Department of Justice
1162 Court Street NE
Salem, OR97301-4096
(503) 947-4700 / Fax: (503) 947-4791
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
I. RECITALS
1.This Settlement Agreement and Release (hereinafter “Agreement”) is entered into to resolve all claims between Michael Rodgers (“Rodgers”), represented by attorney Stephen L. Brischetto, and State of Oregon (“State”) is represented by Marc Abrams, Assistant Attorney-in-Charge.
2.If any provision of this Agreement shall ever be declared defective, void or voidable, or otherwise struck down or invalidated, the invalidation shall affect that particular provision only. The remaining provisions shall continue in full force and effect.
3.This Agreement does not establish a precedent in the settlement of any current or future grievance, claim of unfair labor practice, or other dispute among the parties, and shall not be admissible as evidence in any future arbitration, administrative or court proceeding except in a proceeding brought to enforce the terms of this Agreement.
4.In the event Rodgers pursues a claim waived or released pursuant to this Agreement, the State of Oregon may plead this Agreement as an absolute defense. This Agreement does not operate to waive any right that may not legally be waived.
5.This Agreement and all of the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns.
II. AGREEMENT
A. CONSIDERATION PAYABLE BY STATE
1.State agrees to pay
a.Rodgers the sum Two Hundred and Eighty Six Thousand Two Hundred Dollars and no cents ($286,200.00), payable as follows: the sum of One Hundred and Forty Three Thousand One Hundred Dollars and no cents ($143,100.00) on January 4, 2016,and the sum of One Hundred and Forty Three Thousand One Hundred Dollars and no cents ($143,100.00) on January 3, 2017; and
b.State agrees to pay to Rodgers’ attorney, Stephen L. Brischetto, legal fees in the amount of Twelve thousand One Hundred and Fifty Eight Dollars and 12/100ths ($12,158.12)
to settle all claims and potential or actual litigation or administrative actions. State shall complete Internal Revenue Service (“IRS”) form 1099 and/or such other documents as may be required by taxing authorities.
2.The State agrees to continue Rodgers’ current elected health insurance through December 31, 2015.
3.Rodgers currently has in excess of 300 vacation hours vested and will receive payment for 300 of said hours. Said payment to occur as soon as practicable upon execution of this settlement. Withholding per Rodgers’ tax forms currently on file will be taken out of this payment.
4.The State agrees not to initiate any lawsuit or administrative proceeding against Rodgers relating to the actions that resulted in his being placed upon administrative leave. The State reserves all rights in the event that a third party initiates a lawsuit or administrative proceeding against Mr. Rodgers and the State is cross-claimed or counter-claimed into that lawsuit or administrative proceeding, or in the event that a third party initiates a lawsuit or administrative proceeding against the State, and Mr. Rodgers is deemed, in the sole discretion of the State, an indispensable party who must be added by cross-claim or counterclaim.
B. CONSIDERATION FROM RODGERS
1.Rodgers voluntarily resigns from his employment with the State of Oregon, effective September 18, 2015.
2.Rodgers, individually and on behalf of his heirs, executors, successors, administrators, and assigns, hereby releases and acquits and forever discharges the State of Oregon, and all of its offices, departments, agencies, divisions, and institutions, including but not limited to State of Oregon, together with all of the State of Oregon’s current and former officials, employees, managers, and agents, whether elected or appointed, from any and all claims whatsoever which exist through the date of this Agreement, including demands, actions, suits, causes of action, obligations, controversies, debts, costs, attorney fees, expenses, all form of damages, damages, losses, employee compensation, employee benefits, judgments, orders, liens and liabilities of any, every and whatever kind or nature, whether in law, equity, or otherwise, whether based in contract, tort, statute, regulation, tariff, rule, indemnification, contribution, or any other theory of recovery, whether known or unknown, whether suspected or unsuspected, and whether or not concealed or hidden, which have existed or may have existed, or which do exist or which hereafter shall or may exist, based on any facts, events, or omissions that in any manner or fashion relate to or arise out of Rodgers’s employment with the State of Oregon or Rodgers’s claims. This includes any and all of Rodgers’s damages, including any damages, injuries and claims which are not anticipated or which develop in the future, and Rodgers hereby expressly waives and relinquishes any and all rights under any law or statute to the contrary. This release includes any claim arising from the negotiation and execution of this Agreement, including fraud in the inducement.
3.(a)In consideration of the payments set forth in paragraph II.A.1 of the Agreement, Rodgers waives, releases, and forever discharges Released Parties from any obligations for any claim, known or unknown, arising out of the failure of Released Parties to provide for a primary payment or appropriate reimbursement pursuant to 42 U.S.C. §1395y(b)(3)(A).
(b)The Rodgers, by his signature below, acknowledges that he understands this settlement may impact, limit or preclude Rodgers’s right or ability to receive future Medicare benefits arising out of the injuries alleged in this lawsuit, and nevertheless wishes to proceed with the settlement.
(c)Rodgers further agrees that he shall execute and deliver to the State of Oregon copies of all documents or agreements and do such further acts and things as the State of Oregon may reasonably request when necessary to effectuate the purposes of the Agreement, including but not limited to providing copies of all documents between Rodgers and Medicare regarding the reduction in the amount owed Medicare for Conditional Payments, either for financial hardship, equity and good conscience, or due to procurement costs, or any other reason.
Should any person or entity not a party hereto challenge the validity of this Agreement, or any term thereof, pursue recovery of monies from the Released Parties or bring a claim or claims against the Released Parties arising out of 42 U.S.C. §1395y(b) related to payment for items or services related to the injuries claimed in this action, Rodgers shall provide to Released Parties such cooperation and assistance as Released Parties may reasonably request in order to resist such a challenge or defend such a claim and Rodgers further agrees to defend, indemnify and hold the Released Parties harmless from any and all such claims of any nature.
(d)Rodgers acknowledges that all subrogation and lien claims arising out of contract or under state or federal law, including, but not limited to, subrogation or lien claims of Rodgers’s health care providers, insurance carriers (including PIP), state workers’ compensation, attorneys, and any federal agency or programs such as Medicare, Medicaid, or Social Security, are the sole and separate obligation of Rodgers which Rodgers agrees to pay or otherwise resolve. Rodgers further hereby covenants to defend, indemnify and hold harmless the Released Parties from and against all such lien and subrogation claims brought against the Released Parties.
4.Rodgers agrees to pay and satisfy all unsatisfied bills, charges, liens, subrogation rights, and reimbursement rights which are or may be presented or held by other persons or organizations having provided services, insurance benefits, or other value to himself or on his behalf as a result of the injuries and damages arising out of the transactions alleged in the matters described above, and he agrees to hold harmless from any such claims the parties being released, their agents, representatives, successors and assigns.
5.Rodgers understands and agrees that this is a compromise settlement, and payment is accepted voluntarily as full and final compromise, satisfaction and settlement of disputed claims and rights. He further understands and agrees that this settlement is not to be considered as an admission of any liability or fault whatsoever, in whole or in part, for the incident by the parties released by this Agreement, their agents, or representatives. He further understands and agrees that the parties who are released by this Agreement expressly deny any liability or fault whatsoever, in whole or in part, for any incident described and referred to by this Agreement.
6.There is no case filed herein. Except as otherwise noted, this settlement is without costs or fees.
7.The parties to this Agreement agree that no party warrants or represents how the United States Internal Revenue Service (“IRS”), Oregon Department of Revenue, or other governmental authority will treat the payment described in II(A)(1) above for tax purposes, and agree that no further payment of money from the State of Oregon will be due to Rodgers in the event that the payments or the release of the claims embodied in this Agreement or any portion thereof is found by the IRS, the Oregon Department of Revenue, or other governmental authority to be, or result in, taxable income to any party. The State of Oregon, as part of its reporting requirements, may have to communicate with the IRS or other taxing authority, including submitting IRS Form 1099, or other applicable forms. The State of Oregon reserves the right to respond to inquiries by the governmental authorities and to make any additional disclosures requested by the governmental authority or required by law. Rodgers understands that he is solely responsible for the tax consequences of the payments outlined above in II(A)(1). Rodgers agrees not to hold any other party to this Agreement responsible for taxes due and recognizes that he is solely responsible for any resultant tax payments associated with this release.
8.This release includes, but is not limited to, any claims that Rodgers may bring under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §621, etseq.) (“ADEA”) or the Older Worker’s Protection Act pursuant to the specific conditions set forth below in compliance with the ADEA.
(a)Rodgers acknowledges that he has consulted with legal counsel before signing this Agreement.
(b)By signing this Agreement, Rodgers acknowledges he waives any and all claims under the ADEA as of the date of signing this Agreement and realizes that neither he, nor anyone on his behalf, can sue the State of Oregon or any of its agencies, employees, or contractors, or insurers and their successors for any claims of discrimination based on age.
(c)Rodgers acknowledges that he may, but is not required to, take up to twenty-one (21) days to sign this Agreement.
(d)Rodgers acknowledges he has seven (7) days following the date he signs this Agreement to revoke his waiver of claims under the ADEA, and this portion of the Agreement will not become effective until the revocation period has expired. For such revocation to be effective, written notice of Rodgers’s intent to revoke must be sent or delivered to the Oregon Department of Justice, Trial Division, Civil Litigation Section, at 1162 Court Street NE, Salem, Oregon 97301, and the written notice must be received at the Department of Justice by midnight on the seventh (7th) calendar day after Rodgers signs this Agreement.
9.(a)Rodgers agrees that he shall not seek any employment with the State of Oregon.
(b)If Rodgers attempts to seek employment with the State of Oregon, any of its institutions, and agencies, including any of the named State, despite this Agreement, his application may be summarily denied without recourse and without liability against the State of Oregon, its institutions, agencies, officers, administrators, employees and agents. Rodgers further agrees that if he applies to the State of Oregon, the named State and any other State of Oregon agency or institution, and is hired, his employment may be summarily terminated without recourse or liability notwithstanding any statute or collective bargaining agreement under state or federal law that provides otherwise. Rodgers’s hiring shall not be deemed a waiver of this provision or the terms of this Agreement. If Rodgers should breach this Agreement, he shall defend, indemnify and hold the State of Oregon, its institutions, agencies, officers, administrators, employees and former employees and agents harmless from all claims of damages, litigation costs, attorney fees, and expert witness fees incurred in defending such a claim and in the enforcement of this paragraph and its subsections.
C. MUTUAL PROMISES
1.All parties understand and agree that this Agreement states the entire agreement between the parties in settlement of the above-described claims, and that the terms of this Agreement are contractual, binding on the parties, and not merely recitals.
2.No party warrants or represents how taxing authorities will treat the payments described above for tax purposes, and agree that no further payment of money to Rodgers from the State of Oregon will be due in the event that the payment or the release of the claims embodied in this Agreement or any portion thereof is found by a government authority to be, or result in, taxable income to any party.
3.All parties understand that this Agreement represents a full and final compromise, satisfaction and resolution of all of Rodgers’s potential claims, and Rodgers acknowledges that he relinquishes his claims knowingly, voluntarily, and intelligently. The State of Oregon denies any and all allegations of wrongdoing and denies liability for the claims described above.
4.The parties, on behalf of themselves, their agents, and their companies, further agree they will not make disparaging public statements to news media outlets regarding each other, insofar as such statements may relate to the factual allegations, transactions, claims and counterclaims alleged in the lawsuit.
5.The parties agree that PDF/facsimile transmitted signatures, to include those transmitted on separate photocopied pages of this document, are to be treated as original signatures for purposes of consummating this Agreement.
THIS IS ALL THE MONEY RODGERS WILL RECEIVE AS A RESULT OF THE INCIDENT REFERRED TO HEREIN. BY SIGNING THIS AGREEMENT, RODGERS ACKNOWLEDGES that he has carefully read and fully understands all provisions and effects of this Agreement; that the State of Oregon has advised him in writing, by this paragraph, to consult with his own personal attorney before signing this Agreement; that he has had sufficient opportunity to consult with attorney(s) before signing this Agreement; that he is voluntarily, freely, and knowingly entering into this Agreement free of coercion and duress; that neither the State of Oregon nor any of its agents or attorneys have made any representations or promises concerning the terms or effects of this Agreement other than those expressly set forth herein.
IT IS SO AGREED:
DATED this ______day of October, 2018.
______
MICHAELRODGERS
Subscribed and sworn to before me this ______day of October, 2018, in the State of Oregon, County of ______.
______
Notary Public for Oregon
My commission expires:______
DATED this ______day of October, 2018.
______
Authorized Signor for the Agency
Subscribed and sworn to before me this ______day of October, 2018, in the State of Oregon, County of ______.
______
Notary Public for Oregon
My commission expires:______
APPROVED AS TO FORM:
DATED this ______day of October, 2018.______
Stephen Brischetto, OSB #781564
Attorney for Rodgers
DATED this ______day of October, 2018.______
Marc Abrams, OSB #890149
Assistant Attorney-in-Charge
Attorney for State of Oregon
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