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
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-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.
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ArrEST:
ROSA RIOS, CITY SECRETARY
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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