Agenda 11/13/2012 Item #16K611/13/2012 Item 16.K.6.
EXECUTIVE SUMMARY
Recommendation to approve a Settlement Agreement in the sum of $61,250 and direct the
County Attorney to file all documents necessary to end with prejudice the lawsuit styled
David Scribner v. Collier County Board of County Commissioners, Case No. 2:10- cv -728-
FtM-29-JES-DNF, now pending in the United States District Court, Middle District of
Florida Fort Myers Division. (Fiscal Impact: $61,250).
OBJECTIVE: To end a federal discrimination and retaliation lawsuit now pending in the
Federal Court House in Fort Myers.
CONSIDERATIONS: The Plaintiff, David Scribner, is a former Manager of Investigation in
the Code Enforcement Department. Mr. Scribner voluntarily resigned from employment with
Collier County in July 2009 although Mr. Scribner alleges constructive discharge claiming that
he was required to resign based on intolerable working conditions. Mr. Scribner's complaint
generally alleges gender discrimination and retaliation under the Department Director. The
County sought to have this case dismissed, however the Motion to Dismiss the Amended
Complaint was denied by the Court.
The parties attended Court Ordered Mediation on January 27, 2011 and reached impasse. The
parties have completed initial discovery including written discovery and depositions. Prior to the
initiation of additional and costly discovery (starting with 9 depositions), the parties again
engaged in settlement discussions. On October 30, 2012, the parties agreed to a $61,250
payment by the County, subject to Board approval. If agreed to by the Board, no other costs or
fees would be due, as plaintiff's attorney's fees would be paid out of this settlement sum.
The County Attorney is recommending that the Board accept this settlement for the following
reasons:
1. This case would be referred to outside counsel to try this case in federal court, and the
attorney's fees would start at approximately $50,000 and may reach as high as
$75,000.00
2. If the County does not prevail, then in addition to the $50,000- $75,000; in legal fees we
expect to incur, the County would be responsible under Federal law fox plaintiff's legal
fees, plus whatever damages may be awarded by the jury.
FISCAL IMPACT: Funds in the amount of $61,250 will come out of Fund 516, Property and
Casualty Insurance.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: The County Attorney's Office has reviewed this settlement
with the Risk Management Department and recommends that the Board of County
Commissioners approve this Settlement Agreement. This item is legally sufficient for Board
action and requires a majority vote for approval. — CMG
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11/13/2012 Item 16.K.6.
RECOMMENDATION: That the Board approves the attached Settlement Agreement in the
total sum of $61,250 and directs the County Attorney to file all documents necessary to end with
prejudice the lawsuit referred to above. The County Attorney requests that if any Commissioner
wishes to discuss this item, that the item be continued to allow the County Attorney to conduct a
Shade Session for the following Board meeting.
PREPARED BY: Colleen M. Greene, Assistant County Attorney
Jeffrey A. Klatzkow, County Attorney
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11/13/2012 Item 16.K.6.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.6.
Item Summary: Recommendation to approve a Settlement Agreement in the sum of
$61,250 and direct the County Attorney to file all documents necessary to end with prejudice
the lawsuit styled David Scribner v. Collier County Board of County Commissioners, Case No.
2:10 -cv- 728- FtM- 29- JES -DNF, now pending in the United States District Court, Middle District of
Florida Fort Myers Division. (Fiscal Impact: $61,250).
Meeting Date: 11/13/2012
Prepared By
Name: AllenDebbie
Title: Legal Office Administrator,County Attorney
11/2/2012 10:26:54 AM
Approved By
Name: WalkerJeff
Title: Director - Risk Management,Risk Management
Date: 11/5/2012 7:31:10 AM
Name: GreeneColleen
Title: Assistant County Attomey,County Attorney
Date: 11/5/2012 3:19:42 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 11/5/2012 3:54:58 PM
Name: FinnEd
Title: Senior Budget Analyst, OMB
Date: 11/5/2012 4:51:19 PM
Name: OchsLeo
Title: County Manager
Date: 11/5/2012 6:14:22 PM
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11/13/2012 Item 16.K.6.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter
referred to as the "Agreement and Release ") is entered into and made on this
day of November, 2012 by and between DAVID SCRIBNER, (hereinafter referred to as
"Plaintiff") and Board of County Commissioners for Collier County (hereinafter referred
to as the "County ").
WITNESSETH:
WHEREAS, Plaintiff filed a lawsuit against the County in the United States
District Court, Middle District, Case No.: 2:10 -cv- 728- FtM- 29- JES -DNF, (hereinafter
referred to as the "Lawsuit "); and
WHEREAS, Plaintiff and the County, without either party admitting any liability or
fault, desire to settle the Lawsuit and any and all disputes that arise from, relate or refer
in any way, whether directly or indirectly, known or unknown, to the incidents described
or allegations made in the Complaint filed in the Lawsuit; and,
WHEREAS, Plaintiff and the County desire to reduce their settlement to a writing
so that it shall be binding upon them as well as their respective owners, principals,
elected officials, officers, employees, ex- employees, agents, attorneys, representatives,
insurers, spouses, successors, assigns, heirs and affiliates; and
WHEREAS, Plaintiff and Plaintiff's attorney agree and covenant to fully comply
with all applicable Medicare laws, liens, and Set - Asides, specifically including Section
42 USC § 1395y; and
WHEREAS, Plaintiff agrees to be responsible for any tax consequences or
liabilities, if any, as a result of this Settlement Agreement.
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11/13/2012 Item 16.K.6.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
consideration set forth in this Agreement and Release, and with the intent to be legally
bound, Plaintiff and the County agree as follows:
1. Plaintiff and the County adopt and incorporate the foregoing recitals,
sometimes referred to as "Whereas Clauses ", by reference into this Agreement and
Release.
2. In consideration of the resolution of all disputes or claims arising from or
referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and
in consideration of the sum of Sixty One Thousand Two Hundred Fifty Dollars and
00 /100 ($61,250.00) and other valuable consideration, the receipt and adequacy of
which is hereby acknowledged by Plaintiff, Plaintiff agrees to dismiss the Lawsuit with
prejudice.
3. In consideration of the resolution of the Lawsuit, and for other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged,
Plaintiff, on behalf of themselves, their attorneys, agents, representatives, insurers,
heirs, successors and assigns, hereby expressly releases and forever discharges the
County, as well as its elected officials, officers, employees, ex- employees, agents,
attorneys, representatives, successors, assigns, insurers and affiliates from any and all
claims, demands, causes of actions, damages, costs, attorney's fees, expenses and
obligations of any kind or nature whatsoever that they have asserted or could have
asserted in the Lawsuit or that arise from or relate or refer in any way, whether directly
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11/13/2012 Item 16.K.6.
or indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the
Complaint in the Lawsuit.
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of
this Agreement and Release, Plaintiff and the County agree that either of them (as well
as any other persons or entities intended to be bound) shall, in the event of any breach,
retain the right to enforce the terms and conditions of this Agreement and Release.
5. Plaintiff and Plaintiff's attorney agree and covenant to fully comply with all
applicable Medicare laws, liens, and Set - Asides, specifically including Section 42 USC
§ 1395y.
6. Plaintiff and County mutually agree that this Settlement is for
compensatory (non -wage related) damages only, as the Parties agree that there are no
lost wages associated with Plaintiff's claims.
7. Plaintiff and the County acknowledge and agree that this Agreement and
Release is intended to and shall be binding upon their respective owners, principals,
officials, officers, employees, ex- employees, agents, attorneys, representatives,
insurers, successors, assigns, spouses, heirs, and affiliates.
8. Plaintiff and the County recognize and acknowledge that this Agreement
and Release memorializes and states a settlement of disputed claims and nothing in
this Agreement and Release shall be construed to be an admission of any kind, whether
of fault, liability, or of a particular policy or procedure, on the part of either Plaintiff or the
County.
9. Plaintiff and the County acknowledge and agree that this Agreement and
Release is the product of mutual negotiation and no doubtful or ambiguous language or
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11/13/2012 Item 16.K.6.
provision in this Agreement and Release is to be construed against any party based
upon a claim that the party drafted the ambiguous provision or language or that the
party was intended to be benefited by the ambiguous provision or language.
10. This Agreement and Release may be amended only by a written
instrument specifically referring to this Agreement and Release and executed with the
same formalities as this Agreement and Release.
11. In the event of an alleged breach of this Agreement and Release, Plaintiff
and the County agree that all underlying causes of action or claims of Plaintiff have
been extinguished by this Agreement and Release and that the sole remedy for breach
of this Agreement and Release shall be for specific performance of its terms and
conditions or any damages arising from the breach. In this regard, Plaintiff and the
County further agree that the sole venue for any such action shall be in the Twentieth
Judicial Circuit in and for Collier County, Florida in Naples, Florida.
12. This Agreement and Release shall be governed by the laws of the State of
Florida.
13. Plaintiff and Plaintiff's attorney shall be solely responsible for any
Medicare lien, other liens, or Medicare Set - Asides.
14. Plaintiff is responsible for any tax consequences or liabilities, if any, as a
result of this Settlement Agreement.
[Signature page to follow.]
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11/13/2012 Item 16.K.6.
j
IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed
this Agreement and Release as set forth below.
Date:
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form .and
legal sufficiency:
V
Vic\ erfleen M. Greene
Assistant County Attorney
STATE OF
COUNTY OF
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
I:
Fred W. Coyle, Chairman
DAVID SCRIBNER, Plaintiff
Bradley P. Rothman, Esq.
Attorney for Plaintiff
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by DAVID
SCRIBNER, before me on this day of 2012.
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
5
Personally Known
or
Produced Identification
Type of Identification Produced
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