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4.10 SR 11-07-2022Request for Action To Item Number Ma Tor and CinT Council 4.10 Agenda Section Meeting Date Prepared by Consent November 7, 2022 Cal Pormer, Cit�T Administrator Item Description Reviewed by Settlement Agreement and Release of Claims Peter Beck, Citv Attornev Reviewed by Hannah Felix, LMC Attorne`T Action Requested Approve, by motion, a settlement agYeement and Yelease of claims with Mike Zappa. Background/Discussion The Cit�T of Elk River and Park Maintenance Worker i��ike Zappa have agreed to a settlement agreement and release of claims following a 1�linnesota Department of Human Rights claim and finding. The CityT Council discussed and provided direction regarding the settlement which is reflected in the final agreement. Financial Impact N/A Mission/Policy/Goal The Elk River Mission Statement Attachments ■ Agreement The Elk River Vision A 2a�elcolning co�nlnunity 2a�ith T evolutiona� y and spizzted T esou� cefulness, exceptional se�vice, and coln�nunity engagelnent that encou�ages and ins�iz•es pTo�pe�zty. rowEREo ar �I'1 ���� Up�iited.• August 2020 In the Matter o£ MDHR File No. 71166 EEOC File No. 26e202000060 MIKE ZAPPA, Charging Party, SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS vs. CITY OF ELK RIVER, Respondent. This Settlement Agreement and Release of Claims ("Agreement") is made by and between Mike Zappa ("Employee") and the City of Elk River ("City"). WHEREAS, on or about December 31, 2019, Mike Zappa filed an employment- related charge of discrimination against the City with the Minnesota Department of Human Rights; WHEREAS, on or about July 19, 2022, MDHR found probable cause to believe that Respondent violated the MHRA; and WHEREAS, the City has denied any liability or wrongdoing whatsoever relating to the allegations in Mike Zappa's claim; WHEREAS, in order to avoid the expense and uncertainty of litigation, the parties desire to mutually resolve and settle all disputes among them, known and unknown, in accordance with the terms and conditions hereinafter set forth; and WHEREAS, the City and Employee mutually desire to set forth the terms and conditions under which Employee will separate his employment. NOW THEREFORE, in consideration of the recitals and promises made herein, the parties agree as follows: Non-Admission. It is expressly understood and agreed that this Agreement shall not constitute and shall not be construed as an adjudication or finding on the merits of any claim or potential claim by Employee. Nor does this Agreement constitute or construe an admission of wrongful conduct or liability on the part of the City or its current or former officials, employees, volunteers, agents, representatives, or affiliates. 2. Pavment. In settlement and consideration for the release of any and all claims, grievances, or complaints, asserted or unasserted, the City agrees to pay Employee the total sum of Eighty Thousand Dollars ($80,000.00) ("Settlement Payment"). The Settlement Payment shall be made during the first week of January 2023 and the City shall issue Employee an IRS Form W-2 for 2023 with respect to the Settlement Payment 3. Se�aration Benefits: The City agrees to provide the following separation benefits to Employee, subject to the consideration provisions below. a. Pavout of earned and accrued Vacation/Sick/Com�ensatory Time. The City will pay Employee the following before the end of 2022: i. A lump sum payment of 40 hours of earned compensatory time per the Labor Agreement at the 2022 pay rate; ii. A payout of earned 240 hours of vacation per the Labor Agreement at the 2022 pay rate; and iii. A payout of one-half of 960 accrued hours (480 hours) of sick leave per the Labor Agreement at the 2022 pay rate. 4. Tax Treatment. The City makes no representations or warranties about any particular tax treatment of the payments. Employee enters into this Agreement only after consulting with his own attorney(s) and/or tax advisor(s) as to the characterization and treatment of such payment. In the event a taxing authority asserts a claim against Employee for federal or state income taxes, Social Security taxes, unemployment taxes and/or Medicare taxes, Employee stipulates and agrees that neither the City nor the League of Minnesota Cities Insurance Trust ("LMCIT") is responsible to said taxing authority for payment of that obligation, and Employee agrees to pay for any such obligation. Employee further agrees to indemnify the City and LMCIT for any taxes, penalties, and interest incurred by them as a result of Employee's failure to satisfy Employee's tax obligations, if any, with respect to the Settlement Payment and the Separation Benefits. 5. PERA Treatment. It is specifically understood and agreed that the City will comply with its obligations under the Public Employees Retirement Association ("PERA"), if any, with respect to the Settlement Payment and the Separation Benefits being provided to Employee pursuant to this Agreement. 6. Non-Monetary Terms. a. Resi�nation of Em�lovment. Within 10 days of full execution of the Agreement and prior to Employee's receipt of the Separation Benefits identified in Paragraph 3, above, the Employee shall submit to the City's designee a written resignation that acknowledges and confirms his resignation as an Employee of the City effective December 29, 2022. b. Paid Administrative Leave. Employee hereby acknowledges and confirms he was placed on paid administrative leave on October 31, 2022, and will continue on paid administrative leave until his resignation of employment on December 29, 2022. Employee shall not perform any duties for the City while he is on paid administrative leave. c. Return of Citv Pro�ert� Employee attests that he has returned to City any and all City property in Employee's possession or control including, but not limited to, all building keys. In the event the City believes the Employee has failed to return any City property, the City shall contact Employee's counsel and identify the City property in question. Employee's counsel shall facilitate the prompt and timely return of any City property in Employee's possession. 7. Mutual Release of Claims. In exchange for the above referenced payments in Paragraph 2, Employee for himself, his heirs, administrators, representatives, successors, and assigns, hereby releases and forever discharges the City, LMCIT, and their current and former officers, agents, employees, successors, and assigns from any 4 and all demands, debts, obligations or claims that were or could have been raised by Employee and that arise from or relate in any way to Employee's civil action/discrimination charge and/or claims and/or Employee's employment with the City, including, but not limited to, claims under the Age Discrimination in Employment Act (ADEA); Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA); the Genetic Information Nondiscrimination Act (GINA); 42 U.S.C. § 1981, § 1981a, § 1983, § 1985, § 1988; the Minnesota Human Rights Act (MHRA); Minnesota's whistleblower statute, Minn. Stat. § 181.932; Minnesota's Veterans Preference Act (VPA); the Peace Officer Discipline Procedures Act (PODPA); Minnesota's open meeting law, Minn. Stat. § 13D.01 et. al; the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. 13.01 et. al; Minnesota's independent review statute, Minn. Stat. § 179A.25; defamation; and/or any other claims under common law and any other applicable federal, state or local statute or ordinance, existing at any time up to and including the date of this Agreement, with the sole exception of any workers' compensation claim. In exchange for the consideration set forth in this Agreement, including Employee's release of claims and resignation, the City, for itself, LMCIT, and their current and former officers, agents, employees, successors, and assigns hereby release Employee from any and all demands, debts, obligations or claims that were or could have been raised by them and that arise from or relate in any way to Employee's employment with the City, and/or any other claims against Employee under common law and any other applicable federal, state or local statute or ordinance, existing at any time up to and including the date of this Agreement. 8. However, nothing in this Agreement should be construed to limit Employee's ability to file a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and/or Minnesota Department of Human Rights ("MDHR") and/or participate in any subsequent investigation. However, this Agreement prohibits Employee from obtaining any personal or monetary relief for himself based on such a charge or participation. 9. Consideration Period. Employee understands and acknowledges that he may take up to 21 days from the date of receipt of this Agreement to consider it and seek counsel to advise regarding the terms. Employee also represents that if he signs this Agreement before the expiration of the 21-day period, it is because he has decided that he does not need any additional time to consider whether he wishes to release any potential claims. 10. Voluntary and Knowing Action. Each person signing this Agreement specifically acknowledges that he/she has read the terms of the Agreement in full, has had the opportunity to consult with an attorney, understands the terms of this Agreement, and understands to be bound thereby in full. Those signing below in the representative capacity fully affirm or verify that he/she/they are authorized to execute this Agreement on behalf of their respective principals and that it is their principals' intent to be bound thereby in full. 0 11. Entire A�reement. This Agreement constitutes the entire Agreement of the parties. This Agreement supersedes any and all prior agreements. No modification shall be binding on any of the parties unless it has been agreed to by the parties in writing, signed by them, and identified as an amendment to this Agreement. There are no inducements or representations leading to the execution of this Agreement except as herein explicitly contained. 12. Governin� Law. Interpretation and construction of this Agreement shall be governed by the laws of the State of Minnesota. 13. Severabilitv. If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, the unenforceable provision shall be amended to the extent necessary to comfort to applicable law. If it cannot be so amended without materially altering the intention of the parties, it shall be severed here from. In either event, the remainder of the Agreement shall continue in full force and effect. 14. Counter�arts. This Agreement may be executed in multiple counterparts, which shall be construed together as if one instrument. In addition, any party shall be entitled to rely on any electronic or facsimile copy of a signature as if it were the original. 15. Government Data. All signatories to this Agreement acknowledge that the release of information concerning this matter is governed by the Minnesota Government Data Practices Act, Minn. Stat. § 13.43, subds. 2(a)(6) and 10. IN WITNESS WHEREOF, the City of Elk River and Mike Zappa have approved and executed this Settlement Agreement and Release of Claims. Date: 2022 Mike Zappa CITY OF ELK RIVER Date: 2022 By Its By Its