Employment Act. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 8 4p 10163.1 fh062204 I, KELLY NAROG, CERTIFY THAT I HAVE REVIEWED THIS SETTLEMENT AGREEMENT AND RELEASE, THAT I UNDERSTAND IT, AND THAT I AGREE TO BE LEGALLY BOUND BY ALL ITS TE ZL Dated: U KELLY NA'ROG WASHINGTON G )ss County of I certify that on this ko� day of August, 2012, Kelly Narog appeared personally before me, signed the above Settlement Agreement and Release, and acknowledged that it was signed freely and voluntarily. DATED: Narr� Notary Public in and for the State of Washington residing atS q-c— o ii My commission expires 1 .l X.7 rA ?A- SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 9 10163.lfh062204 I, RACHEL TURPIN, ON BEHALF OF THE CITY OF TUKWILA, CERTIFY THAT I HAVE REVIEWED THIS AGREEMENT, THAT I UNDERSTAND IT, AND THAT I AGREE, ON BEHALF OF THE CITY OF TUKWILA, TO BE LEGALLY BOUND BY ALL ITS TERMS. '�R Dated: t,lc, U 1 v3 o- A J Rachel Turpin, Assistant City Attorney WASHINGTON )ss County of King I certify that on this day of August, 2012, Rachel Turpin appeared personally before me, signed the above Settlement Agreement and Release, and acknowledged that it was signed freely and voluntarily. DATED: A 1 qI -it S14 A/ 1 I li Name: Notary Public in and for the State Was 'n�° residin g at My commission expires SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS 10 C ity of Tukwila Human Resources Department 6200 Southcenter Boulevard Tukwila, Washington 98188 Jim Haggerton, Mayor July 30, 2012 To Whom It May Concern: Kelly Narog was employed as the Administrative Support Technician at the City of Tukwila Fire Department. Her dates of employment were from March 21, 2002 to January 31, 2011. She resigned employment with the City of Tukwila to seek other professional opportunities. Kelly Narog had an exemplary work ethic. Her hourly rate was $24.70. Sincerely, Stephanie Brown, PHR Human Resources Director Phone. 206- 433 -1831 City Hall Fax 206- 433 -7198 9 www. ci. tukwila. wa. us