RESPONSE LETTER
[YOUR ADDRESS]
Date:
[RECIPIENT’S ADDRESS]
RE: RESPONSE TO OFFER FOR SETTLEMENT
I am writing this letter to make a formal response to your offer for settlement as stipulated in your Settlement Agreement. In this response, I humbly object to the request for settlement under the terms in the proposed Agreement, unless changes are made to the proposed terms.
First, I highly appreciate the fact that I got an opportunity to work with you. Accordingly, working with you has not only offered me an opportunity to advance my career, but I have developed and obtained a lot of hands-on skills and experience. For that, I am highly grateful. However, I have genuine and legitimate concerns regarding my complaint. I have outlined the reasoning for my objections hereinbelow.
Factual Background
- On or about [ENTER DATE], I filed a Complaint docketed as Agency Number DON-20-62383-01870 against the Honorable Kenneth Braithwaite alleging discrimination against me. (hereinafter, “the Complaint”).
- Accordingly, you proposed a Settlement Agreement to settle fully and finally all claims regarding the Complaint. (hereinafter, “the Agreement”).
Biased Terms in the Agreement
I find terms in the proposed Agreement that make the Agreement one-sided. All references in the numbered parts below relate to the Agreement.
- Section 2
In Section 2, you disclaim any liability to or wrongdoing against me or any other person, on the part of yourself, your employees, or your agents.
I find this provision biased because it fails to appreciate the legitimate issues I have raised in the Complaint. It is worth noting that the Complaint raises potent claims for discriminatory actions that were done against me. As such, I am entitled to relief and remedies per 29 CFR § 1614.501. Brushing the claims off by issuing such a disclaimer appears to disregard the injuries occasioned against me.
- Section 3(c)
Under Section 3(c), you propose that you shall not be responsible for the proposed settlement in case I fail to attend the proposed training due to reasons not attributable to you. It follows; the interpretation of this term is to the effect that I will not proceed with the training program in the event anything happens to me that makes me unable to attend the training when scheduled, including my sickness, or any other emergency.
I find this provision one sided because it fails to appreciate situations that are beyond my control, that would make it hard for me to attend the training program as you have proposed in the Agreement.
In contracts, force majeure events are unforeseeable causes beyond the control of the contracting party, that makes it impossible for the contract to be performed. It follows; force majeure clauses in contracts excuse performance “when the non-performance is caused by circumstances beyond the reasonable control of [the party] . . . or when non-performance is caused by an event which is unforeseeable at the time the parties entered the contract.” See Roland Oil Co. v. R.R. Comm’n of Tex., 2015 WL870232, at *5 (Tex. App.-Austin Feb. 27, 2015). (Construing force majeure clause that excuse performance when the non-performance is caused by circumstances beyond the reasonable control of a party to the contract”). See also, United States v. Brooks-Callaway Co., 318 U.S. 120, 121. (construing force majeure clause that excused performance for any “unforeseeable causes beyond the control . . . of the contractor”).
- Section 4
(Scope of the Release)
In Section 4, you seek to be released from any claim that I might have against you including any your officials, pertaining the facts in the Complaint.
You also want me to remove/ withdraw, with prejudice, all cases I have against you that I instituted any time before the date of signing the Settlement Agreement. (If I would have signed it).
Your intention to have me abandon any and all claims against you is also evident in the Withdrawal Statement you provided me.
The interpretation of this proposed term is to the effect that you want me to end all past litigation over the facts and/or the issues in the Complaint. Also, the “with prejudice” requirement means that when I sign the agreement, I may not be able to bring any complaint against the agency over the same subject matter/ facts/ complaints in the future.
This provision is biased because it limits me from exercising my rights when I experience the same discriminatory conduct from your institution. And for that reason, I find this proposed term unjust.
- Section 8
In Section 8, you want me to waive any and all costs and damages regarding the Complaint, including Attorney’s fees.
The Federal Rules of Civil Procedure permits an award of costs to prevailing parties. See Fed. R. Civ. P. 54(d). The losing party bears the burden of affirmatively demonstrating that the prevailing party is not entitled to certain costs.” See Frahm v. Equitable Life Assur. Soc’y of the United States, 2000 U.S. Dist. LEXIS 10406 (N.D. Ill. July 17, 2000).
Claim
I humbly request that you reconsider and alter the aforementioned terms to make the Agreement fair and just for both parties.
If you fail to change the mentioned terms accordingly and in Prompt time, I shall have no option but to proceed with my Complaint and claim for relief and damages against you.
Thank you for your timely consideration of this matter.
Yours,
_____________________
Kevin Russell
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