fenton settlement and release

8/10/2019 Fenton Settlement and Release

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SETTLEMENT GREEMENT ND RELE SE

This Settlement Agreement and Release ( Agreement ) is entered into between the

City o Carmel-by-the-Sea ( City ) and Leslie Fenton (Fenton ) with respect to the following

facts.

WHEREAS, Fenton began her employment with City

in

1995. Prior to her termination

on March 26, 2014, Fenton was employed by City

in

numerous capacities

in

the departments

o Administration , Fire and Planning and Building, including Administrative Coordinator at the

Fire Department, Finance Specialist/Coordinator in Planning and Administrative Services

Departments, Emergency Operations Center Dispatch and Training, and assistance with

Community Activities. She also served as Administrative Coordinator for the Planning

Commission .

WHEREAS, Fenton raised claims

o

wrongful termination and violation of due process

o law, discrimination, harassment, retaliation , defamation, deprivation of her property

interest, and breach of contract, among others, with City relating to her employment with the

City and her termination (hereinafter Claims );

WHEREAS, City and Fenton both now desire to compromise and settle the

aforementioned Claims and all claims, demands, complaints, actions, charges, litigation, and

causes of action, whether now known or unknown, that arise from the facts alleged in the

Claims or arising from Fenton's Claims against City or any of its members of the City Council ,

officers, agents, deputies, representatives, servants, employees, successors , assigns,

predecessors, divisions, branches, or attorneys (collectively The Releasees );

WHEREAS, the parties hereto acknowledge and agree that neither this Agreement nor

the act o entering into it constitute

an

admission, stipulation or concession of liability, express

or implied, on the part o any party concerning any fact or matter

in

any way connected with

the subject matter of this Agreement. Fenton acknowledges City is providing her with the

consideration mentioned herein for economic considerations in order to resolve all matters

related to her prior employment and termination which could

be

the basis of a claim or cause

o action or verdict or judgment based

on

alleged events occurring before the effective date of

this Agreement by avoiding the costs of litigation and trial.

NOW, THEREFORE, in consideration o the mutual covenants set forth below, the

parties agree as follows:

1 All of the recitals listed above are material provisions o this Agreement.

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2. In return for the consideration discussed in th is Agreement, Fenton, and on

behalf o her heirs, successors, and assigns, on the one hand; and City, its successors,

assigns, employees, officers, and directors,

on

the other hand; agree to forever release and

discharge each other and each other's predecessors, successors, employees, officers,

directors, and anyone else acting

on

behalf of such Releasees from any and all claims,

charges, liabilities, liens, damages and causes of action, obligations, and duties, known or

unknown, which the non-releasing party may have, or may claim to have, against any o the

Releasees arising out o or, in any way related to Fenton 's employment with City or any o the

Releasees, including any contractual or employment relationship or involvement, save and

except for the obligations stated

in

this Agreement. This Agreement specifically extends to

without limitation, claims or causes of action for defamation , deprivation o property interest,

violation o due process, discrimination, harassment, retaliation, breach of contract, wrongful

termination, breach o an express or implied contract, breach of the covenant of good faith

and fair dealing, breach o fiduciary duty or any other duty, fraud , misrepresentation,

interference with a contractual or other business relationship , infliction of emotional distress,

discrimination, harassment, disability, loss o future or past earnings, whistleblower-related

claims, and claims brought under the California State Constitution , the United Sates

Constitution, or applicable state and federal fair employment statutes and regulations,

including but not limited to: the Civil Rights Act o 1964, as amended; the Fair Labor

Standards Act, as amended; the Worker Retraining and Notification Act

o

1988,

as

amended; the Americans with Disabilities Act of 1990, as amended; the Rehabilitation Act of

1973, as amended; the Employee Retirement Income Security Act of 1974, as amended; the

Age Discrimination in Employment Act, as amended; and the California Fair Employment and

Housing Act, as amended. Nothing in this Agreement shall affect the U.S. Equal

Employment Opportunity Commission's (hereinafter EEOC ) rights and responsibilities to

enforce the Civil Rights Act o 1964, as amended; the Age Discrimination Employment Act of

1967, as amended; or any other applicable law, nor shall anything in this Agreement

be

construed as a basis for interfering with Fenton's protected right to file a charge with , or

participate in an investigation or proceeding conducted by, the EEOC, or any other state,

federal or local government entity; provided, however, if the EEOC or any other state , federal

or local government entity commences an investigation on Fenton's behalf, Fenton

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specifically waives and releases her right ,

i

any, to recover any monetary or other benefits or

relief o any sort whatsoever arising from any such investigation.

Fenton further agrees that upon the effective date of this Agreement she will

notify the California Department o Fair Employment and Housing (hereinafter DFEH ) and

EEOC that she has settled all Claims against City, and request DFEH and EEOC to dismiss

or rescind her DFEH and EEOC claim or claims with prejudice.

3

City shall reinstate Fenton to a permanent, full-time position as Executive

Assistant, Step Five with all benefits applicable to that position. Except as provided in the

Agreement, i Fenton's position is eliminated or i Fenton is terminated without cause by the

City while still willing and able to perform the duties of Executive Assistant, City agrees to

provide Fenton with thirty (30) days ' notice and to pay Fenton a cash payment equal to three

months o the then-current, aggregate salary. Said cash payments shall be paid through

payroll on the regular pay period intervals until exhausted. Fenton shall also be entitled to

assume any vacant position for which she

is

qualified in City employment

on

the date of

termination or any such position

in

City employment that becomes vacant within one year of

the date of termination. If Fenton is re-employed by the City within three months of the date of

termination, the City's obligation to pay severance pay shall cease

on

the date of Fenton's

reemployment.

In

the event Fenton is terminated because of her conviction o any felony, or

any crime involving moral turpitude, or any offense involving violation of her official duties or if

the City Administrator determines that she has misappropriated public funds, comingled

public funds with her personal funds , engaged in willful corrupt conduct in office, or

conducted herself in a manner to be determined as willful conduct that constitutes

misconduct according to the City's Personnel Rules, the City shall have no obligation to

continue employment of Fenton, to pay severance, or offer any position, open or otherwise,

as set forth

in

this paragraph. If Fenton is accused of such conduct she shall be entitled to a

hearing in accordance with the City's Personnel Rules to determine i cause exists for her

termination. Back pay and full benefits except for medical coverage, which is limited to 90-

day coverage prior to reinstatement, including but not limited to PERS credits , which shall be

reinstated at the 2% at 55 years o age, union retirement(s), deferred compensation,

longevity pay, salary base at no less than Fenton was receiving

on

March 27, 2014, vacation

and sick leave accrual, and holiday pay and General Leave Day pay for all applicable dates,

will be provided by City to Fenton for the period o March 27, 2014 through December 31 ,

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2014, subject to all applicable federal , state and local withholding taxes and deductions.

Fenton shall notify the City within 30 days of executing this agreement of her election to

receive CaiPERS credits from the City for the period of her employment by another public

entity. March 27, 2014, shall

be

Fenton's official reinstatement date, and she shall report to

work February

1

2015. Fenton shall receive

NO

salary or benefits for the month

of

January

2015. It is the intent

of

the parties that Fenton

be

reinstated with City at no loss of pay or

benefits except for the 90-day retroactive medical insurance coverage as set forth

in

this

paragraph.

No later than January

15

2015, City also shall pay directly to Fenton's private

attorney, Michelle Welsh ,

of

Stoner, Welsh and Schmidt, as a lump-sum payment not to

exceed 15,000, for all attorney's fees and costs in connection with the aforementioned

Claims to date of reinstatement with City. City shall also pay directly to UPEC Local 792 for

all costs, not to exceed 10,000,

in

connection with the aforementioned Claims to date of

reinstatement with City. In a good faith

ffort

to resolve all claims and in recognition

of

the

City's sincere efforts to make Fenton whole UPEC Local 792 agrees to waive attorney's fees.

City

is not providing any tax or legal advice, and the City makes no

representations regarding tax obligations or consequences, if any, related to the payments or

the Agreement. f any claim

is

asserted against the City by any taxing authority with respect

to this sum, Fenton agrees to hold City harmless, and to defend and indemnify City and the

Releasees from any cost, loss, liability, expense, penalty, or attorneys' fees arising from the

payments set forth above.

4. Fenton releases City and all of the Releasees from any and all complaints,

charges

of

discrimination or harassment, or related complaints or charges, requests for

information or grievances that are based on facts relating to Fenton's employment that

occurred up to the date she executes this Agreement. Fenton agrees to withdraw or to

dismiss, wi

th

prejudice, any other complaint, claim, lawsuit, request for information or

grievance that she has filed against City or any

of

the Releasees that are based upon facts

that occurred up to the date she executes this Agreement. This Agreement extends to any

such complaint, claim, request for information, lawsuit, grievance, or charge filed in any state

or federal court, with any administrative body, agency, board, commission or entity

whatsoever, relating to her employment or employment relationship with City.

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settle all Claims and hereby agrees to accept and assume the risk that any fact with respect

to any matter

in

this Agreement may hereafter be found to be other than or different from the

facts City believed at the time of this Agreement to

be

true, and agrees that this Agreement

shall

be

and will remain effective notwithstanding any such differences

in

fact.

8

Fenton hereby represents and warrants that she has

had

adequate information

concerning the Claims to make

an

informed decision and has, independently, and without

reliance

on

City, and based upon such information that she has deemed appropriate , made

her own analysis and decisions to enter into this Agreement.

9

City hereby represents and warrants that City has

had

adequate information

concerning the Claims to make

an

informed decision and has, independently, and without

reliance on Fenton, and based upon such information that they deemed appropriate, made

their own analysis and decisions to enter into this Agreement.

10. Fenton understands and expressly agrees that this Agreement shall bind and

benefit any spouse, domestic partner, heirs, agents, attorneys, representatives, and assigns.

11

. City understands and expressly agrees that this Agreement shall bind

and

benefit its past and present officials, officers, agents, and employees.

12

. Except as provided herein, each party bears

its

own costs and attorneys fees

in

relation to all expenditures made in regard to Claims being settled herein.

13 This Agreement shall supersede and render null and void any and all prior

agreements between the parties hereto, concerning the subject matter hereof, excepting

therefrom a Memorandum

of Understanding between City and a labor union, regarding

Fenton s position if it is brought within the Bargaining Unit during her employment, as well as

Constitutional property right protections in her position.

f

Fenton s position is brought into a

collective bargaining unit covered by a Memorandum of Agreement between the City and a

labor union, then the severance and rehire to open position provisions of Section Three shall

be null and void unless and until said position is removed from the unit or the unit no longer is

represented by a labor union .

14. Fenton represents that she has had a full opportunity to discuss the terms of

this Agreement with representatives of her own choosing, including J Ocean Mottley, Staff

Attorney for the United

Public Employees of California (UPEC) Local 792, and her attorney,

Michelle Welsh, of Stoner, Welsh and Schmidt, and that she has carefully read and fully

understands all of the provisions of this Agreement. Fenton represents that she is voluntarily

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City of Carmel-by-the-Sea

i')

Cu,Lj { t V \ ~

Leslie Fenton

APPROVED AS TO FORM AND CONTENT:

Donald G. Freeman, City Attorney

City

of

Carmel-by-the-Sea

J { / ~

Michelle Welsh

Stoner. Welsh and Schmidt

Attorney for Leslie Fenton

.

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J: ()(;ean Mottley ..

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staff At;torney

UPEC Lecal 792

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