Martinez v. Potter

Filing 33

ORDER granting 32 Stipulated Motion to Remand to U.S. Merit Systems Protection Board for Enforcement of Settlement Agreement, and to Dismiss Civil Action by Judge Richard P. Matsch on 07/01/09. (Attachments: # 1 Settlement Agreement)(jjh, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-O2416-RPM-BNB CYNTHIA M. MARTINEZ,

Plaintiff,

v.
JOHN E. POTTER,Postmaster General,UnitedStatesPostalService,
Defendant.

SETTLEMENT AGREEMENT
It is hereby stipulated and agreedby and between .the undersigned parties and

their attorneysthat this action be settled,compromised, dismissedin accordance and with the followingterms: 1. Defendant John E. Potter,in his official. capacityas PostmasterGeneral (hereinafter -Defendant-). herebyagreesto the followingterms and conditions:
(a)
Defendant agreesto reinstate Plaintiffto her former position,Supervisor

Customer Services, EAS-17, Montclair Station, Denver, Colorado.

Plaintiffs assigned work scheduleshaJl 6:30 a.m. to 3:30 p.m.,with be Saturdayand Sunday off, which schedule shall not be unreasonably changedunlessthe legitimate business needsof the PostalService requireotherwise.Plaintiffshallbe reinstated effectiveJune 20, 2009,with a start date of June22, 2009.or as soonthereafteras reasonably possible.DefendantshaD provide30 daystrainingon the job at Montclair
1

Station to allow plaintiff to become familiar with the position and any

changesthat may haveocculTed sinceher removal.
(b) Defendant agreesto provideall applicable back pay and benefitsas if Plaintiff had continually remained employed with the Postal Service.
Including interest {per Postal Service ELM Section 436.73, at the Federal

Judgment interestrate)fromthe date of her removal,January26.2007. until June 22, 2009, the time she is set to commence work in the position identified in Paragraph (a), above.Said back pay and restoration 1 of

benefitsshall be madewithin60 daysthe date this Agreementis signed by all the parties. Plaintiffagreesto cooperate with the PostalService's effortsto timelyprocess provision.The back pay calculations this shall
take into accountand includeanysalaryincreasesthat Plaintiffwould have received, including without limit the PFP pay raises of 5.0% for FY

2007 and 5.0%for FY 2008.had she remainedemployedin herformer level 17 Supervisor positionat MontclairStation. The benefitsto be restoredshall includeall sick and annualleave.time in servicefor retirementand senioritypurposes, insurance, and any other benefits
whi.ch Plaintiff would have received had she remained employed

continually employed. Re-credited annual leave shall be treated as uncappedper the exception PostalServiceELM Section436.2.d.with to Plaintiffto have up 2 yearsto use or sell backany excessleave. (c) Defendantagreesto rescindPlaintiffsremovaland to expungeall
references to her removal from her OffIcial Personnel File (OPF) within 30 2

daysfrom the date this Agreement signedby all the parties. is (d)
Defendant agreesto pay Plaintiffs attorney,HartleyD. Alley, Esq.(Tax

EIN 841049937) lumpsum in the amountof $65.560.00,8Sand for a
attorney's fees and costs, within 60 days from the date this Agreement is

and mailedto: HartleyAlley,Atty.,23107Fairwayerg., San Antonio,TX 78258-7129.The Postal Service will not withhold any amount from this
lump sum for taxes or other reasons, but will report the amount to the IRS

on a form 1099 for both Plaintiff and Mr. Alley.

(e)

Defendant agreesthat an email will, within 30 days from the date this agreementis signed by all parties.be sent to Dean Granholm.Valerie Martin,SelwynEpperson, RolandFuentesand the entire
ColoradolWyoming DIstrict Labor Relations staff, with copy to Plaintiffs counsel at [e-mail],notifying them that Plaintiff's

removalhas beenoverturned the federaldistrictcourt and attad1lng by a
copy of Judge Match's decision of March 16,2009 (f) Defendant agreesthat. as requiredby law. it shall not retaliateagainstor harass Plaintiff on account of her having appealed the removal and having

pursuedthe claimsresolved herein.
(g) The parties shall jointly file a copy of this Settlement Agreement in the MSPB appealof Plaintiff'sremoval. 2. In retum for the consideration recited In paragraph one, and except as provided in paragraph three below, Plaintiff agrees1Odismiss with prejudice any and all 3

complaints, appealsor claimsshe may haverelatingto her employment with the Postal Service,includingthe above-captioned case,up to the date she signsthis Agreement.
Plaintiff further agrees that the aforesaid consideration in paragraph one .istendered

and acceptedin full settlementand satisfaction any and all claimsand demands,of of whatevernature,includingattorney's fees and costs,that Plaintiff,her heirs, executors,
administrators or assigns,had, may have,or may hereafter discoveragainstthe

Defendantor the UnitedStatesof America.its agencies,agents,servantsor ,
employees basedon eventsoccurring priorto the datethis agreementis fully executed,

including claimsallegedin this case,and any claimsaccruedas of the date of this all agreemenarisingout of her employment the federalgovernment. t with 3. Both Plaintiffand Defendant submita joint stipulation remandto the U.S. for
District Court (Judge Matsch) requesting the court to remand this case back to the Merit Systems Protection Board with direction for the MSPB to maintain authority to enforce

this Agreement, enforcement necessary.In the eventthe court declinesto do so, if is
then the parties agree to include a request in the joint stipulation that jurisdiction for
enforcement remain with the Court until the parties dismiss the case upon completion of

performance under this Settlement Agreement 4. This agreement shall not constitute an admission of liability or fault on the
part of the Defendant.

5. In conjunction with this stipulation, the parties further agree that they will, in conjunction and consistent with Section 3, above, execute and file a Stipulated Motion to Dismiss pursuant to Fed. R. CiV. P. 41(a)O){A}(ii),dismissing this case with prejudice.

.

9. This Agteement cannot be modified or amended except by an instrument in

writing, agreedto and signed by the parties.nor shaHany provisk>n hereof be waived
other U'Ian by a written waiver. ~ned by !he parties.

10. Ths Agreement shall be bilding upon and inure to the benefit of Plaintiff and Defendantand their ~ve heirs, executors,$Ucc~rs, assigns, and persooal

representatives, including any persoo,entity, depar1ment, agency sU<X:eeding the or to interestsŤ obUgations any party hereto.or having an Interestherein. of
11. The provisK>nsof this Agreement shall be deemed severable, aOO any
invaJicfliy or

unenfort:eabiity of anyone or more of its provisionsshall not affed the of the other pn)Yis~ herein. this Agreement with her-

val'kiityor enfo~ility

12. Plaintiff acknowledgesthat she has di~ -~

counsel,who has explained the Agreementto her. and that she understandsall of the terms and oonditionsof this Agreement. Plaintifffurther a~edges

that shehas

read this Agreement.understandsthe contentsthereof. and executes fttisAg reementof her own free ad and deed. The undersignOO representthat they are fuUyauthorizedto enter into this ag~enl DAVIDM. GAOUEnE
~~~ Cynthia ~ 7'1. M. Martinez '71? Q4;Z:: ~---

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Plaintiff
Date: Co- / s-. 09

Assistant U.S. Attorney 1225 SeventeenthSt., Suite 700 Denver,CO 80202 [phone] Attorney for Defendant

Date:.~241~~6

v-He ,iiAlley 23107 F BIg. San AntonkJ, 78258-7129 TX [phone] [e-mail] Attorneyfor Ptakttiff

~~
ROOerk* Eves United Slates Pt8ta Servk8 Date:

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Date: -~~~(Q+-

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