r. ortiz v doh settlement agreement

8/10/2019 R. Ortiz v DoH Settlement Agreement

1/8

SETTLEMENT

AGREEMENT AND GENERAL

COMPLETE RELEASE

This

Settlement

Agreement and General

Complete Release is

enterecl into

on

tbjs

Jl5r

day

of

October, 2013,

between

New Mexico

Departnent

of Health

(NMDOH')

and

New

Mexico

Risk

Management

Division

('RMD'),

Releasees,

and

Mr.

Robert Orriz,

Releasor.

The

parties

agree

to th

following

terms

and

conditions

of

settlement:

1,

NMDOH

and

RMD agree to

pay

the

sum

of T}ree Hundred Thousand

Dollars

($300,000,00)

to

Releasor

in

fu11

and final

settlement

of

any

and all

disputed

claims made

against

Releasees

in

his

suit

in

the

First

Judicial

District

Court

of

the

State of New Mexico identified

as

Robert Ortiz v.

New

Mexico Department of Health,

First

Judicial

District

Court No. D-101-CV-

2012-01876.

2.

The sum specified in Paragraph 1

shall be

paid

by NMDOH and RN4D

respectively.

One Hundred

Thousand

Dollars

($100,000.00)

will be atu-ibuted to Releasor's

wages

and will

be

subject to

all

applicable

payroll

taxes and

full withholdings

as

required by law.

Once

all

payroll

taxes

and

i'ull wittrholdirg

as required

by law

are

applied

to the amount

attributed

to Releasor's wages,

the remainder

will be

payable

to Releasot. Two

Hundred

Thousand

Dollars

($200,000.00)

will

be

payable

to Robert

Ortiz and his attomeys,

Siena and

Garrity,

P.C.

NMDOH,

RMD

and

their

counsel

make

no

representations

concerning the

tax

status of

the

lump

sum

settlement.

Any

and all taxes that

may

be assessed

on

receivi-ng

the lump

sum settlement are Releasor's sole

responsibility. To the

extent

that

any federal, state

or

local

taxing authority

determines that

NMDOH

or

RMD

should have

withheld

money for

taxes

on

the

lump

sum

payment,

Releasor

agrees to

indemnify

NMDOH

and

RMD

for

any such federal,

state

or

local

taxes,

penalties,

fines, assessments

and other

tax

liabilities

(plus

costs and

expenses,

including attomey's and/or accountant's

fees)

claimed

by

any

taxing authorities.


2/8

3.

Releasor agrees

to

provide

NMDOH

with

a

letter

of

voluntary resignation

in

a

form and mamer

acceptable

to NMDOH and RMD.

4,

Releasee

NMDOH agrees

to remove

the Notice of Final

Action

(dated

June

l,

2012)

and

Notice of Contemplated Action

(dated

May

4,2012) from

Releasor's

personnel

frle,

5,

Releasor

agrees

not to reapply for employment now or at any time in the future

with

NMDOH.

Releasor further agrees

not to

attempt

to

transfer

into

any

position

with NMDOH

at

any

time

in the future.

6.

Releasor agrees

to

keep the terms

of this Settlement

Agreement and

General

Complete

Release

confidential

except

to his

tax

advisors and attorneys

for

a

period

of

six

(6)

months.

If

asked about the

case before that

time

expires, Releasor will state

that the

case

"was

resolved to

the mutual

satisfaction

of

the

parties".

Releasee will not release

copies

of

the

Settlement

Agleement and

General Complete

Release if it is requested

by

the media.

7.

Releasor

and Releasees

mutually agree to refrain

from making any disparaging

remarks

or comments

regarding the

other

in

any

setting including, but

not limited to,

print

or

electronic

media,

news services, broadcast

networks,

social

network or

publications.

B.

Releasor

agrees

that

under

the terms

of this Settlement

Agreement

ald

General

cornplete

Release

that

he is

iretigible

for

unemployment

benefits

and

he

agrees

not to

apply fol

unemployment

benefits.

g,

Releasor

does

hereby,

for his heirs, successors

and assigns,

release,

acquit and

forever

disoharge

NMDOH,

its employees,

agents,

principals, officers, directors,

predecessors,

successors,

assigns

and

attomeys,

from

any

and all

claims, actions,

demands,

causes

of actions,

riglrts,

debts,

darnages

or accountings

of

any natue

whatsoever,

which

he ever had

ot

may

now

have,

whether

known

or

unftnown,

and

on

account

of

or in

any

way

arising

out

of

his


3/8

employment by or

the termination of his

employment

with

NMDOH

including,

but

not limited

to,

any

claims arising

under any

federal, state

or local laws

prohibiting

employmenl

discrimination

of

any

kind

or nature,

including, but not limited to,

any and all claims

arisrng

under the

New Mexico Human Rights Act, the New

Mexico Whistleblower Protection

Act, Title

VII of

the

Civil

Rights

Act of 1964,

the

Civil Rights

Aot

of 1991, the Age Discrimination

in

Employment

Act

as

amended

by the

Older

Workers Benefit Protection

Act,

the Employee

Retirement Income Security Act, the Americans with Disabilities Act, the Family Medical

Leave

Act, the Fair Labor Standards Ac flre

Inspection

of Public Records Act, any claims for

breach

ofan

expressed

or implied

employment

contract,

wrongfirl or

retaliatory termination,

bad

faith,

bad faith

breach

of

contract, retaliatory

discharge

or

termination, retaliation

under

any

statute

including the

New

Mexico

Workers'

Compensation

Acl wrongful

or

abusive ternination,

rvrongful

termination

in

violation of

public

policy,

personal injury, mental pain,

suffering and

auguish, emotional

upset,

impairment

of

economic

opportunities,

unla*drl

interference

with

employment

rights, intentional or

negligent

infliction

of

emotional distress,

fraud,

defamation

and

other

tortious

conduct, and

inciuding any claims

for

back

wages

or fuflre

lvages, back

benefits

or future benefits,

profit

sharing

or

retirement

contributions or

liinge

benefits,

irnpairment

of

eoonomic

opportunities,

money

damages

of

any kind,

punitive damages,

liquidated

damages,

costs, attorneys'

fees ald the Sarbanes-Oxley

Act or

similar

theories

of

recovery

for

constructive discharge.

Releasor

r",aives and abandons

any

claims

he

may

have to

reinstatement

into the

same

or similar

position

which he held at

NMDOH

or

to

any

promotions

or future

employment

with NMDOH.


4/8

10.

Releasor

agrees

that

he

will

not

frle any

additional

charges,

claims

or

lawsuits

based

on

the events, occurrences,

acts or omissions occurring

on or before the

date

ofthe

signing

of

this Settlement Agreement

and

General Complete

Release.

11. In

entering

into

this Settlement

Agreement

and

General

Complete Release,

Releasor acknowledges

that

he

is

making

a

knowing

and

voluntary

waiver

of

rights

he has

or

may

have

had under the

Age

Discrimination

in

Employment

Act and,/or

the

Older

Workers

Benefit

Protection

Act. Releasor

has

received

this

Settlement

Agreement

and General Complete

Release

and

frnds it to

be

written in a

ma.mer

he can

understand

and

understands

that

the

Settlement Agreement

and

General Complete

Release

specifically waives

his right

for

claims

under the Age

Discrimination

and

Employment

Act

and/or

the

Older

Workers Benefit Protection

Act. Releasor

has

not

been

asked

to release

a right or

claim

that

may arise

after the

date of

the

Settlement

Agreement

and

General

Complete Release

is executed. This

Settlement Agreement

and

General

Complete Release

is

supported by consideration

above

and

beyond the

pay

and

benefits

that Releasor

eamed

at NMDOH

prior

to

entering

this Agreement.

Releasor

was

advised

in writilrg to consult an atto rey

prior

to

executing


and

General Complete Release

and

he

has

consulted with his

attorneys before deciding

to

enter

into

this

Settlement

Agreement and General Complete Release. Releasor

agrees

that he

was

given

a

reasonable

period

of time

in which to

consider


and

General

Complete

Release and

that

he

is

salislled

with

the

time

he has

had

to consider it.

12.

Releasor

agrees

and

acknow'ledges

that his

acceptance

of

payments

and

promises

reflected

in

this Settlement Agreement and General Complete Release

is

a full,

final

and binding

compromise

of

matterc involving disputed

issues

and

that

payment

of

the

sum

specified

in

Paragraph I to Releasor shall not

be considered

an

admission by the

Releasees

ofany liability or


5/8

wrongdoing on the

part

ofReleasees, which

is

expressly denied, and that no

part

or

percentage

of

wrongdoing on the

part

ofany

party

shall

be implied

by

this

payment.

13. This Settlement

Agreement and General Complete Release

contains the entire

agreement between

Releasor and Releasees

with regard

to

the matters set

forth.

There

are no

other understandings

or agreements,

oral or

otherwise,

betw'een the

parties,

except as expressly

set

forth in this Agreemont.

14.

All

parties

agree

to

cooperate

fully

in

giving

effect to the

terms

ofthis

Settlement

Agreement

and

General Complete

Release,

to

execute

any

and all

supporting documents and

take

all

additional

aotion,

neoessary

or appropriate,

to give

full

forco

and

effoot

ofthe

terms

and

intent

of

this settlement

Agreement

and

General complete

Release.

Specifically,

all

parties

agree to

cooperate

in

the

filing

of any

paperwork

needed to secure

dismissal

with

prejudice of

Robert

ortiz

v.

New

Mexico

Department

of

Health,

Fkst

Judioial

District

cout

No.

D-

101-CV-2012-0187

6.

15.

Releasor

warrants,

repfesents

and

agrees

that

he is

not relying

on

the advice of

NMDOH

or RMD

or

anyone associated

with

NMDOH

and RMD as to

tlle

legal

or

other

consequenoes

of

any

kind

axising

out of

this

Settlement

Agreement

and

General

Complete

Release.

Accordingly,

Releasor

releases

and

holds

harmless NMDOH

and

RMD

and any

and

all

counsel

or consuitant

for

NMDOH

and

RMD

from auy

claim,

cause,

action

or other

rights

of any

kind

which

Releasor

may

assert

because

the

legal or

other

consequences

of

the Settlement

Agreement and General

complete

Release

are

otler

than

those anticipated

by Releasor.

16,

Releasor

acknowledges

that

he

is making

a

knowing and

voluntary

waivet'

of

any

and

all

rights

he has

had

or may

have

had

under

the New

Mexico

Human

Rights

Aot,

the

New

Mexico

Whistleblower

Protoction

Act,

Title

VII

of

the

Civil

fughts

Act

of 1964,

the

Civil

Rights


6/8

Act

of 1991,

the

Civil

Rights

Act of

1866

(42

USC

$$

1981, 1983 and 1985),

the Age

Discrimination and Employment Act

as amended

by

the

Older Workers Benefit Protection Act,

the Employee

Retirement Income Security Act,

the

Americans with Disabilities

Act, the Family

Medical

Leave

Act,

the Fair

Labor

Standards

Act,

the Inspection

of

Public Records

Act,

a claim

for breach

of an

exprcssed or

implied

employment confiaot,

bad

faith,

bad faith breach of

contract, retaliatory discharge or termination, retaliation under any statute including the New

Mexico

Workers'

Compensation

Act, wrongful or abusive termination, wrongful termination

violation

of

public

policy,

personal

injury, mental

pain,

suffering and anguish, emotional upset,

impairment

of

economic

opporlunities,

unlawful

interference

with

employment

rights,

intentional

or

negligent

infliction

of

emotional distess, fraud,

defamation and

other

tortious

conduct, and

including

any claims

for

back

\vages or future wages,

profit

sharing

or retirement

contributions

or fringe

benefits,

money

damages

of any kind,

punitive

damages, costs, liquidated

damages

or

attorneys'

fees. Releasor

waives

and abandons any

claims

he

may have to

reinstatement

into

the

same or similar

position

uihich

he held at NMDOH

or to any

promotions

or

future employment

with

NMDOH.

17. In

entering

into

this

Settlement

Agreement

and

General

Complete

Release,

Releasor

certifies that

he is

fully

competent

to

enter into this Settlement

Agreement and

General

Complete

Release.

Releasor

fluther

represents

that he

has completely read

all

of the

terms

of

this

Settlement

Agreement

and

General

Complete

Release

and

that

these terms

are fully

understood

and

voluntarily

acaepted.

18,

By

signing

this Seulement

Agreement

and General

Complete

Release,

Releasor

certifies

that

he has

had the opportunity

to

seek counsel,

he

has been

represented by

counsel,

and

he is aware

ofhis

rights.


7/8

19.

This

Settlement Agreement and

General Complete Release

shall be construed

and

interpreted in

accordance

with

the laws

of the

State

of New

Mexico.


8/8

ROBERT

ORTIZ,

Releasor

SUBSCRIBED

AND

SWORN

to

before

."

U*,fl

f,day

of

October,

2013

by

Robert

Ortiz.

Mv Commission

Expires:

b-l/"-eo

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r. ortiz v doh settlement agreement

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