Opinion
No. C 01-3466 VRW.
March 5, 2003
PEDRO BAGUNAS, JR., Plaintiff (pro se).
KEVIN V. RYAN, United States Attorney, JOCELYN BURTON, Chief, Civil Division, ALISON E. DAW, Assistant United States Attorney, San Jose, California, Attorneys for Defendant.
STIPULATION OF SETTLEMENT [PROPOSED] ORDER
IT IS HEREBY STIPULATED by and between the parties as follows:
1. The parties do hereby agree to settle and compromise the above-entitled employment discrimination action under the terms and conditions set forth herein.
2. The USPS, on behalf of the Postmaster General, agrees to pay to the plaintiff the sum of Three Thousand Dollars and no cents ($3,000.00), 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, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, lost wages, damage to property and the consequences thereof, resulting, and to result, from plaintiff's 1999 employment, and termination of employment, with the USPS, except as provided in paragraph 3, below.
3. Plaintiff and his heirs, executors, administrators or assigns hereby agree to accept the sum of Three Thousand Dollars and no cents ($3,000.00), in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting, and to result, from plaintiff's 1999 employment, and termination of employment, with the USPS, which they may have or hereafter acquire against the United States Postal Service, its agents, servants and employees on account of the same subject matter that gave rise to the above-captioned lawsuit; provided, however, that this Agreement does not bar plaintiff from pursuing an appeal to the United States Court of Appeals for the Federal Circuit of his USERRA claim, denied on January 22, 2003 by the Merit Systems Protection Board. Further, this Agreement does not bar plaintiff from pursuing his currently-pending worker's compensation case and seeking, in conjunction with that case, all rights and remedies provided for under the Worker's Compensation Act, including restoration of employment under 5 C.F.R. § 353.301. Further, this Agreement does not bar the USPS, nor its officers, agents, or employees from defending against plaintiff's currently pending USERRA and worker's compensation cases.
4. This stipulation for compromise settlement is entered into by both parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation.
5. This agreement may be pled as a full and complete defense to any subsequent action or other proceeding which arises out of the claims released and discharged by the agreement.
6. It is also agreed, by and among the parties, that the settlement amount of Three Thousand Dollars and no cents ($3,000.00) paid by defendant to plaintiff represents the entire amount 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 the plaintiff will be paid out of the settlement amount and not in addition thereto.
7. Payment of the settlement amount will be made by a USPS check payable to Pedro Bagunas. The USPS will deliver the above-referenced check to plaintiff no more than 45 days following the date the Court signs the attached order.
8. In consideration of the payment of Three Thousand Dollars and no cents ($3,000.00) as set forth above, plaintiff agrees that he will execute and provide to defense counsel a stipulation for dismissal with prejudice of plaintiff's complaint. Defense counsel will file the stipulation for dismissal upon notice that the settlement funds have been transmitted to plaintiff.
9. Plaintiff hereby releases and forever discharges the United States Postal Service, the United States, and any and all of their past and present officials, employees, agents, attorneys, their successors and assigns, from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting, and to result, from plaintiff's 1999 employment, and termination of employment, with the USPS, which they may have or hereafter acquire against the United States Postal Service, its agents, servants and employees on account of the same subject matter that gave rise to the above-captioned lawsuit; provided, however, that this Agreement does not bar plaintiff from pursuing an appeal to the United States Court of Appeals for the Federal Circuit of his USERRA claim, denied on January 22, 2003 by the Merit Systems Protection Board. Further, this Agreement does not bar plaintiff from pursuing his currently-pending worker's compensation case and seeking, in conjunction with that case, all rights and remedies provided for under the Worker's Compensation Act, including restoration of employment under 5 C.F.R. § 353.301.
10. 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 reviewed the statutory language of Civil Code Section 1542, having had the opportunity to discuss its meaning with an 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 injuries or liability 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.
11. 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 opportunity to obtain the advice of counsel to 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.
12. Plaintiff acknowledges that he enters into this Settlement Agreement knowingly and voluntarily; that he knowingly and voluntarily waives any rights or claims arising under the Age Discrimination in Employment Act at the time this agreement is executed; that he waives these rights in exchange for the consideration outlined above; and that he does so after having had the opportunity to discuss its terms with an attorney. Finally, Plaintiff acknowledges that he has been afforded adequate time to consider this Settlement Agreement.
13. This settlement agreement may be signed in counterparts.
ORDER
Pursuant to the stipulation of the parties, IT IS SO ORDERED.