Loading...
21-1153ORDNANCE NO.21-1153 AN ORDINANCE OF THE CITY OF DENTON AUTHORizngG THE WIERIM CITY MANAGER TO E}UCUIE A SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAn4S wmi TRACY WHrrrEN; AUTHORIZING EXPnqDiTUREs; AND PROVEDING AN EFFECTIVE DATE. WHEREAS, Tracy Whitten is employed by the Denton Fire DeparUnent asa Fire Fighter; and WHEREAS, the City of Denton and Tracy Whitten mutually desire to terminate their employment relationship; and WHEREAS, the City Council finds that the termination of this employment relationship is in the best interests of the public; NOW THEREFORE, SECTIQN l: The findings and rwitations contained in the preamble of this Ordinance are incorporated into the body of this Ordinance. SECTION 2: The City Council authorizes the Interim City Manager to execute a Separation Agreement and Garera1 Release of All Claims with Tracy Whittm in substantially the same form as attached hereto as Exhibit “A”. SECTION 3: City expenditures provided for in the Separation Agreement and General Release of All Claims are hereby authorized. SECTION 4: This Ordinance shall txcome effective immediately upon its passage and approval. made by T) d) secondeHyqNE:apRVX Cllr manGe was 0 He(v\\ n\at and was passed and approved by the following vote EZ - a: Aye Nay Abstain At>smt Gerard Hudspeth, Mayor:r 34 / J -L.ra Vicki Byrd, District 1 : Brian Beck, District 2: Jesse Davis, District 3: Alison Maguire, District 4: Deb Armintor, At Large Place 5: Paul Meltzm, At Large Place 6: PASSED AND APPROVED hi, h,jfb d,„ ,f /J-one _, 2021. r:n)#gimEmMIvaR ArrEST: ROSA RIOS, CITY SECRETARY L\\\111111110OF eee+•••ee BY: Jana APPROVED AS TO LEGAL FORM: CATHERINE CLIFTON, WIERIM CITY ATrORNEY 'a,BY:'m%g. EXHIBIT A SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS This Separation Agreement and General Release of All Claims ("Agnemcnt") is entered into by and between Tracy Whitten (“Whitten'’) and the City of Denton, Texas ('’City"). NOW, THEREFORE. Whitten and City desire to compromise and settle all claims which Whitten may have arising out of her employment and separation from employment with City up to the date of this Agreement, and intend that the full terms and conditions of their compromise settlement be set forth in this Agreement. Whitten and City agree to the following: 1. Separation of Employment. Whitten's last day of employment (Separation Date) will be the day the Denton City Council approves this Agreement. Whitten and the City agree that it is in the parties' best interests that Whitten be placed on paid administrative leave effective the date she signs this Agreement continuing up to the time this Agreement is presented to and approved by the City Council. Whitten agrees to provide the City with a letter of resignation in the form of Exhibit “B“ to be effective on the day this Agreement is approved by the City Council. 2. Settlement Consideration. In exchange for the promises contained in this Agreement, the City agrees to provide Whitten with the following special separation benefits: a.A severance payment equal to 52 weeks of Whitten’s wages ($89,066.68) and the cost to Whitten of six (6) months of City insurance under COBRA (7,281.84), totaling $96,348.52 payable as follows: i. S77,078.82 to Tracy Whitten (subject to the provisions in paragraph c) ii. S19,269.70 to the Law Office of Rob Wiley, P.C. The City will pay its share of FICA. Medicare, and Pension contributions, which will not be deducted from the total payment of $96,348.52. The payment to Whitton of 877,078.82 is subject to appropriate payroll taxes and deductions, a 12.6% employee contribution by Whitton to the Denton Fircmcn's Relief and Retirement Fund, and employee elected 457 contribution. b. C. 3.Other Settlement Terms: a. b. Whitton shall sign, have notarized the attached Acknowledgement (Exhibit “A”), and return it to City within three (3) days after this Agreement is approved by the City Council. The net payment to Whitton and the check to the Law Office of Rob Wiley, P.C., are to be paid within fourteen (14) days after Whitten provides Exhibit “A“ to the City. Whittcn's payment shall be made via direct deposit using current banking information on file with the City, The check for attolney's fecs shall be delivered to the Law Office of Rob Wiley, P.C., located at 2613 Thomas Avenue Dallas, Texas 75204. This special benefit is over and above any final compensation othenvise provided in Whitten’s final paycheck upon separation from employment. Whitten agrees that City does not owe her any unpaid wages or additional compensation or benefits of any nature whatsoever except as agreed to by the parties and set out in paragraph 2. This net payment to Whitten does not include the following sums, which Whitton is entitled to upon her separation with the City: C. I • • • • As of June 1, 202 1, her accrued vacation leave balance is 445.5 hours. At an hourly rate of 830.54, the total is S13,605.57. As of June 1. 2021. her accrued sick leave balance is 275.00 hours. At an hourly rate of 830.54, the total is $8,398.50. Should Whitten take any sick leave or vacation leave prior to the Separation Date, these leave balances and payout will be adjusted accordingly to reflect the accrued balance on the Separation Date. The payment of her accrued vacation and sick leave is also subject to appropriate payroll taxes and deductions. d. Whitton is responsible for contacting the Denton Firemen’s Relief and Retirement Fund regarding thc refund of any pension contributions she has made. Whitten is not entitled to any pension contributions made by the City. c. Whitten will not be required to reimburse the City for Tuition Reimbursement in the amount of $3,003.72. f. The City will provide Whitten with a copy of her Denton Fire Department training records. 4.By signing this Agreement, Whitten agrees to the following: ae Release and Waiver of Rights. Whitten irrevocably and unconditionally releases City and its current and former elected and appointed officials, and its current and former directors, officers. managers. agents, employees, representatives, and affiliates, jointly and individually, and all persons acting by, through or with any of them (collectively referred to as the “Releasees“). from any and all claims, complaints, liabilities, damages, losses, causes of action, suits, proceedings, rights, costs. fees, and expenses (including attorneys' fees) of any nature or kind whatsoever, known or unknown, including but not limited to any claim relating to Whitten’s employment through the date of execution of this Agreement or to her separation from employment, arising under federal, state or local law prohibiting employment discrimination and/or retaliation, which Whitten now has, or which she had at any time prior to the execution of this Agreement, against each, all, or any of the Rcleasecs (collectively “Claims“ and each a “Claim"). This Agreement is binding upon the parties and their heirs, administrators. representatives. executors, successors and assigns. The Claims waived and discharged include, but are not limited to. those arising under the following: • • • e • • • • e Americans with Disabilities Act and ADAAA (Americans With Disabilities Act Amendments Act) Employment discrimination claims and retaliation under Title VII of the Civil Rights Act of 1964: Executive Order 1 1246 Equal Pay Act Civil Rights Act of 1991 42 U.S.C. $ 1981 (the 1866 Civil Rights Act) Family and Medical Leave Act Fair Labor Standards Act Health Insurance Portability and Accountability Act of 1996 2 • • • • + • • Fair Credit Reporting Act Whistleblower claims All laws, including the common laws. of the State of Texas regarding employment- related claims, including workers compensation claims Disputed wages, including claims for any back wages or overtime Wrongful discharge and/or breach of contract claims, Claims under the U. S. and Texas Constitutions, and Tort claims. including invasion of privacy, defamation. fraud. and infliction of emotional distress. Whitten does not waivc rights or claims that arise after the date she signs Exhibit “A“ to this Agreement. Whitten does not waive her right to apply for unemployment benefits. Whitten also retains all her retirement pension rights through the Denton Firemen's Relief and Retirement Fund, in accordance with applicable laws and Fund Rules. This Agreement also does not affect any workers compensation benefits Whitten is or may be entitled to in connection with her job-related injury on December 2, 2019. Nothing in this Agreement is intended to interfere with Whitten's right to participate or cooperatc in a proceeding with any appropriate federal, state, or local agency whose task it is to investigate employment discrimination. b.Covenant Not to Sue. Whitten agrees that she will not bring any legal action against the Releasees for any Claim that occurred prior to the effective date of this Agreement; however, this provision does not prohibit Whitten from filing a lawsuit for the sole purpose of enforcing her rights under this Agreement or from enforcing or securing any rights that may arise subsequent to the effective date of this Agreement. Ce Waived and Discharged Claims. Whitten agrees that if a Claim that she has waived or discharged under Section 4 of this Agreement is prosecuted in her nanic or on her behalf before any court or administrative agency, she wai\’es and agrees not to take any award of money or other damages from such suit or prosecution. Whitten also agrees that if a Claim waived or discharged under Section 4 of this Agreement is prosecuted in her name, she will immediately request in writing that the Claim on her behalf be withdrawn. Whitten also agrees that she wai\'cs on behalf of herself and her attorneys all claims for attorneys’ fees and expenses and court costs for any Claims waived and discharged under Section 4 of this Agreement. d.Application for Re„.Employment. Whittcn's personnel file shall indicate that she is eligible for nhin by the City and all inquiries regarding her employment with the City shall be directed to the City’s Human Resources Department. While Whitton may apply to the City for future employment, the City may deny her application for employment and such denial shall not be considered a breach of this Agreement or the basis for an independent cause of action. 5. Existing Complaints or Lawsuits. Whitten promises that she has not filed or instituted a complaint, charge, claim or lawsuit against the City or any of the other Releasees with any governmental agency or any court, other than the Charge of Discrimination she filed with the Equal Employment Opportunity Commission and/or Texas Workforce Commission. Civil Rights 3 Division, dated May 5, 2021. Whitten agrees that within three (3) calendar days of receiving the settlement sum, she will file the appropriate form(s) to withdraw dismiss that Charge of Discrimination. 6. Return of City’s Property. Whitton agrees she has returned all of City’s property assigned to her during her term of employment or othelwise. 7. Confidentiality and Non-Disparagement. This Agreement will be part of the public record pursuant to the Texas Open Meetings and Public Information Acts. and confidentiality of its terms will not be possible. However, Whitten and City agree to keep the circumstances under which this Agreement came about confidentia], as allowcd by law. Whitton agrees that she will not make any disparaging remarks or statements to any third-party regarding City and/or any of the other Releasees regarding her employment or separation from her employment in any manner. Whitten also agrees that she will instruct her representatives and or agents to abide by the provisions of this paragraph. Nothing in this agreement shall preclude Whitten from making truthful statements that are required by applicable law. regulation or legal process. All inquiries regarding Whitten. including reference checks for prospective employers. shall be directed by Whitten to City’s Director of Human Resources. The City agrees that its officials and officers shall not make any disparaging remarks or statements to any third- party regarding Whitten's employment or separation from her employment. For the purposes of this Agreement, “officials and officers“ means the City Manager, AssisIant City Managers, Department Directors, City Attorney, and Assistant City Attorneys. The only information the City will share with prospective cnrployers is Whitten’s dates of employment with the City, her rate of pay, and that Whittcn is eligible for whiff. except that the City may provide information that is the subject of a request under the Texas Public Information Act, subpoena, court order, or pursuant to an authorization signed by Whitten from a prospective employer authorizing the City to release additional information regarding her employment with the City. 8. COBRA Benefits. Whitten hereby acknowledges that the City has advised Whittcn that Whitten’s insurance coverage as an active, full-time employee will be terminated on the last day of the month in which separation occurs. Whitton hereby further acknowledges that pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Whitton has a right to elect continued coverage under the City’s group health plan, at Whittcn ’s own expense. for a period of up to eighteen (18) months from the Separation Date. Such an election must be made no later than sixty (60) days after that date. 9. Whitten’s Understanding of Agreement. Whitton promises that she has carefully read and fully understands all the provisions of this Agreement. and that she is signing it voluntarily because she wants to take advantage of City's offer as contained in this Agreement. Whitten also agrees that she has entered into this Agreement voluntarily and knowingly. 10. Severability. The provisions of this Agreement are severable. that is. they may be considered separately. If any paragraph is found by a court to be unenforceable, the other paragraphs shall remain fully valid and enforceable. 4 11. Choice of Law. This Agreement and the rights and obligations hereunder will be governed by and construed and interpreted in all respects in accordance with, the laws of the State of Texas, without regard to any conflict of laws provisions. Venue will be exclusively in Denton County, Texas 12. Waiver of Breach. A waiver by a party of a breach of any provision of this Agreernent will not operate or be construed as a waiver of any subsequent breach. 13. Breach. Whitten and the City agree that the provisions contained in this Agreement are fair and reasonable. Whitten and the City acknowledge that irreparable injuly will result to the other party in the event of a breach of any of the provisions herein. Consequently, in addition to any other rights or remedies available to the aggrieved party for breach of this Agreement, the aggrieved party will be entitled to enforcement by preliminary restraining order and injunction, and any other relief approved by the Court. including but not limited to attolney’s fees and costs. 14. Non-Admission. This Agreement shall not in any way be construed as an admission by City of any unlawful or wrongful acts whatsoever against Whitten. City specifically disclaims any liability to or wrongful acts against Whitton. 15. Entire Agreement. This Agreement sets forth the entire Agreement between Whitten and City. This Agreement cannot be modified orally but can be modified only in a writing signed by both Whitten and City. 16. No Reliance. Whitton acknowledges in signing this Agreement that she is not relying and has not relied on any promise or statement (except those contained in this Agreement) made by any of the Releasees with regard to the subject matter or effect of this Agreement or otherwise. 17. NOTICE TO WHITTEN. \4’hitten should thoroughly review and understand this Agreement before signing it. THIS AGREEMENT INCLUDES A RELEASE AND WAIVER OF LEGAL RIGHTS AND CLAIMS. BY SIGNING THIS SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS BELOW, 1, TRACY WHITTEN, UNDERSTAND ALL THE TERMS OF THIS AGREEMENT. I ENTER INTO AND SIGN THIS AGREEMENT KNOWINGLY AND VOLUNTARILY, WITH FULL KNOWLEDGE OF WHAT IT MEANS. Tracy Whitten : Date: .;um /, ZOZ I Tracy WI ,cn STATE OF TEXAS § kutw\ gCOUN TY OF This instrument was acknowledged before me on the \day of JuvuJ , 2021. by Whittel MrWIIMBII!] NOTARY PUBLIC STATE OF TEXAS My COMM. EXP 12/13/24 NOTARY ID 12514306-7 dMA„M. d Notary Pub 1 s Affix Seal Here City of Denton Date:6 bOZ ?1nsift4 ze'q M1 Interim City L-z fiILer STATE OF TEXAS § COUNTY OF DENTON § $ This instrument was acknowledged before me on thcl"13 day of_3W_, 2021, by Sara Hensley. Interim City Manager of the City of Denton. by and on behalf of the City. EZSlllIIII%RIE WEIIIBnl EmmZmcTfTTxTs Public. State of Texas Bbg&24-2026 13101 8469 ATTEST: -TTY SECRETARY EXHIBIT B June 8. 202 1 Sara Hensley. Interim City Manager 215 E. McKinney Street Denton. Texas 76201 Re : Resignation I hereby submit this irrevocable letter of resignation from my employment as a fire fighter with the City of Denton, Texas, effective 11 :59 pm today. My irrevocable resignation is contingent upon the City Council approving the Separation Agreement and Release of All Claims that I signed. It is my understanding that if the City Council does not approve that Agreement, my irrevocable resignation will be null and void. Tram