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Case 5:16-cv-01221-FJS-TWD Document 94 Filed 02/04/19 Page 1 of 2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
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DINO DIXIE, ELI SMITH, and

CHEYENNE TALBERT,

Plaintiffs JOINT STIPULATION OF

VOLUNTARY DISMISSAL
vs.
Civil Action No.: 5:16-cv-01221
ROBERT E. ANTONACCI, II , and (FJS/TWD)
COUNTY OF ONONDAGA

Defendants.

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IT IS H E REBY STIPULATED AND AGREED, by and between the parties as

represented below, pursuant to Federal Rule of Civil Procedure 41 (a)( I )(A)(ii), that in

consideration of a negotiated settlement between them, the above-captioned action be and it

hereby is. withdrawn, discontinued, and dismissed with prejudice. with each party to bear his or

its own attorneys' fees and costs.

Dated:

COUNTY OF 0NONOAG.t\-

By:Vf~ rl-
John E. Heisler. Jr. Esq.
John H. Mulroy Civic Center, I 0111 Fir.
421 Montgomery Street
Syracuse, New York 13 202
Telephone: (315) 435-2170

Attorneys for Defendant County of

Onondaga

S. David ~ prasad, Esq.

Bar Roll No. 302024
 Case 5:16-cv-01221-FJS-TWD Document 94 Filed 02/04/19 Page 2 of 2

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DINO DIXIE, ELI SMITH, CHEYENNE TALBERT Case No. 5:16-CV-1221 (FJS/TWD)

Plaintiffs, SETTLEMENT AGREEMENT and

RELEASE

v.

ROBERT E. ANTONACCI, II and THE COUNTY

OF ONONDAGA,

Defendants.
 TABLE OF CONTENTS

I. DEFINITIONS ...................................................................................................................3

II. SETTLEMENT RELIEF ..................................................................................................3

III. RELEASE ...........................................................................................................................6

IV. ATTORNEYS’ FEES, COSTS, AND EXPENSES .........................................................7

V. GENERAL MATTERS AND RESERVATIONS ...........................................................7

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 WHEREAS, Plaintiffs’ October 6, 2016 Complaint in the above-referenced action
alleges that Onondaga County (“County”) and the former Onondaga County Comptroller Robert
Antonacci II (“Antonacci”) (collectively “Defendants”), discriminated against Plaintiffs Dino
Dixie, Cheyenne Talbert and Eli Smith (collectively “Plaintiffs”) based upon their race;

WHEREAS, Plaintiffs and Defendants have conducted substantial discovery, have

investigated the facts and underlying events relating to the subject matter of the claims, have
carefully analyzed the applicable legal principles, and have concluded, based upon their
investigation, and taking into account the risks, uncertainties, burdens, and costs of further
prosecution of their claims, and taking into account the substantial benefits to be received
pursuant to this Settlement Agreement, that a resolution and compromise on the terms set forth
herein is fair, reasonable, adequate, and in the best interests of both the Plaintiffs and
Defendants;

WHEREAS, Plaintiffs and Defendants for the purpose of avoiding burden, expense, risk,
and uncertainty of continuing to litigate the claims, and for the purpose of putting to rest all
controversies of the Action, desire to enter into this Settlement Agreement and Release;

WHEREAS, As a result of mediation held before U.S. Magistrate Judge Thérèse Wiley
Dancks on January 24, 2019, Plaintiffs and Defendant have entered into this Settlement
Agreement and Release;

WHEREAS, It is agreed that this Settlement Agreement and Release shall not be deemed
or construed to be an admission, concession, or evidence of any violation of any federal, state, or
local statute, regulation, rule, or other law, or principle of common law or equity, or of any
liability or wrongdoing whatsoever, by Plaintiffs or Defendants or of the truth or validity of any
of the claims that Plaintiffs have asserted;

NOW, THEREFORE, Without any admission or concession by Plaintiffs of any lack of

merit to their allegations and claims, and without any admission or concession by Defendants of
any liability or wrongdoing or lack of merit in its defenses, in consideration of the mutual

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covenants and terms contained herein, Plaintiffs, Plaintiffs’ Entities, and Defendants agree as
follows:

I. DEFINITIONS

A. In this Settlement Agreement and Release, the following terms have the following
meanings, unless this Settlement Agreement and Release specifically provide otherwise:
B. “Action” means the action, Dixie, et al v Antonacci, et al in the United States
District Court for the Northern District of New York, having civil action number 5:16-cv-01221
(FJS/TWD), commenced, by the filing, of the complaint of Dino Dixie, Eli Smith, and Cheyenne
Talbert dated, October 6, 2016.
C. “Agreement” or “Settlement Agreement” means this Settlement Agreement and
Release.
D. “Attorneys’ Fees, Costs, and Expenses” means the fees, costs, and expenses of
any and all attorneys for representing Plaintiffs, Plaintiffs’ Entities, or Defendants in Action.
E. “Plaintiffs” means Dino Dixie, Cheyenne Talbert, and Eli Smith.
F. “Plaintiffs’ Entities” means for settlement purposes only, 1st Point LLC, E, Smith
Contractors, LLC, So Gone Trash Removal, LLC, and Cheyenne Realty Corp.
G. “Defendants” means Robert E. Antonacci, II (“Antonacci”) and the County of
Onondaga (“County”).
H. “Parties” means Plaintiffs, Antonacci and County.
I. “Final Effective Date” means the latest date on which Agreement becomes final.
J. “Release” means the release set forth in Section III of this Agreement.

II. SETTLEMENT RELIEF

In consideration for the dismissal of the Action with prejudice, as contemplated in this
Settlement Agreement, and for the full and complete Release, as further specified herein, County
and Antonacci shall provide the relief specified in this Section titled Settlement Relief.

1. Diversity, Harassment Prevention, & Sensitivity Training: County shall ensure that every
employee of County participate in live and/or interactive Diversity, Harassment Prevention, &

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Sensitivity Training within one year of the Final Effective Date of this Settlement Agreement.
Employees of County with start dates after the Final Effective Date shall participate in live
and/or interactive Diversity, Harassment Prevention, & Sensitivity Training within the first three
months of their start date. Live and/or interactive training should minimally meet one of the
following training models: (a) if the training is web-based, it has questions at the end of a section
and the employee must select the right answer; (b) if the training is web-based, the employees
have an option to submit a question online and receive an answer immediately or in a timely
manner; (c) if the training is an in-person or live training, the presenter asks the employees
questions or gives them time throughout the presentation to ask questions. All web-based or in-
person trainings must provide a feedback survey for employees to turn in after they have
completed the training. An individual watching a training video or reading a document only,
with no feedback mechanism or interaction, would not be considered interactive.

2. Onondaga County Diversity & Inclusion Internship: County shall sponsor an

annual unpaid eight-week full-time summer internship for diverse high school and/or college
students who reside within Onondaga County (“Onondaga County Diversity & Inclusion
Internship”). Each of County’s departments of Personnel, Law, Executive, Social Services,
Purchasing, Parks and Recreation, Water Environment Protection, Transportation, Health,
Facilities, Finance and Audit and Control shall sponsor two diverse students each. The intent of
the internship is to expose diverse Onondaga County youth and young adults to matters of public
policy, governmental operations, and specific skills that can benefit their growth. Considerations
shall be made for each diverse student’s interests and goals, i.e. students who are interested in
environmental issues should be considered for placement in Department of Water Environmental
Protection; those interested in accounting should be considered for placement in Department of
Audit and Control or Department of Finance, etc. In selecting diverse students for the Onondaga
County Diversity & Inclusion Internship, County shall consider a student's race and culture in
addition to a student’s socio-economic status. Plaintiffs may submit applicants for the Onondaga
County Diversity & Inclusion Internship and County shall consider such applicants. County
shall publicly post the details related to applying to the Onondaga County Diversity & Inclusion
Internship on County’s websites and on media outlet websites whose coverage is intended for
diverse readers in the Onondaga County region.

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 3. Minority Hiring Assessment: County will conduct an assessment, through County
Personnel Department, to study County’s current minority hiring (“Minority Hiring
Assessment”). The Minority Hiring Assessment shall include a detailed analysis by grade or
level of minority appointees and civil servants in comparison to non-minority appointees and
civil servants by department/agency/office. County shall make the Minority Hiring Assessment
available on County’s website by May 15, 2019 and County shall continue to make such
assessment available and updated every six months on County’s websites for two years after the
first Minority Hiring Assessment website posting.

4. Diverse & Inclusive Personnel: As a result of the Minority Hiring Assessment,

County will institute a definitive minority hiring policy, which will be administered by the
Department of Personnel (“Diverse & Inclusive Personnel Policy”). The purpose of the Diverse
& Inclusive Personnel Policy is to ensure that minority communities are represented in both
management and executive ranks, and to the extent it can among civil service employees, and
have access to opportunities within County departments, including but not limited to County’s
departments of Personnel, Law, Executive, Social Services, Purchasing, Parks and Recreation,
Water Environment Protection, Transportation, Health, Facilities, Finance and Audit and
Control. County shall 1) advertise civil service exams online and in print with media outlets
whose coverage in and around the Onondaga County region is intended for readers of diverse
cultures and race; 2) seek to increase diversity in relation to executive and management
appointees when positions are available due to attrition or resignation; and 3) assign staff in
County’s Personnel department to serve as liaisons a) between communities of diverse culture
and race and County to facilitate future employment opportunities, b) that will be to the extent
permitted by civil service law, the point of contact on civil service exams processes and
procedures, and c) that will hold forums in diverse communities twice annually encouraging
applications for civil service exams, management and executive appointments, and the Onondaga
County Diversity & Inclusion Internship.

5. Minority Business Enterprise Forum: Antonacci shall within nine months after the
Final Effective Date, regardless of his elected capacity, serve as a panelist at three minority
owned business forums (“MBE Forum”) as mutually agreed upon by Plaintiffs and Antonacci.

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The forums shall be targeted to those MBEs that endeavor to do business with government
entities. The MBE Forums shall be selected from events sponsored by the State of New York,
the County of Onondaga, or the City of Syracuse.

6. Non-Disparagement Agreement: Subject to applicable law, each of the Parties

covenant and agree that, upon the Final Effective Date, Parties to this agreement or any of their
agents, subsidiaries, affiliates, successors, assigns, officers, executive and management
employees or directors will not in any way publicly disparage, call into disrepute, defame,
slander, or otherwise criticize the other Parties or such other Parties’ subsidiaries, affiliates,
successors, assigns, officers, directors, employees, shareholders, agents, attorneys, or
representatives, or in any manner that would damage the business or reputation of such other
Parties, their services or their subsidiaries, affiliates, successors, assigns, officers, directors,
shareholders, agents, attorneys, or representatives.

III. RELEASE

A. Plaintiffs, Plaintiffs’ Entities, and Defendants release and discharge each other and
each other’s heirs, executors, administrators, successors, and assigns from all claims, demands,
causes of action, actions, cases, controversies, damages of any kind, including compensatory
damages and punitive damages, judgments, and Attorneys’ Fees, Costs, and Expenses related to
the subject matter of the Action which Plaintiffs, Plaintiffs’ Entities, and Defendants ever had,
now have, or may ever have against each other, from the beginning of the world to the Final
Effective Date.

B. Plaintiffs, Plaintiffs’ Entities, and Defendants shall not now or hereafter institute,
maintain, prosecute, assert, and/or cooperate in the institution, commencement, filing, or
prosecution of any suit, action, and/or proceeding, against each other, either directly or indirectly,
on their own behalf, on behalf of a class or on behalf of any other person or entity with respect to
the claims, causes of action and/or any other matters related to Action.

C. Nothing in Release shall preclude any action to enforce the terms of Agreement,

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including participation in any of the processes detailed herein.

IV. ATTORNEYS’ FEES, COSTS, AND EXPENSES

Plaintiffs, Plaintiffs’ Entities, and Defendants shall each bear their own fees, costs, and
expenses of any and all attorneys for representing Plaintiffs, Plaintiffs’ Entities, or Defendants in
Action.

V. GENERAL MATTERS AND RESERVATIONS

A. Defendants have denied and continue to deny each and all of Plaintiffs’ claims
and contentions of Defendants’ culpable conduct alleged in Action, and Defendants have denied
and continue to deny that Defendants have committed any violation of law or engaged in any
wrongful act that was alleged, or that could have been alleged. Nonetheless, Defendants
conclude that it is desirable that Action be fully and finally settled upon the terms and conditions
set forth in Agreement.

B. The obligation of the Parties to conclude the Settlement Agreement is and shall be
contingent upon each of the following:
1. Approval by the Defendants on diversity and inclusion therapeutics in
Section II paragraphs 1-5; and
2. Any other conditions stated in this Settlement Agreement.

C. Parties agree that the confidential information made available to them solely
through the settlement process was made available, as agreed to, on the condition that neither
Parties nor their respective Counsel may disclose it to third parties; that it not be the subject of
public comment; that it not be used by the Parties and their Counsel in any way in this litigation
or otherwise should the Settlement Agreement not be achieved; and that it is to be returned if a
settlement is not concluded; provided, however, that nothing contained herein shall prohibit the
Parties from seeking such information through formal discovery if not previously requested
through formal discovery or from referring to the existence of such information in connection
with the settlement of the Action.

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 D. Plaintiffs and Defendants represent and warrant that the individual(s) executing
this Settlement Agreement are authorized to enter into this Settlement Agreement on behalf of
Plaintiffs and Defendants.

E. This Settlement Agreement sets forth the sole and entire agreement among the
Parties with respect to its subject matter, and it may not be altered, amended, or modified except
by written instrument executed by Plaintiffs’ and Defendants’ Counsel. This Settlement
Agreement supersedes any prior agreements, understandings, or undertakings (written or oral) by
and between the Parties regarding the subject matter of this Settlement Agreement.

F. This Settlement Agreement and any amendments thereto shall be governed by and
interpreted according to the law of the State of New York notwithstanding its conflict of laws and
provisions.

G. Any disagreement and/or action to enforce this Settlement Agreement shall be

commenced and maintained only in the United States District Court for the Northern District of
New York.

H. Whenever this Settlement Agreement requires or contemplates that one of the

Parties shall or may give notice to the other, notice shall be provided by e-mail and/or next-day
(excluding Saturdays, Sundays, and Federal Holidays) express delivery service as follows:

1. If to Defendants, then to:

John E. Heisler Jr.

Senior Deputy County Attorney
Onondaga County Law Department
421 Montgomery St, 10th Floor
Syracuse, NY 13202
Tel: (315) 435-2170
Email: johnheislerjr@ongov.net

and

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 Paul V. Mullin
Sugarman Law Firm, LLP
211 West Jefferson Street
Syracuse, NY 13202
Tel: (315) 474-2943
Email: pmullin@sugarmanlaw.com

2. If to the Plaintiffs, then to:

Regina Calcaterra
Wolf Haldenstein Adler Freeman & Herz LLP
270 Madison Ave.
New York, NY 10016
Tel: (212) 545-4600
Email: Calcaterra@whafh.com

I. The Parties expressly acknowledge and agree that this Settlement Agreement
along with all related drafts, motions, pleadings, conversations, negotiations, and
correspondence, constitute an offer of compromise and a compromise within the meaning of
Federal Rule of Evidence 408 and any equivalent rule of evidence in any state. In no event shall
this Settlement Agreement, any of its provisions or any negotiations, statements or court
proceedings relating to its provisions in any way be construed as, offered as, received as, used as,
or deemed to be evidence of any kind in the Action, any other action, or in any judicial,
administrative, regulatory or other proceeding, except in a proceeding to enforce this Settlement
Agreement or the rights of the Parties or their counsel. Without limiting the foregoing, neither
this Settlement Agreement nor any related negotiations, statements, or court proceedings shall be
construed as, offered as, received as, used as or deemed to be evidence or an admission or
concession of any liability or wrongdoing whatsoever on the part of any person or entity,
including, but not limited to, Plaintiffs and Defendants, or the waiver of any applicable
privileges, claims or defenses.

J. Plaintiffs expressly affirm that the allegations contained in the operative

complaint were made in good faith, but consider it desirable for the Action to be settled.

K. Parties, their successors and assigns, and their counsel undertake to implement the
terms of this Settlement Agreement in good faith, and to use good faith in resolving any disputes

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that may arise in the implementation of the terms of this Settlement Agreement.

L. The waiver by one Party of any breach of this Settlement Agreement by another
Party shall not be deemed a waiver of any prior or subsequent breach of this Settlement
Agreement.

M. If one Party to this Settlement Agreement considers .another Party to be in breach

of its obligations under this Settlement Agreement, that Party must provide the breaching Party
with written notice of the alleged breach and provide a reasonable opportunity to cure the breach
before taking any action to enforce any rights under this Settlement Agreement.

N~ This Settlement Agreement may be signed with a facsimile signature and in

counterparts, each of which shall constitute a duplicate original.

0. In the event any one or more of the provisions contained in this Settlement
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other provision if the Parties,
mutually agree in writing to proceed as if such invalid, illegal, or unenforceable provision had
never been included in this Settlement Agreement. Any such agreement shall be reviewed and
approved by the Court before it becomes effective.

Agreed to on the date indicated below:

APPROVED AND AGREED TO BY DEFENDANT COUNTY OF ONONDAGA:

DATE: JANUARY :JJ_, 2019

APPROVED AND AGREED BY DEFENDANT ROBERT E. ANTONACCI, II:

BY____________________________ DATE: JANUARY _ _ , 2019

ROBERT E. ANTONACCI, II

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that may arise in the implementation of the terms of this Settlement Agreement.

L. The waiver by one Party of any breach of this Settlement Agreement by another
Party shall not be deemed a waiver of any prior or subsequent breach of this Settlement
Agreement.

M. If one Party to this Settlement Agreement considers another Party to be in breach

of its obligations under this Settlement Agreement, that Party must provide the breaching Party
with written notice of the alleged breach and provide a reasonable opportunity to cure the breach
before taking any action to enforce any rights under this Settlement Agreement.

N. This Settlement Agreement may be signed with a facsimile signature and in

counterparts, each of which shall constitute a duplicate original.

0. In the event any one or more of the provisions contained m this Settlement
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other provision if the Parties,
mutually agree in writing to proceed as if such invalid, illegal, or unenforceable provision had
never been included in this Settlement Agreement. Any such agreement shall be reviewed and
approved by the Court before it becomes effective.

Agreed to on the date indicated below:

APPROVED AND AGREED TO BY DEFENDANT COUNTY OF ONONDAGA:

BY___________________________ DATE: JANUARY _ _ , 2019
J. RYAN MCMAHON, II

APPROVED AND AGREED BY DEFENDANT ROBERT E. ANTONACCI, 11: .

BY IIJ;,r~
OBERT E. ANTONACCI, II
DATE: JANUARY1i__,2019

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APP.ROVBD AND AGREED TO BY PLAJNTTFPS

BY DATF.: JANUARY~' 2019

DIN' E ON BEHAl...F OF HIMSELF
AND HIS ENTITY AS SET PORTH TN §I.(F)

BY ~
EU~Bsi:IAii"'oFHIMSELF
DATE: JANUARY 312 2019
AND IDS ENTITIES AS SET FORTH fN §I.(F)

-=::~~~...::.=..::::..::;:;;~1--Q- DATE:
•rr."'--~'E TALBERT ON B6HALJi' OF HIMSELF
:fi;;-r do-::t'-
-
ENTITY AS SET FORTH IN §I. (F)

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