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

, '
.' ~: I :

UNITED STATES DISTRICT COURT

, '. i ' , •. i_!.. '-,' 1 1

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

MARILEE FOWLER, )
)
Plaintiff, )
) "'."­

vs. ) CASE NO. 3: I O-CV­ _

)
EVANSVILLE CONVENTION AND )
VISITORS BUREAU, )
)
Defendant. )

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 of Removal 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

of Contract; and Count VI, Promissory Estoppel.

 Case 3:10-cv-00104-RLY-WGH Document 1 Filed 07/20/10 Page 2 of 3

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

this Notice of Removal 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 47706-1507
Telephone: 812.422.9444
Facsimile: 812.421.7459
E-mail: kas@rfpj.com

Attorney for Defendant.

-2­
 Case 3:10-cv-00104-RLY-WGH Document 1 Filed 07/20/10 Page 3 of 3

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

~
.// .'

~_.....

Keith A. Sermersheim, Esq.

-3­
 Case 3:10-cv-00104-RLY-WGH Document 1-1 I/ANDERBUP.o.y
Filed 07/20/10
SUPERIORPage
COURT1 of 20
* F~_ri-ED *
JUL 0 ~ 2010
STATE OF INDIANA )
/1 ~~~,I '1;:'./Yr;:~
) 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"-,ri~le,-",e--,F-"o,-,-w,-,,l~er~ _

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_ No x..

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 No x..

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

Yes_ No.x,

9. Additional information required by local rule: _

Steve Barber
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 2 of 20
A~~I; - to:
JUDGE J OOU0L~S K~HT
V>-NDERBURGH SUPERIOR COURT

STATE OF INDIANA )
* FILED *

) SS: JUL 0S 20'0

COUNTY OF VANDERBURGH )
lL'(4~ll) ~~4K
IN THE VANDER~URGH sUPEfi!dR COURT

MARILEE FOWLER )
Plaintiff )
)
vs. ) CAUSE NO. 82D03-1007-PL­ :St0 41
)
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:

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

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 sign
and 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:

 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 4 of 20

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.

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

11. If 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 I
CONSTRUCTIVE 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.

 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 5 of 20

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.

4
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 6 of 20

COUNT II
ILLEGAL ACTIONS OF ECVB

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

Paragraphs 1 through 21 above.

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

5
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 7 of 20

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

action and for all other proper relief.

COUNT III
VIOLATION OF FIRST AMENDMENT

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

Paragraphs 1 through 28 above.

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 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 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 making
comments, 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,

6
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 8 of 20

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.

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.

7
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 9 of 20

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

action and for all other proper relief.

COUNT IV
DUE PROCESS AND DUE COURSE OF LAW

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

Paragraphs 1 through 37 above.

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.

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

action and for all other proper relief.

COUNT V
BREACH OF CONTRACT

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

Paragraphs 1 through 40 above.

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

8
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 10 of 20

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.

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

action and for all other proper relief.

COUNT VI
PROMISSORY ESTOPPEL

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

Paragraphs 1 through 47 above.

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.

9
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 11 of 20

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

action and for all other proper relief.

BARBER & SHOULDERS, LLP

123 NW Fourth Street, Suite 402

Evansville, Indiana 47708

Telephone: (812) 425-9211

BY:~
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.

BARBER & SHOULDERS, LLP

123 NW Fourth Street, Suite 402

Evansville, Indiana 47708

Telephone: (812) 425-9211

Steve Barber, Atty. No. 2560-82

10

 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 12 of 20

LAW OfFICES OF
,ROSS E. RUDOLPH' MAILING ADDRESS.
MARC D. FINE (i) P o. BOX 1\07
1. MONTOOMERY PORTER rv ANSVlLLE, IN 47706-1 \07
JAMES D JOHNSON
J(RlST A B. LOCKYEAR (i) ALSO ADMITTED IN FLORIDA
KEITH"- SERMERSHEIM (ii) "-LSO ADMITTED IN KENTUCKY
JEFFREY W. HENNING (ii, iii) (iii) "-LSO ADMITTED IN ILLINOIS
STACY K. NEWTON
ANGELA L FREEL' 'CERTIFIED CIVIL MEDIATOR
BRIAN E. TOWNSEND Rudolph
KELLY J. JACKSON
MAX E FIESTER Porter & Johnson,LLP
JOSEPH 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) 422-9444
DANIEL L OLIVER FACSIMILE: (812) 421-7459
(Of Counsel)
WEB-SITE: ~j.com

March 8, 2010

HAND DELIVERED

Steve Barber

Barber & Shoulders, LLP

123 NW Fourth Street, Suite 402

Evansville, Indiana 47708

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 Severance
Payment 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.
kas@rfRi.com

Enclosures
EXHIBIT

A member of Legal NetlinkAlliance, a global network of independent law firms.

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 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 13 of 20

LAW OFFICES OF
ROSS E.RUDOLPH' MAILING ADDRESS:
MARC P. fINE (i) P. O. BOX 1507
r, MONTGOMERY PORTER EVANSYn.L.E, IN 47706-1507
JAMES D. lOHNSON
ICRJSTA B. LOCICYEAIl (i) ALSOADMITIEDIN FLORIDA
l<EmI A. SERMEiRSHEIM (ii) ALSOADMITTED IN KENTUCKY
JEFFREYW. HENNING (i~ iii) (iii) ALSOADMlITEP IN ILLINOIS
STACYK NEWTON
ANOELA L. FREEL' 'CERTIFIEDCIVlLMEDIATOR
BRIAN E. TOWNSEl'/D Rudolph
KElLY 1. JACKSON
MAX~ FlESTER . Porler & Johnson, LLP

JOSEPH 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) 422-9444­
DANIEL 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, Suite 402

Evansville, Indiana 47708

Re: Evansville 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 ofindependent law firms,

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 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 14 of 20

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 which
shall 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 of value whatsoever, if any. Employee acknowledges that the Company had fewer than 20
employees 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 that the
exception set forth in 42 USC 300bb-l(bXl) applies to the Company, and Employee is not entitled to any
rights of health 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 behalf of 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 m
account damages, costs, expenses, attorneys' fees and costs of investigation, monies due on (or relating to) :f '-.J
><
W
::;
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 .SlIrqqIQ

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 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 15 of 20

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, as
amended), 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 if Employee breaches this Agreement, or makes any
claim against Company or any other person or entity relating to Employee's employment by Company, the
termination of Employee'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 if 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 of each 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 in
personam 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 the

enforceability of the remaining portions of this Agreement or any part hereof, all of which 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 behalf of the Company in any
2
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 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 16 of 20

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 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 making
comments, 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, 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 of which is likely to harm the

reputation, good will, or commercial interests ofthe 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 effect ofwhich 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, of any violation of any federal, state or local law, or of any

liability 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

copy ofwhich 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.

3
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 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 17 of 20

(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 best 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 A

RELEASE AND DISCHARGE OF ALL 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~ ~ ~8 ~lOIO

Date
Joe Vezzoso, President Date Marilee Fowler

Attest: "Employee"

By: _

Tammy Barnett, Secretary Date

"Company"
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 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 18 of 20

Eva··. ville
I • D~I
1

A N A
Comention~VlSitors Bureau
March 4,2010

Josh Moore

Chairman

Cedar Rapids Area Convention & Visitors Bureau

119 First Avenue S.E.

Cedar Rapids, IA 52401

Dear Mr. Moore:

In 2001 Marilee Fowler accepted the position of Executive Director for the Evansville
Convention and Visitors Bureau. In these eight plus years, she has done an outstanding
job 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 with
122,381 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 profit
organizations and elected officials to enhance the visitor experience in Evansville. The
ECVB 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" our
community and increasing visitors.

Our next major project will be to build amulti-plex sports facility for baseball and
softball. 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 spoken
many 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 22 nd in reference to her actions that have not been disclosed
publicly, the phrase "alleged misconduct" was used in order to comply with statutory
notice requirements for holding an Executive Session of the ECVB.

Marilee has certainly been a good steward of the ECVB resources. The ECVB staff
worked 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
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 19 of 20

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

Evansville.

On behalf of the Evansville Convention and Visitors Bureau Board of Commissioners,

we wish her all the best in her future endeavors.

Sincerely,

Joseph J. Vezzoso, Jr.

President
Board of Commissioners
Evansville Convention & Visitors Bureau
 Case 3:10-cv-00104-RLY-WGH Document 1-1 Filed 07/20/10 Page 20 of 20
STATE OF I N D I A N A )
) SS: IN THE VANDERBURGH SUPERIOR c6t1¥~.
URGH SUPERIOR
COUNTY OF VANDERBURGH ) . r'l~D ~UR~
MARILEE FOWLER ) SUMMONS JUL 09 2010
Plaintiff, )
) .~lc",9-4?tJ ~~
vs. ) CAUSE NO. 82D03-1007-PL- Z~~q! CLERK
)
EV ANSVILLE CONVENTION ) Defendant: Evansville Convention and Visitors Bureau
AND VISITORS BUREAU ) Address: clo Keith Allen Sermersheim
Defendant. ) P. O. Box 1507
221 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 against
you 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, within
twenty (20) days, commencing the day after you receive this summons, or judgment may be entered against you
for what the plaintiff has demanded. If you have a claim for relief against the plaintiff arising from the same
transaction 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 Barber
BARBER & SHOULDERS, LLP
123 NW Fourth Street, Suite 402
Evansville, IN 47708
Telephone: (812) 425-9211 By ~_=~'-------___:=....,__Deputy
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 return
receipt 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