IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 10, 2012
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, AND DOES 1 THROUGH 15, INCLUSIVE, DEFENDANTS.
STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT
IT IS HEREBY STIPULATED by and between Plaintiff Jimmy Cochran and Defendant Erik K. Shinseki, Secretary of the United States Department of Veterans Affairs, by and through their respective attorneys as follows:
1. The parties do hereby agree to settle and compromise the above-entitled action under the terms and conditions set forth herein.
2. Defendant agrees to pay to Plaintiff Jimmy Cochran the sum of Thirty Thousand Dollars ($30,000.00), which sum shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, including claims arising under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, arising from the subject matter that gave rise to the above-captioned lawsuit.
3. Defendant further agrees to place Plaintiff into the position of Utilization Review Nurse, effective October 9, 2012, with the same rights and benefits of employment he possessed as an employee of the Veterans Administration as of September 10, 2012. Defendant also agrees to accept Plaintiff into the upcoming Emerging Leaders Development Program in the Summer of 2013, which is the next time that it is offered, and further agrees to fairly evaluate Plaintiff's work along with his peers.
4. Plaintiff hereby releases and discharges the Secretary of the United States Department of Veterans Affairs and any of his past and present officials, agents, employees, attorneys, insurers, their successors and assigns, from any and all obligations, damages, liabilities, actions, causes of action, claims and demands of any kind and nature whatsoever, whether suspected or unsuspected, at law or in equity, known or unknown, arising out of the allegations set forth in Plaintiff's Complaint. Plaintiff further agrees not to discuss the monetary amount of this agreement with any employees of the United States Department of Veterans Affairs.
5. This stipulation for compromise settlement shall not constitute an admission of liability or fault on the part of the Secretary of the United States Department of Veterans Affairs, the United States, its agencies, agents, servants, or employees, and is entered into by the parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation.
6. This Agreement may be pled as a full and complete defense to any subsequent action or other proceeding involving any person or party which arises out of the claims released and discharged by the Agreement, but shall not prohibit Plaintiff from bringing any future EEO claim or Title VII or ADEA lawsuit based on alleged future discriminatory treatment.
7. It is also agreed, by and among the parties, that the Defendant's commitments in paragraphs two and three represent the entire amount and obligation of the compromise settlement and that the respective parties will each bear their own costs, fees, and expenses and that any attorneys' fees owed by Plaintiff will be paid out of the settlement amount and not in addition thereto.
8. Payment of the settlement amount will be made by a check drawn on the United States Department of Veterans Affairs for Thirty Thousand Dollars and no cents ($30,000.00) and made payable to the Law Offices of Gay L. Carroll (Tax I.D. No. 85-0485523). The check will be mailed to the Law Offices of Gay L. Carroll, 770 L Street, Suite 950, Sacramento, CA 95814.
9. Plaintiff and his attorney are responsible for payment of any taxes that may be due on the settlement proceeds and Defendant makes no representation as to any tax consequences or liabilities Plaintiff and his attorney may incur as a result of this settlement. If any withholding or income tax liability is imposed upon Plaintiff based on payment of the settlement sum received herein, Plaintiff shall be solely responsible for paying any such determined liability from any government agency thereof. Plaintiff will indemnify and hold harmless Defendant from any liability it incurs from any government agency arising out of any failure by Plaintiff to pay for any liability he might incur from any government agency.
10. In consideration of this Agreement and the payment of the foregoing amount thereunder and placement of Plaintiff into the position of Utilization Review Nurse and Defendant's agreement to accept Plaintiff into the Emerging Leaders Development Program, Plaintiff agrees that upon receipt of the settlement check, he will deliver to Defendant's counsel a fully executed Notice of Dismissal.
11. Plaintiff has been informed that payment may take sixty days or more to process, but Defendant agrees to make good faith efforts to expeditiously process said payment.
12. The parties agree that should any dispute arise with respect to the implementation of the terms of this Agreement, Plaintiff shall not seek to rescind the Agreement and pursue his original causes of action. Plaintiff's sole remedy in such a dispute is an action to enforce the Agreement in district court. The parties agree that the district court will retain jurisdiction over this matter for the purposes of resolving any dispute alleging a breach of this Agreement.
13. 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 his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Plaintiff having been apprised of the statutory language of California Civil Code Section 1542 by his attorney, and fully understanding the same, nevertheless elects to waive the benefits of any and all rights he 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 injuries and the liability of the government for damages pertaining thereto are found hereinafter to be other than or different from the facts now believed by them to be true, the Agreement shall be and remain effective notwithstanding such material difference.
14. The parties agree that this Stipulation for Compromise 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).
15. 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 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. This Agreement may not be altered, modified or otherwise changed in any respect except by writing, duly executed by all of the parties or their authorized representatives.
16. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Dated: October 3 , 2012 /s/ Jimmy Cochran (original signature on file) JIMMY COCHRAN Plaintiff Dated: October 3, 2012 /s/ Gay L. Carroll (original signature on file) GAY L. CARROLL Law Offices of Gay L. Carroll Attorney for Plaintiff Dated: October 3, 2012 BENJAMIN B. WAGNER United States Attorney /s/ Edward A. Olsen EDWARD A. OLSEN Assistant United States Attorney
APPROVED AND SO ORDERED.
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