Spaletta v. Potter

Filing 25

ORDER re 24 GRANTING STIPULATION and Agreement of Compromise and Settlement. Signed by Judge CLAUDIA WILKEN on 7/21/09. (scc, COURT STAFF) (Filed on 7/21/2009)

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JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division JENNIFER S WANG (CSBN 233155) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: [phone] FAX: [phone] [e-mail] Attorneys for Defendant STEPHEN DUGGAN, Esq. (SBN 153817) Law Offices 250 Healdsburg Ave., Ste 201 Healdsburg, CA 95448 707-473-2800 707-473-2801 (Fax) [e-mail] Attorney for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION JUDITH SPALETTA, Plaintiff, v. JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) No. 08-2323 CW STIPULATION AND AGREEMENT OF COMPROMISE AND SETTLEMENT; ORDER

IT IS HEREBY STIPULATED AND AGREED by and between plaintiff JUDITH SPALETTA ("Plaintiff") and defendant JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES (hereinafter "Defendant" or "Agency" ), by and through their undersigned counsel, as follows: 1. The parties do hereby agree to settle, compromise, and dismiss Judith Spaletta v.

STIPULATION AND AGREEMENT OF COMPROMISE AND SETTLEMENT; ORDER 1 08-02323 CW

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John E. Potter, Postmaster General of the United States, United States District Court for the Northern District of California, Case Number C 08-02323 CW ("This Action"), under the terms and conditions set forth herein. 2. The Agency agrees to issue a written statement to all rural route letter carriers at

the Ukiah Post Office stating that provisions in the Employee & Labor Relations Manual ("ELM") and the Agreement between the United States Postal Service and the Rural Letter Carriers' Association regarding Annual Leave will be applied equally to all rural route letter carriers in the Ukiah Post Office. 3. The Agency agrees to remove the Letter of Warning dated September 12, 2008

from Plaintiff's Official Personnel File ("OPF"). 4. The Agency agrees to waive any and all rights to seek repayment from Plaintiff of

any overpayment made to Plaintiff arising out of the Agency's November 2008 route adjustment at the Ukiah Post Office. 5. Plaintiff and her heirs, executors, administrators, assigns and attorneys hereby

agree to accept said Agency actions, in full and final settlement and satisfaction of all of the claims raised in This Action or that could be raised in This Action under the terms and conditions set forth herein. 6. It is also agreed, by and among the parties, that neither Plaintiff nor any of her

attorneys may make any claim for attorney's fees or other costs against Defendant, the United States, their agents, servants, or employees. It is also agreed, by and among the parties, that the respective parties will bear their own costs, fees, and expenses and that any attorney's fees owed by Plaintiff will be paid by solely by Plaintiff and not by Defendant. 7. In consideration of the Agency actions as set forth above, Plaintiff agrees that

she will execute immediately upon execution of this Agreement, a Stipulation of Dismissal with Prejudice pursuant to Federal Rule of Civil Procedure 41, which stipulation shall dismiss, with prejudice, all claims asserted in This Action or any claims that could have been asserted in This Action. The fully executed Stipulation of Dismissal will be held by counsel for Defendant, will
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be filed with the Court upon completion of all actions set forth above, and will be filed with the Court no sooner than 10 calendar days after the full execution of this Agreement. 8. In consideration of the Agency actions set forth above, Plaintiff and her heirs,

administrators, successors or assigns hereby release and forever discharge Defendant, and any and all of its past and present officials, directors, employees, agents, attorneys, successors, and assigns, either in their official or individual capacities, from any and all obligations, damages, liabilities, causes of actions, claims, and demands of any kind and nature whatsoever, whether suspected or unsuspected, arising in law or equity, known or unknown, which Plaintiff may have had, may now have, or may hereafter have arising out of or in connection with any event occurring prior to the date of this Agreement, including but not limited to, any alleged violation of Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Family and Medical Leave Act of 1993, the Age Discrimination in Employment Act of 1967; any other claim relating to plaintiff's employment with the Agency; and any and all claims that could have been asserted in This Action. The parties agree that this Agreement does and will not affect Plaintiff's entitlement, if any, to Office of Worker's Compensation Program benefits. This Agreement further does not apply to, nor does Plaintiff waive, payment for steward time, if any, that she has accumulated prior to the date this Agreement is executed for which she has not been paid assuming that Plaintiff has followed United States Postal Service procedures regarding any claim for payment. This Agreement further does not waive Plaintiff's right to be paid mileage for express mail delivered, if any, prior to the date this Agreement is executed assuming that Plaintiff has followed United States Postal Service procedures regarding any claim for payment. 9. The parties agree that this Agreement is not intended to waive Plaintiff's ability,

in her capacity as a Shop Steward, to file any timely grievance on behalf of her Union against the United States Postal Service regarding any grievance settlement entered into to add to each route 30 minutes for "withdrawal" and 5 minutes for "edit book time." 10. In consideration of actions to be taken by the Agency set forth above, Plaintiff

further agrees that she may not and will not use or rely on the incidents and actions underlying
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the Complaint or the EEO Complaints underlying This Action to prove any other claims against the Defendant, the United States, or its agencies and employees, in any other administrative proceeding, state court action or federal court action. 11. The provisions of California Civil Code Section 1542 are set forth below: A general release does not extend to claims which the creditor does not know or suspect to exist in her favor at the time of executing the release, which if known by her must have materially affected her settlement with the debtor. Plaintiff having been apprised of the statutory language of Civil Code Section 1542 by her attorney, and fully understanding the same, nevertheless elects to waive the benefits of any and all rights she may have pursuant to the provision of that statute and any similar provision of federal law. Plaintiff understands that if the facts concerning Plaintiff's alleged injury and the liability of Defendant, or its directors, officers, agents, servants, or employees, for damages pertaining thereto are found hereafter to be other than or different from the facts now believed by her to be true, this Agreement shall be and remain effective notwithstanding such material di fference. 12. The parties acknowledge that neither this Agreement nor anything contained

herein shall constitute an admission of liability or fault on the part of Defendant or its directors, officers, agents, servants, or employees. This Agreement is entered into by the parties for the purpose of compromising disputed claims, avoiding the expenses and risks of litigation, and buying peace. 13. This Agreement may be pled as a full and complete defense to any action or other

proceeding, including any local, state or federal administrative action, involving any person or party which arises out of the claims released and discharged by this Agreement. 14. The parties agree that the District Court shall retain jurisdiction over this matter

for the purposes of resolving any dispute alleging a breach of this Agreement. 15. Each party acknowledges that they have been represented by and have relied upon

independent counsel in negotiating, preparing and entering into this Agreement and that they have had the contents of this Agreement fully explained by counsel and that they are fully aware

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of and understand all of the terms of the Agreement and the legal consequences thereof. It is further acknowledged that the parties have mutually participated in the drafting of this Agreement and it is agreed that no provision herein shall be construed against any party hereto by virtue of the drafting of this Agreement. 16. Plaintiff acknowledges that she has been given more than twenty-one (21)

calendar days within which to review and consider this Agreement. Plaintiff further acknowledges that she has been given a reasonable time within which to review and consider this Agreement and represents that she is represented by counsel in this action, has conferred with her attorney prior to executing this Settlement Agreement, has examined and understands the provisions of 29 U.S.C. § 626(f)(1)(A-E), and that the requirements of those provisions are fully met and satisfied in connection with this Agreement. 17. If any provision of this Agreement shall be held invalid, illegal, or unenforceable,

the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 18. This instrument shall constitute the entire agreement between the parties, and it is

expressly understood and agreed that this Agreement has been freely and voluntarily entered into by the parties hereto with the advice of counsel, who have explained the legal effect of this Agreement. The parties further acknowledge that no warranties or representations have been made on any subject other than as set forth in this Agreement. 19. The parties agree that this Stipulation and Agreement of Compromise and

Settlement, including all the terms and conditions of this compromise settlement and any additional agreements relating thereto, may be made public in their entirety, and Plaintiff expressly consents to such release and disclosure pursuant to 5 U.S.C. § 552a(b). 20. The persons signing this Agreement warrant and represent that they possess full

authority to bind the persons on whose behalf they are signing to the terms of the settlement. /// /// ///
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21.

This Agreement may not be altered, modified or otherwise changed in any

respect except in writing, duly executed by all of the parties or their authorized representatives. DATED: July 13, 2009 By: /s/ JUDITH SPALETTA Plaintiff By: /s/ STEPHEN J. DUGGAN Attorney for Plaintiff JOSEPH P. RUSSONIELLO United States Attorney DATED: July 17, 2009 By: /s/ JENNIFER S WANG Assistant United States Attorney Attorneys for Defendant

DATED: June 26, 2009

ORDER PURSUANT TO THE ABOVE STIPULATION AND AGREEMENT, APPROVED AND SO ORDERED:

7/21/09 DATED: _____________ HONORABLE CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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