Harrisburg Schools settlement with Gerald Kohn

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GERALD KOHN, JULIE BOTEL No. 1:11-cv-OOl09 and REBECCA HOSTETLER,

Plaintiffs,

VS.

SCHOOL DISTRICT OF THE CITY OF HARRISBURG, et al.,

Defendants,

VS.

LINDA THOMPSON; JAMES E. ELLISON, ESQ., and RHOADS & SINONLLP,

Third-Party Defendants.

SETTLEMENT AGREEMENT AND RELEASE

THE PARTIES

This settlement agreement and release (the "Agreement") is entered into by and

among the following parties (who shall be referred to collectively in this Agreement as

the "Parties"):

GERALD W. KOHN, JULIE BOTEL, AND REBECCA HOSTETLER,

(hereinafter collectively referred to as the "PLAINTIFFS"),

SCHOOL DISTRICT OF THE CITY OF HARRISBURG (hereinafter the

"SCHOOL DISTRICT"),

BOARD OF SCHOOL DIRECTORS OF THE SCHOOL DISTRICT OF THE

CITY OF HARRISBURG, LOLA LAWSON, LIONEL GONZALEZ, WAYNE

HENRY, RANDY KING, JEFFREY MOORE, TIFFINEY PENN, PATRICIA

WHITEHEAD-MYERS, ROY E. CHRIST, ESTHER EDWARDS IN THEIR

OFFICIAL AND INDIVIDUAL CAPACITIES (hereinafter collectively referred to as the

"ELECTED BOARD"),

SETTLEMENT AGREEMENT AND RELEASE 1 of 13

BOARD OF CONTROL OF THE SCHOOL DISTRICT OF THE CITY OF

HARRISBURG, GLORIA MARTIN-ROBERTS, HERBERT GOLDSTEIN, SANFORD

LONG, JENNIFER SMALLWOOD, AUTUMN COOPER, ROY E. CHRIST, ESTHER

EDWARDS IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES (hereinafter

collectively referred to as the "BOARD OF CONTROL"),

JAMES E. ELLISON, RHOADS & SINON LLP, AND LINDA D. THONIPSON

(hereinafter collectively referred to as the "THIRD-PARTY DEFENDANTS" and,

together with the SCHOOL DISTRICT, ELECTED BOARD, and BOARD OF

CONTROL, the "DEFENDANTS").

WHEREAS, Plaintiffs were terminated from their employment with the School

District as a result of certain actions that occurred on or about March 15,2010, and May

17, 2010, and on account of which the Plaintiffs initiated legal action in the Court of

Common Pleas ofDauphin County, which certain Defendants then removed to the United

States District Court for the Middle District of Pennsylvania, where it was captioned as

Kahn v. School District, No. 1:11-cv-00109 (hereinafter Kahn v. School District);

WHEREAS, in Kahn v. School District, the SCHOOL DISTRICT has asserted

cross-claims against BOARD OF CONTROL members Gloria Martin-Roberts, Herbert

Goldstein, Autumn Cooper, Sanford Long, and Jennifer Smallwood and third-party

claims against the THIRD-PARTY DEFENDANTS;

WHEREAS, the SCHOOL DISTRICT has filed a writ of summons against

JAMES E. ELLISON and RHOADS & SINON LLP, captioned School District of the

City of Harrisburg v. Ellison, No. 2012-CV-2212 (Dauphin Co.) (hereinafter School

District v. Ellison and, together with Kahn v. School District, the "Litigation"); and

WHEREAS, the DISTRICT approved a settlement of the Litigation by an

authorized vote of the current Board of School Directors of the School District of the City

of Harrisburg at its regular legislative meeting on December 17, 2012;

NOW THEREFORE, the Parties, intending to be legally bound and for other good

and valuable consideration, the sufficiency of which is hereby acknowledged, including

the recitals, covenants, and promises set forth herein, agree as follows:


SETTLEMENT PAYMENT

1. DEFENDANTS shall pay to PLAINTIFFS the sum of $2,375,000.00.

School Boards Insurance Company of Pennsylvania, Inc., on behalf of, and as

insurance carrier for, the SCHOOL DISTRICT, shall be responsible only for payment of

$2,000,000 of this amount. The SCHOOL DISTRICT shall be responsible only for

payment of $125,000 of this amount. JAMES E. ELLISON and RHOADS & SINON

LLP shall be responsible only for payment of $250,000 of this amount. Neither the

ELECTED BOARD, BOARD OF CONTROL nor LINDA D. THOMPSON, in their

official and individual capacities respectively, shall have any obligation to contribute any

portion whatsoever of the settlement payment set forth in this Paragraph.

Together with the releases set forth in Paragraph 3, below, the payment of

$2,375,000.00 shall constitute the only consideration from DEFENDANTS to

PLAINTIFFS pursuant to this Agreement. PLAINTIFFS and DEFENDANTS agree and

confirm that this payment and the releases set forth in paragraph 3 constitute good and

valuable consideration with respect to all DEFENDANTS, including THIRD-PARTY

DEFENDANTS, with respect to this Agreement.

2. Payment shall be made as follows: (1) all Parties shall sign this Agreement

in original or in counterpart and provide copies of the pages bearing their signatures to

counsel for Plaintiffs (hereinafter, "Mr. Cohen") no later than February _, 2013; (2)

when he has received originals or counterparts that, in the aggregate, include signatures

of all parties, Mr. Cohen will circulate to all counsel by electronic mail a fully executed

copy of the Agreement; (3) within one business day after receiving the fully executed

copy of the Agreement, those parties with payment obligations pursuant to Paragraph 1 of

this Agreement shall tender such payments to Mr. Cohen's office by hand-delivered

check or wire made payable to "Obermayer Rebmann Maxwell & Hippel LLP" (Tax Id.

No. 23~0549120); (4) upon receipt and successful negotiation upon bank deposit of all

such payments, Mr. Cohen shall notify all counsel by electronic mail of the receipt

thereof; (5) within one business day after such notification by Mr. Cohen, Plaintiffs shall

file in the federal court the dismissal stipulation attached to this Agreement as Exhibit

"A" with the electronic signatures of all counsel and counsel for the SCHOOL

DISTRICT shall file in the Court of Common Pleas of Dauphin County (and serve on


counsel for MR. ELLISON and RHOADS & SINON LLP) the praecipe to discontinue

attached to this Agreement as Exhibit "B."

RELEASES

3 Release. In consideration of the payment set out in Paragraph 1

above and in consideration of this Agreement and the recitals, covenants, and promises

set forth elsewhere in this Agreement, the Parties do fully, completely, unconditionally

and irrevocably remise, release, and forever discharge one another, jointly and/or

severally, from all, and all manner of, actions, causes of action, suits, claims, demands,

judgments, damages, costs, expenses, liens, attorneys' fees, and any and all other claims

of whatever kind and nature whatsoever, whether based in law or in equity, including, but

not limited to direct claims, counterclaims, cross-claims, third-party claims, and/or any

and all other claims, whether presently known or unknown, filed or unfiled, asserted or as

yet unasserted, that were or could have been raised in the Litigation, that relate in any

way to the Litigation, or that relate in any way to PLAINTIFFS' separation from their

employment with the School District in 2010, which include but are not limited to any

claims, rights and causes of action arising under any and all state and federal statutes

relating to employment and/or compensation, claims for attorney fees, any claim of

violation of federal or state constitutional or statutory rights, substantive or procedural,

and any claim under common law, tort and/or contract theories, whether such claims are

known or unknown, foreseen or unforeseen (hereinafter the "Released Claims"). For

purposes of this paragraph and the releases provided by it, the term "Parties" includes the

persons and entities so designated in the recitals along with their successors, assigns,

present and past partners, associates, insurers, legal counsel, agents, dependents, heirs,

executors, administrators, personal representatives, related subsidiaries and affiliated

companies, officers, stockholders, and employees. The Parties represent and warrant that

no interest in Released Claims has been assigned.

TAXES

4. PLAINTIFFS agree that they will be solely responsible for any and all

personal tax obligations and liabilities arising from receipt of the payment set forth in

Paragraph 1, above, and PLAINTIFFS further agree to indemnify and hold harmless all

other Parties from any and all tax consequences, penalties, interest or any other claims

SETTLEMENT AGREEMENT AND RELEASE 40f13

brought by anyone or entity as a result of the payment or form of payment required by

this Agreement.

COVENANTS AND PROMISES

5. Discontinuance. As set forth in Paragraph 2 above, PLAINTIFFS and the

SCHOOL DISTRICT shall dismiss with prejudice their respective claims in Kahn v.

School District, and the SCHOOL DISTRICT shall discontinue its writ of summons filed

in School District v. Ellison.

6. Waiver of ADEA claims. PLAINTIFFS confirm that, after reasonable

time within which to consider this Agreement and with guidance of legal counsel, hereby

knowingly and voluntarily agree to release and discharge any and all claims, rights or

remedies under the Age Discrimination in Employment Act of 1967, as amended

("ADEA")~ Title VII of the Civil Rights Act of 1964~ the Americans with Disabilities

Act; the Employment Retirement Income Security Act of 1974, as amended; and any

other federal, state or local statute or regulation that relates to their employment with

SCHOOL DISTRICT that may exist as of the date on which PLAINTIFFS execute this

Agreement. PLAINTIFFS acknowledge and agree that they have been advised to consult

with an attorney regarding this Agreement before its execution. PLAINTIFFS also

acknowledge and agree that they have been advised that an employee waiving rights

under the ADEA is entitled to twenty-one (21) days within which to consider this

Agreement. PLAINTIFFS acknowledge that they may execute and return this Agreement

earlier if they so decide, and that any party executing and returning this Agreement

during the twenty-one (21) day period, will waive his or her right to consider the

Agreement for the twenty-one (21) day period. PLAINTIFFS have seven (7) days

following the execution of this Agreement to revoke the waiver set forth in this

paragraph. This Agreement will not become effective or enforceable until this seven (7)

day revocation period has expired. PLAINTIFFS may revoke this Agreement in a

writing delivered to John Freund, Esquire; King, Spry, Herman, Freund & Faul, LLC~

One West Broad Street, Suite 700~ Bethlehem, PA 18018.

7. No Admission of Wrongdoing. The Parties hereby agree and

acknowledge that this Agreement is a result of a full and complete compromise ofmatters

involving disputed claims and that payment of the above-referenced sums shall not be


considered an admission of any liability or wrongdoing on the part of any Party, which is

expressly disclaimed.

8. Governing Law and Venue. The Parties hereby agree that this Agreement

shall be governed, construed and enforced subject to the laws of Pennsylvania and venue

for any legal action brought pursuant to this Agreement shall be the Court of Common

Pleas of Dauphin County, Pennsylvania, or the United States District Court for the

Middle District of Pennsylvania.

9. Acknowledgment of Understanding. The Parties state that they have

carefully read this Agreement, know its content and freely and voluntarily agree to all of

its terms and conditions. Each party warrants that it has obtained and utilized the advice

of counsel with regard to this Agreement. The Parties further represent, warrant and

covenant that no statement or representations, implied or expressed, made by the

opposing party or the opposing party's counsel, has influenced or induced them to

execute this Agreement.

10. Entire Agreement. The terms and conditions contained in this Agreement

supersede all prior oral or written understandings among the Parties. Further, this

Agreement contains the entire agreement between the Parties and the terms and

conditions of this Agreement are contractual and not mere recitals. If any portion of this

Agreement shall be declared void or found unenforceable by a Court or an administrative

agency of competent jurisdiction, then such portion shall be deemed severed from the

Agreement and the remaining terms shall continue in full force and effect.

11. Amendment. This Agreement may not be modified except upon express

written consent of all Parties wherein specific reference is made to this Agreement.

12. Waiver. Failure or delay on the part of any Party hereto to enforce any

right, power or privilege hereunder shall not be deemed to constitute a waiver of any

other provision of this Agreement.

13. Successors. This Agreement shall be binding upon and inure to the benefit

of the Parties and their respective successors, heirs, legal representatives, executors,

administrators, assigns, present and past directors, attorneys, agents, personal

representatives, related subsidiaries and affiliated companies, officers, stockholders, and

employees.


14. Capacity to Enter into Agreement. The signatories to this Agreement

hereto covenant, represent and warrant that they are of legal age, are under no disability,

and have the mental capacity and authority to legally bind themselves and/or the entity on

behalf of which they execute this Agreement, and that they each have taken all necessary

corporate, legislative, legal and other action to duly approve the entering into and the

execution of this Agreement, and that no further action or approval is necessary to make

this a final and binding Agreement. The Parties hereby represent and warrant that the

making and performance of this Agreement will not violate any provision of law or of

their respective articles of incorporation or by-laws, policies or procedures.

15. Copies/Counterparts. Photocopies or facsimile versions of this Agreement

and counterparts (provided that they do not bear differing insertions or interlineations)

shall be considered the same as a single original copy.

[Signatures on following pages]


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IN WITNESS WHEREOF, this Agreement has been signed by the Parties below

on the date indicated.

Date: 2./ JJ II 3

WITNESS:

Dr. Julie Botel

Date:

WITNESS:

Ms. Rebecca Hostetler

Date:


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WITNESS:

Dr. Gerald W. Kohn

Date:

WITNESS:

Ms. Rebecca Hostetler

Date:

SETTLEMENT AGREEMENT AND RELEASE

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WITNESS:

Dr. Gerald W. Kohn

Date:

WITNESS",

Dr. Julie Botel

Date=

WITNESS:

~~~~ Ms. Rebecca Hostetler

Date: Nfl-(l.... D)3

SETTLEMENT AGREEMENT AND RELEASE 8of2

WITNESS: SCHOOL DISTRICT OF THE CITY OF

RRISBURG

Date: <:9/;q 1?- tJ /3J

WITNESS: BOARD OF SCHOOL DIRECTORS OF THE

SCHOOL DISTRICT OF THE CITY OF

HARRISBURG

By: _ Authorized Agent

Date: _

WITNESS: BOARD OF CONTROL OF THE SCHOOL

DISTRICT OF THE CITY OF HARRISBURG


Date: _



HARRISBURG

By: _

Authorized Agent

Date: _


SCHOOL DISTRICT

...'\'"":"'......,ISBURG

WITNESS: BOARD OF CONTROL OF THE SCHOOL

DISTRICT OF THE CITY OF HARRISBURG

By: _

Authorized Agent

Date: _


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HARRISBURG


Date:


SCHOOL DISTRICT OF THE CITY OF

HARRISBURG

B y: _

Authorized Agent

Date:

WITI.'ffiSS: BOARD OF CONTROL OF THE SCHOOL

DISTRICT OF THE CITY OF HARRISB~G

IvL~b .: By:1J~~t{lud;r AJtl10rized Agent

Date: d+. /.s; ;J.f)/-S

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-twJCfu~~ Mr. Lionel Gonzalez

Date: 8/1 9 f}:3 ~\

/ WITNESS:

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WITNESS:

,.:L~~ij .£ ~",-L..::..---Ms?fiffiney Penn

WITNESS;

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WITNESS:

Ms. Gloria-Martin-Roberts

Date: ----------

Mr. Herbert GOldstein

WITNESS:

Date: ----------

Mr. Sanford Long

Date: _


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WITNESS:

Ms. Tiffiney Penn

Date: _

WITNESS:

Ms. Patricia Whitehead-Myers

Date:

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Date:

WITNESS:

W TNESS:

Mr. Herbert Goldstein

Date:

WITNESS:

Mr. Sanford Long

Date:


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WITNESS:

WITNESS:

Ms', TiffineyPenn

Date:

Ms. Patricia Whitehead~Myers

Date:

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~

Wlll~ESS:

Ms, Gloria-Martin-Roberts

Date: ----------

WITNESS:

Date: ---------~-

WITNESS:

Mr, Sanford Long

Date:

SETILEMENT AGREEMENT AND RELEASE 11 of 13

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WITNESS:

WITNESS:

WITNESS:

WITNESS:

Ms. Tiffiney Penn

Date:

Ms. Patricia Whitehead-Myers

Date:

Ms. Gloria-Martin-Roberts

Date:

Mr. Herbert Goldstein

Date:


\VITNESS:

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WJTNESS:

WITNESS:

Ms. Autumn Cooper

Date: . ~ _

Mr. Roy E. Christ

Date:

WITNESS:

Ms. Esther Edwards

Date: _

SETTLEMENTAGREEMENTAND RELEASE 12 of 13

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WITNESS:

Mil. Jennifer Smallwood

Date: _

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WITNESS:

Mr. Roy E. Christ

Date: _

WI1NESS:

Ms. Esther Edwards

Date: -...:... _


WITNESS:

Ms. Jennifer Smallwood

Date: -------.,.--------,

WITNESS:

Ms. Autumn Cooper

Date: _

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Date: ~//~~"J-;//> -~ /

WITNESS:

Ms. Esther Edwards

Date: c2-/ f- /3

WITNESS:

Mi. Roy E. Christ


RHOADS & SINON LLP

WITNESS:

Mr. James E. Ellison, Esq.

Date: ----------

WITNESS:

Ms. Linda D. Thompson

Date: _

SETILEMENT AGREEMENT AND RELEASE 13 of 13

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WITNESS: RHOADS & SINON LLP


Date:

WITNESS:

Date: 2-/t.rIt..::r

WITNESS:

Ms. Linda D. Thompson

Date:


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WITNESS: RHOADS & SINON LLP

By: .__.,.-- _ Authorized Agent

Date: _

WITNESS:

Mr. James E. Ellison, Esq.

Date:


Documents

Harrisburg Schools settlement with Gerald Kohn