Acknowledgement of Iowa Communities Assurance Pool (ICAP) Settlement of Simon vs. City of Dubuque and DalsingCity of Dubuque
City Council Meeting
Consent Items # 20.
Copyrighted
May 17, 2021
ITEM TITLE: Acknowledgement of Iowa Communities Assurance Pool (I CAP)
Settlement of Simon vs. City of Dubuque and Dalsing
SUMMARY: City Attorney recommending acknowledgement of the settlement release
provided by the Iowa Communities Assurance Pool (I CAP) in the Simon
vs. City of Dubuque and Dalsing lawsuit.
SUGGESTED Receive and File; Acknowledge Suggested Disposition:
DISPOSITION:
ATTACHMENTS:
Description
Staff Memo
Type
Staff Memo
Settlement Agreement Supporting Documentation
THE COF
DtUB E
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, EsQ.
CITY ATTORNEY
To: Mayor Roy D. Buol
and Members of the City Council
DATE: May 11, 2021
Dubuque
All -America City
K
1',I L Ai �®il
I
2007-2012.2013
2017*2019
RE: Acknowledgement of ICAP Settlement of Simon vs. City of Dubuque and
Dalsing
Attached is a settlement release provided by the Iowa Communities Assurance Pool
(ICAP) in the Simon vs. City of Dubuque and Dalsing lawsuit. I ask for City Council
acknowledgment of the settlement. ICAP will finalize the settlement and send a bill to the
City for its deductible of $20,000 which is the City's only financial contribution.
cc: Les Reddick, Outside Counsel
Michael C. Van Milligen, City Manager
Mark Dalsing, Police Chief
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 589-4381 / FAX (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org
AGREEMENT AND RELEASE
WHEREAS, Abigail Simon hereinafter ("Simon") has filed a lawsuit in the Iowa District
Court for Dubuque County asserting claims against City of Dubuque ("the "Employer"), Case
No. LACV109271 (hereinafter "Lawsuit"), seeking damages in connection with her employment
and the termination of her employment. The Employer has denied the claims and asserted
defenses in response thereto; and
WHEREAS, the Employer has denied any potential liability for the claims made and the
damages sought by Simon; and
WHEREAS, Simon and the Employer have now agreed to settle their dispute and all
matters between them relating to or arising out of Simon's claims, and any other matters raised
or which could have been raised relating to Simon's employment at the Employer;
WHEREAS, Simon and the Employer now wish to confirm and memorialize their
settlement of any disputes between them,
NOW, THEREFORE, Simon and the Employer agree as follows:
1. RELEASE. In consideration of the covenants, promises, and conditions herein
contained and the amounts to be paid hereunder, Simon, for herself and her heirs, legal
representatives, successors and assigns, hereby releases and discharges the Employer and its
representatives, employees, agents, officials, officers, directors, attorneys, insurers (Iowa
Communities Assurance Pool (ICAP), Public Entity Risk Services of Iowa, and Sedgwick
Claims Management Services, Inc. and its affiliates, and each of their officers, directors,
employees, successors and assigns, Public Entity Risk Services of Iowa (PERSI) ("Released
Parties") from any and all claims, causes of action, damages, liabilities, expenses, fees, and costs,
which Simon ever had, now has, or may have in the future for any losses, injuries, or damages,
#3278376
which occurred prior to the execution of this Agreement, whether anticipated or unanticipated,
arising from, arising out of, or directly or indirectly connected with Simon's employment, the
end of her employment, and her potential claims against the Employer, and the matters asserted
in her Lawsuit. Simon releases the Employer from any claims that have been made or could be
made involving her employment to and through the date of the execution of this Agreement. It is
further agreed that the Release includes, but is not limited to, any claims to and through the date
of the execution of this Agreement for discrimination based on the Age Discrimination in
Employment Act, Title VII of the Equal Employment Opportunities Act, the Iowa Civil Rights
Act, the Fair Labor Standards Act, Iowa Code Chapter 91A, the Americans with Disabilities Act,
the FMLA, the FFCRA to the extent applicable, and any and all other claims, whether statutory
or common law, including Iowa Code Chapters 139A, 686D, and any liability for COVID-19
related claims and/or benefits.
Simon further acknowledges that she has no reinstatement or re -hire rights with
Employer, and she agrees that she will not apply for employment with Employer at any time in
the future.
2. PAYMENT AND OTHER TERMS. In consideration of the promises contained
in this Agreement, and in full and final settlement of the claims the Parties may have or could
have against each other in the Lawsuit, the Parties agree that upon receipt of this signed
Agreement, an executed Exhibit A, and W-9s for Simon and the Fiedler Law Firm, P.L.C:
(a) The Employer will pay Forty -Seven Thousand Seven Hundred Seventy eight Dollars
and 65/100 ($47,778.65) as wages with payroll withholdings;
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(b) The Employer will pay Nine -Hundred Seventy -Five Thousand Dollars and No/100
($975,000) for Simon's claims of emotional distress damages, which will be reported on Form
1099;
(c) The Employer will pay Seven Hundred Twenty -Seven Thousand Two Hundred
Twenty -One Dollars and 35/100 ($727,221.35) to the Fiedler Law Firm, P.L.C, as attorney fees
(which includes fees for the Kenline Finn's services) and costs which will be reported on Form
1099; and
(d) The Employer will tender $82,5000 payable to the Municipal Fire and Police
Retirement System of Iowa ("MFPRSI") in order to satisfy the lien filed in the Lawsuit.
3. NON -ADMISSION AND STATEMENT. The Parties to this Agreement
recognize that any payments or agreements made pursuant hereto are not an admission of any
liability by the Employer, including the lien asserted by MFPRSI, as the Employer disputes the
validity of the same. This settlement is made for the purposes of avoiding the costs and risks of
litigation.
4. DISMISSAL OF LAWSUIT. Simon agrees to execute and return to Employer a
Stipulation of Dismissal of the Lawsuit with Prejudice in the form attached as Exhibit A. Within
five (5) days of receipt of payment to Simon in accordance with paragraph 2 above, Simon
agrees that Employer will cause the Stipulation of Dismissal to be filed with the Court, and
further agrees that all contentions and claims for relief asserted in the Lawsuit are dropped for all
purposes and all times. The only payment to be made by the Employer for costs of suit and
attorney fees is the payment set forth in paragraph 2.
5. SEVERABILITY. If any portion or portions of this Agreement are held by a
court of competent jurisdiction to conflict with any federal, state, or local law, and as a result
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such portion or portions are declared to be invalid and of no force or effect in such jurisdiction,
all remaining portions of this Agreement shall otherwise remain in full force and effect and be
construed as if such invalid portion or portions had not been included herein.
6. CONSIDERATION OF AGREEMENT. Simon represents that she has discussed
the terms of the settlement with her counsel and Simon's counsel has answered all questions
relating to this Agreement.
7. TAX MATTERS. Simon acknowledges that the Employer does not warrant or
represent any tax consequences of this Agreement, and she is relying on her own counsel and/or
tax advisors and not on the Employer in that regard. If the Internal Revenue Service or the Iowa
Department of Revenue disagree with the tax treatment of this settlement payment, Simon agrees
to indemnify the Employer for any charges, payments, fines, fees or other costs incurred in
connection therewith except as prohibited by law.
8. SIMON'S ACKNOWLEDGMENTS IN COMPLIANCE WITH THE OLDER
WORKERS BENEFIT PROTECTION ACT AND THE AGE DISCRIMINATION IN
EMPLOYMENT ACT. Simon agrees and hereby represents that this Agreement is knowingly
and voluntarily entered into, and specifically that:
a. Simon has carefully read all of the terms of this Agreement and states that this
Agreement is written in a manner calculated to be understood and which is clearly
understood and that she has entered into this Agreement knowingly and
voluntarily;
b. This Agreement expressly waives any and all rights or claims arising under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et M. and the
Older Workers Benefit Protection Act (OWBPA) and any similar claims under
state law;
c. Simon's execution of this Agreement is made in exchange for consideration
additional to anything of value to which she already may have been entitled;
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d. This Agreement does not waive/release claims, if any, that may arise after the
date of execution of this Agreement;
e. Simon is hereby advised in writing to consult with an attorney prior to executing
this Agreement and Simon affirmatively asserts that when signing this
Agreement, she was represented by Attorney Paige Fiedler with Fiedler Law
Firm, P.L.C., 8831 Windsor Parkway, Johnston, Iowa
f. Simon acknowledges that she has been given a copy of this Agreement and has
been given twenty-one (21) days in which to consider this Agreement and that she
has been provided a reasonable period of time within which to consult with
counsel of her own choosing (whether or not she actually utilized the full 21-day
period);
g. For a period of seven (7) calendar days following Simon's execution of this
Agreement, she may revoke this Agreement by timely notifying Employer's
counsel, in writing, as provided for herein, of her intention to revoke, and this
Agreement shall not become effective or enforceable until the revocation
period has expired without such revocation, at which time this Agreement shall
become effective and legally enforceable without further notice. Notice of
revocation must be addressed to Les V. Reddick, Counsel for the Employer, 2100
Asbury Rd., Ste. 2, Dubuque, Iowa 52001 and postmarked or delivered prior to
the expiration of the foregoing revocation period via either (1) hand delivery, (2)
certified mail, return receipt requested, (3) registered mail, (4) electronic mail
(email) to LReddick@kanenorbylaw.com or (5) facsimile to (563) 582-5312
demonstrated by a facsimile transmittal receipt.
9. GOVERNING LAW. The Agreement shall be governed and construed in
accordance with the laws of the state of Iowa.
10. ENTIRE AGREEMENT. Each Party acknowledges and agrees that no
representations or promises have been made to or relied upon by any of them or by any person(s)
acting for or on their behalf about the subject matter of this Agreement which are not specifically
set forth herein. All prior representations and promises made by any Party to another, whether in
writing or orally, are understood by the Parties to be merged in this Agreement.
11. ATTORNEYS' FEES. Simon agrees and acknowledges that any claim for
attorneys' fees by Simon's attorney is Simon's sole responsibility and the payments set forth in
paragraph 2 above constitute the total payments owed Simon hereunder.
12. MEDICARE REPRESENTATIONS. Simon represents that she is not currently
receiving Medicare benefits and Medicare has not made any conditional payments on her behalf.
Simon has not and will not apply for Social Security Disability benefits related to this incident.
Simon does not anticipate any future Medicare -eligible expenses relative to any injuries suffered
while an employee of the Employer. Because none of the parties anticipate any future Medicare -
eligible expense, no part of the settlement is being set aside for Medicare. Simon agrees to
defend, indemnify, and hold the Employer harmless from any interest asserted by Medicare.
Such indemnification shall include, without limitation, any and all attorney fees, court costs, and
any and all other costs and expenses.
13. CHILD SUPPORT LIENS: Simon expressly affirms that she is unaware of any
child support liens, Income Withholding Orders, or demands for money owed to a government
office, in any state, pertaining in any way to child support owed by Simon. Simon shall satisfy
any and all liens that any court or state's department of human services or child support recovery
units have at the time of entering into this Agreement for child support with the settlement
proceeds. If any claim is asserted against Simon or the Released Parties in regard to any type of
child support lien or similar entitlements or claims relating to Simon and this Agreement, Simon
will fully indemnify, defend, and assume the cost of defense of Employer / Released Parties or
its agents against such claims, and hold Employer harmless from, any and all damages or losses
Employer / Released Parties may incur, including but not limited to attorneys' fees and costs.
The Parties further understand and acknowledge that any present or future action or decision by a
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state child support office, court, or applicable department of human services related to this
Agreement will not render this Settlement Agreement and Release void or ineffective, or in any
way affect the finality of this Settlement Agreement and Release.
Abigail Simon, Plaintiff
Date
/ t� k�419��May 17, 2021
City of Dubuque, Defendant Date
By: Michael Van Milligen (Printed Name)
Title: City Manager