Seay v. McHugh

Filing 21

STIPULATION AND ORDER: AGREEMENT OF COMPROMISE AND SETTLEMENT. Signed by Magistrate Judge Laurel Beeler on 5/31/2016. (lsS, COURT STAFF) (Filed on 5/31/2016)

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BRIAN J. STRETCH (CSBN 163973)
United States Attorney
SARA WINSLOW (DCBN 457643)
Chief, Civil Division
JAMES A. SCHARF (CSBN 152171)
Assistant United States Attorney

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U.S. Attorney's Office/Civil Division
150 Almaden Blvd., Suite 900
San Jose, CA 95 I 13
Telephone: ( 408) 535-5044
Fax: [phone]
Email: [e-mail]

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Attorneys for Defendant Eric Fanning
Secretary of the United States Army

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD SEAY,

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Plaintiff,
v.
ERIC FANNING, Secretary ofthe United
States Army,

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Defendant.
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CASE NO. 15-CV-04064 LB
STIPULATION AND AGREEMENT OF
COMPROMISE AND SETTLEMENT AND
[PROPOSED] ORDER

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IT IS HEREBY STIPULATED by and between the parties, after full and open discussion, that
this action be settled and compromised on the following terms:
WHEREAS, on September 4, 2015, PlaintifiDonald Seay ("Plaintiff') sued Defendant John

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McHugh, former Secretary of the United States Army ("Defendant"), for discrimination, retaliation, and

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harassment under Title VII, 42 U.S.C. § 2000e, et seq., ("Title VII"), related to his employment at the

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United States Army Installation Management CMD, Directorate of Emergency Services, Law

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Enforcement Branch, Camp Parks Police Department, in Dublin, California ("Department").

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WHEREAS, on March 11, 2016, Defendant filed a partial motion to dismiss set for hearing on

July 21, 2016.
Stipulation and Agreement of Compromise and Settlement and [Proposed] Order
Case No. 15-CV -04064 LB

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WHEREAS, on May 26,2016, the parties participated in a private mediation with Shirish Gupta
of JAMS in San Jose.
WHEREAS, Plaintiff and Defendant wish to avoid any further litigation and controversy and to

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settle and compromise fully any and all claims and issues that have been raised, or could have been

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raised, arising out ofPlaintiffls employment with the Department.

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NOW, THEREFORE, in consideration of the mutual promises contained in this agreement, and

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other good and valuable consideration, receipt of which is hereby anticipated, the parties agree as

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follows:

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1. Settlement Amount. In full and fmal settlement of all claims related to Plaintiff's employment
with the Department, Defendant shall pay Plaintiff and his attorneys a total sum of $125,000.00. There
shall be no withholding from this amount. Plaintiff understands that this payment may be reported to the
Internal Revenue Service ("IRS"), and that any questions as to the tax liability, if any, as a result ofthis
payment is a matter solely between Plaintiff and the IRS. The Settlement Amount will be paid in two
separate checks: $75,000.00 payable to Donald Seay and $50,000.00 payable to Benjamin Law Group,
P .C. Defense counsel will promptly request the settlement checks from the Judgment Fund after the
Court issues its Order on this Stipulation and Agreement of Compromise and Settlement, and will
promptly send the settlement checks via Federal Express to Mr. Benjamin after he receives them from
the Judgment Fund. Plaintiff has been informed that the Judgment Fund may take sixty (60) days or
more to process to request for the settlement checks. To facilitate the request for the settlement checks,
Plaintiffs counsel will promptly provide defense counsel with his TIN and Plaintiffs SSN.
2. Release. In consideration of the payment of the Settlement Amount and the other terms set

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forth in this agreement, Plaintiff hereby releases and forever discharges Defendant, the Department,
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Richard Chappell, and any and all of their past and present officials, agents, employees, attorneys,
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insurers, their successors and assigns, from any and all obligations, damages, liabilities, actions, causes

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of actions, claims and demands of any kind and nature whatsoever, including claims arising under Title
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VII, whether suspected or unsuspected, at law or in equity, known or unknown, which arise from or
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relate to Plaintiffs employment with the Department.
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3. Attorneys' Fees. The parties agree that the cash amount described in Paragraph 1, above, is in

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Stipulation and Agreement of Compromise and Settlement and [Proposed] Order
Case No. 15-CV -04064 LB

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1 exchange for Plaintiff releasing and dismissing all claims for compensatory and special damages, back
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pay, front pay, interest, attorneys' fees, costs, restitution, reinstatement and any other form oflegal or

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equitable recovery relating to his employment with the Department. The parties understand that this

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amount includes full satisfaction of all claims for attorneys' fees and costs arising from work performed

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by Plaintiffls counsel or others at all stages of litigation, including, but not limited to, the processing of

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Plaintiffls administrative and district court complaints in connection with Plaintiffs employment with

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4. Dismissal. In consideration of the payment of the Settlement Amount and the other terms of

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this agreement, Plaintiff hereby dismisses with prejudice all claims asserted in this action, or could have

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been asserted in this action. However, the parties stipulate that the Court may retain jurisdiction to

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enforce the terms of this agreement.

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5. Waiver of California Civil Code Section 1542. The provisions of California Civil Code
Section 1542 are set forth below:

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"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."

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Plaintiff has been apprised of the statutory language of Civil Code Section 1542, and fully understanding

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17 the same, nevertheless elects to waive the benefits of any and all rights he may have pursuant to the
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provision of that statute and any similar provision of federal law. Plaintiff understands that, if the facts

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concerning Plaintiffls claims and the liability ofDefendant for damages pertaining thereto are found

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hereinafter to be other than or different from the facts now believed by them to be true, this agreement

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shall be and remain effective notwithstanding such material difference.

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6. Agreement as a Complete Defense. This agreement may be pled as a full and complete

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defense to any subsequent action or other proceeding involving any person or party which arises out of

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the claims released and discharged by this agreement.

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7. No Admission of Liability or Wrongdoing. This is a compromise settlement of disputed

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claims and demands, which settlement does not constitute an admission of liability or fault on the part of

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Plaintiff or Defendant, or any of Defendant's past and present officials, agents, employees, attorneys, or

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Stipulation and Agreement of Compromise and Settlement and [Proposed] Order
Case No. 15-CV-04064 LB

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insurers on account of the events described in Plaintiff's complaint in this action.
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8. Tax Liability. If any withholding or income tax liability is imposed upon Plaintiff based on

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payment of the settlement sum received herein, Plaintiff shall be solely responsible for paying any such

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determined liability from any government agency thereof. Plaintiff will indemnify and hold harmless

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Defendant from any liability it incurs from any government agency arising out of any failure by Plaintiff

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to pay for any liability she might incur from any government agency.

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9. Medical Liens. Plaintiff is solely responsible for satisfying any medical liens concerning any
treatment he received related to the events described in Plaintiffs complaint in this action.
10. Construction. Each party hereby stipulates that they are fully aware of and understands all

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of the terms of this agreement and the legal consequences thereof. For purposes of construction, this

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agreement shall be deemed to have been drafted by all parties to this agreement and shall not, therefore,

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be construed against any party for that reason in any subsequent dispute. It is acknowledged that the
parties hereto have mutually participated in the preparation of this agreement, and it is agreed that no
provision hereof shall be construed against any party hereto by virtue ofthe activities ofthat party or its
attorney.
12. Severability. If any provision of this agreement shall be invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the remaining provision shall not in any way be affected or
impaired thereby.
13. Integration. This instrument shall constitute the entire Agreement between the parties, and it
is expressly understood and agreed that the agreement has been freely and voluntarily entered into by the
parties hereto. The parties further acknowledge that no warranties or representations have been made on

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any subject other than as set forth in this agreement, including but not limited to Plaintiffs application
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tor tenure. This agreement may not be altered, modified or otherwise changed in any respect except by
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writing, duly executed by all of the parties or their authorized representatives.
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14. Authority. The signatories to this agreement have actual authority to bind the parties.
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Stipulation and Agreement of Compromise and Settlement and [Proposed] Order
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1 Agreement of ompromise

d [Proposed] 0

sel will keep

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er obtaining the necess

Plaintiff''s"ouns~ated regar · g the status of.

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Terms and ~lions.

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IT IS SO STIPULATED:

DATED: May 26,2016

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Donald Seay
Plaintiff

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l?JwUs
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DATED: May 26, 2016

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DATED: May 26, 2016

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Stipulation and Agreement of Compromise and Settlement and [Proposed] Order
Case No. 15-CV-04064 LB

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e approval

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[PROPOSED]ORDER

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Pursuant to stipulation, it is hereby ordered that the parties shall proceed with the terms of this

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Stipulation and Agreement of Compromise and Settlement. All case management dates, including the

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July 21, 2016 hearing on Defendant's motion to dismiss and Case Management Conference, are hereby

5 vacated. This case is hereby dismissed with prejudice pursuant to settlement, and the Clerk shall now
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close this file. However, by stipulation ofthe parties, the Court will retain jurisdiction to enforce the

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IT IS SO ORDERED.

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Dated: May_, 2016

HON. LAUREL BEELER
United States Magistrate Judge

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Stipulation and Agreement of Compromise and Settlement and [Proposed] Order
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