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HomeMy WebLinkAbout23-100 Resolution No.23-100 RESOLUTION APPROVING SETTLEMENT OF CLAIMS OF JAMIE FLOYEL BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that it hereby approves and ratifies the execution of a Conciliation Agreement with the U.S. Equal Employment Opportunity Commission and Jamie Floyel and a Settlement and Release of Claims Agreement with Jamie Floyel by Richard G. Kozal, City Manager, copies of which are attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 26, 2023 Adopted: April 26, 2023 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Chicago District Office JCK Federal Building 230 S.Dearborn Street,Suite 1866 Chicago,IL, 60604 Phone:(800)699-4000 Fax:(312)588-1260 In the matter of- U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND Charge Number: 440-2020-03517 Jamie Floyel Charging Party 412 Birch Avenue Genoa,IL 60135 City of Elgin Respondent 150 Dexter Court Elgin,IL 60120 CONCILIATION AGREEMENT An investigation having been made under Title VI1 of the Civil Rights Act of 1964, as amended (Title VII), by the U.S. Equal Employment Opportunity Commission (EEOC) and reasonable cause having been found to believe that Respondent discriminated against the Charging Party because of her sex, female(pregnancy),by denying her sick leave donation,and that since at least 2013 and continuing to the present, Respondent has maintained an ordinance that discriminates against female employees because of their sex(pregnancy), in violation of Title VH,as amended, and Respondent having denied and not admitting that it discriminated against Charging Party.the parties do resolve and conciliate this matter as follows: GENERAL PROVISIONS I. The Charging Party agrees not to sue the Respondent with respect to any allegations contained in the above-referenced charge. The EEOC agrees not to use the above- referenced charge and the charge cross-filed with Illinois Department of Human Rights (IDHR) as the jurisdictional basis for filing a lawsuit against the Respondent. However, nothing in this Agreement will be construed to preclude the EEOC from bringing suit to enforce this Agreement in the event that the Respondent fails to perform the promises and representations contained herein. The parties agree that submission of this executed (00740412.DOCx v.2) Conciliation Agreement 440-2020-03517 Agreement to the EEOC will constitute a request to the EEOC for closure of the above referenced EEOC charge and the charge cross-filed with IDHR. 2. The EEOC does not waive or in any manner limit its right to process or to seek relief in any other charge or investigation including, but not limited to, a charge filed by a member of the Commission against Respondent. 3. Respondent agrees that it will comply with all requirements of Title VII, including sex, female (pregnancy) non-discrimination and compliance in regards to the sick leave ordinance. 4. Respondent agrees that it will not discriminate or retaliate against any person because of his or her opposition to any practice declared unlawful under Title VII, or his or her filing of a charge,or testifying or participating in any manner in an investigation,proceeding or hearing under Title VII. 5. The EEOC representative to whom all certifications and/or notifications required by this Agreement will be submitted is Grace Gountanis, Federal Investigator, U.S. Equal Employment Opportunity Commission, 230 South Dearborn Street, Suite 1866, Chicago, IL 60604, (312) 872-9684, grace.countanis ckeoc.gov. 6. The effective date of this Conciliation Agreement is the date it is fully executed. The duration of this Conciliation Agreement is two years. CHARGING PARTY RELIEF 7. Respondent agrees to pay Charging Party the total sum of Thirty Two Thousand and Five Hundred Dollars and Zero Cents($32,500.00),less required taxes and withholdings within thirty (30) business days of the date this Agreement is fully executed by all parties. The payment shall be reflected on a W-2, which shall be issued by Respondent to Charging Party. Respondent shall make such payment to Charging Party in connection with a regular City of Elgin payroll payment, less required taxes and withholdings. 8. Respondent agrees to pay Charging Party's attorney the total sum of Seventeen Thousand Five Hundred Dollars and Zero Cents ($17,500.00) as attorney's fees, within thirty (30) business days of the date this Agreement is fully executed by all parties provided the City receives the appropriate W-9 form. The payment shall be reflected on an IRS Form 1099, which shall be issued by Respondent to Charging Party's attorney. Charging Party's attorney shall be liable for any and all legal taxes that may be due under the law. Respondent shall send payment to Charging Parry's attorney, by United Parcel Service, return receipt requested to the following address: Kevin F. O'Connor O'Connor&O'Connor, P.C. 110 Schiller Street, Suite 212 Elmhurst,IL 60126 {00740412.DOCxv 2} 2 Conciliation Agreement 440-2020-03517 9. Respondent agrees to provide the EEOC verification of payments to the Charging Party and Charging Party's attorney within ten (10) business days of fulfilling the obligations specified in paragraph seven(7)and eight(8). 10. Charging Party and Respondent represent that they have negotiated and Charging Party will execute and deliver a Private Settlement Agreement separate from this Settlement Agreement. The EEOC has not participated in the negotiation of,is not a party to,and has no information regarding the Private Agreement other than the representation in the preceding sentence. POLICY 11. Respondent certifies that it has modified its sick leave donation ordinance(Ordinance No. S5-13) that results in failing to provide sick leave donation from another employee to pregnant female employees in order to comply with Title VH. Specifically, Respondent agreed to incorporate the following underlined language into the existing ordinance,which provides as follows: Any full-time employee is eligible to receive sick leave from employee or to donate sick leave to another employee under the following conditions: a) Sick leave may be donated to an employee by a qualified fellow employee if the former is suffering from a non-work related severe or life-threatening illness, injury impairment or physical or mental condition which has caused or would cause the employee to: 1. Be unable to perform the emplo\ee's regular work duties as documented by a medical doctor's certification describing the nature of the illness and prognosis. 2. Take leave without pay, including but not limited to short- or long-term disability payments. b) Sick leave may be donated to an employee for the birth of a child. for prenatal care and incapacitN related to pregnancy, and for medical condition related to pregnanc).which has caused or would cause the employee to: 1. Be unable to perform her regular work duties as documented by a medical doctor's certification describing the nature of the illness and Prognosis. 2. Take leave without pay. including but not limited to short- or lone;-term disability payments. 12. Within thirty(30)days of the date this Agreement is fully executed,Respondent agrees to publish its revised ordinance in accordance with paragraph eleven(11)of this Agreement. The revised ordinance will be distributed to all current employees and all new hires. (00740412.00cx v 2) 3 Conciliation Agreement 440-2020-03517 TRAINING 13. Respondent agrees to retain an experienced outside consultant to conduct annual training on Title VII for all City of Elgin supervisors, managers and directors as it relates to pregnancy discrimination. The purpose of this training is to educate City of Elgin employees on the definition of discrimination, including pregnancy discrimination, under Title VII, examples of conduct which constitute such discrimination or harassment, appropriate responses by management to complaints of discrimination or harassment and the rights and responsibilities of employees and management. All City of Elgin supervisors, managers and directors will be required to attend. The selection of the consultant and content of the training shall be subject to review by the EEOC.The training may be live or through video conference(Teams or Zoom). Any employee unable to attend (e.g., due to being sick/medical reasons) may complete training requirements through recorded modules. 14. Respondent agrees that within sixty(60)days of execution of this Agreement,it will submit the following information to the EEOC representative for review: a. Name, address and telephone number, resume, and appropriate credentials of the proposed trainer, b. Proposed date(s)of the training, c. Proposed contents of the training; And d. Name and title of each person who will attend the training. 15. Within sixty(60)days of Respondent submitting information in paragraph fourteen(14)to the EEOC,and the EEOC not having objected to the trainer,material and/or content of the training, Respondent shall begin the training as outlined in paragraph thirteen(13). If the EEOC objects to the proposed training,Respondent will submit a new proposal of training which addresses the EEOC's objections within fourteen(14)days of receiving the EEOC's objection. If the EEOC has not objected to the new training proposal, Respondent shall commence such training within sixty (60) days. Ten (10) days prior to the training, Respondent agrees to notify the EEOC of the date, time and location of the training. An EEOC representative may observe the training session. 16. Respondent agrees to certify to the EEOC within fifteen(15)days that the training was conducted and that all supervisors,managers and directors attended by listing each person employed by Respondent and each attendee's name, signature and position title. REPORTING 17. Every twelve months(12)for the duration of this Agreement,Respondent agrees to provide to EEOC a list of female employees that requested sick leave donation for the birth of a child,for prenatal care and incapacity related to pregnancy,or for medical condition related to pregnancy. For each listed individual, Respondent will submit the following (00740412.DOCxv.2) 4 Conciliation Agreement 440-2020-03517 information: a) name and contact information, b) position title, c) date when sick leave donation was requested, d) date when sick leave donation was approved, and e) date/reason when sick leave donation was not approved/denied,(if applicable). BREACH OF AGREEMENT 18. In the event that the terms of this Agreement are not fulfilled, this Agreement may be specifically enforced in court and may be used as evidence in a subsequent proceeding in which one of the parties alleges a breach of this Agreement. I have read this Agreement and I accept and agree to its provisions. DATE Jamie Floyel CHARGING PARTY April 13.2023 DATE City of Elgin Wy: ic and G. KozaIL City Manager RESPONDENT Approved on Behalf of the Commission: DATE Julianne Bowman DISTRICT DIRECTOR {00740412.DOCx v.2} 5 SETTLEMENT AND RELEASE OF CLAIMS AGREEMENT This Settlement and Release of Claims Agreement("Agreement")is made and entered into on the date set forth below by and between Jamie Floyel on behalf of herself, her spouse and dependents, her agents, representatives, attorneys, assigns, heirs, executors and administrators (hereinafter"Floyel"); and the City of Elgin, Illinois,including the City's affiliates,predecessors, successors, representatives, elected officials, attorneys, officers, agents and employees, individually and in their representative capacities(hereinafter"City"). WHEREAS, Floyel filed a charge of discrimination with the Equal Employment Opportunity Commission("EEOC"),bearing Charge No.440-2020-03517,on February 19,2020; WHEREAS, Floyel also cross-filed her charge of discrimination with the Illinois Department of Human Rights("IDHR"); WHEREAS, Floyel and the City wish to avoid the time, expense, and inconvenience of litigation and participated in the EEOC Conciliation process through their attorneys of record during which the parties hereby reached a settlement agreement, as described herein,without any admission of liability on the part of the City; NOW, THEREFORE, in consideration of the monies, mutual promises, and covenants contained in this Agreement and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,Floyel and the City agree as follows: 1) If Floyel signs this Agreement prior to signing the EEOC Conciliation Agreement attached hereto as Exhibit A, the City agrees to pay the total gross sum amount of Fifty Thousand Dollars($50,000),as follows: a. A one-time lump sum payment to Jamie Floyel in the gross amount of Thirty-Two Thousand Five Hundred Dollars and Zero Cents ($32,500.00), less required taxes and withholdings. The payment will be reflected on a W-2 Form and will be paid within thirty(30)business days of the date the Conciliation Agreement between the EEOC, the City, and Floyel is fully executed by all parties. The City will make such payment to Floyel in connection with a regular City of Elgin payroll payment, less required taxes and withholdings. For the purpose of clarification, it is agreed and understood that no additional pension contributions shall be deducted from such$32,500 payment. b. A one-time lump sum payment to "O'Connor & O'Connor, P.C." in the gross amount of Seventeen Thousand Five Hundred Dollars and Zero Cents ($17,500.00). The payment will be reflected on an IRS Form 1099, which will be issued within thirty(30)business days of the date after the Conciliation Agreement 1 between the EEOC, the City, and Floyel is fully executed by all parties provided that the City is in receipt of the appropriate W-9 Form. O'Connor&O'Connor, P.C. remain liable for any and all taxes that may be due under the law. The City will send the payment by United Parcel Service to the following address: Kevin F.O'Connor O'Connor O'Connor,P.C. 110 Schiller Street, Suite 212 Elmhurst, IL 60126 2) General Release of All Claims. In exchange for the consideration described in this Agreement, Floyel on behalf of herself, her spouse, dependents, agents, representatives, attorneys, assigns, heirs, executors and administrators (collectively "Floyel") releases, waives,and forever discharges the City including the City and the City's,elected officials, attorneys,officers and employees,past and present,individually and in their representative capacities(collectively"the City")from any and all known or unknown claims,actions,or liabilities arising out of her employment with the City from the start date of her employment with the City up to the Effective Date of this Agreement. This release and waiver includes,but is not limited in any way to: ➢ Any and all claims, actions, or liabilities arising under: the Illinois Human Rights Act, 775 ILCS 511 et seq.; the Illinois Whistleblower Act, 740 ILCS 174/1; the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq.; the Illinois Military Leave of Absence Act, 5 ILCS 325/et seq.;the Genetic Information Non- Discrimination Act ("GINA"); Title VII of the Civil Rights Act of 1964, as amended;42 U.S.C. §§ 1981, 1983, 1985, 1988;the Equal Pay Act;the Family and Medical Leave Act("FMLA"); the Americans with Disabilities Act("ADA"); the Rehabilitation Act of 1973;the Illinois Public Labor Relations Act("IPLRA"); the Fair Labor Standards Act, 29 U.S.C. 201 et seq.; the Uniformed Services Employment and Re-employment Rights Act;the Health Insurance Portability and Accountability Act of 1996;the Illinois Municipal Code, 65 ILCS 5/10-2.1 et seq., the City of Elgin Municipal Code;and/or any other claim whatsoever arising out of or relating to Floyel's employment with the City; ➢ Any and all claims,actions,causes of action or liabilities arising under any and all other federal, state, or local municipal statutes, laws, constitutions, ordinances, executive orders and/or regulations; ➢ Any and all claims, actions, causes of action or liabilities asserting the City has violated its personnel policies, handbooks or any covenant of good faith and fair 2 dealing or any express or implied contract of employment between Floyel and the City; ➢ Any and all claims,actions,causes of action or liabilities asserting the City violated public policy or common law, including but not limited to claims for: personal injury; invasion of privacy; whistle-blowing; retaliatory discharge; negligent hiring, retention or supervision; defamation; intentional, reckless or negligent infliction of emotional distress and/or mental anguish;intentional interference with contract; invasion of privacy; appropriation of likeness; negligence; detrimental reliance; loss of consortium to Floyel or any member of Floyel's family; and/or promissory estoppel; ➢ Any and all claims, actions, causes of action or liabilities asserting the City is in any way obligated for any reason to pay Floyel any damages, expenses, litigation costs (including attorneys' fees), backpay, frontpay, increased pension, disability or other benefits, vacation pay and sick pay, compensatory damages, punitive damages,and/or interest; and/or ➢ Any and all amendments to the foregoing statutes, federal common law, state common law, and claims under any other federal, state, or local statute, law, ordinance, regulation,policy,decision,or order. 3) Exclusion from Release. Excluded from this Agreement's waiver and release are: (1) claims that arise after the Effective Date of this Agreement; (2) claims under the Illinois Workers' Compensation Act;(3)rights,claims,or entitlements to/for: retirement benefits, pension benefits, disability benefits, duty-disability benefits, health insurance benefits or medical benefits; (4)any claims that cannot be waived by law,including but not limited to the right to file a charge with or participate in an investigation conducted by certain government agencies, such as the EEOC. However, Floyel waives her right to any monetary recovery should any federal,state,or local administrative agency(including,but not limited to, the EEOC)pursue any claims on her behalf arising out of or related to her employment with the City. No effect on Disability, Medical, Retlrement, Pension. This Agreement will have absolutely no effect whatsoever on Floyel's past,present,or future rights,claims,benefits, or entitlements; whether provided by law,rule,regulation, contract, collective bargaining agreement, plan, constitution, or any other means; relating in any way to: retirement, pension,disability,duty-disability,medical insurance and/or other insurance. 3 4) EEOC Charge. Floyel agrees not to sue the City with respect to any allegation contained in EEOC Charge No. No. 440-2020-03517 or any related charge cross-filed with the Illinois Department of Human Rights. 5) Non-Admission. Floyel and the City agree and acknowledge that this Agreement and the consideration described herein does not constitute and shall not be interpreted as an admission of any potential liability or wrongdoing on the part of the City. The City has expressly denied any liability or wrongdoing and continues to maintain that it has acted lawfully in connection with Floyel's employment with the City. The parties acknowledge and agree that this Agreement resulted from the parties' mutual desire to resolve any and all matters and controversies between one another and to avoid the time, and expense and inconvenience of litigation. 6) Entire Agreement. This Agreement constitutes the entire agreement between Floyel and the City. No other promises or agreements, either express or implied, shall be binding unless hereinafter reduced to writing and signed by Floyel and the City. 7) Neutral Construction. The language of all parts of this Agreement shall in all cases be construed as a whole, according to their fair meaning,and not strictly for or against any of the parties,regardless of who drafted the Agreement. 8) Severability. To the extent any portion of this Agreement may be held to be invalid or legally unenforceable by a court of competent jurisdiction, the parties agree that the remaining portions of this Agreement shall not be affected and shall be given full force and effect. 9) Counterparts. This Agreement may be executed in separate counterparts and each such counterpart shall be deemed an original with the same effect as if all Parties to the Agreement had signed the same document. Signatures transmitted by facsimile or email shall have the same legal effect as an original signature. 10)Choice of Law,Enforcement. This Agreement shall be enforced in accordance with the laws of the State of Illinois. Should City fail to timely pay any sum due to Floyel, and Floyel takes legal action to enforce this Agreement, Floyel will also be entitled to recover her costs and reasonable attorneys' fees in such action if she prevails. 11)Effective Date. The effective date of this Agreement is the date this Agreement is fully executed(the"Effective Date"). [SIGNATURE PAGE FOLLOWS] 4 AGREED: SW 4/12/2023 ID 2WSHPSXFEdpX1wJTZ2UXLDYq Jamie Floyel Date: L% April 13, 2023 City of Elgin,Illinois 1 Date: By: Richard G. Kozal,City Manager 5