Agenda 06/28/2011 Item #16K3
6/28/2011 Item 16.K.3.
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners approve a Settlement
Agreement among all parties in the case styled Burgesoll v. Collier COUllty, et al., Case No.
2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the
Middle District of Florida, Fort Myers Division.
OBJECTIVE: Recommendation that the Board of County Commissioners approve a
Settlement Agreement among all parties in the case styled Barbara Burgeson v. Collier County,
Tom Henning. Stan Chrzanowski. and Rudy Moss, Case No. 2:09-CV-220-FTM-99-DNF, now
pending in the United States District Court for the Middle District of Florida, Fort Myers
Division.
CONSIDERATIONS: Collier County, Commissioner Tom Henning, and County employees:
Stan Chrzanowski and Rudy Moss, have been sued in a sexual and gender discrimination case
by fonner employee, Barbara Burgeson; styled Burgeson v. Collier COUnTY, et aI., Case No.
2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the Middle
District of Florida, Fort Myers Division. Ms. Burgeson's retaliation claims aganst the County
were dismissed with prejudice by the Trial Judge after thc County's third motion to dismiss.
Plaintiff's remaining claims against the County are: Violation of the EP A, 29 ns.c. ~ 206(d);
Violation of Title VII of Civil Rights Act of 1964,42 U.s.C. ~ 2000(e); Violation ofFCRA, Fla.
Stat., ~ 760.10; Sexual Harassment in Violation of Title VII of Civil Rights Act of 1964, 42
U.S.c. ~ 2000(e); Sexual Harassment in Violation of FCRA, Fla. Stat. ~760.01; and Negligent
Supervision.
Plaintiffs claims against the other individual Defendants are: Assault and Battery against Rudy
Moss; Intentional Infliction of Emotional Distress against Rudy Moss and Stan Chrzanowski;
Tortious Interference with Employment Relationship, and Defamation against Commissioner
Henning.
To date, the County has expended approximately $] 95,000.00 for two (2) outside counsels' fees
plus costs for the three (3) individual defendants. This case is covered by the County's
insurance policy. Under the policy, the first $100,000 in fees were payable by the County, and
further fees are reimbursed by the carrier. Accordingly, all future fees are the obligation of the
insurance carrier.
Ms. Burgeson's first attorney resigned and her second attorney wants to settle. Future costs up
to mediation are anticipated at approximately $65,000.00. Trial cost would undoubtedly be
much higher. Our insurance carrier through the adjusting company, .John's Eastern, is driving
the settlement process. They are viewing it as a busincss decision. i.e.. that it is cheaper to settle
than to try the case, even though the County has an cxcellent defense and a good chance for
summary judgment.
The attached Settlement Agreement amounts to a full and final settlement for a payment of
$75.000.00, paid solely by the County's insurance carrier, to Plaintiff Burgeson, on behalf of all
Packet Page -1738-
6/28/2011 Item 16.K.3.
of the Defendants. The Plaintiff also has a pending bankruptcy case, and payment will be made
only upon a signed Order from the Bankruptcy Court, approving the settlement. All parties are
to bear their own attorneys' fees and costs. A stipulation of dismissal signed by all counsel will
be filed with the Court once the settlement is approved. The approval of the settlement by the
Board of County Commissioners is contingent upon approval by the Bankruptcy Court. If the
settlement is not approved by the Bankruptcy Court, the Board's approval is null and void.
FISCAL IMP ACT: None; the settlement will be paid by the County's insurance carrier.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: This is a regular matter requiring a simple majority vote. It is
the recommendation of the County Attorney that Commissioner Henning abstain from voting on
this matter as he is a party to the litigation.
Please note that this matter is being placed on the consent agcnda. lf any Commissioner wishes
to discuss the ternlS of this Settlement with their fellow Commissioners, please notify me and I
will request a continuance of this item and announce a Shade Session to be held at the next
Board meeting.
RECOMMENDATION: That the Board of County Commissioners approve the attached
Settlement Agreement between all parties in the case styled Barbara Burgeson v. Collier
County. Tom Henning, Stan Chrzanowski. and Ru,{1' Moss, Case No. 2:09-CY-220-FTM-9 DNF,
now pending in the United States District Court for the Middle District of Florida, Fort Myers
Division.
Prepared by: Jacqueline Hubbard, Litigation Section Chief, and
Jeffrey A. Klatzkow, County Attorney
2
Packet Page -1739-
6/28/2011 Item 16.K.3.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.3.
Item Summary: Recommendation that the Board of County Commissioners approve a
Settlement Agreement among all parties in the case styled Burgeson v. Collier County, et aI.,
Case No. 2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the
Middle District of Florida, Fort Myers Division.
Meeting Date: 6/28/2011
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary ,County Attorney
6117/201112:03:09 PM
Approved By
Name: Walker.Teff
Title: Director - Risk Management,Risk Management
Date: 6/20/2011 7:48:52 AM
Name: GreenwaldRandy
Title: ManagementlBudget Analyst.Office of Management & B
Date: 6/20/2011 9:04:27 AM
Name: Klalzkow.Teff
Tille: County Attorney,
Date: 6/20/2011 11:41 :30 AM
Name: lsacksonMark
Title: Director-Corp Financial and Mgmt Svs,CMO
Date: 6/20/2011 2:04:27 PM
Packet Page -1740-
6/28/2011 Item 16.K.3.
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA IN FORT MYERS, FLORIDA
CIVIL ACTION
)
(
BARBARA BURGESON
Plaintiff,
v.
Case No. 2:09-cv-00220-CEH-DNF
COLLlER COUNTY, TOM HENNING,
STAN CHRZANOWSKI, RUDY MOSS
Defendants.
/
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
In consideration of the promises, covenants and conditions contained herein,
Plaintiff, Barbara Burgeson, hereinafter referred to as "Burgeson," and Defendants
Collier County, Tom Henning, Stan Chrzanowski, and Rudy Moss, hereinafter referred
to as "the Defendants," agree as follows:
1. Settlement Amount. Collier County, on behalf of all the Defendants will pay to
BURGESON the full and final settlement amount of $75,000.00, (Seventy-Five
. Thousand Dollars), upon receipt of an Order from the Bankruptcy Court in Case
No.:9:09-bk-24347-DHA; payable as directed by that Order. The payment of any
income taxes shall be the sole responsibility of the Plaintiff and her Attorney,
limited to their respective interests. Collier County shall make payment within 30
(thirty) days of the Order of the Bankruptcy Court. Burgeson will indemnify
Collier County for any liability for income tax from the Settlement Amount.
Burgeson agrees to indemnifY Collier County for any liability it may incur to the
Social Security Administration for disability or medical expenses attributable to
the claims in this lawsuit.
2. Settlement Payment. Plaintiff stipulates and agrees that the payment of
Settlement Amount shall be solely the obligation of Collier County, and the
individual Defendants will not have any independent obligation to pay the
Settlement Amount.
3. Stipulation for Dismissal. Within 14 days ofreceipt of the $75,000.00, counsel
for BURGESON shaIl prepare, execute and deliver to counsel for
DEFENDANTS a Stipulation for Dismissal with Prejudice with a proposed Order
on the Stipulation, which shall provide that this entire action is dismissed with
prejudice, including any and all claims which could have been made by the
Plaintiff pertaining to the allegations of her Second Amended Complaint. All
Packet Page -1741-
6/28/2011 Item 1~.K.;~--l
parties agree to release each other from any and all claims pertaining to the
incidents related to the employment of the Plaintiff by the County as set forth
below. BURGESON shall bear her own attorneys' fees and costs, and
DEFENDANTS will not seek recovery of their attorneys' fees and costs from
Plaintiff, but which Order shall also provide that the Court reserves jurisdiction to
enforce the terms of this Settlement Agreement.
4. Mntual General Release And Covenant Not To Sue. Except for the obligations
of this Settlement Agreement, which are not hereby released and which shall
survive the execution hereof, in exchange for the consideration set forth herein,
BURGESON and DEFENDANTS do hereby with prejudice mutually release,
settle, acquit, remise, satisfy and forever discharge each other including Collier
County's past and present commissioners, employees, officers, directors, agents
and representatives, in their official and individual capacity, their heirs and legal
representatives and on behalf of anyone who could claim by and through
BURGESON and DEFENDAl\'TS, their predecessors and successors, from any
and all claims and demands, actions, causes of action, damages, expenses or cost
of whatever nature, including but not limited to any and all claims for handicap or
disability discrimination, national origin discrimination, sex discrimination, race
discrimination, retaliation, whistle blowing, breach of contract, rescission,
promises, claims under the Employment Retirement Income Security Act of 1974
("ERISA"), as amended, torts of all kind, including but not limited to
misrepresentation, negligence or otherwise, fraud, defamation, libel, slander,
worker's compensation retaliation, interference with an advantageous business
relationship, negligent hiring, negligent retention, discrimination claims or rights
under State and Federal law including but not limited to legislation including
Section 448.101 - 448.105, Florida Statutes, and Section 120.3187, Florida
Statutes, the Consolidated Omni-Budget Reconciliation Act ("COBRA"), the
Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act
("ADA"), the Equal Pay Act, Title VII of the Civil Rights Act of 1964, the
Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes, the Fair Labor
Standards Act ("FLSA"), as amended and the Drug-free Workplace Act and any
other claim of any kind, in law or equity.
5. The aforementioned mutual release and covenant not to sue does include any
rights afforded to BURGESON under the Age Discrimination and Employment
Act ("ADEN'), and the Older Workers Benefits Protection Act ("OWBPA"). In
accordance with the OWBPA, BURGESOl\' understands her rights under the
ADEA that she is entitled to consult an attorney prior to executing this release and
waiver of those rights. Further, BURGESON understands that she has seven (7)
days from the date of her execution of this Release and Waiver to revoke her
waiver of her claims under the AD EA. Should BURGESON revoke her waiver of
claims under the ADEA, this Agreement shall bccome null and void.
6. BURGESON and DEFENDANTS further specifically waive any rights of action
and administrative and judicial relief which either might otherwise have available
in the State and Federal Courts, including all common law claims and claims
under Federal and State Constitutions, statutes and regulations and Federal
2
Packet Page -1742-
6/28/2011 Item 16.K.3.
Executive Orders, County and Municipal ordinances and regulations or any claim
arising out of the employment relationship between BURGESON and
DEFENDANTS with the exception of being able to challenge the validity of the
ADEA waiver.
7. Due Dates Fallin!!: on Weekends or Holidavs. In the event that the date of any
act required to be performed by this Agreement (including, but not limited to, the
payment of any money) falls on a weekend or a federal holiday, then the same
shall not be required to be performed until the next business day thereafter.
8. Entire A!!:reement. This Agreement sets forth the entire understanding of the
parties and no verbal or written warranties or representations have been made or
have been relied upon which do not appear in writing within this Agreement.
Any reliance on verbal or other representations which do not appear within this
Agreement shall be deemed unjustifiable reliance. Each party hereto is
represented by that party's own counsel (or has had the opportunity to confer with
counsel of their own choosing) and has had the benefit of such counsel's advice in
reviewing, commenting upon, and modifying this Agreement.
9. Modification of Aereement. This Agreement may not be amended or modified
except by written instrument signed by all of the parties hereto, and the parties
agree that this provision may not be waived except in writing.
10. Waiver The rights of the parties under this Agreement are to be considered
cumulative, and the failure on the part of any party to exercise or enforce properly
or promptly any rights arising out of this Agreement shall not operate to forfeit or
serve as a waiver of any of those or other rights. The waiver by one party of the
performance of any covenant or condition herein shall not invalidate this
Agreement, nor shall it be considered to be a waiver by such party of any other
covenant or condition herein. The waiver by any party ofthe time for performing
any act shall not constitute a waiver of the time for performing any other act or an
identical act required to be performed at a later time.
11. CooDeration. The parties hereto agree to cooperate fully in the execution of any
documents or performance in any way which may be reasonably necessary to
carry out the purposes of this Agreement and to effectuate the intent of the parties
hereto.
12. No Admission of Liabilitv. By this settlement, no party admits any liability, but
rather the parties have agreed to this settlement as a compromise of disputed
claims in the interests of avoiding the costs and uncertainty of continued
litigation.
13. Time is of the Essence. Time is of the essence of this Agreement.
3
Packet Page -1743-
6/28/2011 Item 16.K.3.
14. Headinl!8. The headings used in this Agreement are for convenience and
reference only and in no way define, describe, extend, or limit the scope or intent
of this Agreement or the intent of any provision in it.
15. Severabilitv. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable for any reason,
whether on its face or as applied, the remaining provisions shall remain in full
force and effect.
16. Benefit and Bindinl! Effect. This Agreement shall inure to the benefit of and be
binding upon the parties, their heirs, successors and assigns. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
The individuals signing below on behalf of entities represent and warrant that they
have the full authority to bind their respective entities to all of the provisions
hereof. SignatW'es by facsimile transmission or other electronic transmission of
this Agreement shall be acceptable and binding upon the Parties. A copy hereof
shall be as binding as the executed original.
17. Goveminl! Law. This Agreement shall be governed by the laws of the State of
Florida, without regard to its principles of conflicts of law.
18. Effective Date: This Settlement Agreement and Mutual Release shall take effect
upon the execution of it by all the parties, and upon the approval of the Collier
County Board of County Commissioners at a duly noticed, regularly scheduled
public meeting. Additionally, however, the approval of the Board of County
Commissioners is contingent upon acceptance of the Settlement Agreement and
Mutual Release by the Bankruptcy Court. If the Settlement is not approved by the
Bankruptcy Court, the Board of County Commissioners' approval is null and
void.
The parties have executed this Agreement on the dates shown below.
ATTEST:
Dwight E. Brock, CLERK
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
By:
DEPUTY CLERK
FRED W. COYLE, CHAIRMAN
r:!I-pproved as to~orm and leg~ sufficiency:
Jacqueline W. Hubbard
Litigation Section Chief
Collier County Attorney's Office
4
Packet Page -1744-
6/28/2011 Item 16.K.3.
WITNESS:
BY:'rj~~ ~
Barbara Burgeson
Signed Name
Date: &r It; - c,2{) II
L ' I './t;
4/ - c"-
M)
C. uJ; SDAl
By:
Douglas
Attorney
Wilson, Esq.
or Barbara Burgeson
WITNESS:
By:
Tom Henning
Signed Name
Date:
Printed Name
Signed Name
By:
Ricardo A. Reyes, Esq.
Attorney for Tom Henning
Printed Name
WITNESS:
By:
Stan Chrzanowski
Signed Name
Date:
Printed Name
By:
Rudy Moss
Signed Name
Date:
Printed Name
Signed Name
By:_
Andrew H. Reiss, Esq.
Attorney for Stan Chrzanowski and
Rudy Moss
Printed Name
5
Packet Page -1745-