HomeMy WebLinkAboutPieti, Jerome N; 1989-08-14;@ 0
C. 7
SETTLEMENT AGREEMENT
AND
GENERAL RELEASE
This Settlement Agreement and General Release (hereafte
"Agreement") is made by and between Jerome N. Pieti (hereafte
"Pieti") and the City of Carlsbad, Raymond Patchett, Frank Mannen
and Frank Aleshire (hereafter collectively "City").
WHEREAS, a dispute has arisen between Pieti and the Cit
about Pieti's employment as the City's Personnel Direct(
regarding the terms and conditions of Pieti's employment;
WHEREAS, Pieti has filed administrative charges of discrim:
nation with the Department of Fair Employment and Housing and/(
the Equal Employment Opportunity Commission against the City frc
1986 to the present;
WHEREAS, Pieti has filed tort claims against the City frc
1986 to the present;
WHEREAS, on August 14, 1989, Pieti filed U.S. District Cou.
Case No. 89 1222 S (CM) alleging various employment discriminatic
claims;
WHEREAS, on July 30, 1990, Pieti filed San Diego Superi
Court Case No. N 48205 requesting reinstatement and backpay;
WHEREAS, on September 20, 1990, the City offered to pay Pie
gross pay of $80,476.00 (net pay of: $66,279.02) as compensati
for backpay and health insurance for the period betwe
December 31, 1988 and October 1, 1990;
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WHEREAS, on September 20, 1990, the City offered to reinstat
Pieti to the position of Personnel Director in the reorganizc
Department of Human Resources;
WHEREAS, on September 21, 1990, Pieti and the City stipulatc
on the record in Superior Court Case No. N 48025 that the mattf
would be continued to allow the parties to attempt to sett:
Pieti's pending state, federal, and administrative claims:
WHEREAS, on September 24, 1990, the parties appeared befoi
U.S. Magistrate McKee to attempt to settle all matters between tl
parties and agreed to settle this matter upon the terms set for1
in this Agreement:
WHEREAS, this Agreement is a settlement of disputed clah
and is not, in any way, an admission of any liability, fault (
wrongdoing on the part of either Pieti or the City.
NOW, THEREFORE, IT IS AGREED, WARRANTED AND REPRESENTED as
matter of settlement and compromise as follows:
1. The City shall pay Pieti as soon as reasonably possibll
but no later than October 5, 1990, gross pay of $80,476.00 (nl
pay of: $66,279.02) as back pay and health insurance for t
period January 1, 1989 to September 30, 1990, and Pieti
returned to employee status.
2. The City will pay Pieti the sum of $140,000 to reimbur
him for attorneys fees and costs, disputed back pay and any a
all other damages claimed by Pieti. The City shall pay Pieti th
sum within a reasonable time after final approval of this Agre
ment by the City Council, but in no event later than December 2
1990. If the City pays Pieti later than December 28, 199
interest shall accrue at the legal rate.
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3. Beginning on October 1, 1990, Pieti will be placed c
sick leave and when he has exhausted his sick leave, he will t
allowed to utilize his accrued vacation until February 28, 199:
Pieti will be restored to employee status in accordance herewil
by December 28, 1990. If the City does not restore Pieti by sa:
date, Pieti shall be entitled to interest at the legal rate (
$140,000 until restoration. Between October 1, 1990 ai
February 28, 1991, Pieti will continue to accrue vacation and 1
receive all employment benefits to which he is entitled. (
February 28, 1991, the City will pay Pieti for any of his unusc
vacation. The City shall indemnify and defend Pieti should ai
third party allege any illegal receipt or gift of public fundi
If Pieti does not survive until February 28, 1991, the City wi
pay any unpaid or unused leave balances or payments due hereunde
4. Pieti shall apply for a service retirement to be effei
tive March 1, 1991. Said application will be filed no later thq
December 31, 1990 and Pieti will furnish a copy of said applic<
tion to the City. The service retirement will represent his yea
of service with the City beginning January 26, 1972 through Febr
ary 28, 1991. The City will make appropriate retirement contrib
tions therefor. The City will cooperate with Pieti to facilita
processing of that application.
5. In consideration of the sums described here, Pie
agrees to execute, concurrently with this Agreement, both t
dismissal with prejudice of U.S. District Case No. 89 1222 S (C
(attached hereto as Exhibit A) and the dismissal with prejudice
San Diego County Superior Court Case No. N 48205 (attached
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Exhibit B). Pieti further agrees that this Agreement complete:
settles all litigation, tort claims, administrative charges (
discrimination, and any other charges or complaints filed by Piel
to date regarding his employment. Pieti agrees to prepart
execute, and file any documents necessary to dismiss any su(
charges and complaints in addition to the federal and state cast
listed in this paragraph.
6. The parties agree that all proceedings presently schec
uled in both the federal court or state court will be taken 0.
calendar pending the City Council's final approval of th
Agreement.
7. In consideration and inducement for this Agreemen
Pieti, on behalf of himself, his successors and assigns does ful
release and discharge the City, its past and present Councilmei
bers, officers, agents, employees, attorneys, successors, a
assigns from all actions, damages, liabilities of whatsoever ki
and character, including but not limited to attorneys' fees, a
common law contract or tort causes of action, unemployment insu
ance, employment discrimination of any kind, or violation of a
other federal, state, local or City ordinance, regulation, rul
or order arising out of his employment and/or the subject matt
of this Agreement. Pieti represents and warrants that he has n
assigned any other person or entity to assert any such claim
his behalf. Waiver of claims set forth herein is not meant
apply to rights of either party in workers' compensati
proceedings.
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8. As a further consideration and inducement for thj
Agreement, Pieti agrees that this Agreement shall apply to a:
unknown and unanticipated injuries and damages resulting from tl
issues raised in connection with the subject matter of this Agrec
ment, and hereby expressly waives the provisions of Californ.
Civil Code Section 1542, which states as follows:
"A general release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement with the debtor. "
9. Pieti agrees, warrants and represents for himself, h.
heirs, executors, administrators and assigns to indemnify and ho:
harmless the City from any claim, expense, demand, cause of actic
or loss incurred directly or indirectly through the assertion (
any stranger hereto of a claim or claims connected with the issuc
raised in connection with the subject matter of this Agreemen
including attorney's fees, and from any loss incurred directly (
indirectly by reason of the falsity or inaccuracy of any represe
tation herein by the undersigned.
10. Pieti expressly waives any and all rights of reimbursl
ment for damages or of legal representation that he might ha
pursuant to the Government Code Sections 825 and 995, respe
tively, and which arise out of the subject matter of th
Agreement.
11. This Agreement contains the entire understanding betwe
Pieti and the City. The terms of this Agreement are contractu
and not a mere recital.
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12. This Agreement shall be construed and enforced pursuai
to the laws of the State of California. All executed copies ai
duplicate originals and are equally admissible in evidence.
13. Pieti warrants that no promise, inducement or agreemei
not expressed herein has been made to him in connection with th
Agreement. Pieti acknowledges and agrees that he has been reprc
sented by an attorney with respect to the matters which are tl
subject of this Agreement, that his attorney has discussed th
Agreement with him and has fully advised him with respect to t:
rights and obligations he assumes by executing this document, a
that said attorney is hereby authorized and directed to take su
action that may be necessary or appropriate to complete th
Agreement. Pieti has entered into this Agreement voluntarily.
14. If any provision, or any portion thereof, contained
this Agreement is held unconstitutional, invalid, or unenforc
able, the remainder of this Agreement shall be deemed severabl
shall not be affected, and shall remain in full force and effect
15. The parties, by their signatures and initials here
have agreed as indicated, but the parties contemplate preparati
and signature of a "clean" copy of this Agreement.
FOR PIETI:
Dated: \240*?0
APPROVED AS TO FORM:
Dated: [ a- LC
rome N. Pieti
.
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FOR CITY:
Dated: 12- ?q -70
Dated: \&@ \\ -Q.o
Dated: /1 /f//90
City of Carls ad
Frank $Z%$meLL Mannen
Assistant City Manager
City of Carlsbad d
i d '7 '? (: z / -1 cd */ 27 //q *-- /&.+A-pC. r' /.l,[ /+4-*:- - < -_ r
Dated: Frank Aleshire
Mk APPROVED AS TO FORM:
Dated: beL 6. '490
Richard S. Whitmore, Esq.
Whitmore, Kay 6 Stevens
Attorneys for City of Carlsbad
Raymond Patchett, Frank Mannen, and Frank Aleshire
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RICHARD S. WHITMORE CYNTHIA O'NEILL HELENE L. LEICHTER WHITMORE, KAY & STEVENS
490 California Avenue, Suite 300
Palo Alto, California 94306 Telephone: (415) 327-2672
State Bar Nos. 041183 132334 144221
Attorneys for Defendants City of Carlsbad, Raymond Patchett, Frank Aleshire,
and Frank Mannen
THOMAS R. GILL, ESQ.
4275 Executive Square, Suite 800 La Jolla, California 92037 Telephone: (619) 286-9393 x2897
State Bar No. 061267
Attorneys for Plaintiff
Jerome N. Pieti
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JEROME N. PIETI, ) Case No. 89 1222 S
Plaintiff, ) STIPULATION FOR DI! 1
vs. 1 1 CITY OF CARLSBAD, RAYMOND PACHETTE ) [sic], personally and in his official)
capacity, FRANK ALESHIRE, personally )
FRANK MANNEN, personally and in his )
Defendants. )
) [FRCP 4l(a)(l)(ii)
and in his official capacity, and )
official capacity, )
1
)
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WHITMORE, KAY & STEVENS
ATTORNEYS AT LAW 490 CALIFORNIA AVENUE SUITE 300
PAL0 ALTO CALIF 94306 TELEPHONE (415) 327 2672
a 0
It is stipulated by and between the parties Jerome 1
the City of Carlsbad, Raymond Patchett, Frank Mannen, E
Aleshire that the above-entitled
prejudice.
Dated: i \1
\
Dated: &,6, t99a UfiLZi
Richard S. Whitmore, Esq
Whitmore, Kay 6 Stevens
Attorney for Defendants
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RICHARD S. WHITMORE CYNTHIA O'NEILL WHITMORE, KAY 6 STEVENS
490 California Avenue, Suite 300 Palo Alto, California 94306 Telephone: (415) 327-2672
State Bar Nos. 041183 132334
Attorneys for Respondent
City of Carlsbad
THOMAS R. GILL, ESQ.
4275 Executive Square, Suite 800 La Jolla, California 92037 Telephone: (619) 286-9393 x2897
State Bar No. 061267
Attorneys for Petitioner
Jerome N. Pieti
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO
NORTH COUNTY JUDICIAL DISTRICT
JEROME N. PIETI, ) Case No. N 48205
1
) [C.C.P. Section 581(b)(2)1
1 1 CITY OF CARLSBAD, 1 1
1
Petitioner, ) REQUEST AND CONSENT FOR DISI
vso
Respondent. )
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WHITMORE, KAY & STEVENS ATTORNEYS AT LAW
490CALIFORNIA AVENUE
SUITE 300
PAL0 ALTO, CALIF 94306 TELEPHONE (415) 327 2672
rl) m
The parties Jerome N. Pieti and the City of Carlsba
and consent to the dismissal of the above-entitled (
prejudice. 3 ($
i iid Dated:
Thomas R. ~ ill, Esq.
Attorneys r Petitioner hdL Dated: &e&&&.% b. M4C3
Richard S. Whitmore, Esc Attorneys for Respondent
City of Carlsbad
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