marilee fowler vs. evansville (ind.) convention and visitors bureau

8/9/2019 Marilee Fowler vs. Evansville (Ind.) Convention and Visitors Bureau

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UNITED STATES DISTRICT COURT i _ ! . . '-,' 1 1'. ', •.

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

MARILEE FOWLER,

Plaintiff,

vs.

EVANSVILLE CONVENTION AND

VISITORS BUREAU,

Defendant.

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CASE NO. 3: IO-CV _

NOTICE OF REMOVAL OF ACTION TO FEDERAL DISTRICT COURT

To: The United States District Court for the Southern District 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 commenced by Plaintiff, Marilee Fowler, in the

Vanderburgh Superior Court, Cause No. 82D03-1007-PL-3691. ECVB was served a copy of the

summons and Complaint on or about July 15, 2010.

2. Copies of all pleadings, process, and orders served upon ECVB in said state court

action are attached hereto as Exhibit A.

3. A true and accurate copy ofthis Notice ofRemoval will be filed with the Clerk ofthe

Vanderburgh Superior Court, Vanderburgh County, Indiana, as provided by law, on July 19, 2010

4. Said action is a civil action brought against ECVB by Plaintiff in which Plaintiff

seeks damages as follows: Count I: Constructive Fraud; Count II: Illegal Actions ofECVB; Count

III: Violation ofFirst Amendment; Count IV: Due Process and Due Course ofLaw; Count V: Breach

ofContract; and Count VI, Promissory Estoppel.

Case 3:10-cv-00104-RLY-WGH Document 1 Filed 07/20/10 of 3



5. Thirty days have not expired since the date of service of said action on ECVB, and

this Notice ofRemoval is timely.

6. Counts III and IV of the action allege claims under federal law and/or the US

Constitution, and the United States District Court is given original jurisdiction over these claims by

virtue of 28 U.S.c. § 1331. Although the Complaint also alleges other state law causes of action,

this Court also has supplemental jurisdiction over the state law claims under 28 US.C. 1367(a),

inasmuch as the state law claims are so related to the federal claims that they all form part of the

same case or controversy under Article III of the United States Constitution. Accordingly, removal

of this action is permitted pursuant to 28 US.C. § 1441 and 28 US.C. § 1446.

7. The United States District Court for the Southern District of Indiana, Evansville

Division, is the proper Court to which to remove this action in that it is the district and division

within which the state action was originally filed.

WHEREFORE, ECVB gives notice that the above-entitled action is removed from the

Vanderburgh Superior Court, to the United States District Court for the Southern District of Indiana,

Evansville Division.

Keith A. Sermersheim, Esq.

Indiana Attorney Number 18150-19

Rudolph, Fine, Porter & Johnson, LLP

221 N. W. 5th Street, P. O. Box 1507

Evansville, Indiana 47706-1507Telephone: 812.422.9444

Facsimile: 812.421.7459

E-mail: [email protected]

Attorney for Defendant.

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CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of July, 2010, a copy of the forgoing Notice of

Removal of Action to Federal District Court was filed with the Court and served upon the

following counsel of record by U.S. First Class Mail:

Steve Barber, Esq.

BARBER & SHOULDERS, LLP

123 N.W. Fourth Street

Suite 402

Evansville, IN 47708

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I/ANDERBUP.o.y SUPERIOR COURT

* F ~ _ r i - E D *JUL 0 2010

STATE OF INDIANA )/1 ~ ~ ~ , I '1;:'./Y r ; : ~

) SS: ,AU- CLERK

COUNTY OF VANDERBURGH )

IN THE VANDERBURGH SUPERIOR COURT

MARILEE FOWLER )

Plaintiff ))

vs. ) CAUSE NO. 82D03-1007-PL- 'lbCJ!

)

EVANSVILLE CONVENTION )

AND VISITORS BUREAU )Defendant )

APPEARANCE BY ATTORNEY

1. The undersigned attorney and all attorneys listed on this form now appear in this case for the

following party member(s): - , M , - , = a " - , r i ~ l e , - " , e - - , F - " o , - , - w , - , , l ~ e r ~ _

2. Applicable attorney information for service as required by Trial Rule 5(B)(2) and for case

information as required by Trial Rules 3.1 and 77(B) is as follows:

Name: Steve Barber Attorney No.: 2560-82

Address: 123 NW Fourth si., Phone: (812) 425-9211

Suite 402, Evansville, IN 47708 Fax: (812) 425-9216

Computer Address: steve(ij':barlegal.net

3. There arc other party members: Yes_ Nox..

4. If first initiating party filing this case, the Clerk is requested to assign this case the

following Case Type under Administrative Rule 8(b)(3): ---'P'--'L=-- _

5. I will accept service by FAX at the above noted number: Yes_x_ No_

6. This case involves support issues. Yes_ No.x.,

7. There are related cases: Yes Nox..

8. This form has been served on all other parties. Certificate of Service is attached:

Yes_ No.x,

9. Addit ional information required by local rule: _

Steve Barber

Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 1 of 20



A ~ ~ I ; -to:

JUDGE J O O U 0 L ~ S K ~ H T V>-NDERBURGH SUPERIOR COURT

* FILED *TATE OF INDIANA )

) SS: JUL 0S 20'0

COUNTY OF VANDERBURGH )

l L ' ( 4 ~ l l ) ~ ~ 4 K IN THE VA N D E R ~ U R G H sUPEfi!dR COURT

MARILEE FOWLER )

Plaintiff )

vs.

)

) CAUSE NO. 82D03-1007-PL :St041)

EVANSVILLE CONVENTION )

AND VISITORS BUREAU )Defendant )

COMPIAINT

The Plaintiff, Marilee Fowler, for her Complaint against the Defendant, Evansville

Convention and Visitors Bureau ("ECVB"), states as follows:

1. The EVCB is a public entity established under I.e. 6-9-2.5-1 et seq.

2. The Plaintiff, Marilee Fowler ("Fowler"), was formerly the Executive Director of

ECVB.

3. As the Executive Director for ECVB, Fowler worked on a project for the development

of a sports complex. During an interview with a reporter, Fowler discussed a possible location of

the sports complex at Wesselman Park and potentially on Roberts Stadium property.

4. After the interview, the Board of ECVB informed Fowler at an Executive Session that

the Mayor was upset with that interview and had not wanted that information released. As a

result of that interview, Fowler was placed on administrative leave on February 8, 2010.

5. At an Executive Session on February 15, 2010, the Board through its attorneys

informed Fowler that she would be given a Severance Agreement. In a email message, she was

told the following:




As we discussed, the Agreement cannot be effective until it is

formally approved at the March 29, 2010 public board meeting of

the Evansville Convention and Visitors Bureau. You will continue

your administrative leave until the date of that meeting. You will

need to return the signed Agreement to me no later than March 29,

2010, if you desire to receive the Severance Payment (you can signand return the Agreement earlier, but it will not be effective until

seven days after it is approved and signed by the Board on March

29).

6. Later, a Severance Agreement was presented to her which said that Fowler was to

submit her resignation effective March 29, 2010.

7. On March 8,2010, the ECVB hand-delivered a letter to Fowler's counsel which reads

in part as follows:

Please have Marilee sign the resignation letter and the Severance

Agreement and deliver them to me either today or tomorrow

morning. I will then have Joe Vezzoso and Tammy Barnett sign

the Severance Agreement when it is approved by the Board at the

March 29 meeting. The Severance Payment will be available to

Ms. Fowler at that time.

A copy of this letter is attached hereto and made a part hereof as Exhibit "A".

8. In reliance upon the Severance Agreement, which required her to submit her

resignation, and pursuant to the hand-delivered letter of March 8, Fowler submitted her

resignation.

9. Despite the representations that the Severance Agreement would be presented for

formal approval to the Board, the Board reneged upon this promise. Instead, the Board accepted

Fowler's resignation and did not approve the Severance Agreement.

10. On March 29, 2010 and after the ECVB board meeting, the attorney for ECVB wrote

a letter to Fowler's counsel which read, in part, as follows:

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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 beprovided.

A copy of that letter is attached hereto and made a part hereof as Exhibit "B".

11. I f the ECVB took any action whatsoever with reference to the Severance Agreement,

it was not done at an open meeting as required by law.

COUNT ICONSTRUCTIVE FRAUD

12. The Plaintiff incorporates herein by reference the material allegations contained in

Paragraphs 1 through 11 above.

13. In the letter dated March 8, 2010, counsel for the ECVB wrote that Fowler should

"sign the resignation letter and the Severance Agreement and deliver them to me either today or

tomorrow morning. I will then have Joe Vezzoso and Tammy Barnett sign the Severance

Agreement when it is approved by the Board at the March 29 meeting, the severance payment

will be available to Ms. Fowler at that time."

14. In reliance upon the promises made in the Severance Agreement and upon the

representation ofECVB's counsel, Fowler submitted her resignation along with an executed

Severance Agreement to ECVB.

15. By signing the Severance Agreement presented to her by ECVB, Fowler agreed that

she was resigning from her employment with the ECVB effective March 29, 2010.

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16. Fowler's resignation was procured upon the representations of the ECVB and its

agents that the Board would take formal action on the Severance Agreement at its March 29

meeting.

17. Instead of submitting the Severance Agreement to the Board for its approval at its

meeting on March 29, the Board only accepted Fowler's resignation. The Board took no action

whatsoever in connection with the Severance Agreement.

18. ECYB is only empowered to act at public meetings. However, a decision was made

prior to the March 29 Board meeting that Fowler was no longer entitled to severance benefits.

This decision of ECVB to deny Fowler severance benefits under the agreement was not made at a

public meeting. This decision was in retaliation for statements allegedly made by Fowler to the

news media.

19. Presenting Fowler's resignation to the ECVB Board without presenting at the same

time the Severance Agreement was deceitful. This was done to procure an unconscionable

advantage for ECYB to avoid a public airing -- and public criticism - of the facts and

circumstances of the Roberts Stadium issue and of the facts and circumstances relating to placing

Fowler on administrative leave and forcing her resignation.

20. Fowler 's termination was wrongful and she is entitled to her lost wages and salary

and other fringe benefits as an employee of ECVB from March 29, 2010.

21. In addition, she is entitled to be paid her severance benefits under the terms of the

Severance Agreement.

WHEREFORE, Plaintiff prays for judgment of and from ECYB, for the costs of this

action and for all other proper relief.

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COUNT II

ILLEGAL ACTIONS OF ECVB

22. Fowler incorporates herein by reference the material allegations contained in


23. Under Indiana law, the ECVB only has the power to act through a majority of those

present at a meeting at which there is a quorum for the transaction of business.

24. Only the ECVB board can determine whether to payor not to pay severance benefits

to individuals such as Fowler herein and such a determination must be made at a public meeting.

Without Board authorization, individual board members of the ECVB, its attorneys and its staff

do not have the power or authority to determine whether to payor not to pay severance payments

to employees.

25. Nonetheless, someone or some persons, outside of a public meeting and without the

authority to do so, determined that Fowler was not entitled to severance benefits. In this regard,

counsel for ECVB wrote to Fowler's counsel as follows:

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.

26. Any determination made by ECVB in connection with Fowler 's severance benefits

was made at a closed meeting and any such closed meeting violates Indiana's open meeting laws.

27. The letter from ECVB explaining its actions on March 29 made it appear that the

action had been taken by the Board when in fact no such action was taken at the Board meeting

on March 29.

28. The determination made by the ECVB in connection with Fowler's Severance

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Agreement is a nullity and Fowler is entitled to the severance benefits under the terms of the

agreement she made with the ECYB.

WHEREFORE, Plaintiff prays for judgment of and from ECYB, for the costs of this


COUNT III

VIOLATION OF FIRST AMENDMENT



30. On February 19, counsel for the ECYB wrote Fowler as follows:

As a final reminder, please do not make any statements to any third

parties (including the media) regarding this situation or any other

matter concerning the ECYB.

31. The Severance Agreement delivered to and executed by Fowler provides as

follows:

. . . 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 newsmedia, 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 of which 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 makingcomments, or statements, the purpose or effect of which is likely to

cause or encourage any other person, entity 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,

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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 Companyshall 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.

32. Paragraph 7(c) of the Severance Agreement and the admonition in the February 19th

communication to Fowler are unconstitutional prior restraints on free speech.

33. Under the First Amendment, a terminated employee has every right to discuss issues

of public concern and the circumstances of his or her discharge from a public entity. In

exercising that right, a public entity may not retaliate against the employee for making comments

that are of public concern.

34. On March 29, counsel for the ECYB wrote Fowler that "the comments and

statements to the press made by Marilee last week directly violate the express terms and the spirit

of

the Severance Agreement."

35. The decision to deny Fowler severance benefits was motivated by Fowler 's speech on

a matter of public concern. Under the unconstitutional conditions doctrine, a governmental entity

may not deny severance benefits to an employee on a basis that infringes her constitutionally

protected freedom of speech.

36. The action of the ECYB in retaliating against Fowler for making comments to the

press violate Fowler's First Amendment constitutional rights.

37. As a result thereof, Fowler is entitled to recover her damages on account of the

unconstitutional actions taken by the ECYB.

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WHEREFORE, Plaintiff prays for judgment of and from ECVB, for the costs of this


COUNT IV

DUE PROCESS AND DUE COURSE OF LAW



39. The actions taken by the ECVB, in accepting the resignation of Fowler and refusing

to pay her severance benefits, violate Fowler's procedural and substantive due process rights

under the United States Constitution and her due course of law rights under the Indiana

Constitution.

40. As a result thereof, Fowler is entitled to recover her damages on account of the

actions taken by the ECVB.



COUNT VBREACH OF CONTRACT



42. The parties entered into a severance agreement, the terms of which are attached as

Exhibit "C".

43. ECVB breached that agreement by not paying Fowler her severance benefits.

44. Fowler has performed all the terms and conditions of the agreement required of her.

45. ECVB has breached the agreement by failing and refusing to pay the amount

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specified in the agreement to the Fowler.

46. By reason of the breach by ECVB, Fowler has sustained damages and hereby

requests judgment against ECVB for those damages.

47. As a result of ECVB's breach, Fowler is entitled to all foreseeable damages resulting

from that breach of contract.



COUNT VI

PROMISSORY ESTOPPEL

48. The Plaintiff incorporates herein by reference the material allegations contained in


49. ECVB made certain promises to Fowler including, but not limited to, that ECVB

would pay severance benefits to Fowler provided that she submitted her resignation to ECVB.

50. In making these promises to Fowler ECVB knew or should have known that these

promises would induce Fowler to resign her position with ECVB in reasonable reliance on

ECVB's promises and representations.

51. Fowler detrimentally relied upon the promises and representations of ECVB and

delivered her resignation to ECVB.

52. As a proximate result ofECVB's failure to perform according to the promises and

representations which it made to Fowler and Fowler's reliance upon those promises to Fowler 's

detriment, Fowler has suffered and continues to suffer substantial losses in compensation and

severance benefits, the precise amount to be proven at the trial of this matter.

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123 NW Fourth Street, Suite 402Evansville, Indiana 47708

Telephone: (812) 425-9211B Y : ~ Steve Barber, Atty. No. 2560-82

DEMAND FOR JURY TRIAL

Plaintiff, by counsel, hereby demands a trial by jury on the issues in this cause.


123 NW Fourth Street, Suite 402

Evansville, Indiana 47708

Telephone: (812) 425-9211

Steve Barber, Atty. No. 2560-82

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LAW OfFICES OF

ROSS E.RUDOLPH' MAILING ADDRESS.MARC D. FINE (i) P o. BOX 1\071. MONTOOMERY PORTER rvANSVlLLE, IN 47706-1 \07JAMES D JOHNSON

J(RlSTA B. LOCKYEAR (i) ALSO ADMITTED IN FLORIDAKEITH"- SERMERSHEIM (ii) "-LSO ADMITTED IN KENTUCKY

JEFFREY W. HENNING (ii, iii) (iii) "-LSO ADMITTED IN ILLINOISSTACY K. NEWTON

ANGELA L FREEL' 'CERTIFIED CIVIL MEDIATORBRIANE. TOWNSEND RudolphKELLY J. JACKSON

MAX E FIESTER Porter & Johnson,LLPJOSEPH H. LANGERAK IV (ii)PAULe. RUDOLPH (ii, iii)

JAMES B. GODBOLD 221 N. W. FIFTH STREET

EVANSVILLE, INDIANA 47708

R. STEVEN KROHN

DONALD R. WRIGHT' TELEPHONE: (812) 422-9444DANIEL L OLIVER FACSIMILE: (812) 421-7459(Of Counsel) WEB-SITE: ~ j . c o m

March 8, 2010

HAND DELIVERED

Steve Barber

Barber & Shoulders, LLP

123NW Fourth Street, Suite 402


Re: Evansville Convention and Visitors Bureau / Marilee Fowler

Dear Steve:

As stated in my earlier e-mail, the ECVB is willing to exchange the resignation letter for the

reference letter as you suggested. I have enclosed the signed reference letter and the final Severance

Agreement herewith,

Please have Marilee sign the resignation letter and the Severance Agreement and deliver them to

me either today or tomorrow morning, I will then have Joe Vezzoso and Tammy Barnett sign the

Severance Agreement when it is approved by the Board at the March 29 meeting, The SeverancePayment will be available to Ms. Fowler at that time.

Thank you for your cooperation in these matters, Please contact me with any additional questions

or comments.

Very truly yours,

By:

eith A. Sermersheim, Esq.

[email protected]

Enclosures

EXHIBIT

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G:\Data\clienls\5413\0 14\03081O.Barber IIL007 .doc




LAW OFFICES OF

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


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:


kas@rfuj·com

Check 20906 Enclosed

c. Joe Vezzoso

EXHIBIT

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SEVERANCE AGREEMENT

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,

assigns, agents, independent contractors, partners, members, shareholders, officers, board members,

directors, employees, associates, representatives and attorneys, as applicable, of and from any and all

liabilities, claims, controversies, settlements, actions, causes of action, demands, debts, monies due on

account damages, costs, expenses, attorneys' fees and costs of investigation, monies due on (or relating to)

judgments, and obligations of any nature whatsoever, at law or in equity, which Employee or any of her

heirs, successors, assigns, representatives and attorneys, as applicable, had or now have, upon or by reason

1

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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

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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

Agreement and understands its provisions.

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(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

Attest: "Employee"

By: _

Tammy Barnett, Secretary Date

"Company"

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Eva··.1

villeI • D ~ A N A

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

4{l1 Southeast Riverside Drive, Evansville, Indiana 47713 Phone 800-433-3025 812-421-2200 Fax 812-421-2207 wwwevansvillecvb.org




as a community leader. She is currently serving as President of the Rotary Club of

Evansville.

On behalfof the Evansville Convention and Visitors Bureau Board ofCommissioners,

we wish her all the best in her future endeavors.

Sincerely,

Joseph J. Vezzoso, Jr.

President

Board ofCommissioners

Evansville Convention & Visitors Bureau




--------------------

STATE OF INDIANA)

) 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


marilee fowler vs. evansville (ind.) convention and visitors bureau

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