Agenda 11/18/2014 Item # 16K4Recommendation to approve a Settlement Agreement in the sum of 569,000 and direct the
County Attorney to file all documents necessary to end with prejudice the lawsuit styled
Evelyn Prieto v. Collier County Board of County Commissioners, Case No. 2:13- cv- 00489-
SPC-CM, now pending in the United States District Court, Middle District of Florida Fort
Myers Division.
OBJECTIVE: To end a First Amendment retaliation lawsuit now pending in the Federal Court
House in Fort Myers.
CONSIDERATIONS: The Plaintiff, Evelyn Prieto, is a former Executive Aide to the Board of
County Commissioners ( "Board "). At the time of her employment, Mr. lan Mitchell was the
Executive Manager to the Board and the supervisor to the five Executive Aides. Ms. Prieto filed
her lawsuit in Federal Court alleging violation of her First Amendment Rights and Tortious
Interference against Mr. Mitchell. Ms. Prieto alleged that she was terminated as a result of her
political speech when she attended an election celebration wearing a t -shirt in support of
Commissioner Henning's campaign for re- election. Ms. Prieto was terminated by her supervisor,
Mr. Mitchell, approximately two months later for non - discriminatory legitimate business
reasons. Shortly after this dismissal, Mr. Mitchell left his position in accordance with a Board -
approved Termination Agreement that included a severance package.
The Board authorized the County Attorney to defend the litigation including providing the
defense for Mr. Mitchell. The County denied all claims on behalf of both defendants and filed a
Motion for Summary Judgment to dispose of the case on the pleadings. The Summary Judgment
was granted as to the Tortious Interference claim dismissing Mr. Mitchell from the case. The
sole count remaining is Ms. Prieto's alleged First Amendment retaliation claim.
On October 2, 2014, the Court referred the parties to a Settlement Conference with a Federal
Magistrate. The Settlement Conference was held on October 27, 2014, and on October 29, 2014,
the parties agreed to a $69,000 payment by the County, subject to Board approval. 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. The County Attorney has conferred with the Risk Management Director
who concurs with this recommendation for settlement.
The County Attorney is recommending that the Board accept this settlement for the following
reasons:
This case has been referred to outside counsel to try this case in federal court, and the
estimated attorney's fees would be $25,000.
2. If the County does not prevail, then in addition to the $25,000 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.
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11 /18/2014 16. K.4.
FISCAL IMPACT: Funds in the amount of $69,000 will come out of Fund 516, Property and
Casualty Insurance.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board approves the attached Settlement Agreement in the
total sum of $69,000 and directs the County Attorney to file all documents necessary to end with
prejudice the lawsuit referred to above.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
Attachments: Proposed Settlement Agreement.
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11/18/2014 16.K.4.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.4.
Item Summary: Recommendation to approve a Settlement Agreement in the sum of
$69,000 and direct the County Attorney to file all documents necessary to end with prejudice
the lawsuit styled Evelyn Prieto v. Collier County Board of County Commissioners, Case No.
2:13 -cv- 00489- SPC -CM, now pending in the United States District Court, Middle District of
Florida Fort Myers Division.
Meeting Date: 11/18/2014
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary, CAO Office Administration
11 /6/2014 11:26:12 AM
Approved By
Name: WalkerJeff
Title: Director - Risk Management, Risk Management
Date: 11/6/2014 1:46:03 PM
Name: GreeneColleen
Title: Assistant County Attorney, CAO General Services
Date: l 1/10/2014 4:19:42 PM
Name: KimbleSherry
Title: ManagementBudget Analyst, Senior, Office of Management & Budget
Date: 1 1/10/2014 4:43:35 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 1 1/1 0/2014 4:56:05 PM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: l 1/] 0/2014 7:01:10 PM
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11 /18/2014 16.K.4.
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,
2014 by and between EVELYN PRIETO, (hereinafter referred to as "Plaintiff') and the 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.: 2:13 -CV- 489- FTM- 29DNF, (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 §
L395v,; and
WHEREAS, Plaintiff agrees to be responsible for any tax consequences or liabilities to
her, if any, as a result of this Settlement Agreement.
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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 -nine thousand dollars and 00 /100 ($69,000) 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 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
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11 /18/2014 16.K.4.
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
Plaintiffs 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 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.
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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 to her, if any, as a
result of this Settlement Agreement.
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
By:
Deputy Clerk
Approved as to form and
legality:
011—ee—nm. Greene, Esq.
Assistant County Attorney
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
By:
Bradley P. Rothman, Esq.
Attorney for Plaintiff
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11 /18/2014 16. K.4.
STATE OF E tO.r i C�
COUNTY OF NSA 'k
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by EVELYN PRIETO,
befor me on this '-1"h day of C-\ ;ny-j fit- , 2014.
c~ Personally Known
Signature of Notary Pu is or
Produced Identification
Commissioned Name of Notary Public
(Please print, type or stamp)
My Conunission expires: job Z - l t-'1
A?ly'q�ti LAUREN NEt1
MY COMMISSION / FF 066157
€ EXPIRES: October 24 2017
`'J1l,.. • bonded Thru Notary PuMb Underwriters
f& cox y. cors U mvt!��P�
Type of Identification Produced
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