2008-101ORDINANCE NO. IN
AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A COMPROMISE
SETTLEMENT AGREEMENT IN PENDING LITIGATION STYLED CARY TOWER v. CITY
OF DENTON, TEXAS, CIVIL ACTION NO. 4:05-CV-302, FILED IN THE UNITED STATES
DISTRICT COURT, EASTERN DISTRICT OF TEXAS, SHERMAN DIVISION;
AUTHORIZING THE CITY MANAGER AND THE CITY'S ATTORNEYS TO ACT ON THE
CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS, AND TO TAKE OTHER
ACTIONS NECESSARY TO FINALIZE THE SETTLEMENT; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council hereby approves the Compromise Settlement Agreement
settling the litigation styled Cary Tower v. City of Denton, Texas, Civil Action No. 4:05-cv-302
in the United States District Court, Eastern District of Texas, Sherman Division, substantially in
the form of the attached Compromise Settlement Agreement.
SECTION 2. The City Manager, or his designee, and the City's Attorneys are hereby
authorized to act on the City's behalf in approving and executing any and all documents, and to
take other actions necessary, to finalize the settlement.
SECTION 3. The City Manager, or his designee is hereby authorized to expend the
funds in accordance with the attached Compromise Settlement Agreement.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the 12 day of , 2008.
PERRY R. McNEILL, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CARY TOWER,
§
PLAINTIFF,
§
vs.
§
CITY OF DENTON, KATHY DUBOSE,
§
DIANA ORTIZ and CARLA ROMINE,
§
DEFENDANTS
§
CIVIL ACTION NO.4:05CV302
JURY
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
BACKGROUND
Plaintiff claims money damages for incidents alleged in the Lawsuit. Released
Parties deny any liability. The Parties desire to settle all matters to avoid the
inconvenience and expense of litigation and to buy peace.
AGREEMENT
Definitions.
1. "Agreement" means this Compromise Settlement and Release of Claims.
2. "Court" means the United States District Court, Eastern District, Sherman
Division.
3. "Lawsuit" means the action bearing the style and cause number shown above
and the contents of the Parties' live pleadings.
4. "Parties" mean Cary Tower, City of Denton, Kathy DuBose, Diana Ortiz and
Carla Romine.
5. "Plaintiff' means Cary Tower.
6. "Released Parties" mean the City of Denton, Kathy DuBose, Diana Ortiz and
Cana Romine and their respective past, present and future officials, officers,
shareholders, principals, employees, independent contractors, agents, attorneys,
legal representatives, predecessors, successors, assigns, insurers, risk pools,
and all persons, firms, and corporations in privity with the City of Denton, Texas,
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 1 OF 9
Kathy DuBose, Diana Ortiz and Carla Romine, even if those persons or entities
are not specifically named in the Agreement.
Release of Claims and Discharge.
7. In consideration for the payment described forth in Paragraph 11 of this
Agreement, Plaintiff hereby completely releases and forever discharges the
Released Parties from past, present and future claims, counterclaims,
proceedings, demands, lawsuits, actions and causes of action-whether arising
in contract, tort, equity or any other theory of law and whether known or
unknown--relating in any way to the incidents alleged or which could have been
alleged in the Lawsuit. Plaintiff further releases any right to attempt recovery of
all past, present and future attorney fees, damages, costs and expenses of any
nature incurred in or related to the Lawsuit. Plaintiff further assigns the rights and
remedies released in this paragraph to the City of Denton.
8. Plaintiff further releases the Released Parties from all past, present and future
claims, counterclaims, proceedings, demands, lawsuits, actions and causes of
action-whether arising in contract, tort, equity or any other theory of law and
whether known or unknown-relating in any way to any incident or event
occurring before the date of the Agreement.
9. Plaintiffs releases in the Agreement are made on behalf of himself and his
respective past, present and future affiliates, insureds, agents, principals,
servants, legal representatives, employees, predecessors, successors,
attorneys, assigns, heirs, insurers, and all persons, firms, and corporations in
privity with any of them, even if those persons or entities are not specifically
named in the Agreement.
Waiver by Plaintiff.
10. As per 29 U.S.C.A. §626(f)(2), Plaintiff waives and releases his age
discrimination, retaliation and other claims brought or which could have been
brought pursuant to Chapter 14 of Title 29 in the United States Code Annotated.
Plaintiffs waiver and release does not waive rights or claims that may arise after
the date this Agreement is executed. Plaintiff acknowledges that he has been
advised in writing to consult with and in fact has consulted with an attomey prior
to executing this Agreement with regard to this waiver, and has had a reasonable
period of time to consider this Agreement, in accordance with 29 U.S.C.A.
§626(q(2)(B).
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 2 OF 9
Hp r, Luuo I:(i)rm nvL r[, iivn[L L q rriwvi, L u nu. iv» w i7
Payment.
11. Released Parties must pay $210,000-referred to as the "Settlement Payment°-
in the form of a check in the amount of $210,000 made payable to "Cary Tower
and Greer & Shropshire, LLP" and must deliver the Settlement Payment to the
office of Karen G. Shropshire, Greer & Shropshire, 6117 Preston Rd., Suite 300,
Dallas, Texas 75225-within two weeks of: (1) receipt of the original, fully
executed Agreement to the offices of Wolfe, Tidwell & McCoy, LLP, 2591 Dallas
Parkway, Suite 205, Frisco, Texas 75034; and, (2) the Court allows an amended
pleading to be filed by the Plaintiff reflecting the agreed-upon amendments, as
set forth in more detail in this Agreement. To be considered fully executed, the
Agreement must be signed and dated by Plaintiff before a notary public.
Dismissal with Prejudice.
12. All Parties agree to dismiss all of their claims and any counterclaims asserted in
the Lawsuit with prejudice, and will direct their respective attorneys to execute
and file an Agreed Motion for Dismissal with Prejudice and to submit a proposed
Agreed Stipulation of Dismissal With Prejudice and Final Judgment, in the forms
attached to this Agreement as Exhibits 1 and 2, respectively, as soon as
practicable after: (1) execution and delivery of this Agreement by Plaintiff to the
Released Parties: (2) amendment of Plaintiffs pleading-as set forth in more
detail in Paragraph 22 of this Agreement-being duly filed in the papers of the
Court; and (3) receipt by Plaintiff of the Settlement Payment.
Other Payments, Costs and Expenses.
13. Except for the Settlement Payment, Released Parties are not obligated to make
any other payments and the Parties must bear their own court costs, attorney
fees and any other expenses incurred in the Lawsuit or otherwise.
Warranties.
14. Plaintiff warrants that:
a. he has full authority to execute the Agreement:
b, except for the assignment in the Agreement, he has not assigned or
transferred any rights that he is releasing in the Agreement;
c. there are no outstanding or unpaid-in whole or in part-subrogation
claims, including without limitation medical-insurance or property-
insurance subrogation claims that relate in any way to the incidents
alleged in the Lawsuit; and:
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 3 OF 9
Hp r. LVUO `f)rm 1TVLr1, I1V11LLL q IrIV1,V1, L L I I". Iu»
Indemnity
There are no liens-equitable, common-law or statutory-that
relate in any way to the incidents alleged in the Lawsuit Including
without limitation hospital liens, which have attached or could attach
to any consideration given in the Agreement, or which could form
the basis of any claim or penalty against the Released Parties; or,
Plaintiff has obtained-and filed with the proper office(s)-a full and
final release for any liens-equitable, common-law or statutory-
including without limitation hospital liens, which have attached or
could attach to any consideration given in the Agreement, or which
could form the basis of any claim or penalty against the Released
Parties.
15. In the Agreement, "indemnify" means the duty to fully and immediately reimburse
a Released Party for that Released Party's:
a. costs of court, attorney fees, and any other expenses incurred in any type
of legal defense,
b. costs of court, attorney fees, and any other expenses incurred in enforcing
or attempting to enforce any of the Agreement's indemnity provisions;
c. obligation, debt, payment, settlement or judgment.
16. Plaintiff agrees to indemnify and hold harmless Released Parties in connection
with any claim, counterclaim, proceeding, demand, lawsuit, action or cause of
actlon that;
a. Relates in any way to the incidents alleged in this Lawsuit and is brought
by or on behalf of:
Plaintiff;
any person, organization or entity asserting or attempting to assert
a lien--equitable, common-law or statutory-against any of the
Released Parties; or,
iii. any person, organization or entity asserting or attempting to assert
a subrogation claim against any of the Released Parties;
b. is not brought by or on behalf of a Released Patty and contains
allegations or statements that in any way conflict with any of the Plaintiffs
warranties in the Agreement; or,
c. is brought by or on behalf of a Released Party to enforce any of the
Agreement's indemnity provisions.
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 4 OF 9
MP I, J• [VVU l.`tJIivi 1TVLIL, IIJIILLL 01 In,i., VI, L L 1 II V. 107J r. 0/ 17
Confidentiality
17. Plaintiff agrees to keep the terms of this Agreement confidential, except as may
be necessary to inform legal or accounting professionals, or lending institutions.
Governing Law and Vanua
18. In the case that any dispute should arise regarding this Agreement or any of its
provisions, the Parties agree that its terms and provisions are to be construed
solely in accordance with the laws of the State of Texas, and that any lawsuit
which involves this Agreement (directly or indirectly), or any provision of this
Agreement, may only be filed and litigated in a court of competent jurisdiction in
Denton County, Texas.
Additional Documents
19. All parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be necessary or
appropriate to give full force and effect to the basic terms and intent of this
Agreement, including but not limited to the Plaintiffs contemplated amended
complaint, an agreed motion to dismiss with prejudice and a stipulated order of
dismissal of the lawsuit with prejudice.
Additional Obligations
20. Released Parties agree to provide Plaintiff with a letter stating the dates of
Plaintiffs employment and ending salary at the time of forwarding the Settlement
Payment. The text of said letter is attached to this Agreement as Exhibit 3.
Additionally, Released Parties agree to respond to reference requests with a
refusal to disclose the circumstances of Plaintiff's separation
21. Plaintiff shall not apply or reapply for any position within the City of Denton,
Texas.
22. As soon as is practicable after the execution of this Agreement, Plaintiff shall
formally move to amend and file his pleadings with the Court, abandoning all
claims against all defendants with the sole exception of the claim of Invasion of
Privacy. The form of said amended complaint shall be as set forth in the
attached Exhibit 4.
Entire Agreement and Successors in. Interest
23. This Agreement contains the entire agreement and understanding between the
Parties, is contractual and not mere recital, and shall be binding upon and inure
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 5 OF 9
hPr. LUVO I:(torlVl "VLF L, I IVnCL L d IYIUI,V1, LLr 1 u. 107) I7
to the benefit of the Parties. This Agreement renders any inconsistent prior
agreements and understandings between the parties void.
Advice of Counsel.
24. The Parties have had the assistance and advice of independent legal counsel
throughout the negotiations leading to the Agreement, and they have read the
Agreement and consulted with their respective counsel regarding the meaning
and effect of the Agreement. The Agreement has been jointly drafted and is not
to be more strictly construed against one party than another.
25. Plaintiff represents that he has relied upon the advice of his independent legal
counsel concerning the legal and income tax consequences of this Agreement
and that the terms of this Agreement are fully understood and voluntarily
accepted by him.
Effectiveness.
26. This Agreement shall become effective immediately following execution by each
of the parties.
Modifications.
27. The Agreement cannot be changed or terminated except by a subsequent
agreement in writing that is personally signed by all the Parties.
Invalid provisions.
28. If any part of the Agreement is for any reason found to be invalid, illegal, or
unenforceable, all other parts nevertheless remain valid, legal and enforceable.
Headings.
29. The headings to the provisions of the Agreement are solely for the convenience
of reference and are not to be construed as terms of this Agreement.
No Other Representations.
30. Other than the written representations made in the Agreement, there are no other
representations related to the Agreement and the Parties do not rely on any other
representations in executing the Agreement, with the sole exception of Plaintiffs
signature and acknowledgement of the notice of this Agreement provided to
Plaintiff pursuant to 29 U.S.C.A. §626(f)(2) on April 3, 2008 by letter from Clark
McCoy, attached to this Agreement as Exhibit 5.
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 6 OF 9
My 1. J. zvvu / • -TUI Itl uvti L, i 1V11L11 u -V vv II L I.
SIGNATURE:
C1c,~.3j2~ Date of Signature:
CARY WE
z s' n
BEFORE ME, the undersigned authority, on this day personally appeared CARY
TOWER, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that: "My name is CARY TOWER. I have read the
foregoing instrument, and I fully understand its content. I represent it to be a fact that
the statements contained therein are true and correct, and that I have signed the same
freely and voluntarily, and execute the same for the purposes and consideration therein
expressed and none other."
IVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE DAY OF
► 2008.
J N MERCHANT
MY COMMISSION EXPIRES
to
January 25,2W9 Notary is-
TURF:
George C. Ca bell, City Manager
On Behalf of the of Denton, Texas
Date of Signature:
BEFORE ME, the u rsggned authority, on this day per ally appeared Jon
Fortune, on behalf of the City o enton, Texas, known to to be the person whose
name is subscribed to the foregoing ' trument, and V*fiowledged to me that: "My
name is JON FORTUNE. 1 have read th regoi nstrument, and I fully understand its
content. I represent it to be a fact that the st ents' contained therein are true and
correct, and that I have signed the sam eely an oluntarily, and execute the same
for the purposes and consideration erein expresse d none other.°
GIVEN UNDER
NATURE:
AND SEAL OF OFFICE THIS-T44& DAY OF
2008.
Notary Public - State of Texas
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 7 OF 9
SIGNATURE:
Date of Signature: 0-5//4 6o'
Kathy o
BEFORE ME, the undersigned authority, on this day personally appeared Kathy
DuBose, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that: "My name is-KATHY DUBOSE. I have read
the foregoing instrument, and I fully understand its content. I represent it to be a fact
that the statements contained therein are true and correct, and that I have signed the
same freely and voluntarily, and execute the same for the purposes and consideration
therein expressed and none other."
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE LOfih DAY OF
2008.
RD 2009
am
SIGNATURE:
D' na Ortiz
Date of Signature: 5
BEFORE ME, the undersigned authority, on this'day personally appeared Diana
Ortiz, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that: "My name is DIANA ORTIZ. I have read the
foregoing instrument, and I fully understand its content. I represent it to be a fact that
the statements contained therein are true and correct, and that I have signed the same
freely and voluntarily, and execute the same for the purposes and consideration therein
expressed and none other." j
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE l~'-tf~ DAY OF
2008.
Notary Public - State of Texas PARKER eo MY COMMIISSSION EXPIRES
November 24, 2x08
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
Notary ublic - State of Texas
PAGE 8 OF 9
SIGNATURE:
arla-Rcjmine-Haggmark
Date of Signature:. 28 0r
BEFORE ME, the undersigned authority, on this day personally appeared Carla
Romine-Haggmark, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that: "My name is CARLA ROMINE-
HAGGMARK. I have read the foregoing instrument, and I fully understand its content.
represent it to be a fact that the statements contained therein are true and correct, and
that I. have signed the same freely and voluntarily, and execute the same for the
purposes and consideration therein expressed and none other."
GIVEN UNDER MY HAND AND SEAL
{.I 2008.
i =ooa"4r~ ESTEPHANII RD
C20C~1
SIGNATURE:
George G. Campbell, Cify Man ager
On Behalf of the City of Denton, Texas
OF OFFICE THIS THE DAY OF
Notar Public - State of Texas
Date of Signature: ,S
BEFORE ME, the undersigned authority, on this day personally appeared
George C. Campbell, on behalf of the City of Denton, Texas, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me
that: "My name is George C. Campbell. I have read the foregoing instrument, and I fully
understand its content. I represent it to be a fact that the statements contained therein
are true and correct, and that I have signed the same freely and voluntarily, and execute
the same for the purposes and consideration therein expressed and none other."
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE )e-1 DAY OF
11"11-4 2008.
.`~~nt ~os•'%
LINDA HOLLEy
Notary Public, State of Texas
vF My commission Expires
December 08, 2009
Not ry Public - State of Texas`
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
PAGE 9 OF 9
"y J. L V V V I . 1 V . m 1-1. L , i L U V I L L L VI I T I V V V 1, L L I
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CARY TOWER,
§
PLAINTIFF,
§
§
vs.
§
CITY OF DENTON, KATHY DUBOSE,
§
DIANA ORTIZ and CARLA ROMINE,
§
DEFENDANTS
§
nV. IV 7J 1. IJ/ 17
CIVIL ACTION NO.4:05CV302
JURY
AGREED MOTION FOR DISMISSAL WITH PREJUDICE
Plaintiff CARY TOWER and Defendants CITY OF DENTON, KATHY DUBOSE, DIANA
ORTIZ, and CARLA ROMINE (collectively "Parties") file this Agreed Motion for Dismissal with
Prejudice and would show the Court the following:
The Parties have fully compromised and settled their dispute. It is the Parties' desire to
have this case dismissed with prejudice.
The Parties pray that the Court grant this Motion to Dismiss with Prejudice.
Respectfully submitted,
GREER & SHROPSHIRE, LLP
/s/ Karen G. Shropshire
Karen G. Shropshire, Esq.
Lead Counsel
Texas Bar No. 08417150
300 Preston Commons
8117 Preston Road
Dallas, Texas 75225
214.706.9250 telephone
214.706.9251 facsimile
WOLFE, TIDWELL & MCCOY, LLP
/a/ Clark McCoy
Clark McCoy
Lead Counsel
Texas Bar No. 90001803
Sarah R. Duff
Texas Bar No. 24060536
2591 Dallas Parkway
Suite 205
Frisco, Texas 75034
972.712.3530 telephone
Lawrence B. Greer 972.712.3540 facsimile
Texas Bar No. 08417350 cmccov(@wtmlaw.net
808 Travis, Suite 806
Houston, Texas 77002 EXHII IT ATTORNEYS FOR DEFENDANTS
713.223.0175 telephone
713.223.0174 facsimile
a
AGREED MOTION FOR DISMISSAL WITH PREJUDICE
PAGE 1
Apr. S. [UUb 1:4Irm WULrt, 110WLLL & KWY, LLI"
ATTORNEYS FOR PLAINTIFF
SERVICE CERTIFICATE
No. 1893 P. 14/19
A true and correct copy of this document was served on April 3, 2008, as follows:
VIA EFILE
Ms. Karen G. Shropshire
Greer & Shropshire, LLP
8117 Preston Road, Suite 300
Dallas, Texas 75225-6375
VIA EFILE
Mr. Larry Greer
Greer & Shropshire, LLP
808 Travis, Suite 806
Houston, Texas 77002
Clark McCoy
AGREED MOTION FOR DISMISSAL WITH PREJUDICE
PAGE 2
.1.. .vim.. , . w -vvv., Imo. IV. IV.,.) 1. 1J/ 17
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CARY TOWER, §
PLAINTIFF, §
vs. § CIVIL ACTION NO.4:05CV302
CITY OF DENTON, KATHY DUBOSE, § JURY
DIANA ORTIZ and CARLA ROMINE, §
DEFENDANTS §
AGREED STIPULATION OF DISMISSAL WITH PREJUDICE AND FINAL
JUDGMENT
CARY TOWER, CITY OF DENTON, KATHY DUBOSE, DIANA ORTIZ, and CARLA
ROMINE have resolved and compromised all claims in this matter, and have agreed that this
case should be dismissed with prejudice.
Accordingly, it is ORDERED, ADJUDGED and DECREED that all claims and causes of
action in this lawsuit brought by CARY TOWER against CITY OF DENTON, KATHY DUBOSE,
DIANA ORTIZ, and CARLA ROMINE are hereby DISMISSED WITH PREJUDICE, with each
party bearing its own costs and attorney fees. This is a final judgment disposing of all claims by
all parties and all relief heretofore requested by any party is hereby DENIED.
Signed this day of .2008.
Judge Presiding
EXHIBIT
b
AGREED STIPULATION OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT
PAGE 1
J. LVVV I . -tIIin nvLIL, IIV1ILLL OI mV%,ut, L L r INO. I0fj r. 10/ly
AGREED:
GREER & SHROPSHIRE, LLP WOLFE, TIDWELL & MCCOY, LLP
/s/ Karen G. Shropshire
Karen G. Shropshire, Esq.
Lead Counsel
Texas Bar No. 08417150
300 Preston Commons
8117 Preston Road
Dallas, Texas 75225
214.706.9250 telephone
214.706.9251 facsimile
Lawrence B. Greer
Texas Bar No. 08417350
808 Travis, Suite 806
Houston, Texas 77002
713.223.0175 telephone
713.223.0174 facsimile
/s/ Clark McCoy
Clark McCoy
Lead Counsel
Texas Bar No. 90001803
Sarah R. Duff
Texas Bar No. 24060536
2591 Dallas Parkway
Suite 205
Frisco, Texas 75034
972.712.3530 telephone
972.712.3540 facsimile
cmccoy(&wtmlaw.net
ATTORNEYS FOR DEFENDANTS
ATTORNEYS FOR PLAINTIFF
AGREED STIPULATION OF DISMISSAL WITH PREJUDICE AND FINAL JUDGMENT
PAGE 2
r.. - II ,
[CITY OF DENTON LETTERHEAD]
To Whom It May Concern:
11 V. i v ".J I. i u 1 7
Cary Tower was employed with the City of Denton as a Fleet Superintendent from April
13, 1998 until April 27, 2004. During his employment, he was responsible for directing
the operations of the Fleet Services department, which was comprised of the Vehicle
Maintenance, Parts and Fuel, and Motor Pool divisions. His ending annualized salary
was $68,031.70.
[signed by Human Resources representative]
EXHIBIT
i 3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
Cary Tower,
§
Plaintiff
§
vs.
§
City of Denton, Kathy DuBose,
§
Diana Ortiz and Carla Romine,
§
Defendants
§
Jury
FOURTH AMENDED COMPLAINT AND JURY DEMAND
TO THE HONORABLE UNITED STATES DISTRICT COURT:
Plaintiff Cary Tower files his Fourth Amended Complaint and Jury Demand and
complains of Defendants City of Denton ("City"), Kathy DuBose, Diana Ortiz and Carla Romine
and respectfully shows the Court as follows:
1. Venue and Service
1. Plaintiff is an individual who is a citizen of the State of Texas and resides in Denton
County, Texas.
2. Defendant City of Denton is a governmental entity which can be served with this fourth
amended complaint by delivery to its attorney of record, Clark McCoy; Wolfe, Tidwell &
CIVIL ACTION NO.4:05CV302
Fourth Amended Complaint and Jury Demand--Page 1 =Exhibit 4
McCoy, LLP; 2591 Dallas Parkway; Suite 205; Frisco, Texas 75034.
3. Defendant Kathy DuBose is an individual, who is a former manager for the City of
Denton, who can be served with this fourth amended complaint by delivery to her attorney of
record, Clark McCoy.
4. Defendant Diana Ortiz is an individual, who is a former manager for the City of Denton,
who can be served with this fourth amended complaint by delivery to her attorney, Clark
McCoy.
5. Defendant Carla Romine is an individual, who is a manager for the City of Denton, who
can be served with this fourth amended complaint by delivery to her attorney, Clark McCoy.
II. Federal Jurisdiction
6. This Court has jurisdiction over this lawsuit under 28 U.S.C.S. 1331, 1343, as certain
of the causes of action asserted, and upon which the Court has ruled, arose under 29 U.S.C.
621 et seq., 42 U.S.C. 12101 et seq., 42 U.S.C. 1983, 1985, 1988.
7. The Court has supplemental jurisdiction over the non-federal claims under section 1367
of Title 28 of the United States Code. The jurisdiction of this Court is invoked to secure
protection of and to redress deprivation of rights guaranteed by federal law, which provide for
injunctive and other relief for illegal discrimination in employment and other deprivations of
civil rights, and to obtain fair compensation for employment.
8. Defendant City of Denton was an employer in Denton County, Texas, and employed
more than 500 regular employees at all times relevant to the times the acts of discrimination,
retaliation and civil rights violations occurred.
Fourth Amended Complaint and Jury Demand--Page 2
III. Facts
A. Plaintiffs Employment
9. Plaintiff was employed as the Fleet Superintendent for the City of Denton from April
1998 until his termination on April 27, 2004, when he was 57 years of age.
10. Plaintiff received good performance evaluations for each of the first five years of his
employment.
11. Defendant Diana Ortiz, who is at least ten years younger than Plaintiff, became
Plaintiff's immediate supervisor in June 2003; she had not supervised Plaintiff during the
previous five years of his employment.
B. Plaintiffs FIVILA Leave
12. Plaintiff suffered from arthritis, knee ailments and numerous other medical conditions in
2004 for which he took prescription medication, including depression; his parents had recently
died and his wife had required surgery and hospitalization over a fifteen-month period.
13. On December 15, 2003, Plaintiff notified Defendant Ortiz via email that he would be out
the following day due to leave under the Family Medical Leave Act ("FMLA"), as he had
requested intermittent FMLA leave, to be taken in increments over a period of time. That leave
period was to last through December 22, 2003.
14. On February 21, 2004, a Saturday, Defendant Ortiz and her supervisor, Defendant
DuBose, met with Plaintiff, at which time Defendant DuBose informed him he was "carrying
around a lot of baggage," and that he "should see a counselor." Defendant Ortiz told him he
"may be too old to handle the job."
15. At the instruction of Defendants DuBose and Ortiz, Plaintiff subsequently began to see a
Fourth Amended Complaint and Jury Demand--Page 3
counselor through the City's employee assistance program ("EAP").
16. On February 23, 2004, Lisa Manning of the City's Human Resources Department ("HR")
purportedly mailed Plaintiff a letter denying his request for the FMLA leave he had requested in
December, although the City did not retain a copy of the original. Plaintiff never received a
copy of the denial and believed that he was on intermittent FMLA leave through his termination
in April 2004.
17. On March 4, 2004, Plaintiff sent Defendant Ortiz an email stating that he had been in the
hospital, was having a health problem due to medications recently prescribed, the doctor had
informed him he should have stayed home that week, and due to his wife's scheduled surgery on
March 5, he would be taking FMLA leave for a week.
18. On March 18, 2004, Plaintiff sent Defendant Ortiz an email "to remind you" he would be
out the following day for EAP and again to take his wife to the doctor (FMLA leave).
19. On March 19, 2004, Plaintiff sent Defendants DuBose and Ortiz an email stating that on
March 22 he must again take his wife to the hospital.
20. On March 24, 2004, Plaintiff sent Defendant Ortiz an email, regarding "FMLA Time,"
stating he would be out on March 25-26 and April 1-2 due to his wife's scheduled surgery.
21. On April 2, 2004, while Plaintiff was on FMLA leave, Defendant Ortiz contacted
Plaintiff's assistant, Timothy "Ozzie" Tate, and met with him later that day. Mr. Tate informed
Defendant Ortiz that he had concerns about Plaintiff and felt he might be having side effects
from medicines prescribed for his health conditions.
C. The Termination of Plaintiffs Employment
22. On or about April 6, 2004 (although the relevant documents' dates are inconsistent),
Fourth Amended Complaint and Jury Demand--Page 4
Defendant Ortiz :
(1) placed Plaintiff on administrative leave, purportedly because Plaintiff staggered,
for which Ms. Ortiz falsely accused Plaintiff of being intoxicated;
(2) met with Plaintiff and gave him an unfavorable review, rating him as "Needs
Improvement" in almost every category for the same position which he had held since 1998;
(3) placed Plaintiff on a "Performance Improvement Plan" ("PIP");
(4) instructed him not to contact anyone at the City of Denton except Defendants
Ortiz and Carla Romine of the HR Department and not to be on non-public-access City property;
(5) instructed Plaintiff to provide a list of medications he was taking that could
adversely affect his performance; she stated she did not need to know why he was taking them;
and
(6) told Plaintiff that his taking intermittent FMLA leave did not protect him from
adverse employment action.
23. Also on April 6, 2004, Defendants Ortiz and Romine without Plaintiff's voluntary
consent:
(1) prohibited him from operating his automobile, although he denied intoxication;
(2) refused Plaintiff's request for Defendants to follow City policy and to administer
a drug test to preserve evidence to refute their allegations and protect his reputation;
(3) unlawfully restrained him on and off City property, and escorted him to his house;
(4) unlawfully exercised dominion and control over and entered his automobile by
refusing to allow him to drive his vehicle; and
(5) unlawfully intruded on his right to privacy, by searching his private space and
Fourth Amended Complaint and Jury Demand--Page 5
personal belongings, in which he had reasonable expectations of privacy, including his office,
desk, briefcase, personal locked boxes, personal effects, medications and health information.
24. Plaintiff was never intoxicated at work, does not drink alcohol or use illegal drugs, but
during the course of his employment took prescription medications for depression, his knee
conditions and age-related medical conditions such as arthritis and blood pressure. Defendants
knew of Plaintiffs medical conditions, requests for medical leave and use of prescription
medications.
25. On April 23, 2004, Defendant Ortiz, without contacting Plaintiffs physician, signed a
Recommendation for Dismissal, in which she stated, "[Plaintiff] has reflected the perception
within the department and among his staff that it is okay to take prescription medications, as it is
widely known by internal and external customers that he frequently uses medications and is
behaviorally affected."
26. In the same April 23, 2004 form Recommendation, Ms. Ortiz also:
(1) acknowledged that the only disciplinary action taken against Plaintiff by the City
since he was hired in 1998 was her placement of Plaintiff on a PIP two weeks earlier (although
he had not been allowed to work on the City premises within that time);
(2) stated that Plaintiff had never made a complaint or grievance of harassment or
discrimination, although he had reported to Defendant DuBose that Defendant Ortiz had made
derogatory comments and chided him about his age and medical conditions, including knee and
dental conditions that at times caused him to stagger or slur, for which he had sought medical
and dental care, and his attorney on April 14, 2004 had submitted a letter to the City stating that
Plaintiff was placed on administrative leave due to his age;
Fourth Amended Complaint and Jury Demand--Page 6
(3) answered "no" to the question on the form, "Has employee in the past year been
on or is the employee currently on FMLA?"
(4) answered "no" to the question, "Is there any other information regarding this
employee that you believe may be relevant?"
27. On April 27, 2004, Defendant City terminated Plaintiff's employment. The only reason
he was given for his termination was that he was an at-will employee.
28. Plaintiff appealed but was never provided with a specific reason for his termination and
was never provided the opportunity to address any accusations made against him, although a
hearing to provide the opportunity to rebut such accusations is provided for in the City of Denton
policy and procedure manual.
29. The attorney for the City of Denton initially denied Plaintiff's request for information
under the Texas Open Records Act so that Plaintiff could learn the reasons for his dismissal,
address the accusations against him and prepare for his appeal. The Attorney General for the
State of Texas issued an opinion that required the City to turn over many of the documents
requested by Plaintiff, but Plaintiff did not obtain all such documents before the City, without
explanation, denied the request for reinstatement made by Plaintiff in his appeal.
30. Plaintiff did not receive many relevant documents until produced by the City in this
lawsuit, and in January 2006 first learned of most of the conduct of the Individual Defendants of
which he now complains, when the City produced the reports of Defendants DuBose, Ortiz and
Romine and statements from over two dozen City employees solicited by those Defendants,
upon which Plaintiff bases many of the facts set forth below.
31. After Plaintiff received his notice of right to sue from the Texas Workforce Commission,
Fourth Amended Complaint and Jury Demand--Page 7
Defendant through its attorney notified Plaintiff that Defendant had instructed its employees not
to talk to Plaintiff, and demanded that Plaintiff not contact any City employees.
D. The Conduct of the Individual Defendants
32. At all relevant times, Defendants DuBose, Ortiz and Romine ("Individual Defendants")
were employed by the City of Denton as managers and acted on behalf of the City, with the
authority of certain City employees, such as the City attorney, and the City participated in and
ratified their conduct.
33. The Individual Defendants, however, failed to follow City policies, procedures and
administrative directives, and also engaged in illegal and unconstitutional conduct and
intentional torts, and thus failed to act within the scope of their authority, as more specifically set
forth in the Facts and Claims sections.
34. On April 2, 2004, while Plaintiff was out on scheduled FMLA leave, Defendant DuBose
sent Defendants Ortiz and Romine a request for an April 5, 2004 meeting among the three to
discuss Plaintiff.
35. On April 3, 2004, a Saturday, Defendants DuBose and Ortiz contacted a City facilities
attendant to obtain a key to Plaintiffs office. According to their written reports, they searched
Plaintiff's office, without his knowledge or consent, in an attempt to locate his medications.
Defendants reported they opened and searched all of his desk drawers, his credenza and hutch
cabinets, and attempted to open a "locked grey box" found in a drawer "with several different
keys" they found in another drawer. Defendants DuBose and Ortiz reported they found no
prescription medications, relocked Plaintiff's office door and left after a fifteen-minute search.
36. On April 5, 2004, a Monday, Defendants Ortiz and Romine met, with the intention of
Fourth Amended Complaint and Jury Demand--Page 8
calling Plaintiff into HR to place him on a PIP. Plaintiff, however, had left early due to illness.
37. On April 6, 2004, Defendants Ortiz and Romine met with Plaintiff, placed him on the PIP
and on administrative leave, and informed him he could discuss his leave and employment
situation only with "those who have a right to know": his immediate family, legal counsel,
supervisors and HR representatives. They then prohibited him from driving his automobile and
drove him to his house.
38. After being escorted home on April 6, 2004, Plaintiff called Defendant Romine and
requested his briefcase. Defendants DuBose and Romine retrieved his briefcase from his office
and searched the contents. Defendant DuBose also searched a black portfolio in Plaintiff's
office, again searched Plaintiff's left desk drawer, showed Defendant Romine the locked box and
the keys she and Defendant Ortiz had previously used to attempt to open the box on April 3, and
informed Defendant Romine she believed the box contained Plaintiff's prescription medications.
Defendants took Plaintiff's briefcase and locked his door as they left.
39. Defendants Ortiz, Romine and DuBose met with Defendant Romine's assistant, Passion
Hayes, in Romine's office to discuss Defendants' belief that Plaintiff kept his medications in his
desk drawer, in the metal container that Defendants DuBose and Ortiz had tried to unlock.
Defendant DuBose instructed Defendant Ortiz and Ms. Hayes to retrieve the box from Plaintiff's
office and requested facilities management to bring tools to open the lock so she could look
inside for Plaintiff's prescription medications. When Defendant Ortiz and Ms. Hayes returned to
HR with the box, it was unlocked and open.
40. HR representatives, on information and belief including Defendant Romine or with her
consent, told employees that they should not talk to Plaintiff.
Fourth Amended Complaint and Jury Demand--Page 9
41. On April 7, 2004, Defendant Romine and Ms. Hayes began interviewing City employees
in various departments about Plaintiff, whether they had seen or spoken to him, making clear
that employees who did so would be targeted for investigation, and seeking negative information
about Plaintiff. They then typed up select information from the interviews on two separate
forms specially prepared about Plaintiff, and required the employees to sign.
42. The first form required employees to respond to the following: (1) "Tell us about your
working relationship with Cary Tower" and (2) "Describe Cary's general demeanor during his
interactions with you, while in meetings, etc."
43. The second form asked the following questions: (1) Have you personally been in Cary's
office since April 6, 2004? (2) Have you.seen anyone in Cary's office since April 6, 2004? If
yes, who? Do you know why they were there? (3) Have you seen Cary on the premises? (4)
Have-you heard that Cary was on the premises? (5) Has Cary called you at work since April 6,
2004? If so, why? (6) Have you heard of Cary calling anyone else in Fleet during work hours
since April 6, 2004? If so, do you no (sic) why?
44. The forms indicate that the "interviews" were conducted with well over two dozen
employees, many of whom did not work in the Fleet Services Department with Plaintiff, during
the period April 7 through April 28, 2004; for example: April 7 (Keith Gabbard); April 8 (Dean
Hartley, Clark Rosendahl, Ozzie Tate, Bonnie Woodruff); April 9 (Emerson Vorel); April 15
(Billy Atkins, Brad Beardon, Dane Cheatham, Roger Gayton, Joe Harris, Gina Hermes, Paul
Jonas, Jason Martin, Donnie McGuire, Monty Perry (fire captain), Ronnie Smith, Tim Spencer,
Diane Simington, James Quested, Randy Tunnell); April 16 (Andrea Gage, Rick Smith); April
19 (Susan Croff); April 20 (Mark Nelson, Rick Smith, Pete Shaw, JL Wright).
Fourth Amended Complaint and Jury Demand--Page 10
45. On April 9, 2004, a Friday, a City HR representative (Diena Flores) sent Defendant
Romine an email, notifying her that Plaintiff had come to the City "to pick up his stuff,"
including some medications he needed, and that Ms. Flores had not returned his items but
instructed him to call Defendant Romine or Ortiz on Monday.
46. On April 12, 2004, Defendant Romine forwarded to Defendant Ortiz Ms. Flores's April 9
email concerning Plaintiff's requests for the return of his personal belongings, including his
prescription medications.
47. On April 14, 2004, Plaintiff was finally allowed to retrieve his briefcase from HR.
48. On April 14, 2004, Plaintiff's attorney sent the City a letter alleging age discrimination,
and Plaintiff sent Defendant Romine an email, informing her of the personal problems he had to
overcome over the previous two years, including his and his wife's serious health conditions and
the deaths of both of his parents. He also attached a copy of a "plan" Defendants Ortiz and
DuBose had asked him to follow after their February 21, 2004 meeting, which included an
instruction to "separate family from work."
49. Also on April 14, 2004, Plaintiff signed a consent for Defendant City to obtain his
relevant medical records and provided a list of medications he was prescribed, as told by Ortiz.
50. On April 28, 2004, Defendant Romine released to Plaintiff the remainder of his personal
belongings and an itemization of his highly personal medications and other items retrieved from
the metal box, which Defendants Romine and Ortiz had searched and catalogued without
Plaintiff's consent and outside his presence.
51. On April 28, 2004, Sharon Mays, a Motor Pool Department employee, sent Ortiz an
email, related an incident about a purchase made by Plaintiff two years before, presented in a
Fourth Amended Complaint and Jury Demand--Page 11
negative light, and stated, "Thought this might be helpful in your overall assessment of Cary."
E. The Individual Defendants Failed to Follow City Policy
52. Defendant City provides its employees with a policy manual, whose stated purpose is to
provide supervisors and department directors with a permanent, written source of information
about the City's policies, procedures and administrative directives; to establish standardized
policies and procedures that apply to all City departments; and to put in writing policies to make
them official and minimize errors in carrying them out.
53. The manual states that every effort was made to ensure that its policies and procedures
are consistent with the City's ordinances. Department heads such as Plaintiff were required to
make the manual accessible to all employees in their departments.
54. The manual also states that a "policy" is a statement of overall philosophy, direction and
goals to be accomplished, and programs to be established. A "procedure" is a specific and
detailed statement of the means and methods by which management implements a policy.
55. The manual provides specific procedures for managers to follow in (1) disciplining and
terminating employees, (2) investigating allegations of unlawful drug use, including
administering drug tests based on reasonable suspicion, (3) searching an employee's private
space and personal items, (4) permitting employees to use employee assistance and benefits
programs, including EAP and FMLA and (5) permitting employees to appeal their termination of
employment. Defendants failed to follow the City procedures, policies and administrative
directives in their treatment of Plaintiff in April 2004.
F. Immunity
56. The Individual Defendants, acting in their individual capacities, are not entitled to
Fourth Amended Complaint and Jury Demand--Page 12
governmental immunity (official, qualified or sovereign immunity) to the extent they: (1)
engaged in ministerial duties established by specific City procedures; (2) engaged in intentional
torts or unlawful conduct, including conduct prohibited by federal law; or acted outside the
scope of their authority; (3) engaged in proprietary and not governmental duties, including
without limitation HR and duties and administration of employee benefits; (4) exercised any
discretionary authority in bad faith, and no reasonable person in their position could have
thought the facts were such to justify their conduct; (5) performed tasks not lawfully assigned by
competent authority; or (6) engaged in occupational or professional but not governmental
decision-making or exercise of discretionary authority.
57. Defendant City is not entitled to governmental immunity to the extent (1) immunity is
waived by Texas statutes, (2) immunity is waived by City ordinance, charter or otherwise, (3)
federal law preempts local law and imposes liability on the City, including for violations of civil
and constitutional rights, (4) the conduct of which Plaintiff complains is a proprietary function of
the City and (5) the doctrine of governmental immunity does not bar the relief sought.
G. The City's Failure to Timely Provide Documents Under the Open Records Act
58. Plaintiff repeatedly requested the City-to provide him with basic documents, such as his
employment file and performance reviews, so that he could appeal his termination.
59. On May 14, 2004, the City attorney, Eddie Martin, sent an email to Plaintiff stating that,
since Plaintiff was no longer a City employee, he could not review his personnel file; that City
employees were too busy to respond to his Open Records request; and that he had sufficient
information to prepare his appeal.
60. The City sought a determination from the Texas Attorney General, who entered an
Fourth Amended Complaint and Jury Demand--Page 13
opinion requiring the City to comply with the Open Records Act and provide Plaintiff with most
of the documents he had requested. Plaintiff, however, did not obtain many relevant documents
until after filing this lawsuit.
IV. Claim
Count One: Invasion of Privacy Against All Defendants
61. Defendants, acting singly and in concert, on April 3, 2004 through April 28, 2004,
invaded Plaintiff's privacy by intruding on his seclusion and wrongfully disclosing private facts.
62. Specifically, the Individual Defendants, without Plaintiff's consent or knowledge,
engaged in the following conduct, as more specifically described in the Facts section of this
Complaint:
(1) from April 3 through April 28, 2004, unlawfully searched Plaintiff's office, desk,
drawers, locked compartments, portfolios, personal locked box, briefcase, vials of medicines and
labels with highly personal medical information, and additional personal items, and itemized
each of his personal items, including medications used for specific and highly personal bodily
functions, all areas in which Plaintiff had a reasonable expectation of privacy;
(2) from April 9 through April 28, 2004, retained possession of his belongings after
he requested their return, while continuing to search through his private possessions;
(3) on April 6, 2004 unlawfully took control of and entered his automobile, a
personal space belonging to Plaintiff in which he had a reasonable expectation of privacy;
(4) on April 6 through April 28, 2004, prepared and circulated among scores of City
employees special forms about Plaintiff, and solicited negative comments about Plaintiff, and
information about whom he had contacted, his "demeanor" and use of medications, medical
Fourth Amended Complaint and Jury Demand--Page 14
conditions and treatment for those conditions;
(5) falsely conveyed to City employees negative information about Plaintiff due to
his highly private medical conditions and treatment for those conditions;
(6) encouraged employees, including those whom he supervised, to observe him and
take notes about him.
63. Defendants' conduct constitutes serious and intentional intrusions on Plaintiff's solitude,
seclusion and private affairs; and also constitutes wrongful disclosure of private facts, including
medical information, which intrusions and disclosures would be highly offensive to a reasonable
person.
64. On April 28, 2004, Plaintiff learned that Defendants had searched through and created an
extensive inventory of his personal items, including medications for highly personal medical
conditions and bodily functions, without his consent or knowledge.
65. Defendants failed to follow policies of the City of Denton in making the intrusions and
disclosures, including without limitation (1) failing to provide Plaintiff with notice and (2)
conducting the search outside his presence and without his consent.
66. Defendants acted recklessly and maliciously and with intent to harm Plaintiff because
Defendants objected to his use of prescription medications, and Defendants without consulting
with Plaintiff's physicians or conducting a drug test concluded that Plaintiff's behavior was
adversely impacted by his use of prescription medications, and rejected Plaintiff's statements to
the contrary and refused his request for a drug test to refute their unsubstantiated allegations.
67. Plaintiff suffered damages due to Defendants' unlawful and malicious conduct, including
mental anguish, damage to his reputation, loss of earning capacity, extreme embarrassment,
Fourth Amended Complaint and Jury Demand--Page 15
humiliation and emotional distress, and termination of his employment resulting in loss of
income and benefits.
68. Plaintiff seeks recovery for all such damages and also seeks exemplary damages and
costs of court and pre- and post judgment interest, and attorney's fees to the extent allowed
under law or principles of equity.
V. Request for Relief
69. Plaintiff prays that this Court enter judgment in his favor against Defendants, jointly and
severally, and:
(1) award Plaintiff damages due to Defendants' conduct, and to compensate him for the
injuries caused by Defendants, including for damage to his reputation; loss of earning capacity;
extreme embarrassment, humiliation and emotional distress; mental anguish; termination of his
employment resulting in loss of income and benefits; actual, liquidated, additional, consequential
and exemplary damages; and compensation for attorney's fees, expert fees and costs of court, to
the extent allowed by law; together with pre- and post judgment interest on all amounts awarded
him; and
(2) award Plaintiff such other legal and equitable relief as this Court deems just and proper.
Respectfully submitted,
GREER & SHROPSHIRE, L.L.P.
By: Lawrence B. Greer
Texas Bar No. 08417350
808 Travis; Suite 806
Houston, Texas 77002
713.223.0175
713.223.0174 (fax)
/s/ Karen G. Shropshire
Fourth Amended Complaint and Jury Demand--Page 16
BY: KAREN G. SHROPSHIRE
Texas Bar No. 08417150
300 Preston Commons West
8117 Preston Road
Dallas, Texas 75225
214.706.9250
214.706.9251 (fax)
kshropshire@abttx.com
ATTORNEYS FOR PLAINTIFF CARY TOWER
Certificate of Service
I certify that a true copy of Plaintiff's Fourth Amended Complaint and Jury Demand was
forwarded to Defendant's attorney, Clark McCoy; via efile on 2008.
/s/ Karen G. Shropshire
KAREN G. SHROPSHIRE
Fourth Amended Complaint and Jury Demand--Page 17
Apr. 3. 2008 7:47PM WOLFE, TIDWELL & MCCOY, LIP No.1893 P. 18/19
DALLAS I FRISCO I SHERMAN
ATTORNEYS & COUNSELORS
FRISCO
2591 DALLAS PARKWAY, SUITE 205
FRISCO, TEXAS 75034
Tel 972.712.3530
Fax 972.7123540
April 3, 2008
VIA FACSIMILE 214.706.9251
Ms. Karen G. Shropshire
Greer & Shropshire, LLP
8117 Preston Road, Suite 300
Dallas, Texas 75225-6375
WWW.wtrNaw.nei
WRITER'S EMAIL - C11000y4w1mlClw.ne1
VIA FACSIMILE 713.223.0174
Mr. Larry Greer
Greer & Shropshire, LLP
808 Travis, Suite 806
Houston, Texas 77002
Re: Cary Tower v. City of Denton, Kathy DuBose, Carla Romine & Diana Ortiz
Civil Action No. 4:05cv302 in the U.S. District Court, Eastern
District of Texas, Sherman Division
Dear Karen and Larry:
Enclosed for your review is the proposed Compromise Settlement Agreement
and Release of Claims ("Agreement"), tracking the mediation agreement. At the
appropriate time, I will forward duplicate original copies for execution by Plaintiff.
Pursuant to 29 U.S.C.A. §626(f) of the Age Discrimination in Employment Act,
please consider this as notice for Plaintiff to consider a settlement, release, and waiver
of any and all age discrimination claims against the City. Plaintiff is advised to consult
with legal counsel before signing below. Plaintiff's signature below will acknowledge his
understanding of this notice as a prerequisite to settlement under 29 U.S.C.A.
§626(f)(2)(b). Further, as evidenced by the signatures on this letter, the parties to the
above-referenced suit agree that 10 business days will serve as a reasonable period of
time for Plaintiff to consider the Agreement before executing it, and by signing below
Plaintiff represents that his consideration of the Agreement is being undertaken freely,
voluntarily, and with the assistance and advice of legal counsel.
Please let me know if you have any questions or comments. Otherwise, please
return a signed copy of this letter to my office via email or facsimile. The 10-business-
day time period will begin to run when I receive same. Thank you.
Sincerely,
EXHIBIT r McCoy
Uy~~)
WOLFE, TIDWELL & MCCOY, LLP
Apr. 1 2008 7:48PM WOLFE, TIDWELL & MCCOY, LLP
No-1893 P. 19/19
wOLFE, TIDWELL & McCOY, LLP
CM/srd
Enclosure
AGREED:
CARY T R, Plaintiff
AGREED:
KAREN SHROPSHIRE or RRY GREER,
Counsel for Plaintiff
Ms. Karen Shropshire
Mr. Larry Greer
RE: Tower v. Denton, et al.
April 3, 2008
Page 2