Agenda 11/18/2014 Item # 16K511/18/2014 16.K.5.
EXECUTIVE SUMMARY
Recommendation to reject a written Settlement Offer presented by Plaintiff Susanna
Capasso in the lawsuit styled Susanna Capasso v. Collier County (Case No. 2:12- cv -499-
FtM-99DNF) 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 currently scheduled for trial in December 2014.
OBJECTIVE: To reject the $300,000 Settlement Offer proposed by Plaintiff Susanna Capasso.
CONSIDERATIONS: The Plaintiff, Susanna Capasso, is a former Code Enforcement
Department Supervisor of Investigations. Ms. Capasso was separated from County service on or
about April 18, 2011 based on her inability to return to work following her Family Medical
Leave Act (FMLA) leave. Ms. Capasso's Complaint in Federal Court originally alleged both
national origin discrimination and retaliation. The County filed a Motion for Summary
Judgment on both counts and the national origin discrimination claim was dismissed by the
Court. The retaliation claim is the sole count remaining, with Ms. Capasso alleging that her
supervisor Director Diane Flagg retaliated against her for filing the EEOC Complaint.
In the summer of 2010, Ms. Flagg gave a negative performance evaluation of Ms. Capasso.
Following this evaluation, Ms. Capasso complained to HR alleging that Ms. Flagg was treating
her unfairly based on her national origin. During this time frame, the normal practice for dealing
with a negative performance evaluation was followed. In addition, the employee received two
behavioral action plans in November and December, which were unrelated to the original
performance evaluation. Thereafter, Ms Capasso went out on 12 -week FMLA leave. At the end
of this period Ms. Capasso requested a 30 day leave extension, which was denied, and Ms.
Capasso was separated from service. The heart of Ms. Capasso's compliant is that these
personnel actions were in retaliation for her having filed the EEOC Complaint.
The parties attended Court Ordered Mediation on July 23, 2014 and reached impasse. At the
County's request, on November 7, 2014, the Plaintiff sent a written settlement offer (attached)
demanding $300,000 to settle the case in full. If agreed to by the Board, no other costs or fees
would be due, as Plaintiffs attorney's fees would be paid out of this settlement sum. It is the
position of the County Attorney, the Risk Management Department and the County's outside
Insurance Company to try this case, as the demand for settlement is unreasonably high (Ms.
Capasso was earning $55,272 per annum), and her claim of retaliation is defensible.
FISCAL IMPACT: 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 Plaintiffs legal fees, plus whatever damages may be awarded by the jury. However, since
this is a covered case, the County's exposure is limited to $100,000 (subject to policy terms) for
all costs, including all parties attorney's fees. Funds are budgeted in Risk Management Fund No.
516.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners rejects a written Settlement
Offer presented by Plaintiff Susanna Capasso in the lawsuit styled Susanna Capasso v. Collier
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11/18/2014 16.K.5.
County (Case No. 2:12 -cv- 499- FtM- 99DNF) 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 currently scheduled for trial in December 2014.
PREPARED BY: Colleen M. Greene, Assistant County Attorney
Jeffrey A. Klatzkow, County Attorney
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11/18/2014 16.K.5.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16. K. 16. K. 5.
Item Summary: Recommendation to reject a written Settlement Offer presented by
Plaintiff Susanna Capasso in the lawsuit styled Susanna Capasso v. Collier County (Case No.
2:12 -cv- 499- FtM- 99DNF) 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 currently scheduled for trial in December 2014.
Meeting Date: 11/18/2014
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary, CAC) Office Administration
I 1/] 0/2014 2:07:20 PM
Approved By
Name: WalkerJeff
Title: Director - Risk Management, Risk Management
Date: 11 /] 0 /2014 2:18:10 PM
Name: GreeneColleen
Title: Assistant County Attorney, CAO General Services
Date: 11/] 0/2014 4: l 6:22 PM
Name: KimbleSherry
Title: Management/Budget Analyst, Senior, Office of Management & Budget
Date: l 1 /10/2014 4:41:28 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 11/10/2014 4:55:55 PM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: l 1/] 0/2014 6:57:46 PM
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11 /18/2014 16. K.5.
BRENNAN, MANNA & DIAMOND, P.L.
3301 Bonita Beach Road ♦ Suite 100 ♦ Bonita Springs, FL 34134 ♦ wrtnt,.bmdpl.com
phone (239) 992 -6578 ♦ facsimile (239) 992 -9328
Kim M. Hastings, Esq.
direct dial: (239) 405 -7864
kmhastingsnhmdpl.coni
November 7, 2014
VIA E -MAIL
John F. Potanovic, Jr., Esq.
Henderson, Franklin, Starnes & Holt, PA
1715 Monroe Street
PO Box 280
Ft Myers, FL 33902 -0280
Re: Capasso v Collier County /Case No. 2:12 -ev- 499- FtM -99DNF
Dear John:
This letter is in response for your client's request that Ms. Capasso submit her "Last Best Offer" to be
reviewed by the Board of County Commissioners at their November 16, 2014 meeting.
At this time, we are in the final pretrial phase of this litigation. The court has dismissed Ms. Capasso's
discrimination claim but her retaliation claim remains. In our minds, this will allow us to streamline our
case and focus on Ms. Capasso's retaliation claim which we believe is very strong. And, we believe that
the jury will find the frequency and timing of the discipline handed down by Diane Flagg, coupled with
Amy Lyberg's lack of oversight of Dianne Flagg's actions, to be egregious enough to prompt a jury to
award Susana Capasso the back pay and front pay she is asking for as well as generous compensation for
her pain and suffering. We understand that you, obviously, disagree and will zealously defend your
client at trial.
Notwithstanding our confidence in Ms. Capasso's case, we also understand that there is a benefit to
reaching an agreement and avoiding the time, expense and uncertainty of trial. Per our expert 's report,
Ms. Capasso's back pay damages are $104,993.00 and her front pay damages are $190,533.00, totaling
lost past and future wages and benefits of $291,996.00. We expect that the jury will award enough in
damages for emotional distress to meet the compensatory damages cap of $300,000.00. Therefore, Ms.
Capasso has the potential to recover approximately $405,000.00 in damages, plus attorney fees which
will be at least $200,000.00 after going through trial. Your own expert valued Ms. Capasso's economic
loss in a range of $100,000.00 to $150,000.00.
Accordingly, Ms. Capasso has authorized us to make a settlement demand of $300,000.00 in full and
final satisfaction of all claims. We look forward to you client's response which we understand will not
Shanghai, China ♦ China Enterprise Tower ♦ 1376 West Nanjing Road ♦ West Tower, 5 °i Floor, Suite 504 -27 Shanghai, China 200040 ♦ Phone: (330) 752 -1959
Jacksonville, FL ♦ 800 West Monroe Street, Jacksonville, FL 32202 ♦ Phone: (904) 366 -1500 ♦ Fax: (904) 366 -1501
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visit us online at: www.hmdpl.com or www.prohusinesslaw.orc
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11/18/2014 16.K.5.
John F. Potanovic, Jr., Esq.
November 7, 2014
Page 2
be forthcoming until after November 16, 2014. In the meantime, we will continue to prepare our pretrial
materials which are due November 14, 2014.
Sinc rely yours,
Kim M. Hastings�--7
Cc: Richard A. Annunziata, Esq.
Ms. Susanna Capasso
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