5/9/2017 9:37:04 AM 16CV18514 1 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF MARION 6 GERRITT LAW, 7 Plaintiff, AMENDED NOTICE OF SETTLEMENT 8 9 10 11 Case No. 16CV18514 Honorable Thomas M. Hart v. OREGON DEPARTMENT OF TRANSPORTATION, an Agency of the State of Oregon, Jane Lee, an Individual, and Gregg Dal Ponte, an Individual, ORS 20.140 - State fees deferred at filing Defendants. 12 Pursuant to ORS 17.095, the State notifies the court that this action has been settled 13 14 pursuant to the terms of a Settlement Agreement and Release, a copy of which is attached as 15 Exhibit 1. This Amended Notice of Settlement is being filed due to missing pages from 16 Exhibit 1 in the previous filing. 17 DATED May 9 , 2017. 18 Respectfully submitted, 19 ELLEN F. ROSENBLUM Attorney General 20 21 s/ Jill Schneider JILL SCHNEIDER #001619 ELLEANOR CHIN #061484 Senior Assistant Attorneys General Trial Attorneys Tel (971) 673-1880/Fax (971) 673-5000 jill.schneider@doj.state.or.us elleanor.chin@doj.state.or.us Of Attorneys for Defendants 22 23 24 25 26 Page 1 - AMENDED NOTICE OF SETTLEMENT JS/rh2/8250675-v1 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This action is currently pending in Marion County Circuit Court Case Number 16CV18514 ("Action"). The parties to this Action are Gerritt Law ("Plaintiff'), represented by Larry L. Linder, and the State of Oregon, Oregon Department of Transportation, Gregg Dal Ponte and Jane Lee, represented by Jill Schneider ("Released Parties"). This action concerns a dispute between the Parties in which the Plaintiff alleged whistleblowing and unlawful employment actions. Plaintiff is also represented by the Association of Engineering Employees ("AEE") pursuant to a collective bargaining agreement between AEE and the State of Oregon. AEE filed grievances on Plaintiff's behalf which are currently pending ("Grievances") arbitration. The Parties have agreed to settle this Action and Grievances for the consideration set forth in this Settlement Agreement and Release of Claims ("Agreement"). The terms of this Agreement are as follows: Settlement Payment: As consideration for Plaintiffs Release of Claims, and on behalf of the Released Parties described below, the State of Oregon, by and through the Oregon Department of Administrative Services/Risk Management ("Risk Management") and the Oregon Department of Transportation ("ODOT"), shall pay plaintiff the sum of Ninety-Five Thousand Dollars {$95,000] ("settlement payment"). The settlement payment will be divided in two parts: Risk Management will pay $40,000 and provide a 1099 to Plaintiff; ODOT will pay $55,000, including payroll deductions, and provide a W-2 to Plaintiff. Plaintiff's Release of Claims: In consideration for the above settlement payment, Plaintiff, individually and on behalf of any heirs, executors, administrators, successors, agents, and assigns agrees to release, acquit, and forever discharge defendants and all those in interest with them, including the State of Oregon and all of its political subdivisions, agencies, departments, administrators, officers, current and former employees, agents, attorneys, and insurers (collectively "Released Parties"), from any and all claims, demands, or causes of action, Page 1 Exhibit 1, Page 1 of 7 whether known or unknown, based upon or in any way related to Plaintiff's employment, under any legal, equitable, or other theory, that were or could have been raised in this Action, through the Effective Date of this Agreement. The release, acquittal, and discharge described above ("Release") includes any claims against the Released Parties - including the Oregon Department of Justice and Risk Management - arising from the negotiation or execution of this Agreement. This Release also includes any damages (including past and future medical and mental health expenses, lost wages, impairment of earnings, emotional distress, pain and suffering, punitive damages, and any other compensatory, economic, noneconomic, nominal, or other forms of damage) and equitable relief (including injunctions or declaratory judgments), whether known or unknown, based upon or in any way related to Plaintiff's employment, or which may develop after the effective date of this Agreement, and including any and all expenses (attorney fees, costs, and disbursements). Association Release: AEE hereby releases and forever discharges Agency of and from any and all liability, cause of action, grievance or claim, known or unknown, asserted or unasserted arising from the subject matter of the Grievances. Voluntary Agreement: Plaintiff represents and agrees that he is entering into this Agreement freely, voluntarily and without coercion. Grievant agrees that the Association and its legal representatives have fully and fairly represented him in all proccalings and other matters leading to the signing of this Agreement. Accordingly, Grievant irrevocably and unconditionally agrees to refrain from raising any claim for violation of the duty of fair representation or action of any nature against the Association or its representatives. Newly-Discovered Evidence: The Parties agree that if, after the Effective Date of this Agreement, they discover evidence different from or in addition to the evidence which they now know of or possess, this Agreement remains in full force and effect. Each Party is Responsible for Own Attorney Fees and Costs: The Parties acknowledge and agree that they are solely responsible for paying any attorney fees and costs Page 2 Exhibit 1, Page 2 of 7 they incurred and that neither the Parties nor their attorneys will seek any award of attorney fees or costs from the other Party. Plaintiff is Responsible for all Subrogation and Liens: Plaintiff acknowledges that all subrogation and lien claims arising out of contract or under state or federal law-including, but not limited to, subrogation or lien claims of or related to health care providers, insurance carriers (including personal injury protection or "PIP"), workers' compensation carriers, attorneys, and any federal or state agency or programs such as Medicare, Medicaid, or Social Security-are the sole and separate obligation of plaintiff which plaintiff agrees to pay or otherwise resolve. Plaintiff will defend, indemnify and hold harmless the Released Parties from and against all such lien and subrogation claims brought against the Released Parties. Neutral Reference: The State of Oregon ("State") agrees to give a neutral job reference, limited to starting and ending dates of employment, positions held by Plaintiff, duties of those positions, and ending salary to non-State of Oregon employers. The State agrees to provide no additional information. State of Oregon Department of Transportation managers who are contacted for a reference will refer the inquiry to the Deputy Human Resources Chief for the State of Oregon Department of Transportation. Plaintiff agrees to direct all reference inquiries to the Deputy Human Resources Chief for the State of Oregon Department of Transportation for this neutral job reference. No Reapplication: Plaintiff shall not seek any employment with the State of Oregon. If plaintiff attempts to seek employment with the State of Oregon, despite this Agreement, Plaintiff's application will be summarily denied without recourse and without liability against the Released Parties. If Plaintiff applies to the State of Oregon, and is hired, Plaintiffs employment will be summarily terminated without recourse or liability notwithstanding any statute or collective bargaining agreement under state or federal law that provides otherwise. Said hiring shall not be deemed a waiver of this provision or the terms of this Agreement. If Plaintiff should breach this Agreement, Plaintiff shall defend, indemnify and hold the Released Parties from all • Page 3 Exhibit 1, Page 3 of 7 claims of damages, litigation costs, attorney fees, and expert witness fees incurred in defending such a claim and in the enforcement of this paragraph and its subsections. No Tax Representations: No party warrants or represents how the United States Internal Revenue Service ("IRS"), the Oregon Department of Revenue, or other governmental authority will treat the settlement payment for tax purposes, and agree that no further payment of money from Released Parties will be due in the event that the payments or the release of the claims embodied in this Agreement or any portion thereof is found by the IRS, the Oregon Department of Revenue, or other governmental authority to be, or result in, taxable income to any party. The Released Parties, as part of their reporting requirements, may have to communicate with the IRS, including submitting IRS form 1099. The Released Parties reserve the right to respond to inquiries by said authorities and to make any additional disclosures requested by the governmental authority or as required by law. Plaintiff is solely responsible for the tax consequences of settlement payment, and plaintiff agrees not to hold the Released Parties responsible for taxes due. Entire Agreement: This Agreement contains and constitutes the entire agreement and understanding of the Parties, notwithstanding any and all prior negotiations, discussions, undertakings or agreements made in arriving at this Agreement. There are no representations, agreements, or inducements between the Parties except as sct forth expressly and specifically in this Agreement. No Admission of Fault or Future Precedent: The Parties agree that this Agreement is not to be construed as an admission or proof of any liability or fault whatsoever on the part of the Released Parties. This Agreement does not establish a precedent hr the settlement of any current or future grievance, claim of unfair labor practice, or other dispute among the Parties, and shall not be admissible as evidence in any future arbitration, administrative or court proceeding except in a proceeding brought to enforce the terms of this Agreement. In the event plaintiff pursues a claim waived or released pursuant to this Agreement, the Released Parties may plead this Agreement as an absolute defense. Page 4 Exhibit 1, Page 4 of 7 No Waiver: The failure by any of the Parties to enforce at any time, or for any period of time, any one or more of the terms or conditions of this Agreement or a course of dealing between the Parties, shall not be a waiver of such terms or conditions or of such Party's right to enforce each and every term and condition of this Agreement. This Agreement should not be construed as a waiver or modification of management rights by the State. As such, ODOT reserves its rights under the CBA, especially regarding the article on management rights. Likewise, this Agreement should not be construed as a waiver or modification of employee rights by AEE. As such, AEE continues to reserve its rights under the CBA. Cancellation Fee: If a cancellation fee ensues from the arbitrator, the State and AEE shall share equally the arbitrator's cancellation fee. Invalidity: This Agreement does not waive any right that may not legally be waived. If any provision contained in this Agreement shall for any reason be held to be invalid, illegal, void, or unenforceable in any respect, such provision shall be deemed modified so as to constitute a provision conforming as nearly as possible to such invalid, illegal, void, or unenforceable provision while still remaining valid and enforceable, and the remaining terms or provisions of this Agreement shall not be affected. Binding Agreement and Ownership of Claims: This Agreement shall be binding upon the Parties, and their heirs, representatives, exeouters, administrators, successors in interest, insurers and assigns. The Parties acknowledge that they have not transferred or assigned, or purported to transfer or assign, to any person or entity, any claim, or any portion of interest of any claim, that was or could have been raised in this Action. Acknowledgment of the Terms of the Agreement: By the signatures below, the Parties acknowledge that they have read and know the contents of this Agreement, that they fully understand the Agreement's terms, and that they enter the Agreement voluntarily for the purpose of making a full compromise and settlement. Each of the Parties further represents it has consulted or has had the opportunity to consult with legal counsel of its choice concerning the legal effect of this Agreement before signing it, and that each party executes this Agreement after Page 5 Exhibit 1, Page 5 of 7 voluntarily. Further, the persons executing and delivering the Agreement represent and warrant that they are fully authorized to do so, and that the execution of delivery of the Agreement is lawful and voluntary. Judgment of Dismissal with Prejudice: The Parties agree to a dismissal of the pending Action with prejudice, without costs or fees to either party. Counsel for defendants shall file a Stipulated General Judgment of Dismissal with Prejudice, which both Parties or their counsel will sign. Additionally, counsel for the defendants shall file a Notice of Settlement with a copy of this Agreement attached pursuant to ORS 17.095.) The Parties agree to execute these documents and any further documents and take any further actions, as may be reasonable and necessary, in order to carry out the purpose and intent of this Agreement. Waiver of Rule of Construction Against Drafter: This Agreement was jointly drafted and approved by all Parties to this Agreement. Any rule that would otherwise require any ambiguities in this Agreement to be interpreted against the drafter(s) is hereby expressly waived. Counterparts: This Agreement may be executed in counterparts, including counterparts received by facsimile or electronic transmission, with each counterpart constituting an original. The executing Parties agree that a photocopy or other signed copy of this Agreement is as effective as the original. IT IS SO AGREED TO BY THE PARTIES: DATED this [-.) 9 day of April, 2017. Plaintiff Subscribed and sworn to before me this a. LI day of April, 2017, in the State of Oregon, County of MD•viOr\ , gon Notary Publ. My comm on expires: pe c.. 10 , ab~ c3 OFFICIAL STAMP KYLIE ANN LERAIN NORTON NOTARY PUBLIC - OREGON COMMISSION NO. 934679A MY COMMISSION EXPIRES DECEMBER 10, 2018 Page 6 Exhibit 1, Page 6 of 7 LEE Aigor Oregon DepartinQllt of Transportation DATED this 0(- I day of April, 2017. DATED this day of April, 2017, 9- NETTIE PYE Oregon Department of A ministrative Services Labor Relations Unit uatij DATED this P./ day of April, 2017. LLE DAVIS APPROVED AS TO FORM: `-t,,A RRY L. LINDE , OSB 11110724 Attorney for Plaintiff DATED this I-t day of April, 2017, -74- :10 ie-- (I.<_ , ...4/1 tf A,, SaHNEIDER, OSB 11001619 Senior As*isinnt Attorney General . Attorney for Defendant State of Oregon day or April, 20] 7. DATED this DATED this IR f day of April, 2017. HALEY ROSE THAL, OSB 1/145755 Attorney for ABE Page 7 Exhibit 1, Page 7 of 7 1 CERTIFICATE OF SERVICE 2 I certify that on May 9 , 2017, I served the foregoing AMENDED NOTICE OF 3 SETTLEMENT 4 upon the parties hereto by the method indicated below, and addressed to the following: 5 Larry L. Linder Douglas J. Davis Law Office of Larry Linder LLC 3000 Market St. NE Ste. 150 Salem OR 97301 6 7 HAND DELIVERY x MAIL DELIVERY OVERNIGHT MAIL SERVED BY EFILING SERVED BY EMAIL 8 9 Of Attorneys for Plaintiff 10 11 s/ Jill Schneider JILL SCHNEIDER #001619 ELLEANOR CHIN #061484 Senior Assistant Attorneys General Trial Attorneys Tel (971) 673-1880/Fax (971) 673-5000 jill.schneider@doj.state.or.us elleanor.chin@doj.state.or.us Of Attorneys for Defendants 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page 1 - CERTIFICATE OF SERVICE JS/rh2/7482894-v1 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000