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Flash News, 4-28: APAP "Letter Agreement"
In at Least One Case, Ex-employee Claims, Arts Presenters Sought to Condition Severance on Confidentiality Agreement
By Paul Ben-Itzak
Copyright 2003 The Dance Insider

(Editor's Note: Arts Presenters or APAP, a trade and service organization for theaters across the US, is best known to dancers for its annual members conference, in which dance and other companies present showcases to theaters they hope will book them and keep their dancers employed. Because of its essential utility to the livelihoods of dancers, the Dance Insider has been closely following recent personnel developments at the organization.)

One of the six employees fired by Arts Presenters March 7, as part of what the organization said was a restructuring "of its operations and staff," has provided the Dance Insider with a hard copy of the following letter, and permission to publish it. The letter, on blank stationary, bears the signature of Arts Presenters president and CEO Sandra Gibson. The employee, whose name and address are on the first page of the letter and whose name is on the subsequent pages, has neither signed nor initialed the copy the employee provided to the DI. Except for omitting certain identifying features to protect the source (the employee), the DI is publishing the entire contents of the letter, as follows. (Where italics exist, they were in the document provided us.) On Wednesday, the DI e-mailed copies of the text in the letter to Gibson and to Patrick Madden, an APAP vice president, as well as several related questions. Madden's response follows the letter below.


March 7, 2003

Subject: Termination and Offer of Transition Assistance

Dear (Name of Employee):

As I informed you at the meeting today, the Association of Performing Arts Presenters ("Arts Presenters" or the "Association") has made some very difficult decisions relating to the restructuring. Among the many difficult decisions was one to eliminate the position you now hold. As you know, your employment with Arts Presenters is "at-will," which means that you or the Association may terminate that employment at any time. The Association has chosen to exercise that option. Your last day of employment with Arts Presenters is today, March 7, 2003. In order to assist you in your transition from Arts Presenters, and to resolve any outstanding issues that you may believe that you have with the Association, the Association will provide you with certain monetary assistance in exchange for a waiver and certain other promises from you. If you choose to reject the offer as set forth below, you will receive your pay and unused leave payout only through your last day at Arts Presenters.

In consideration of your past contributions to Arts Presenters and its desire to resolve all outstanding issues that could be raised by you, in exchange for the promises set forth below and other good and valuable consideration hereby acknowledged by the parties, you and Arts Presenters agree to the following:

1. In exchange for agreement to the terms of this Letter of Agreement, and except as to any breach of the agreements as stated therein, Arts Presenters will provide you with the following:

a. Arts Presenters will pay you $(amount) (one week pay for each year with organization), less all appropriate withholdings. Payments will be made under this Letter ... Agreement on the eighth (8th) business day following your execution of this Letter Agreement, unless you revoke your acceptance under paragraph 7 (ix), below.

b. You have enrolled in the Association's group medical/dental plans. The Association will pay your premiums only through the end of this month. Your COBRA notifications will be sent to you under separate cover.

c. Your participation in the Association's retirement plan will end today. You may contact TIAA-CREF to make arrangements for the transfer of your funds.

d. No other payments will be made or benefits provided to you, in any form whatsoever, other than as stated herein.

You agree not to discuss (orally or in writing) this Letter Agreement and/or the circumstances of your termination from Arts Presenters with any person who Arts Presenters considers a business contact, including any current or former employees of Arts Presenters, any Arts Presenters members, vendors, prospective members, or prospective vendors. You also agree to maintain as confidential the terms of this Letter Agreement as well as information known to you regarding the operations, finances, membership, and membership programs (both current and planned) of Arts Presenters ("Arts Presenters' Confidential Information"). You may discuss with any potential employer only the nature and scope of your job responsibilities while at Arts Presenters. In that regard, to explain why you are seeking new employment, you agree to use the following statement when speaking to potential employers or persons from whom you intend to request a reference: "Arts Presenters has restructured itself and my position was eliminated in the process." You understand and agree that your agreement with respect to the confidentiality of this Letter Agreement and Arts Presenters' Confidential Information is a material inducement for Arts Presenters to enter into this Letter Agreement.

2. You agree not to disparage Arts Presenters or any of its officers, directors, shareholders, agents, representatives, partners, employees, consultants, attorneys, and successors in any manner whatsoever whether orally or in writing, to any person, including current and former employees of Arts Presenters. You further agree not to encourage anyone else to disparage or criticize Arts Presenters, or put them in a bad light. You agree to direct all requests for references or employment verification to me (Sandra Gibson) or a person specifically designed by me to respond to such inquiries.

3. Upon execution of this Letter Agreement, you agree to release and forever discharge Arts Presenters and its officers, directors, shareholders, agents, representatives, partners, employees, consultants, attorneys, successors, heirs and assigns, from all manner of actions, claims and demands, whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, based in contract or otherwise, including, but not limited to, any claims in tort, contract or otherwise, for payment of wages or commissions, constructive discharge, or employment discrimination (whether under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (including the Older Workers Benefit Protection Act), the Americans With Disabilities Act, the Employee Retirement Income Security Act, the Fair Labors Standards Act, the Civil Rights Act of 1866, the District of Columbia Family and Medical Leave Act, and the District of Columbia Human Rights Act, and all federal, state, and local employment and/or employment discrimination statutes, regulations, or otherwise), that you ever had, now have, or hereafter can, shall, or may have, against Arts Presenters, relating in any way to (i) your past employment by Arts Presenters; (ii) your termination from Arts Presenters; and (iii) any other conduct through the date you execute this letter.

4. You agree that this Letter Agreement precludes you from commencing any suit in law, equity or otherwise, against Arts Presenters and its officers, directors, shareholders, agents, representatives, partners, employees, consultants, attorneys, successors, heirs and assigns, for any claim, loss, or any relief whatever and this Letter Agreement shall operate conclusively as an estoppel in the event of any such claim, action, or proceeding and may be pleaded accordingly; provided however that this Letter Agreement does not limit your right to file an administrative charge of discrimination or a complaint challenging the validity of the above waiver.

5. The parties hereto understand and agree that the terms of this Letter Agreement generally meet their stated expectations and demands and are necessary for the reasonable and proper protection of Arts Presenters. You understand that Arts Presenters has been induced to enter into this Letter Agreement upon your representation and agreement to the above-stated terms.

6. You acknowledge that you: (i) have been offered, prior to the execution of this Letter Agreement, a ... (withheld at this time of publication by the Dance Insider, but not from the copy the DI provided to APAP) ... period to consider the terms of this Letter Agreement, and you have used as much or as little of that time as you have determined you need to consider the terms of this Letter Agreement; (ii) have been provided with the Statutory Disclosure in Attachment A; (iii) are waiving claims under the Age Discrimination in Employment Act; (iv) are hereby advised to consult with legal counsel of your own choosing prior to execution of this Letter Agreement; (v) fully understand the terms and conditions contained herein: (vi) have entered into this Letter Agreement of your own free will and are not under any undue pressure or duress; (vii) are not waiving your rights or claims that may arise after the date this Letter Agreement is executed; (viii) have received as consideration for the waivers contained herein money and other benefits in addition to that which you are already entitled; and (ix) understand that, notwithstanding any other timeframes mentioned above, for a period of seven (7) days following your execution of this Letter Agreement that you may revoke your acceptance, and the Letter Agreement will not be effective or enforceable by either party until such revocation period has expired.

Please review the terms set forth in this Letter Agreement and confirm, by your signature below and your initial on each page, your agreement to such terms. I trust that these arrangements will serve to bring our employment relationship to an amicable conclusion.

Please respond on or before (date withheld by the Dance Insider), with a signed and initialed copy of this letter.


Association of Performing Arts Presenters

(Editor's Note: What appears to be Gibson's handwritten signature appears here. The DI has compared to a recent signature in the APAP members' newsletter.)

Sandra Gibson,
President & CEO


I, (name withheld by the DI), hereby confirm and acknowledge that I have had ample opportunity to read and review this Letter Agreement with my advisor. I agree to the representations, terms, and conditions set forth above and I acknowledge that the foregoing constitutes the entire agreement between Arts Presenters and myself.

(Editor's note: At this point, spaces are provided for 'Employee,' 'Date,' 'Witnessed by,' 'Name,' and 'Date,' none of which are filled out in the copy provided to the DI.)

(Following authorization by the employee to publish this letter -- again, not signed by the employee in the copy the employee provided to the DI -- the DI e-mailed a copy of the letter's text to Sandra Gibson and Patrick Madden, APAP vice president, preceded by the following question: "For a story we are working on to be published Thursday April 24, can you please comment on the letter below? We have it from a reliable source that APAP and Ms. Gibson presented the letter to one of the employees fired March 7...." At presstime, Ms. Gibson had not responded. Mr. Madden's response follows.)


I have read your email and it appears that you have received incorrect information from your source(s). To the extent that you are asking again about personnel matters, as I told you in our earlier exchange, Arts Presenters is committed to maintaining personnel matters as confidential and any personnel information that you think you have can only have been obtained by you under improper circumstances. You are asking Arts Presenters to comment on or confirm information about something that you are representing is a "PRIVATE AND CONFIDENTIAL" communication. Based on your representation, we must assume that whatever it is that you think you have is meant to be both private and confidential, therefore, we will not allow ourselves to be in a position to violate the privacy rights of any individual or assist you (or others) in doing so.

You should also know that Arts Presenters has received confirmation from our former employees that they wish to have their personnel matters remain both private and confidential. I'm sure you understand the sensitivities. I must request that you not reveal any such information. In light of all of the above considerations, other than informing you that your email contains incorrect information, I cannot respond to the individual allegations and inquiries.

If you publish the information contained in your email, you are on notice that you and your publication will be at risk for various tort claims by Arts Presenters and others.

Please understand that the nature of your request limits my ability to provide much of a response. I would welcome the opportunity to talk with you about a story regarding our new programs, technology, and communications plans.

Patrick Madden
Vice President, External Affairs
Arts Presenters

(The Dance Insider stands by its claim to have received the letter under proper circumstances, as detailed above, and by its belief that the letter is a credible claim.)

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