I i ' . : UNITED STATES DISTRICT COURTi_!.. '-,' 1 1 '. ', •. SOUTHERN DISTRICT OF INDIANAEVANSVILLE DIVISIONMARILEE FOWLER, Plaintiff, vs. EVANSVILLE CONVENTION AND VISITORS BUREAU, Defendant. ) ) ) ) ) ) ) ) ) )"'."- CASE NO. 3:I O-CV_ NOTICE OF REMOVAL OF ACTION TO FEDERAL DISTRICT COURT To: The United States District Court for the Southern Distric t of Indiana, Evansville Division The defendant, Evansville Convention and Visitors Bureau ("ECVB"), hereby gives notice of its removal to this Court ofthe state court action herein described and for the reasons set forth below: 1. The above-entitled action was commenc ed by Plaintiff, Marilee Fowler, in the Vanderburgh Superior Cour t, Cause No. 82D03-100 7-PL-3691. ECVB was served a copy o f the summons and Complaint on or about July 15, 2010. 2. Copies o f all pleadings, process, and orders served upon ECVB in said state court action are attached hereto as Exhibit A. 3. A true and accura te copy ofthis Notice o f Removal will be filed with the Clerk o f the Vanderburgh Superior Court, Vanderburgh County, Indiana, as provided by law, on July 19, 2010 4. Said actio n i s a civil action brought against ECVB by Plai ntiff in which Plaintiff seeks damages as follows: Count I: Const ructi ve Fr aud; Count II: Illegal Actio ns ofECVB; Count II I: Violation o f Fi rst Amendment ; Count IV: Due Process a nd Due Course o f La w; Count V: Breach o f Contract; and Count VI, Promissory Estoppel. Case 3:10-cv-00104- RLY-WGH Document 1 Filed 07/20/10 Page 1 of 3
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Marilee Fowler vs. Evansville (Ind.) Convention and Visitors Bureau
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8/9/2019 Marilee Fowler vs. Evansville (Ind.) Convention and Visitors Bureau
ROSS E.RUDOLPH' MAILING ADDRESS:MARC P. fINE (i) P. O. BOX 1507r, MONTGOMERY PORTER EVANSYn.L.E, IN 47706-1507JAMES D. lOHNSONICRJSTAB. LOCICYEAIl (i) ALSOADMITIEDIN FLORIDAl<EmI A. SERMEiRSHEIM (ii) ALSOADMITTED IN KENTUCKYJEFFREYW. HENNING ( i iii) (iii) ALSOADMlITEP IN ILLINOISSTACYK NEWTON
ANOELA L. FREEL' 'CERTIFIEDCIVlLMEDIATORBRIAN E. TOWNSEl'/D RudolphKElLY 1. JACKSON
MAX FlESTER . Porler & Johnson, LLPJOSEPH a LANOERAK IV (ii)
PAULC.RUDOLPH ( i
iii)lAMESB. GODBOUl 22 \ N. W. FIFTH STREET
EVANSVILLE, INDIANA 47708
R STEVEN KROHN
DONAlD R WRIGHT' TELEPHONE: (812) 422-9444DANIEL L. OLIVER FACSIMILE: (812)421-7459(orCoonsel) WEB-SITE: www.rfpj.com
March 29,2010
HAND DELIVERED
Steve Barber
Barber & Shoulders, LLP
123 NW Fourth Street, Sui te 402
Evansville, Indiana 47708
Re: Evansvil le Convention and Visitors Bureau I Marilee Fowler
Dear Steve:
As stated in our telephone conversation earlier this morning, the ECVB accepted Marilee's
resignation at this morning's meeting. However, the comments and statements to the press made by
Marilee last week clearly violate the express terms and the spirit of the Severance Agreement.
Accordingly, the Severance Agreement was not approved by the ECVB, and no severance payment will
be provided.
I have enclosed a eheck containing Marilee's final pay for all outstanding wages owed to her
through March 29,2010, including sick pay and vacation pay.
Very truly yours,
By:
Keith A. Sermersheim, Esq.
kas@rfuj·com
Check 20906 Enclosed
c. Joe Vezzoso
EXHIBIT
\' 8 II
A member of Legal Netlink Alliance, a global network of independent law firms,
THIS SEVERANCE AGREEMENT (hereinafter "Agreement"), duly made and entered into by
and between Evansville Convention and Visitors Bureau (hereinafter "Company"), an Indiana limited
liability company, and Marilee Fowler (hereinafter "Employee");
In consideration of the mutual promises contained herein, and for other good and valuable
consideration the receipt of which is hereby acknowledged, it is agreed as follows:
1. Resignation. Employee hereby resigns from her employment with the Company effective
March 29, 2010 (hereinafter the "Resignation Date"). On or before the Effective Date (as defined in
paragraph 11 hereof), Employee shall remove all personal effects from Company's premises and return to
the Company all materials or property of whatever nature which belongs to the Company, including
without limitation, the Company credit card, keys to the office, etc.
2. Payments. The Company shall provide Employee with her regular pay through the
Resignation Date and any and all accrued but unused vacation and personal time to which she is otherwise
entitled. In addition, the Company shall provide Employee with six (6) months of severance pay whichshall be paid to Employee as additional consideration for the execution of this Agreement (hereinafter the
"Severance Payment"). Employee will receive payment for her regular wages and the accrued but unused
vacation and personal time on the next usual and regular date for payment of those wages following the
Resignation Date. The Severance Payment shall be paid to Employee in a lump sum on the Effective Date
(as defined below). Employee acknowledges, however, that her outstanding wages and the Severance
Payment will be reduced by all appropriate taxes and any other items the Company is required to withhold.
3. Discontinuance of Benefits. Company shall not continue to provide Employee with any
fringe benefits after the Resignation Date. "Fringe benefits" means any benefit accruing to Employee and
paid for or in any other manner provided by Company, including but not limited to vacation payor leave,
sick payor leave, holiday payor leave, health insurance, life insurance, disability insurance, or any other
thing ofvalue whatsoever, if any. Employee acknowledges that the Company had fewer than 20employees on a typical business day during the preceding calendar year, and that the Company is not a part
of a larger multi-employer group health plan. Accordingly, Employee acknowledges and agrees tha t the
exception set forth in 42 USC 300bb-l(bXl) applies to the Company, and Employee is not entitled to any
rights ofhealth insurance continuation coverage as those rights are set out in the Public Health Services
Act (PHSA) and the American Recovery and Reinvestment Act of 2009 (ARRA).
4. Receipt of Wages. Employee acknowledges that upon receipt of her regular pay and
accrued but unused vacation and personal time through the Resignation Date as described in paragraph 2
hereof, Employee will have received from the Company full payment for all wages earned up to and
including the Resignation Date, including but expressly not limited to, any and all unused and accrued
vacation and personal time pay, if any.
5. Waiver and Release. In exchange for the Severance Payment from Company, Employee
individually, and on behalfof Employee's heirs, successors, assigns, representatives and attorneys, as
applicable, waives, releases, discharges and covenants not to sue the Company and each of its successors,
of any matter, cause or thing whatsoever, and in all capacities whatsoever, from the beginning of time until
the date hereof. The foregoing release and discharge by Employee specifically includes, but is not limited
to, any claims arising under federal, state, local and common laws and under any regulations of any
jurisdictions that in any way relate to wages, employment, and termination of employment (including,
without limitation, claims under the Age Discrimination in Employment Act, Americans with
Disabilities Act, Family and Medical Leave Act, and Title vn of the Civil Rights Act of 1964, asamended), claims for wrongful termination and tort claims (such as retaliatory discharge, defamation and
emotional distress). Employee expressly acknowledges that the foregoing release is intended to include in
its scope, without limitation, all claims that Employee does not know of or expect to exist in Employee's
favor at the time Employee signs this Agreement and that said Agreement contemplates the extinguislunent
of any such claim or claims except as expressly provided herein. By signing this Agreement, Employee
acknowledges and agrees that Employee is knowingly and voluntarily giving up any claim or right to
receive any remedial or monetary relief (including, without limitation, reinstatement, back pay, front pay,
punitive damages and damages for emotional distress, humiliation or embarrassment), that Employee has
read this Agreement, that Employee understands the terms of this Agreement and that this Agreement
constitutes a general release of any and all claims against Company.
6. Remedies. Employee agrees that i f Employee breaches this Agreement, or makes anyclaim against Company or any other person or entity relating to Employee's employment by Company, the
termination ofEmployee's employment, or otherwise, and such claim is held not to be barred by the
release contained herein, then the Employee shall refund to Company, upon demand, as liquidated
damages, a sum equal to the Severance Payment amount delivered to Employee hereunder. Employee
acknowledges that the foregoing does not constitute a penalty and that it would be unfair for Employee to
retain the Severance Payment i f the covenants given by Employee are not enforced. This provision will
not limit Employee's liability if Company's actual damages exceed the amount received from Employee
under this Agreement. Further, the Company shall be entitled to recover from Employee all costs,
expenses and attorneys' fees incurred by the Company in any judicial proceeding arising out of or related to
this Agreement, or which requires the interpretation or construction of this Agreement
7. General Provisions.
(a) This Agreement sets forth the entire agreement and understanding between the parties and
fully supersedes any and all prior oral, written or implied agreements or understandings between the parties
or their agents, relating to the subject matter of this Agreement. This Agreement shall be construed in its
entirety according to its plain meaning and shall not be construed against the party who provided or drafted
it. The tenus of this Agreement shall be fully binding upon the heirs, administrators, representatives,
successors and assigns ofeach party. This Agreement shall be subject to and governed by the laws of the
State of Indiana without reference to its choice oflaws rules. The parties hereby agree and consent that the
exclusive, proper and preferred venue of any claim or cause of action between them shall lie in the
Vanderburgh County, Circuit or Superior Courts, Evansville, Indiana. The parties hereby consent to inpersonam jurisdiction of the herein described courts. The invalidity of anyone or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement shall not affect theenforceability of the remaining portions of this Agreement or any part hereof, all ofwhich are inserted
conditionally on their being valid in law.
(b) It is expressly agreed that Employee waives, releases and forgoes any chance, right, or
opportunity to seek re-employment or reinstatement to employment with the Company at any location, now
or in the future and that Employee shall not apply for or seek in any way to be reinstated, re-employed or
hired by any such location in the future.
(c) Employee shall have no authority to represent or speak on behalfof the Company in any
capacity whatsoever, and Employee hereby promises and agrees Employee and her immediate family
members will not make any comments or statements whatsoever to any person or entity, including any
news media, regarding the Company, the projects under consideration by the Company, the events leading
to Employee's resignation, or the existence or terms of this Agreement Employee further promises and
agrees Employee and her immediate family members will not engage in any conduct, or make any
comments, or statements, the purpose or effect ofwhich is likely to harm the reputation, good will, or
commercial interests of the Company or its personnel, agents, officers, board members, directors,
stockholders, or employees. Except as otherwise prohibited by law, Employee further promises and agrees
Employee and her immediate family members will refrain from engaging in any conduct or making
comments, or statements, the purpose or effect of which is likely to cause or encourage any other person,
enti ty or governmental body to bring a lawsuit or administrative action against the Company or its
personnel, agents, officers, directors, or stockholders for any reason whatsoever. Breach of this paragraph
by Employee directly, or indirectly through her immediate family members, is considered a material breach
of this Agreement. The parties acknowledge and agree that damages for a breach of this paragraph would
be difficult, if not impossible to measure. The parties therefore agree that upon breach of this paragraph by
Employee directly, or indirectly through her immediate family members, the Company shall be entitled to
recover the remedies set forth in paragraph 6 as liquidated damages for such breach, and that said amount
is not intended to be nor shall it be construed as a penalty.
The Company promises and agrees the Board Members have not and will not engage in any
conduct, or make any comments, or statements, the purpose or effect ofwhich is likely to harm the
reputation, good will, or commercial interests of the Employee or her immediate family members. Except
as otherwise prohibited by law, the Company further promises and agrees to refrain from engaging in any
conduct or making comments, or statements, the purpose or effectofwhich is likely to cause or encourage
any other person, entity or governmental body to bring a lawsuit or administrative action against the
Employee or her immediate family members for any reason whatsoever.
(d) This Agreement is not and shall not be construed as an admission by Company or
Employee, or any of their successors, assigns, parents, subsidiaries, shareholders, officers, directors,
agents, employees or former employees, ofany violation of any federal, state or local law, or of anyliability to the other party whatsoever. Instead, the parties have entered into this Agreement for their
mutual benefit and to avoid any potential future conflict
(e) The Company shall provide Employee with a mutually acceptable letter of reference, a
copyofwhich is attached hereto and incorporated herein as Exhibit A.
8. Acknowledgments. By signing this Agreement, Employee acknowledges and agrees:
(a) That she is knowingly and voluntarily giving up any claim or right to receive any remedial
or monetary relief (including, by way of example only, reinstatement, back pay, front pay, punitive
damages and damages for emotional distress, humiliation or embarrassment).
(b) That the waiver and release contained above does not waive rights or claims that may arise
after the date this Agreement is signed.
(c) That she has been advised and is hereby advised to consult with an attorney before signing
this Agreement.
(d) That she has been given a fair opportunity to discuss and negotiate the terms of this
(e) That she has read this Agreement carefully and does not rely and has not relied on any
representation or statement by the Company or its agents, other than the statements which are contained in
this Agreement.
(f) That Employee has determined that it is in Employee's bes t interest to enter into this
Agreement and enters into this Agreement knowingly and voluntarily.
(g) That Employee has been advised that Employee has been given at least twenty-one (21)
days to consider this Agreement before signing it (however, Employee may sign and deliver this
Agreement prior to the end of the twenty-one (21) day period).
(h) That the Company's waiver and release of claims against Employee as set forth herein is
in exchange for the Employee's waiver and release of claims against Company, and this Agreement
includes benefits and accommodations to which Employee would not have been entitled but for this
Agreement.
9. Acceptance by Employee. Employee will have at least twenty-one (21) days within which
to consider and sign this Agreement. This Agreement must be delivered to Keith Sermersheim, 221 N.W.Fifth Street, Evansville, Indiana 47706-1507, no later than 10:00 a.m. on March 29,2010, otherwise it
shall be null and void. Notwithstanding the foregoing, Employee may choose to sign this Agreement prior
to the expiration of said 21 day period and deliver it as described above.
10. Revocation. Employee shall have seven (7) days following the signing of this Agreement
in which she may revoke her acceptance. This Agreement shall not be enforceable until the revocation
period has expired. Notice of revocation must be in writing and delivered to Keith Sermersheim, 221
N.W. Fifth Street, Evansville, Indiana 47706-1507, no later than 10:00 a.m. on the next business day
following the expiration of the seven (7) day period.
11. Effective Date. This Agreement shall not become effective and binding on the parties
until approved at a public meeting of the Evansville Convention & Visitors Bureau, and the expiration of
the revocation period described in paragraph 10 hereof. That date shall be designated as the Effective
Date.
PLEASE READ CAREFULLY BEFORE SIGNING. THIS AGREEMENT CONTAINS ARELEASE AND DISCHARGE OF AL L KNOWN AND UNKNOWN CLAIMS AGAINST THE
COMPANY.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and
year set forth below.
Evansville Convention & Visitors Bureau
By:. _ ~ - f ~ ~ ~ l O I O Joe Vezzoso, President Date Marilee Fowler Date
C o m e n t i o n ~ V l S i t o r s BureauMarch 4,2010
Josh Moore
ChairmanCedar Rapids Area Convention & Visitors Bureau119 First Avenue S.E.Cedar Rapids, IA 52401
Dear Mr. Moore:
In 2001 Marilee Fowler accepted the position of Executive Director for the EvansvilleConvention and Visitors Bureau. In these eight plus years, she has done an outstandingjob taking the ECVB to a higher and more professional level.
The goal during this period has been to increase visitors to Evansville. This has been
accomplished by increased numbers of conventions, meetings, sports events and
reunions. In 2009 the ECVB saw the greatest growth yet We hosted 179 groups with122,381 attendees and occupying 95,000 hotel rooms.
To accomplish this goal we realized that our priority needed to be tourism product
development. Marilee took the leadership role working with many non profitorganizations and elected officials to enhance the visitor experience in Evansville. TheECVB has been very instrumental in the completion of the Mesker Park Zoo expansion($525,000), Goebel Soccer Complex ($1,400,000), LST wwn war ship dock($1,000,000), Burdette Park ($230,000), Evansville African American Museum($500,000), Vanderburgh County 4-H Center ($250,000) and the BMX Race Facility($360,000). All of these new or improved facilities have aided the ECVB in "selling" ourcommunity and increasing visitors.
Our next major project will be to build amulti-plex sports facility for baseball andsoftball. This is a project that is being followed by many in our community. As a result
the local media is always trying to get an update on the project. Marilee has spokenmany times to the media regarding this issue. In a recent interview about the complex,some of our board members had concerns regarding her comments. At the ECVB board
meeting on February 22nd
in reference to her actions that have not been disclosed
publicly, the phrase "alleged misconduct" was used in order to comply with statutorynotice requirements for holding an Executive Session of the ECVB.
Marilee has certainly been a good steward of the ECVB resources. The ECVB staffworked well under her leadership with little staff turnover. She has also been recognized
) SS: IN THE VANDERBURGH SUPERIOR c 6 t 1 ¥ ~ .URGH SUPERIOR
COUNTY OF VANDERBURGH ) . r ' l ~ D ~ MARILEE FOWLER ) SUMMONS JUL 09 2010
Plaintiff, ) . ~ l c " , 9 - 4 ? t J vs. ) CAUSE NO. 82D03-1007-PL- Z ~ ~ q ! CLERK
)EVANSVILLE CONVENTION ) Defendant: Evansville Convention and Visitors BureauAND VISITORS BUREAU ) Address: clo Keith Allen Sermersheim
Defendant. ) P. O. Box 1507221 N. W. Fifth Street, 2nd Floor
TO ABOVE NAMED DEFENDANT: Evansville, IN 47706-1507
You have been sued by the person named "plaintiff", in the court stated above. The nature of the suit againstyou is stated in the complaint which is attached to this document. It also states the demand which the plaintiff
has made and wants from you. You must answer the complaint in writing, by you or your attorney, withintwenty (20) days, commencing the day after you receive this summons, or judgment may be entered against youfor what the plaintiff has demanded. I f you have a claim for relief against the plaintiff arising from the sametransaction or occurrence, you must assert it in your written answer. The following manner of service of
summons is hereby designated:
CERTIFIED MAIL
If not so designated, the clerk shall cause service to be made by mail. Dated July , 2010.
Steve BarberBARBER & SHOULDERS, LLP123 NW Fourth Street, Suite 402
Evansville, IN 47708
Telephone: (812) 425-9211 By ~ _ = ~ ' - - - - - - - _ _ _ : = . . . . , _ _ D e p u t y Attorney for Plaintiffs (SEAL)
CERTIFICATE OF MAILING
I hereby certify, that on the _ day of July, 2010, I mailed a copy of this summons and a copy of the
complaint to the defendant, Evansville Convention and Visitors Bureau, by certified mail, requesting a returnreceipt signed by the addressee only. Dated July _,2010.
--------------------Clerk
By Deputy
RETURN ON SERVICE OF SUMMONS BY MAIL
I hereby certify that service of summons with return receipt requested was mailed on the__ day of
July, 2010, and that a copy of the return receipt was received on the__ day of July, 2010, which copy is
attached herewith. Dated ,2010.
Clerk
By Deputy
Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 20 of 20