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Agenda 12/13/2011 Item #16K 712/13/2011 Item 16.K.7. EXECUTIVE SUMMARY Recommendation to approve a Mediated Settlement Agreement in the sum of $65,000 and direct the County Attorney to file all documents necessary to end with prejudice the lawsuit styled Adonis Martinez v. Collier County Board of County Commissioners, Case No. 2:10 -cv- 599- JES -DNF, now pending in the United States District Court, Middle District of Florida Fort Myers Division. (Fiscal Impact: $65,000.00). OBJECTIVE: To end a federal discrimination suit now pending in the Federal Court House in Fort Myers. CONSIDERATIONS: The plaintiff, Adonis Martinez, is a former Senior Operations Analyst with the County, having been employed in the former CDES Division. His complaint alleges that he is an African American Latino from the Dominican Republic; that on May 19, 2009 lie was involved in an altercation with a white co- employee; that the altercation was initiated by the white co- employee; that he responded in self - defense; that as a result of this altercation, he was placed on administrative leave and subsequently terminated; that during the termination hearing process all of the witnesses and management team were white; and that the white co- employee who initiated the altercation was not disciplined. The County's response is that a dispute arose between Mr. Martinez and a co- employee; that Mr. Martinez left the room, then returned shortly and struck the co- employee in the chest; and that Mr. Martinez was terminated under the County's zero - tolerance rule for workplace violence. Prior to the initiation of discovery, in order to limit outside counsel costs before they begin to substantially accrue the County Attorney requested mediation. Mediation was held on November 10, 2011, and the parties agreed to a $65,000 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. Based on the recent Holmes litigation, the County can expect its legal fees to cost approximately $150,000 to try this case. Accordingly, if the County prevails, we would spend considerably more to take this case to trial then to settle it now. 2. If the County does not prevail, then in addition to the $150,000 in legal fees we expect to incur, the County would be responsible under Federal law for plaintiff's legal fees, plus whatever damages may be awarded by the jury. Plaintiff is alleging approximately $25,000 in actual damages (predominately lost wages and costs to relocate his family to the other coast where he procured another job), and $250,000 in pain and suffering. Although this is a covered case under the County's excess insurance policy (with the first $100,000 paid by the County), depending upon the verdict there is a chance that the insurance company would contest coverage under a reservation of rights, and that future premiums could rise. 3. Some of the witnesses to the altercation are no longer with the County. Procuring their testimony at trial may prove challenging. 4. Settling this case now, prior to discovery, stops the clock on outside counsel fees, which to date are approximately $4,000. FISCAL IMPACT: Funds in the amount of $65,000 will come out of Fund 516, Property and Casualty Insurance. GROWTH MANAGEMENT IMPACT: None. Packet Page -3739- 12/13/2011 Item 16.K.7. RECOMMENDATION: That the Board approves the attached Mediated Settlement Agreement in the sum of $65,000 and direct the County Attorney to file all documents necessary to end with prejudice the lawsuit referred to above. PREPARED BY: Jeffrey A. Klatzkow, County Attorney Packet Page -3740- Board of County Commissioners Item Number: 16.K.7. Item Summary: Recommendation to approve a Mediated Settlement Agreement in the sum of $65,000 and direct the County Attorney to file all documents necessary to end with prejudice the lawsuit styled Adonis Martinez v. Collier County Board of County Commissioners, Case No. 2:10 -cv- 599- JES -DNF, now pending in the United States District Court, Middle District of Florida Fort Myers Division. (Fiscal Impact: $65,000). Meeting Date: 12/13/2011 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 11 /28/2011 10:54:46 AM Approved By Name: WalkerJeff Title: Director - Risk Management,Risk Management Date: 11/28/2011 11:14:34 AM Name: KlatzkowJeff Title: County Attorney, Date: 11/28/2011 1:17:57 PM Name: FinnEd Date: 11/28/2011 5:43:43 PM Name: OchsLeo Title: County Manager Date: 11/29/20114:29:48 PM Packet Page -3741- 12/13/2011 Item 16.K.7. UNITED STATES .DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION ADONIS MARTINEZ, Case No.: 2:10 -cv- 599- 7ES -DNF Plaintiff, VS. COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, as the body Corporate Governing Collier County, Florida, Defendant. MEDIATED SETTLEMENT AGREEMENT At a Mediation Conference held on November 10, 2011, the parries reached the following Settlement Agreement: 1. Defendant, Collier County, will pay to Plaintiff, Adonis Martinez, the sum of $65,000.00 in full settlement of all claims asserted by Defendant (or which could have been asserted by Defendant) in this action whatsoever, including attorney's fees and costs. 2. Defendant also agrees to assume payment of the mediator's entire fee. 3. This Settlement Agreement is subject to review and approval by the Board of County Commissioners of Collier County, Florida. The County Attorney will recommend that the Board accept the County's offer at the next meeting of the Board of County Commissioners. If approved by the Board, payment will be made to Plaintiff in the manner stipulated by Plaintiff's counsel within 10 business days of the Board's action. 4. Counsel for Plaintiff and Defendant will cooperate in filing any necessary documents with the Court necessary to end this action with prejudice, including but not limited to a stipulated Final Notice of Dismissal with Prejudice. 5. This action involves disputed claims and the Defendant does not admit the allegations asserted in the Plaintiff's Complaint by this agreement to settle. parties. 6. This Agreement, dated November 10, 2011, executed by the representatives of the 1 Packet Page -3742- Jeffrey 10�,YFOI w, County Collier orida Leon-a-r-&P. Reina, Esq. Mediator Packet Page -3743- 12/13/2011 Item 16.K.7. Adonis ez, intiff Samuel C. Gold, Esq. 12/13/2011 Item 16.K.7. Case 2:10 -cv- 00599 - JES -DNF Document 3 Filed 09/30/10 Page 1 of 3 UNITED STATES DISTRICT COURT r, MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION r ADONIS MARTINEZ, ) C. Plaintiff, -� z r? vs. } ) THE BOARD OF COUNTY COMMISSIONERS ) CASE NO.2 :10 -cv -599 -JES -DNF OF COLLIER COUNTY, FLORIDA, as the body ) Corporate, governing Collier County, Florida, ) Defendant. AMENDED COMPLAINT — JURY TRIAL DEMANDED Plaintiff, ADONIS MARTINEZ, sues Defendant, THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, as the body corporate governing Collier County, Florida, acting by and through it agents, and alleges: I . Plaintiff is a resident of Broward County, Florida. 2. During times relevant to this complaint, Plaintiff was a resident of Collier County, Florida. 3. Defendant Board is the body corporate governing Collier County, Florida. 4. Plaintiff invokes this Court's jurisdiction under 28 U.S.C. Sec. 1331 on the grounds that this action arises under Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. Sec. 2000e et seq. 5. Venue in the U.S. District Court, Middle District of Florida, Ft. Myers Division is proper as the events and omissions complained of occurred within the geographical area of this district and division. 12/13/2011 Item 16.K.7. Case 2:10 -cv- 00599- JES -DNF Document 3 Filed 09/30/10 Page 2 of 3 COUNT I - DISCRIMINATION /DISPARATE TREATMENT 6. Plaintiff is African- American, Latino, and his native country is the Dominican Republic (He speaks with a noticeable Spanish accent). 7. Plaintiff was recommended for termination from his job as a Senior Operations Analyst with Defendant on or about June 8, 2009. 8. Prior to his termination, Plaintiff was involved in an altercation with a co- employee, Mr. Richard Badge on May 19, 2009, 9. Mr. Badge, who is white, attempted to attack Plaintiff after a period of verbal abuse, including obscenities leading to a hostile work environment. 10. Race, color, and/or national origin were motivating factors causing the attack. 11. Plaintiff took completely defensive action to protect himself against said abuse (it appeared that Mr. Badge was going to break his leg). 12. Mr. Badge struck Plaintiff and ripped his shirt, yet Mr. Badge appeared uninjured. 13. As a result of this altercation, Plaintiff was placed on administrative leave and ultimately fired. 14. During the termination hearing process, all the witnesses who were called by Defendant were white and gave an incorrect version of facts favoring Mr. Badge. 15. An all white management team in effect, judged plaintiff in the hearing process formalizing termination. ' 12/13/2011 Item 16.K.7. Case 2:10 -cv- 00599- JES -DNF Document 3 Filed 09/30/10 Page 3 of 3 16. Plaintiff is aware of at least one (1) white employee involved in an altercation, who was not disciplined to the extent he was disciplined. 17. Plaintiff was the victim of discrimination and/or disparate treatment. 18. Plaintiff received permission to file suit from the Equal Employment Opportunities Commission and filed this action within the mandatory ninety (90) day period. 19. Plaintiff is entitled to attorney's fees as a prevailing party under 42 U.S. U.S.C. section 2000e -5(k). 20. All conditions precedent to filing this action have been met WHEREFORE, Plaintiff demands judgment against Defendant for compensatory damages, attorney's fees and court costs, together with whatever further relief the Court deems just and proper. Plaintiff demands trial by jury on all issues so triable. Samuel C. Gold Is SAMUEL C. GOLD COUNSELOR AT LAW Florida Bar No. 0570141 Trial Counsel for Plaintiff 3948 Upolo Lane Naples, FL 34119 To]: 239 -564 -9501 Fax: 239 - 236 -0457 samgoidlaw@gmail.com 3 Packet Page -3746- Deputy CoaWyAaarney Scott R. Tcach Hcidi F. Ashtou- Cicko' Jacqueline W. Hubbard' 'hoard Certilied City, County and heal Gomnuncut taw August 19, 2009 { 1/ R�f1M10 Jeffrey A. Klat &ow County Attorney VIA OVERNIGHT FEDERAL EXPRESS Robert Metaxa, Enforcement Supervisor U.S. Equal Employment Opportunity Commission Miami District Office 2 South Biscayne Blvd., Ste. 2700 Miami, FL 33131 Dear Mr. Metaxa: Charging Party: Adonis Martinez Respondent: Collier County Board of County Commissioners EEOC Charge No. 846- 2009 -42346 Relevant Period: June 1, 2008 — Present Dear Mr. Metaxa: A&dso& CoumyAaornem Colleen M. Greene Jctuufcr B. White Steven T. Williams Jeff E. Wright Robert N. Zachary The Respondent, Collier County, submits the following information and documentation in response to the Charging Party's claim of race and national origin discrimination. Based on the following facts, documents, and analysis, Collier County denies the allegations that Adonis Martinez was discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended. As such, Collier County requests that a No Cause determination be issued in this matter. 1. Collier County Board of County Commissioners Harmon Turner Building 3301 Tamiami Trail, East Naples, FL 33112 Division: Community Development and Environmental Services 2800 N. Horseshoe Drive Naples, FL 34104 3301 East Tamiami Trail — Naples, Florida 341124902 — Phone (239) 252 -8400 — Facsimile (239) 252 -6300 Packet Page -3747- 12/13/2011 Item 16.K.7. Robert Metaxa August 19, 2009 Page 2 RE: Adonis Martinez 2. Number of Employees As of June 1, 2008: 1,653 full -time employees and 89 part -time employees. Current on August 11, 2009 1,576 full -time employees and 74 part -time employees 3. Organizational chart for Collier County Government and a separate chart for Community Development Environmental Services is attached as Exhibit A. Collier County is a political subdivision of the State of Florida. 5. Collier County is a political subdivision of the State of Florida and is tax- exempt. 6. Collier County regularly applies for and receives federal grants. Collier County is subject to the Executive Order 11246. To my knowledge, Collier County has not been the subject of a compliance review by the OFCCP during the past two years. A list of all current federal grants/contracts is attached. (Ex. 8) 7. Position Statement A. Allegation of race, color and national origin discrimination Mr. Martinez alleges that he was discriminated against and separated from County employment based on his race, color and national origin. Collier County denies that Mr. Martinez was discriminated against in any way. Mr. Martinez was terminated from Collier County for severe violations of County policies including the prohibition against workplace violence. In his EEOC charge, Mr. Martinez states that he an "African American, Hispanic male, born in the Dominican Republic." Mr. Martinez does not identify any negative treatment in the workplace based on his race, color or national origin. Since Mr. Martinez does not present any evidence of direct discrimination, his claim must be analyzed as indirect discrimination and subject to the burden shifting analysis provided in McDonnell Douglas Corn. v. Green, 441 U.S. 792 (1973). To establish a prima facie case of discrimination an employee must prove: (1) that he was a member of a protected class, (2) that he performed his job satisfactorily, (3) that he suffered an adverse employment action, and (4) that similarly situated employees outside of the protected class were treated more favorably. Once the employee establishes the above, the burden shifts to the employer to articulate a legitimate non - discriminatory reason for the adverse employment action. Mr. Martinez has stated that he is a member of a protected class. There is no dispute as to whether Mr. Martinez performed his job satisfactorily. Mr. Martinez did suffer an adverse 3301 East Tamiami Trail - Naples, Florida 341124902 — Phone (239) 252 -8400 — Facsimile (239) 252 -6300 Packet Page -3748- 12/13/2011 Item 16.K.7. Robert Metaxa August 19, 2009 Page 3 RE: Adonis Martinez employment action as he was recommended for termination as a result of a physical altercation that Mr. Martinez initiated.' Mr. Martinez alleges that the other employee involved in the altercation was white and was not terminated. However, the "other employee" referenced, Richard Badge, is not similarly situated to Mr. Martinez and as such Mr. Martinez's claim of race, color and national origin discrimination must fail based on the fourth prong of the McDonnell Douglas test. Failure to offer a comparable employee dooms a Title VII employment discrimination claim. See Antonetti v. Abbott Labs., 563 F. 3d 587 (7`h Cir. 2009). Background: Mr. Martinez attended a meeting involving two County departments, CDES Operations and Information Technology (IT). The meeting was to discuss the joint implementation of new software. The meeting included three employees from CDES: Mr. Martinez, his supervisor Mr. Mullee, and Mike Levy. The meeting also included two employees from IT: Mr. Badge and his supervisor Mr. Bolen. A dispute arose between Mr. Martinez and Mr. Badge. Mr. Martinez left the room briefly only to return to confront Mr. Badge. The witness statements provide that Mr. Martinez stood in front of Mr. Badge and initiated the physical altercation by striking Mr. Badge in his upper chest area. This strike caused Mr. Badge's eyeglasses to "come off' and Mr. Badge to fall to the floor in his chair. As a result of Mr. Martinez initiating this physical altercation, Mr. Martinez was recommended for termination. Collier County has a "zero tolerance" policy against workplace violence. (See CMA #5387 Prohibition Against Workplace Violence Exhibit D). Collier County's Practices and Procedures provide that some violations of County policy are so severe as to warrant immediate discharge specifically including workplace violence. (See CMA #5351 Discipline Exhibit D). Mr. Martinez's immediate supervisor, also an eyewitness to the incident, recommended that he be terminated. As stated above, Mr. Martinez is not able to meet the four prong test established in McDonnell Dou las, and as such, his claim must fail. The other employee, Mr. Badge, is not similarly situated to Mr. Martinez. "In order for two or more employees to be "similarly situated," the Plaintiff "must prove that all of the relevant aspects of his employment situation are "nearly identical" to those of- the non - protected employee...." Gardner v. Wal -mart Stores East, LP, 2008 U.S. Dist. Lexis 66127, *9 (U.S. Dist. Ct. W. Kentucky 2008). Mr. Martinez and Mr. Badge are not "similarly situated" for at least two reasons. First, the employees are from different departments and have different supervisors. Collier County's 1 Please note that the recommendation to terminate Mr. Martinez is being appealed through Collier County's administrative procedure. The post- termination appeal was held on Wednesday, August 12, 2009. The Hearing Officer's response is due on or about August 22, 2009, and the County Manager's Office will then have an additional ten days to determine whether to uphold the termination. 3301 East Tamiami Trail - Naples, Florida 34 l 12-4902 — Phone (239) 252 -9400 — Facsimile (239) 252 -6300 Packet Page -3749- 12/13/2011 Item 16.K.7. Robert Metaxa August 19, 2009 Page 4 RE: Adonis Martinez CMA 95351, Discipline, provides that the department director shall make the disciplinary recommendation. Each employee was investigated by a "completely different set of decision - makers who determined the disciplinary action to take..." Gardner, supra at * 12. The conduct must also be similar. "In order for the conduct of a comparable employee and the Title VII plaintiff to be considered the same conduct, it must be similar in kind and severity." Gardner, supra at * 12. In this case, it is clear from the witness statements, that Mr. Martinez initiated the physical altercation. In fact, Mr. Martinez's own account of the incident admits that he acted first. (Exhibit C Martinez email dated May 21, 2009). Based on these two differences, Mr. Martinez has failed to prove that he and Mr. Badge are similarly situated in all respects. Mr. Martinez also provides in his Charge of Discrimination that he felt Mr. Badge was motivated in part by race. However there is no evidence to support this allegation. The witness statements from the meeting at issue are consistent. The meeting and the dispute was about the software application between two departments; there was no discussion at all regarding Mr. Martinez's race. Relevant Collier County policies are attached in Exhibit D. For convenience, the attached policies include: CMA #5323.1 — Prohibition Against Unlawful Harassment CMA #5311.1— Standards of Conduct CMA #5350 — Commitment to Fair Treatment CMA #5351 —Discipline CMA #5383 — Equal Employment Opportunity CMA #5387 — Prohibition of Workplace Violence ISSUE: Discharge 1. Ms. Martinez was discharged for violation of County policies including violations of the prohibition of workplace violence and various standards of conduct. a. Date of discharge: June 8, 2009. b. Mr. Martinez was discharged for violation of Collier County's prohibition against workplace violence and standards of conduct. Mr. Martinez initiated a physical altercation in the workplace by "punching" another employee. Please see the attached Behavior Action Plan (BAP) documenting the incident and the recommendation to terminate. C. The Charging Party is provided a right to appeal in CMA #5351, Discipline (Attached). Mr. Martinez appealed the recommendation to terminate his employment. In compliance with County policies, a pre- termination hearing was held on June 17, 2009. The hearing officer upheld the recommendation to terminate. Mr. Martinez also appealed this decision, 3301 East Tamiami Trail - Naples, Florida 34112 -4902 — Phone (239) 252 -8400 — Facsimile (239) 252 -6300 Packet Page -3750- 12/13/2011 Item 16.K.7. Robert Metaxa August 19, 2009 Page 5 RE: Adonis Martinez and a post - termination hearing was held on August 12, 2009. Mr. Martinez was represented by his attorney at the post- termination hearing. The Hearing Officer has ten days to make findings of fact and conclusions of law. The Hearing Officer's findings will then be forwarded to the County Manager's Office to determine whether to uphold the recommendation to terminate. As of the date of this response, neither the Hearing Officer nor the County Manager's responses have been received. d. Mr. Gary Mullee, Manager Operations Support, ODES. e. Mr. Gary Mullee, Manager Operations Support, CDES. Attached is a copy of the BAP documenting the incident and the violations. Also attached is a copy of the witness statements from all persons attending the meeting where the fight occurred. f. All pertinent documents are attached and include: the above referenced BAP, the letter recommending termination, the witness statements, the pre - termination appeal hearing determination dated June 19, 2009, correspondence to schedule post - termination appeal hearing, and a summary of the post - termination appeal hearing presented to the Hearing Officer dated August 4, 2009 (Composite Exhibit E). 2. Collier County's discharge procedures are clearly documented in CMA 45351, Discipline. Collier County has a policy of positive progressive discipline and takes recommendations to terminate seriously. County policies also provide that some behaviors warrant immediate discharge including violations of the policy against workplace violence (CMA #5351(C)). CMA #5351 provides that the employee's department director makes the initial recommendation for discipline in consultation with the Human Resources Generalist after consultation with the Human Resources Director (CMA #5351(4)(a)). CMA #5351. Discipline, is attached in Exhibit D. 3. The applicable written rules are found in CMA 5311. 1, Standards of Conduct, and CMA 45387, Prohibition Against Workplace Violence. These policies are attached in Exhibit D. The employee is required to sign a written acknowledgment form to attest that he or she accepts responsibility to read, understand and comply with all Collier County Practices and Procedures. Mr. Martinez's acknowledgement receipts are attached in Exhibit F. 4. Abena Boswell, Program Leader, Parks and Recreation, was recommended for termination on or about April 30, 2009. Ms. Boswell's race is black. Ms. Boswell is alleged to have threatened a member of the public with a bat. Kelly Robinson, Case Manager, Housing and Human Services, was suspended on or about July 16, 2009. Ms. Robinson's race is white, non - Hispanic origin. Ms. Robinson is alleged to have thrown a set of car keys at a co- worker. Disciplinary documentation, BAP, for both employees are attached in Exhibit G. 5. Please find a list of all employees discharged within the relevant period in Exhibit H. 3301 East Tamiami Trail - Naples, Florida 341 11 A0A1 °M ^ ^- f "o` 252 -8400 — Facsimile (239) 252 -6300 Packet Page -3751- 12/13/2011 Item 16.K.7. Robert Metaxa August 19, 2009 Page 6 RE: Adonis Martinez ISSUE: Harassment 1. Collier County CMA #5350, Commitment to Fair Treatment, provides a vehicle for employees to solve problems or resolve disputes, which may rise regarding the application, meaning or interpretation of the County's policies and procedures. Each employee receives a copy of Collier County Practices and Procedures and regularly receives or is notified of updates. Mr. Martinez's acknowledgement receipts are attached in Exhibit F. In addition, CMA #5323.1, Prohibition of Unlawful Harassment, provides that Collier County is committed to maintaining a work environment free of harassment on the basis of race, color, religion, gender, national origin, age, marital status, or disability. 2. There is no evidence that Mr. Martinez complained of any unlawful harassment to any supervisor or manager. Further, Mr. Martinez also did not take the opportunity to file a Commitment to Fair Treatment as provided in CMA 45350. 3. No other individual has complained to any supervisor or manager concerning the conduct described in this Charge of Discrimination. 4. Persons who may have information relevant to the allegations: Name Title Race Current Employee? Amy Lyberg Director W Yes Human Resources Peter Wiltsie Generalist W Yes Human Resources Jeff Bolen Manager, W Yes IT Customer Relations Gary Mullee Manager, Operations Support W Yes CDES Mike Levy Management/Budget Analyst W Yes Richard Bade Applications Analyst, IT W Yes Joseph Schmitt Administrator, W Yes Community Development & Environmental Services Len Price Administrator, W Yes Administrative Services Leo Ochs Deputy County Manager W Yes Barry Axelrod Director, W Yes Information Technology 3301 East Tamiami Trail - Naples, Florida 34112 -4902 - Phone (239) 252 -8400 - Facsimile (239) 252 -6300 Packet Page -3752- 12/13/2011 Item 16.K.7. Robert Metaxa August 19, 2009 Page 7 RE: Adonis Martinez Collier County's business address is found in response to question #I - 5. Other employees in the Business Management and Budget Office: Laura Wells Mgmt & Budget Analyst W Yes Evelyn Trimino Operations Coordinator W Yes Maria Corzo Revenue Supervisor W -His anic Yes Linda Murphy Accounting Technician W Yes Thank you for your kind attention to this matter. Please contact me directly should you require any further information or documentation. Respectfully submitted, Colleen M. Greene Assistant County Attorney cc: Amy Lyberg, Director, Human Resources Gary Mullee, Manager, Operations Support Jeff Klatzkow, County Attorney Jacqueline Hubbard, Litigation Section Chief, County Attorney Jeff Walker, Director, Risk Management 09- HUM-00107 /4 3301 East Tamiami Trail - Naples, Florida 341 1'J -4Qn7 — Phnne (239) 252 -8400 — Facsimile (239) 252 -6300 Packet Page -3753-