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HomeMy WebLinkAboutAgreements/Contracts - Public WorksK20-094 ARBITRATION SETTLEMENT AGREEMENT By and Between GRANT COUNTY, GRANT COUNTY DEPARTMENT OF PUBLIC WORKS, GRANT COUNTY PUBLIC EMPLOYEES ASSOCIATION — PUBLIC WORKS UNIT And PATRICK WORTHAM THIS ARBITRATION SETTLEMENT AGREEMENT is entered into by and between Grant County and Grant County Department of Public Works (hereinafter together referred to as the "Employer"), the Grant County Public Employees Association — Public Works Unit (hereinafter referred to as the "Association") and former employee Patrick Wortham (hereinafter referred to as "Employee"). THE PURPOSE OF THIS ARBITRATION SETTLEMENT AGREEMENT is to resolve issues involving a pending Arbitration regarding the Employee's termination. The Employer terminated the Employee's employment effective October 5, 2018. The Association filed a grievance on behalf of the Employee on October 22, 2018. The parties mutually selected Kenneth J. Latsch to serve as Arbitrator. The grievance was set for arbitration. Through the parties' attorneys and to allow the parties time to pursue settlement rather than engage in expensive litigation, the parties agreed to a continuance of the Arbitration proceedings. THE CONSIDERATION FOR THIS ARBITRATION SETTLEMENT AGREEMENT (hereinafter referred to as "Agreement") is the mutual undertakings set forth herein. NOW, THEREFORE, the Employer, the Association and the Employee do hereby agree as follows: 1. Resignation of Employee. Upon the signing of this Agreement, in lieu of the termination of employment, the Employee voluntarily and permanently resigns from his employment with the Grant County Department of Public Works, effective October 5, 2018. The Employee acknowledges and agrees that as of the date of resignation, October 5, 2018, he has no authority to, and shall not, act as an employee of the Grant County Department of Public Works. 2. Payment to Employee. In consideration of the waiver and mutual release of any and all claims, agreement to permanent resignation, on account of emotional distress and pain and suffering from a motor vehicle accident, and other benefits reflected in this Agreement, the Employer agrees to pay the Employee the sum of twenty-seven thousand seven hundred fifty dollars ($27,750.00). This amount due to the Employee will be paid to the Employee through the Employer's accounts payable process within thirty (30) calendar days of the signing date by the last signing party subject to the Employee complying with ADEA release and timelines reflected in section 12 of this Agreement. In addition to the payment described above, the Employer shall issue to the Employee a 1099 tax form. The Association and Employee agree to indemnify and hold harmless the Employer Pagel of 8 from any and all claims, demands, disputes, lawsuits and administrative procedures brought by any third party such as any federal agency and any state agency regarding the terms and conditions of this payment. 3. Neutral Reference. The Employer agrees and understands that in the event the Employer receives a question from a prospective employer of the Employee, the Employer will provide the prospective employer with a "neutral" reference. By way of an example, a "neutral" job reference would be limited to (1) Employee's date of hire; (2) Positions held; (3) Duration of positions held; and (4) that the Employee voluntarily resigned from his employment. If the prospective employer asks about the Employee's work performance, an appropriate answer would be, "The Employee had positive performance reviews while working for the Department of Public Works." 4. Disputed Positions/Non-Admissions. The Employer, Association and Employee acknowledge that the determinations associated with the Employee's termination are in dispute based on the pending Arbitration. The Employer and Association are in agreement that the disputed positions shall not be construed as an Employee admission of misconduct. The Association and Employee agree that the disputed position shall not be construed as any admission by the Employer of any violations of the labor agreement, State laws, Federal laws and any regulations pertaining to any of those laws. 5. No Pending Claims. The Employee and the Association represent that they have no pending claims, lawsuits or charges filed against Employer with any courts and any governmental agencies. 6. Withdrawal and Dismissal with Prejudice. The Association hereby immediately withdraws and dismisses with prejudice the pending grievance and Arbitration submitted on behalf of Employee. 7. Non -Precedent. The Parties agree that the facts and issues as well as the terms of settlement are unique to this matter and therefore neither the Employer nor the Association shall use this settlement as a precedent in any future grievance and arbitration dispute between the Employer and the Association. However, if there is a dispute about this Agreement then it is admissible in a proceeding under section 11 below. 8. Waiver and Mutual Release of Claims. In consideration of the terms contained in this Agreement, and as a material inducement to the Employee, the Association and the Employer to enter into this Agreement, the Employer, the Association and the Employee hereby release one another from any and all past and present claims, if any, against one another. As referred herein, "past and present claims" means those claims arising on or before the date the "Acceptance of Agreement" is signed by the Employee. The Employer hereby waives and releases its past and present claims, if any, against the Employee related to his employment with Page 2 of 8 Employer. The Employee hereby waives and releases any and all his past and present claims, if any, against the Employer, Employer's elected officials, appointed officials, employees, attorneys and agents arising out of his employment with the Employer, including but not limited to release of claims for any individual relief under State laws, Federal laws, any regulations pertaining to any of those laws and any other proceedings. The Employee hereby waives and releases his past and present claims, if any, against the Association, the Association's officials, attorneys and agents arising out of his Association membership, including but not limited to release of claims for any individual relief under State laws, Federal laws, any regulations pertaining to any of those laws and any other proceedings. 9. Release and Counsel. Employer, Association, and Employee have mutually agreed to settle all the pending issues rather than arbitrate them. The Employee understands and acknowledges the significance and consequences of this Agreement and expressly confirms that it is to be given full force and effect according to each and all of its expressed terms and provisions. The Employee acknowledges that he has been given full opportunity and has been encouraged to consult a personal attorney of his choice regarding this Agreement and acknowledges the Association's lawyer is not his personal attorney. Knowing and understanding so, the undersigned Employee accepts all the terms of this Agreement in full settlement of any and all issues. 10. Non -admission. This Agreement shall not be construed as an admission by the Employer of any liability to the Employee and Association, any breach of any agreement between the Employer, the Employee and the Association, or any violation by the Employer of any Federal laws, State laws, any regulations pertaining to any of those laws and any other procedures. This Agreement shall not be construed as an admission by the Association of any liability to the Employer and Employee, breach of any agreement between the Association, Employer and the Employee, or any violation by the Association of any Federal laws, State laws, any regulations pertaining to any of those laws and any other procedures. 11. Breach and Enforcement. The Employee, the Association, and the Employer agree that if there is an alleged breach of the terms of this Agreement, the issues will first be submitted to PERC for mediation proceedings. If mediation does not resolve the issues then the parties agree to submit to binding arbitration in accordance with the terms of the applicable CBA. Each party shall pay for their own attorney's fees, costs, etc. and share equally the Arbitrator's fees and costs. 12. Older Workers' Benefits Protection Act Provisions. In accordance with the requirements of the Older Workers' Benefits Protection Act, Employee expressly acknowledges the following: Page 3 of 8 a. That the waiver and release of claims provisions set forth above at section 6 of this Agreement includes, but is not limited to, a waiver and release of all claims, charges, or rights of action the Employee may have against the Employer under the Age Discrimination in Employment Act (subsequently "ADEA") except those that may arise after the date the Employee signs this Agreement. b. That the Employer is hereby advising the Employee in writing to consult with an attorney prior to accepting this Agreement. C. That the Employee has twenty-one (21) days from the time in which the Employee is first presented with this Agreement to consider whether or not to accept it. The Employee also understands that, while it is the Employee's right to decide to accept, enter into, and execute the Agreement before the end of that 21 -day period, that the Employee is under no obligation to do so. For purposes of calculating this period, Employer and Employee acknowledge that Employee was first presented with this Settlement Agreement on the date stated below in the Employee's Acknowledgement of Receipt, and that the twenty-one (21) day period expires on July 17 , 2020. The Employee also understands that by returning the signed Agreement prior to the expiration of this twenty-one (2 1) day period, the Employee has KNOWINGLY AND VOLUNTARILY WAIVED any right to the STATUTORILY PRESCRIBED WAITING PERIOD AND HAS ACCEPTED THE shortening of the statutorily prescribed waiting period, and that the decision to do so was not induced through fraud, misrepresentation, or threat to withdraw or alter the offer herein prior to the expiration of the twenty-one (2 1 ) day time period. d. That the Employee's waiver and release of all claims, charges, and rights of action under the ADEA, as set forth above, is being made and given only in exchange for the consideration set forth in this Agreement, including sections 1, 2 and 3 as well as any other provisions of this Agreement that are sufficient to support a contract. The Employee also agrees and acknowledges that the consideration provided to Employee under this Agreement is in addition to anything of value to which Employee may already be entitled. e. That for a period of seven (7) days following the execution of this Agreement, Employee may revoke the Agreement. The Employee further understands that if the Employee does not revoke the Agreement within the seven (7) day period, this Agreement will be enforceable seven (7) days after the date of acceptance. THE AGREEMENT INCLUDES A RELEASE OF ANY CAUSE OF ACTION OR CLAIM OF AGE DISCRIMINATION UNDER THE ADEA. BY SIGNING THE DOCUMENT, YOU ARE AGREEING NOT TO SUE OR TO COMMENCE ANY Page 4 of 8 LITIGATION AGAINST THE EMPLOYER BASED UPON A CLAIM THAT THE EMPLOYER HAS VIOLATED YOUR RIGHTS UNDER THE ADEA PRIOR TO THE DATE OF THE AGREEMENT. UPON THE EFFECTIVE DATE OF THE AGREEMENT, YOU WILL NOT BE ABLE TO COMMENCE ANY LITIGATION AGAINST THE EMPLOYER BASED UPON CLAIMS THAT YOU MAY HAVE UNDER THE ADEA FOR AGE DISCRIMINATION THAT AROSE PRIOR TO THE DATE OF THE AGREEMENT 13. Complete Agreement. This Agreement represents and contains the entire understanding between the parties in connection with the subject matter of this Agreement. The Agreement shall not be altered or varied except in a writing signed by the Employee, the Association, and the Employer. It is expressly acknowledged and recognized by all parties that there are no oral or written collateral agreements, understandings or representations between the parties other than as contained in this document, and any such prior agreements are specifically terminated. 14. Governing Law. Unless otherwise controlled by federal law, the interpretation and enforcement of this Agreement shall be governed by the laws of the State of Washington. 15. Reliance and Right to Consult with an Attorney. Employee and Association represent and acknowledge that in executing this Agreement, they do not rely and have not relied upon any representations or statements not set forth herein made by the Employer or by any of the Employer's employees, agents, representatives, or attorneys with regard to the subject matter, basis or effects of this Agreement or otherwise. The Employee is encouraged to consult with his personal attorney, not the Association's attorney, prior to the execution of this agreement. 16. No Challenge or Appeal. The Employer agrees it will not appeal nor challenge decisions by a governmental agency, Social Security, ESD or L&I, past, present or future, relating to benefits awarded to the Employee so long as the basis for such decision is not based on any inaccurate statements made by the Employee to the governmental agencies creating a financial risk to Grant County. 17. Signature in Counterpart and Facsimile Procedures. This Agreement may be executed in counterpart, scanned and shall be binding upon the parties. Transmission of this Agreement by .pdf by the parties shall serve as an original and be binding on all parties. The parties may circulate duplicate originals of this document for signature so that each party has an original of this agreement showing signatures of all parties. 18. Attorneys' and Arbitrator Fees, Costs and Expenses. Each party shall be solely responsible for paying for their own attorney's fees, costs and expenses. The Employer and the Association will share equally the Arbitrator's fees, costs, expenses and cancellation fees. Page 5 of 8 19. Effective Date. The effective date of this Agreement shall be the date on which the last signing party executes this Agreement. Page 6 of 8 ACKNOWLEDGEMENT OF RECEIPT This Agreement was given t he date next to my signature: Patrick Wortham, EM6ployee Date PLEASE READ CAREFULLY. THIS IS A VOLUNTARY RESIGNATION, SEPARATION AND RELEASE AGREEMENT. Page 7 of 8 ACCEPTANCE OF AGREEMENT EMPLOYER: Richard Stevens, Member of the Board Date Date - 3J-- ao ay Date GRANT OUNTY E ARTMENT OF PUBLIC WORKS: Samuel Castro, Director Date -gWT,I UB—LW EMPLO S ASSOCIATION: 4arcne6dke, President Date EMPLOYEE: I have accepted and agree to all the terms and conditions contained in this Agreement as of the date next to my signature. Patrick Wo am Date (Print Name)/ Page 8 of 8