Agenda 06/10/2014 Item #16K3 6/10/2014 16.K3.
EXECUTIVE SUMMARY
Recommendation to reject a written Settlement Offer presented by Plaintiff Evelyn Prieto
in the lawsuit styled Evelyn Prieto v. Collier County and Ian Mitchell (Case No. 2:13-cv-
489-FtM-38CM) now pending in the United States District Court, Middle District of
Florida Fort Myers Division and to direct the County Attorney to proceed with the defense
of the lawsuit including filing a Motion for Summary Judgment. (Potential fiscal impact
$75,000).
OBJECTIVE: To reject the$75,000 Settlement Offer proposed by Plaintiff Evelyn Prieto.
CONSIDERATIONS: The Plaintiff, Evelyn Prieto, is a former Executive Aide to the Board of
County Commissioners. Ms. Prieto was terminated on or about October 10, 2012 by her then-
supervisor, Ian Mitchell. Ms. Prieto's complaint generally alleges that she was terminated by
Mr. Mitchell in response to her support of then candidates Henning and Nance in violation of her
First Amendment rights for her political speech Mr.Mitchell left the County shortly thereafter.
The parties attended Court Ordered Mediation on May 21, 2014 and reached impasse. On May
29, 2014,the Plaintiff sent a written settlement offer(attached) demanding $75,000 to settle the
case in full including the settlement of all claims against the County, the Board of County
Commissioners, and Ian Mitchell. 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 parties have completed discovery including written discovery and depositions. The County
Attorney plans to file a Motion for Summary Judgment on or before July 1, 2014 to seek to have
the case resolved on its pleadings without the necessity of a trial. It is the position of the County
Attorney that Ms. Prieto was an at-will employee subject to termination at any time who has
asserted no protectable claim. Should the Motion for Summary Judgment fail, the parties may
revisit settlement. Accordingly,the County Attorney is recommending that the Board reject this
Settlement Offer at this time to allow the Motion for Summary Judgment to.be decided.
Risks of not settling this matter at this time include Plaintiff increasing her demand should the
County's Motion fail. Failing settlement at this time or later, this matter will be tried before a
jury that will be authorized to award damages, and the County could be responsible under
Federal law for Plaintiff's legal fees,plus whatever damages may be awarded by the jury.
FISCAL IMPACT: Funds in the amount of$75,000 are available and will come out of Fund
516,Property and Casualty Insurance.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners rejects a written Settlement
Offer presented by Plaintiff Evelyn Prieto in the lawsuit styled Evelyn Prieto v. Collier County
and Ian Mitchell (Case No. 2:13-cv-489-FtM-38CM) now pending in the United States District
Court, Middle District of Florida Fort Myers Division and to direct the County Attorney to
proceed with the defense of the lawsuit including filing a Motion for Summary Judgment.
PREPARED BY: Colleen M. Greene,Assistant County Attorney
Jeffrey A. Klatzkow,County Attorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.3.
Item Summary: Recommendation to reject a written Settlement Offer presented by
Plaintiff Evelyn Prieto in the lawsuit styled Evelyn Prieto v. Collier County and Ian Mitchell (Case
No. 2:13-cv-489-FtM-38CM) now pending in the United States District Court, Middle District of
Florida Fort Myers Division and to direct the County Attorney to proceed with the defense of
the lawsuit including filing a Motion for Summary Judgment. (Potential fiscal impact$75,000).
Meeting Date: 6/10/2014
Prepared By
Name: CrotteauKathynell
Title:Legal Secretary, CAO Office Administration
6/2/2014 4:30:13 PM
Approved By
•
Name: GreeneColleen
Title:Assistant County Attorney, CAO General Services
Date: 6/2/2014 4:54:27 PM
Name: IsacksonMark
Title:Director-Corp Financial and Mngmt Svs, Office of Management&Budget
Date: 6/3/2014 9:23:03 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 6/3/2014 11:59:58 AM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 6/3/2014 1:24:41 PM
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WELDON z kROTHMAN,PL
Attorneys and Counselors at Law
7935 Airport-Pulling Road North, Suite 205
Naples, Florida 34109
Tel: (239) 262-2141 • Fax: (239) 262-2342
www.wel donrothman.corn
May 29, 2014
FOR COMPROMISE SETTLEMENT PURPOSES ONLY
VIA E-MAIL
Colleen Greene, Esq.
Office of the County Attorney
3299 East Tamiami Trl., Ste. 800
Naples, FL 34112
RE: Evelyn Prieto
Dear Colleen:
I write as a follow-up to our conversation yesterday afternoon and to provide a formal
compromise settlement demand. To this end, and in an effort to compromise, Ms. Prieto has
authorized me to accept $75,000.00 for full and final settlement of the case (provided full
agreement on all settlement terms).
I understand the County's desire to table this matter pending summary judgment
proceedings; however, Ms. Prieto maintains a claim for attorneys' fees and costs, which are
presently in excess of$25,000.00 and increasing by the day. In the event the County's summary
judgment motion is denied — and I believe it will be denied — Ms. Prieto's fees and costs will
easily double before easily doubling again through trial. Put differently, by failing to address
this matter now,the County is unnecessarily creating significant additional exposure.
In short, I urge the County to take a reasonable approach to resolving this case at this
time. As you know, Mr. Doyle offered to help facilitate a resolution without charging an
additional fee. Due to the increasing attorneys' fees and costs claims associated with defending a
summary judgment motion, this demand will be held open until close of business June 13, 2014,
at which time it is automatically withdrawn.
If you have questions, call.
Sincerely, e.g._
Bradley P. Rothman
BPR/ls
cc: Evelyn Prieto
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,
Representing Southwest Florida
. * Case 2:13-cv-00489-SPC-UAM Document 1 Filed 07/03/13 Page 1 of 1 6/10/2014 16.K.3.
FILED
UNITED STATES DISTRICT COURT
2013 JUL -3 At1 II: 23
MIDDLE DISTRICT OF FLORIDA 11.5.DISTRICT COURT
FORT MYERS DIVISION MIDDLE DISTRICT OF FLORIDA
FORT MYERS,FLORIDA
EVELYN PRIETO,
Plaintiff,
vs. CASE NO.:
COLLIER COUNTY,a Political Subdivision of
the State of Florida, COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS, 2 siri•C d e 41Ftm-3? 0414
and IAN MITCHELL,individually,
Defendants.
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, Evelyn Prieto ("Plaintiff'), by and through undersigned counsel, hereby
sues Defendants, Collier County, Florida ("Collier County"), the Collier County Board of
Commissioners ("Board of Commissioners"), and Ian Mitchell (Mitchell), and alleges as
follows:
1. This is an action brought pursuant to the Civil Rights Act of 1871, as
amended, 42 U.S.C. § 1983 ("Civil Rights Act") to redress the violation of Evelyn Prieto's
rights under the First Amendment of the U.S. Constitution.
2. This Court has jurisdiction arising under subject matter jurisdiction pursuant
to 28 U.S.C. § 1331, as this claim arises under 42 U.S.C. § 1983, the Civil Rights Act. This
Court also has supplemental jurisdiction over the below Florida common law claim pursuant
to 28 U.S.C. § 1367, as the state and federal claims form part of the same case or
controversy.
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3. Venue is proper in this Court pursuant to 28 U.S.C. § 1331(b), as the events or
omissions giving rise to the claims alleged herein occurred in the Middle District of Florida,
Fort Myers Division.
4. Plaintiff was and is a resident of the Middle District of Florida, Fort Myers
Division. At all times pertinent, Plaintiff worked for Collier County in the Middle District of
Florida, Fort Myers Division, serving as an Executive Aide to the Board of Commissioners.
At all times pertinent,Plaintiff was well qualified for her position.
5. Collier County is a political subdivision of the State of Florida organized
under the laws of the State of Florida and Ordinances of Collier County, Florida, and
maintains its principal place of business in Collier County, Florida.
6. Board of Commissioners is located and organized under the laws of the State
of Florida and Ordinances of Collier County, Florida, and maintains its principal place of
business in Collier County,Florida.
7. Mitchell was and remains a Florida resident and-citizen residing in Collier
County,FL.
Count I—Retaliation
(Collier County and Board of Commissioners)
8. Plaintiff re-alleges and incorporates paragraphs 1 through 7.
9. At all times pertinent, Plaintiff worked as an Executive Aide to the Board of
Commissioners.
10. At all times pertinent,Mitchell acted under the color of state law in his official
capacity as Executive Manager for the Board of Commissioners and for Collier County.
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11. On or about October 27, 2008, Collier County/Board of Commissioners hired
Plaintiff as a Customer Service Representative for the Parks and Recreation Department. On
or about May 4, 2009,Plaintiff was promoted to the Executive Aide position for the Board of
Commissioners.
12. During her time as an Executive Aid, Mitchell served as Plaintiff's supervisor.
As an executive aid, Plaintiff initially performed her required duties for Collier County
Commissioner Jim Coletta ("Commissioner Coletta") before switching around November
2010 to perform her required duties for Collier County Commissioner Tom Henning
("Commissioner Henning"). While Mitchell was Plaintiff's supervisor, Plaintiff performed
her required job duties for certain Collier County Commissioners as indicated above.
13. On or about August 14, 2013, pursuant to Plaintiff's First Amendment rights
^ to freedom of political expression, and on Plaintiffs own time and outside of her
employment, Plaintiff attended a political election night celebration,wherein Plaintiff wore a
political t-shirt prominently supporting Commissioner Henning, and proudly embraced and
posed for a photograph with her daughter wearing a t-shirt prominently supporting Tim
Nance ("Nance") for County Commissioner ("the Political Expression"). (At the time,
Nance had just won his seat on the Board of Commissioners defeating Commissioner
Coletta, the incumbent. It was the first time in two decades a sitting commissioner lost an
election. It was also widely believed that Nance's victory would shift the balance of power
within the County Commission, forming a new majority block which would include
Commissioner Henning, who represented an opposing viewpoint from Commissioner
Coletta.) The Political Expression was captured in a photograph and displayed on Facebook.
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14. On or about August 16, 2012, Mitchell (or someone acting on Mitchell's
behalf)downloaded the photograph of the Political Expression from Facebook and placed the
photograph in a file concerning Plaintiff kept by Mitchell. As a strong supporter of
Commissioner Coletta, Plaintiff upset Mitchell by politically supporting Nance and
Commissioner Henning on her own time. Mitchell downloaded and maintained the Political
Expression as grounds for employee discipline.
15. Following the Political Expression, Mitchell began ignoring Plaintiff at work
(intensifying a trend of hostile behavior against Plaintiff due to Plaintiff's perceived political
association with Commissioner Henning and/or Nance).
16. At a public hearing on September 26, 2012, Mitchell asked the Board of
Commissioners to terminate his employment. In light of the election results,Mitchell did not
want to continue working for the Board of Commissioners.
17. After Mitchell asked to be terminated, on or about October 10, 2012, Plaintiff
arrived at work at approximately 8:00 a.m. only to be intercepted by security. Plaintiff was
ushered into a conference that included Mitchell and a co-worker, Ken Mayo. Plaintiff was
then handed a letter of termination dated October 4, 2012, told she was being paid for that
day,and told that she would send in a list of her belongings and they would be sent to her at a
later date.
18. The letter of termination was signed by Mitchell and did not contain language
that anyone other than Mitchell was involved in Plaintiff's termination. Mitchell — on his
way out - terminated Plaintiff in retaliation for her personal political support for
Commissioner Henning and/or Nance. The termination did not follow proper procedure,was
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lacking in proper documentation, and there was not appropriate documentation in Plaintiff s
file to support the termination.
19. At a public hearing on October 23, 2012, County Commissioner Georgia
Hiller admitted that there was no evidence in Plaintiff's Human Resources file to support her
termination and that Plaintiff's termination was lacking in proper documentation.
Commissioner Henning, who Plaintiff worked for directly, admitted that there was no reason
from his perspective for the termination and that to date he had not received additional
information regarding why Plaintiff was being terminated. Commissioner Coletta
acknowledged that the photograph's analysis was indicative of a "political problem"
surrounding Plaintiffs termination.
20. Plaintiff's support of political candidates in her private time constitutes
protected speech and expression under the First Amendment of the U.S. Constitution.
21. Based on the foregoing, Collier County's and the Board of Commissioners'
actions through Mitchell, including without limitation, the termination of Plaintiff, were
taken in retaliation for the Political Expression.
22. Plaintiff has been damaged by Collier County's,the Board of Commissioners'
and Mitchell's actions, including the loss of pay and benefits, loss of advancement
opportunity within Collier County, and the overall damage to her reputation that will affect
her employability for the foreseeable future.
23. Plaintiff has also experienced emotional distress, and lost enjoyment of life as
a result of this retaliation.
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24. Mitchell's actions were taken in reckless indifference to Plaintiff's federally
protected rights.
25. Plaintiff has engaged the undersigned counsel and agreed to pay him a fee.
26. All conditions precedent to the filing of this action have occurred or have been
waived.
WHEREFORE, Plaintiff, Evelyn Prieto, demands judgment for damages against
Defendants, Collier County and the Board of Collier County Commissioners, including back
pay, reinstatement or in the alternative front pay, compensatory damages, attorneys' fees and
costs, and for such further relief as the Court deems just and proper.
COUNT II—Tortious Interference
(Mitchell)
27. This is an action against Mitchell for tortious interference with a business
relationship. See Alexis v. Ventura, 66 So.3d 986(Fla. 3d Dist. Ct.App. 2011).
28. Plaintiff re-aiieges and incorporates paragraphs 2 through 7.
29. Plaintiff worked for Collier County and the Board of Commissioners as an
Executive Aide to the Board of Commissioners from approximately May 4, 2009 through
October 10, 2012. (Plaintiff began her employment with Collier County/Board of
Commissioners in October 2008 in a different capacity.)
30. Plaintiff and Collier County/Board of Commissioners had a business
relationship under which Plaintiff had legal rights.
31. As the Executive Manager for the Board of Commissioners and as Plaintiff's
supervisor,Mitchell had knowledge of Plaintiff's relationship with Collier County.
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32. On or about August 14, 2013, pursuant to Plaintiff's First Amendment rights
to freedom of political expression, and on Plaintiff's own time and outside of her
employment, Plaintiff attended a political election night celebration,wherein Plaintiff wore a
political t-shirt prominently supporting Commissioner Henning, and proudly embraced and
posed for a photograph with her daughter wearing a t-shirt prominently supporting Tim
Nance ("Nance") for County Commissioner ("the Political Expression"). (At the time,
Nance had just won his seat on the County Commission defeating Commissioner Coletta,the
incumbent. It was the first time in two decades a sitting commissioner lost an election. It
was also widely believed that Nance's victory would shift the balance of power within the
County Commission, forming a new majority block which would include Commissioner
Henning, who represented an opposing viewpoint from Commissioner Coletta.) The
Political Expression was captured in a photograph and displayed on Facebook.
33. Mitchell strongly supported Commissioner Coletta. Plaintiff upset Mitchell
by politically supporting Nance and Commissioner Henning on her own time. Mitchell was
so upset by Plaintiff's political activities, that on or about August 16, 2012, Mitchell (or
someone acting on Mitchell's behalf) downloaded the photograph of the Political Expression
from Facebook and placed the photograph in a file concerning Plaintiff kept by Mitchell.
From this point, Mitchell planned to discipline Plaintiff and terminate her employment
because of his disdain for Plaintiff's personal political activities, including Plaintiff's support
on her own time for Commissioner Henning and County Commissioner Nance.
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34. Following the Political Expression, Mitchell began ignoring Plaintiff at work
(intensifying a trend of hostile behavior against Plaintiff due to Plaintiff's perceived political
association with Commissioner Henning and/or Nance).
35. At a public hearing on September 26, 2012, Mitchell asked the Board of
Commissioners to terminate his employment. In light of the election results,Mitchell did not
want to continue working for the Board of County Commissioners.
36. After Mitchell asked to be terminated, on or about October 10, 2012, Plaintiff
arrived at work only to be intercepted by security. Plaintiff was then ushered into a
conference that included Mitchell and a co-worker, Ken Mayo. Plaintiff was handed a letter
of termination dated October 4, 2012, told she was being paid for that day, and told that she
would send in a list of her belongings and they would be sent to her at a later date.
37. The letter of termination was signed by Mitchell and did not contain language
that anyone other than Mitchell was involved in Plaintiff's termination. Mitchell — on his
way out - terminated Plaintiff in retaliation for her personal political support for
Commissioner Henning and/or Nance. The termination did not follow proper procedure, was
lacking in proper documentation, and there was not appropriate documentation in Plaintiff's
file to support the termination.
38. At a public hearing on October 23, 2012, Commissioner Georgia Hiller
admitted that there was no evidence in Plaintiffs Human Resources file to support her
termination and that Plaintiffs termination was lacking in proper documentation.
Commissioner Henning, who Plaintiff worked for directly, admitted that there was no reason
from his perspective for the termination and that to date he had not received additional
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information regarding why Plaintiff was being terminated. Commissioner Coletta
acknowledged that the photograph's analysis was indicative of a "political problem"
surrounding Plaintiffs termination.
39. Moreover, Commissioner Hiller confirmed that it was Mitchell who caused
the termination of Plaintiff's employment and not anyone else. County Attorney Klatzkow
also confirmed that"the termination was Ian[Mitchell]'s termination decision."
40. Mitchell's interference with Plaintiff's relationship with Collier County was
intentional and unjustified.
41. In causing the termination of Plaintiff's employment with Collier County,
Mitchell acted solely with an ulterior purpose, to wit, to retaliate against Plaintiff for
providing political support to Commissioner Henning and Commissioner Nance. As a strong
supporter and friend,of Commissioner Coletta, Mitchell harbored ill will and hatred towards
Plaintiff due to her political expressions and associations, and it was this ill will and hatred
towards Plaintiff exclusively which resulted in Mitchell's decision to cause the termination of
Plaintiff's employment.
42. Collier County has an interest in retaining Executive Aids, like Plaintiff,
performing in a satisfactory manner, and maintaining continuity between the County
Commissioners and the Executive Aids assigned to serve them. By terminating Plaintiff,
Mitchell's actions against Plaintiff were against Collier County's best interests and to Collier
County's detriment because Mitchell caused Commissioner Henning to suffer the Ioss of his
Executive Aid (Plaintiff), who was performing for Commissioner Henning in a satisfactory
manner. As a result of Mitchell's actions, Commissioner Henning lost time and energy, and
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devoted extra time and energy, to handling and/or re-assigning Plaintiff's assignments,and to
re-training replacement(s) for Plaintiff. Put simply, Plaintiff's termination resulted in an
unnecessary disruption for and distraction to Commissioner Henning.
43. Plaintiff has been damaged by Mitchell's intentional and unjustified
interference with her business relationship, and has suffered damages, including without
limitation, the loss of pay and benefits, loss of advancement opportunity within Collier
County, and the overall damage to her reputation that will affect her employability for the
foreseeable future.
44. Plaintiff has also experienced emotional distress, and lost enjoyment of life as
a result of Mitchell's intentional and unjustified interference with her business relationship.
45. Mitchell's actions were taken with the malicious intent to harm Plaintiff.
46. Plaintiff has engaged the undersigned counsel and agreed to pay him a fee.
47. All conditions precedent to the filing of this action have occurred or have been
waived.
WHEREFORE, Plaintiff, Evelyn Prieto, demands judgment for damages against
Defendant, Ian Mitchell,and for such further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff does hereby demand a Jury Trial on all issues and claims so triable.
Bradley P.Rothman
Florida Bar No. 0677345
brothman@weldonrothman.com
WELDON&ROTHMAN,PL
7935 Airport-Pulling Road N., Suite 205
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•
.
� I
Naples,Florida 34109
Tel: (239)262-2141
Fax: (239)262-2342
Counsel for Plaintiff
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3544 (Rev.09/11) CIVIL COVER SHEET
The JS 44 civil coversheet and the inforrmtion contained herein neither replace nor supplenatt the filing and service of pleadnas or other papers as required by law,except as povided
the local dockssheet. /SEE form,approved NNEXTPAGE OTNn Conference of the United States inSeptember 1974,is required for the use of the Clerk of Court for the purpose of initiating
I. (a) PLAINTIFFS DEFENDANTS
EVELYN PRIETO COLLIER COUNTY,a Political Subdivision of the State of Florida,
COLUER COUNTY BOARD OF COUNTY COMMISSIONERS,and
IAN MITCHELL,individually
(b) County of Residence of First Listed Plaintiff Collier County County of Residence of First Listed Defendant Collier County
(EXCEPT iN U.S PLAINTIFFC:ASES) (IN U.S PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES.USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Bradley P.ROMMEt A., eldOn lanicom aver) rP g Attorneys pJx+ww,)
man, •,W con&-Rot man,PL.7935 Ai ort-Pullin
Rd.N.,Ste.205,Naples,FL 34109,(239)262-2141
II. BASIS OF JURISDICTION (Place an x'in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X"m One Box for Mamie)
Cl I U.S.Government Qf 3 Federal Question (For Diversity Carir Only)117 DEF and One Bar PTF Defendant)
Plaintiff (U.S Government Not a Party) Citizen of This State O I 0 I Incorporated or Principal Place O 4 O 4
of Business In This State
O 2 US.Government 0 4 Diversity Citizen of Another State O 2 0 2 Incorporated and Principal Place 0 5 O 5
Defendant (Indicate Citizenship of Pmrier in Iona Ill) of Business In Another State
Citizen or Subject of a 0 3 0 3 Foreign Nation O 6 O 6
Fenian Country
IV. NATURE OF SUIT (Place an x-in One Box a
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O 110 Insurance PERSONAL INJURY PERSONAL INJURY O 625 Drug Related Seizure 0 422 Appeal 28 USC 158 O 375 False Claims Act
O 120 Marine O 310 Airplane O 365 Personal Injury- of Property 21 USC 881 0 423 Withdrawal O 400 State Reapportionment
O 130 Miller Act O 315 Airplane Product Product Liability O 690 Other 28 USC 157 O 410 Antitrust
O 140 Negotiable instrument Liability 0 367 Health Caryl O 430 Banks and Banking
0 150 Recovery of Overpayment 0 320 Assault.Libel& Pharmaceutical a_-7,: -= O 450 Commerce
&Enforcement of Judg:est Slander Personal Injury 0 820 Copyrights O 460 Deportation
O 151 Medicare Act 0 330 Fedaal Employers' Product Liability O 830 Patent O 470 Racketeer Influenced and
O 152 Recovery of Defaulted Liability O 368 Asbestos Personal O 840 Trademark Corrupt Organizations
Student Loans 0 340 Marine Injury Product O 480 Consumer Credit „,...\
--- ._...__ - _ 7_LILl:'_C.,7.i7,r_:'`, s:��u"'-' • O 490 CablefSaTV
(Fxd.Veterans) 0345 Marine Product Liability �::�—:u:. '' `�-r
0 153 Recovery ofOvespaymnt Liability PERSONAL PROPERTY O 710 FairLabarStandards 0 861 HIA(1395f) O 850 Searrities/Canmodities/
of Veteran's Benefits 0 350 Motor Vehicle O 370 Other Fraud Act O 862 Black Lung(923) Exchange
O 160 Stockholders'Suits 0 355 Motor Vehicle 0 371 Truth h in Lending 0 720 Labor/MgmL Relations O 863 DI WC/DI W W(405(g)) O 890 Other Statutory Actions
O 190 Other Contract Product Liability O 380 Other Personal O 740 Railway Labor Act O 864 SSID Title XVI O 891 Agricultural Acts
0 195 Contract Product Liability O 360 Other Personal Property Damage O 751 Family and Medial O 865 RSI(405(g)) O 893 Environmental Matters
O 196 Franchise Injury O 385 Property Damage Leave Act ZI 895 Freedom of Information
0 362 Personal injury- Product Liability 0 790 Other Labor Litigation D
O 791 Empl.Ret.Inc. _ .966
Security .a__; _ i:. 'tf1C_'� t: .
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0 210 Land Condermation -0 440 Other Civil Rights 0 510 Motions to Vacate 0--1170 Taxes(U.S.Plaintiff .t;7- eview or=r��+a
O 220 Foreclosure 0 441 Voting Sentence or Defendant) Z G Agency Decision r "1
O 230 Rat Lease&Ejectment gli 442 Employment Habeas Corpora O 871 IRS—Third Party —'D 50 CopsWuliondity of C,
Cl 240 Tors to Land 0 443 Housing/ O 530 General 26 USC 7609 3-..--7) St estatutea
0 245 TM Product Liability Accommodations 0 535 Death Penalty 17-7, �T i;�---F<_7-;,:: .i rr;` Co n^-
0 290 All Other Real Property 0 445 Amer.w/Diwbilitia- O 540 Mandamus&Other 0 ' A,. :'on --f n
Employment 0 550 Civil Rights 0 463 Habeas Corpus- rte-'-1 j =
O 446 Amer.w/Di abilities- O 555 Prison Condition Alien Detainee t7 Q ••••
Other O 560 Civil Detainee- (Prisoner Petition) Od ..
O 448 Education Conditions of O 465 Other Immigration DM-4 IV
Confinement Actions f^'It ai
V. ORIGIN
(Place an X morn Box Only) Transferred from
IX 1 Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 another district 0 6 Multidistrict
Prot ding State Court Appellate Court Reopened Litigation
Cite the U.S.Civil Statute under which you are filing (Do not citejarisdedonal mantes t alas&verity):
42 U.S.C.§1983
VI. CAUSE OF ACTION Brief description of cause:
Violation of Plaintiffs rights under the First Amendment of the U.S.Constitution
VII. REQUESTED IN O CHECK IF THIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.C.P.23 JURY DEMAND: RE Yes O No
VIII. RELATED CASE(S)
IF ANY des"�trMCeiat i)' JUDGE
DOCKET NUMBER
DATE t SIGNATURE ATTORNEY Rl
� I I aJ13 rf`JJ JAeeJJ!
FOR FFICE SE L ,,,�
REMIT 0 • AMOUM'� OJJ W APPLYING DP JUDGE MAG.JUDGE
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EVELYN PRIETO,
Plaintiff,
v. Case No.: 2:13-cv-489-FtM-38UAM
COLLIER COUNTY, a political subdivision
of the State of Florida, COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS,
and IAN MITCHELL, individually,
Defendants.
DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFF'S COMPLAINT
COMES NOW the Defendants, Collier County, a political subdivision of the State of
Florida, Collier County Board of County Commissioners, and Ian Mitchell, individually,
(collectively "DEFENDANTS"), by and through the undersigned attorney, and responds to this
Complaint as follows:
1. Admitted as to the nature of the action and relief sought; denied that the DEFENDANTS
are liable.
2. Admitted for jurisdictional purposes only.
3. Admitted for venue purposes only.
4. Admitted that Plaintiff is a resident of this jurisdiction for jurisdictional purposes only;
the remainder is denied.
5. Admitted.
6. Admitted.
7. Admitted in part for jurisdictional purposes only. Denied as to residence of
DEFENDANT MITCHELL.
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Count I—Retaliation
8. The DEFENDANTS repeat and incorporate the responses previously provided to
paragraphs 1 through 7 as if fully set forth herein.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted in part that the Plaintiff worked for both Commissioners; denied as to the
remainder.
13. Without knowledge regarding the Plaintiff's alleged activities; the remainder of the
allegation is denied.
14. Admitted that Plaintiff's photograph was in the department file; the remainder of the
allegation is denied.
15. Denied.
16. Admit that MITCHELL asked to be terminated on September 26, 2012; the remainder of
the allegation is denied.
17. Admitted in part; Denied in part as Mr. Mayo was a Human Resources Representative
and not a co-worker of Plaintiff.
18. Admit that letter was signed by MITCHELL;the remainder of the allegation is denied.
19. Admit that the discussions occurred at the October 23, 2012 meeting; the remainder of
the allegation is denied.
20. Admitted.
21. Denied.
22. Denied.
23. Denied.
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24. Denied.
25. Without knowledge and therefore denied.
26. Denied.
COUNT II—Tortious Interference
27.Denied.
28. The DEFENDANTS repeat and incorporate the responses previously provided to
paragraphs 2 through 7 as if fully set forth herein.
29.Admitted.
30.Denied.
31.Admitted.
32. Without knowledge regarding the Plaintiff's alleged activities; the remainder of the
allegation is denied.
33.Denied.
34.Denied.
35.Admit that MITCHELL asked to be terminated on September 26, 2012; the remainder of
the allegation is denied.
36. Admitted in part; Denied in part as Mr. Mayo was a Human Resources Representative
and not a co-worker of Plaintiff.
37. Admit that letter was signed by MITCHELL; the remainder of the allegation is denied.
38. Admit that the discussions occurred at the October 23, 2012 meeting; the remainder of
the allegation is denied.
39.Admitted that the discussions occurred,the remainder of the allegation is denied.
40. Denied.
41. Denied.
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42. Denied.
n
43. Denied.
44. Denied.
45. Denied.
46. Without knowledge and therefore denied.
47. Denied.
Any and all allegations of Plaintiff's Complaint not heretofore admitted,denied or
referenced without knowledge are hereby denied in their entirety.
AFFIRMATIVE DEFENSES
First Affirmative Defense
All employment actions taken with respect to Plaintiff were based on legitimate, non-
discriminatory, and non-retaliatory business reasons,and without regarding any alleged protected
activity taken by the Plaintiff.
Second Affirmative Defense
At all times, DEFENDANTS acted in good faith toward the Plaintiff and without any intent to
deprive the Plaintiff of any employment and/or civil rights.
Third Affirmative Defense
There is no proximate causation between the Plaintiff's alleged damages and any act, omission,
or breach of duty by DEFENDANTS.
Fourth Affirmative Defense
Even if the actions Plaintiff challenges in this lawsuit were found to be based, in part, on
retaliatory grounds, which DEFENDANTS categorically deny, DEFENDANT MITCHELL
would have received the same decision and taken the same actions absent any alleged retaliation
and without regard to Plaintiffs alleged protected activities.
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Fifth Affirmative Defense
Without waiving any other defense, the claims contained within Plaintiff's Complaint, and any
damages sought, are subject to applicable statutory caps.
Sixth Affirmative Defense
Plaintiff's claims are barred in whole or part to the extent Plaintiff has failed to mitigate fully
alleged damages or other losses required by law and are offset by any earnings, unemployment
compensation, and other pay or benefits as required by law.
Seventh Affirmative Defense
Section 768.28(9)(a), Florida Statutes, provides that no officer of a political subdivision shall be
named as a party defendant for "any claim." In addition, Section 125.15, Florida Statutes,
provides that the County Commissioners shall sue and be sued in the name of the County. As
such, there is no legal basis to have DEFENDANT IAN MITCHELL personally named in the
Complaint. MR. IAN MITCHELL should be dismissed from the case and his name removed
from the caption.
Eighth Affirmative Defense
The Plaintiff has failed to state a cause of action for which relief may be granted.
Ninth Affirmative Defense
The Defendant reserves the right to raise additional defenses that become available or arise
during the litigation of this matter.
WHEREFORE, having fully answered the Complaint, having asserted affirmative and other
defenses,the Defendant requests that:
a. The Complaint be dismissed;
b. Judgment be entered in favor of the DEFENDANTS;
c. All costs be taxed against the Plaintiff;
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d. DEFENDANTS recover court costs against Plaintiff as provided by applicable law;
n
e. This Court reserve jurisdiction to enter further orders in this case, including but not
limited to an award of attorneys' fees; and
f. DEFENDANTS be awarded such additional relief as the Court deems just and
appropriate.
By: 60 s/Colleen M. Greene
COLLEEN M. GREENE, ESQ.
Florida Bar No. 502650
Collier County Attorney's Office
3299 East Tamiami Trail, Suite 800
Naples, Florida 34112-5746
Telephone: (239) 252-8400
Facsimile: (239) 774-0225
colleengreene@acolliergov.net
Counsel for Defendants COLLIER COUNTY,
BOARD OF COUNTY COMMISSIONERS,
and IAN MITCHELL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this day of September, 2013, Defendants' Answer
and Affirmative Defenses to Plaintiff's Complaint was electronically filed with the Clerk of
Court by using the CM/ECF system which will send a notice of electronic filing to: Counsel for
Plaintiff,Bradley P. Rothman, Esq., Weldon&Rothman, PL,brothman@weldonrothman.com.
By: a s/Colleen M. Greene
colleengreeneta,colliergov.net
nancvbradley( collieraov.net
2:13-cv-489-FtM/64
/"\
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