Agenda 11/18/2014 Item # 16K611/18/2014 16.K.6.
EXECUTIVE SUMMARY
Recommendation to reject a Settlement Offer presented by Plaintiff Don Edwards in the
lawsuit styled Don Edwards v. Collier County (Case No. 09- 611 -CA) now pending in
Circuit Court in Collier County and to direct the County Attorney to proceed with the
defense of the lawsuit currently scheduled for trial in December 2014.
OBJECTIVE: To reject a $90,000 Settlement Offer proposed by Plaintiff Don Edwards.
CONSIDERATIONS: The Plaintiff, Don Edwards, is the former Wastewater Operations
Manager in the Public Utilities Division. Mr. Edwards was tenminated from County employment
on or about September 14, 2009 for multiple performance and behavioral reasons. Mr. Edwards
appealed the termination decision and participated in the County's administrative appeal process
represented by an attorney. An outside hearing officer made recommended findings of fact,
which were provided to the County Manager who upheld the recommendation to terminate. A
copy of the hearing officer's findings is attached.
Mr. Edwards filed a lawsuit in Circuit Court in Collier County alleging violation of the Florida
Whistleblower's Act, FMLA Retaliation, and Workers' Compensation Retaliation. Collier
County filed a Motion for Summary Judgment which was granted as to the FMLA and Workers'
Compensation retaliation claims.
The only remaining claim is an alleged violation of the Florida Whistleblower's Act. Briefly
stated, in 2008 there was an investigation into a number of employees inappropriate use of the
County e -mail system. After the investigation was concluded and all discipline imposed, Mr.
Edwards wrote an e-mail to HR which was critical of the investigation and which alleged
potential ethical and legal concerns with the investigation. As set forth in the hearing officer's
findings of facts, issues had arisen as to Mr. Edward's job performance prior to this e -mail. One
of the issues at trial will be the underlying motivation for this e -mail.
As time went on, Mr. Edwards failed or refused to perform the essential functions of his position
and was repeatedly insubordinate to his direct supervisor, then- Director Dr. George Yilmaz. Mr.
Edwards, a Professional Engineer, was tasked with auditing each of the County's lift stations as
identified in his Job Classification /Specification, and refused to adequately perform the task and
document the results. In addition, Dr. Yilmaz documented multiple non - related performance
failures and repeated examples of insubordination; Mr. Edwards received four behavior actions
plans and one performance improvement plan prior to his termination.
The parties attended Court Ordered Mediation on December 20, 2013 and reached impasse. At
the County's request, on November 7, 2014, the Plaintiff presented a settlement offer demanding
$90,000 to settle the case in full. 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. It is the position of the
County Attorney, Risk Management Department, and the County's outside Insurance Company,
that this demand for settlement is unreasonably high as Mr. Edwards was terminated for
legitimate non - discriminatory business reasons and the case is defensible. In addition, the
County believes there remains a question of law as to whether Mr. Edward's complaint actually
rises to the level of a whistleblower complaint that is protected by Florida law. The County will
again ask the Court to review this issue. Lastly, it is the position of the County Attorney that as a
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matter of principle this case not be settled, as the termination was in all respects justified, and
paying Mr. Edwards would set a bad precedent.
FISCAL IMPACT: Failing settlement, this matter will be tried before a jury that will be
authorized to award damages, and the County could be responsible under the Whistleblower Act
for Plaintiff's 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 teens) 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 Settlement Offer
presented by Plaintiff Don Edwards in the lawsuit styled Don Edwards v. Collier County (Case
No. 09- 611 -CA) now pending in Circuit Court in Collier County 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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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.6.
Item Summary: Recommendation to reject a Settlement Offer presented by Plaintiff Don
Edwards in the lawsuit styled Don Edwards v. Collier County (Case No. 09- 611 -CA) now pending
in Circuit Court in Collier County 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, CAO Office Administration
11 /] 0/2014 4:24:02 PM
Approved By
Name: WalkerJeff
Title: Director - Risk Management, Risk Management
Date: ] 1/] 0/2014 4:34:16 PM
Name: GreeneColleen
Title: Assistant County Attorney, CAO General Services
Date: 11/] 0/2014 4:41:38 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 11 /10/2014 4:51:50 PM
Name: KimbleSherry
Title: Management/Budget Analyst. Senior, Office of Management & Budget
Date: l 1 /10/2014 4:56:16 PM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 1 1/] 0/2014 7:04:50 PM
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Office of the County Manager
Leo E. Ochs, Jr.
3301 East Tamiami Trail - Naples Florida 34112 • (239) 252 -8383 • FAX: (239) 252.4010
December 3, 2009
Mr. Donald Edwards
1410 Tiffany Lane
#2503
Naples FL 34105
RE: Post Termination Appeal Hearing
Dear Mr. Edwards:
Pursuant to Human Resources Practices and Procedures, CMA 5351, the following decision is hereby
rendered in the above referenced matter. Based upon the enclosed findings of fact provided by the
assigned hearing officer in this matter, please be advised that the decision to terminate your County
employment is upheld and affirmed.
Sincerely,
Leo E. Ochs, Jr. l
Deputy County Ma alter
CC. Jim DeLony, Public Utilities Administrator
Amy Lyberg, Human Resources Director
Scott Teach, Deputy County Attorney
Colleen Greene, Assistant County Attorney
Otto W. Immel, Esquire, Quarles and Brady LLP
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Qwrk1 BmdyLLP
Mr. Leo E. Ochs
County Manager
3301 E. Tamiami Trail
Naples, FL 34112
1395 Panther lane
suite 300
Naples, Florida 34109 -7874
Tel 239.262.5959
Fax 239.434.4999
www.quaries.com
11/18/2014 16.K.6.
Attorneys at Lass in:
Pbwnix and Tucson, Arizona
Napes, Florida
Cbk%,o, iainois
Mdumd ae and Madison, Wisconsin
Otto W. lmmel
Writer's Direct Dial: 239.659.5041
Writer's Fax: 239.213.5449
E -M ai I: Otto.Immel @quaries.com
November 23, 2009
RE: Post - Termination Appeal Bearing for Donald Edwards
Dear Mr. Ochs:
It has been my privilege to serve our County and its employees as the designated Hearing
Officer in connection with the post - termination appeal hearing of Appellant, Donald Edwards.
The hearing was held over the course of two days, October 29 and November 9, at the County
Human Resource Office.
Counsel
For Appellant Edwards: Samuel C. Gold, Esq.
For the County: Colleen M. Greene, Esq., Assistant County Attorney.
Witnesses
The following individuals testified at the hearing, under oath: Donald Edwards and Dr.
George Yilmaz (Wastewater Director, Collier County Public Utilities Division).
Findings of Fact
The parties were provided a full opportunity to present testimony and documentary
evidence and to cross - examine witnesses called by the other party. At the conclusion of the
hearing the parties rested their cases, made: closing statements, and the record was closed.
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Leo E. Ochs
November 23, 2009
Page 2
Based on the testimony and documents introduced at the hearing, I make the following
findings of fact:
1. Appellant Edwards' employment by Collier County began in August 2007.
2. At the time of his tennination in September 2009, Appellant Edwards was
employed as Wastewater Operations Manager.
3. Dr. George Yilmaz, Wastewater. Director, was Appellant Edwards' direct
supervisor throughout his employment.
4. Beginning in or about April 2008, Appellant Edwards was a member of a
management committee investigating PUD employees concerning the misuse of computers and
the possible presence of pornographic material in the workplace.
5. The investigation resulted in disciplinary action for a number of employees under
Appellant Edwards' supervision and he executed the associated BAPs and appeared at appeal
hearings regarding challenges.
6. Between May 28 and June 1, 2008, Appellant Edwards voiced concerns to Dr.
Yilmaz and other management and Human Resources employees involved in the investigation
regarding the fairness of the investigation and what he believed were inconsistent levels of
discipline being issue.
7. Appellant Edwards' first annual performance evaluation covering the period
August 13, 2007 to June 15, 2008, which Appellant Edwards received in July 2008, was very
positive.
8. One of Appellant Edwards' responsibilities throughout his employment was to
oversee the inspection of all wastewater pumping stations, lift stations, etc. for both performance
and appearance deficiencies.
9. The goal for the wastewater department was that these facilities should look and
operate "like new."
10. Appellant Edwards was aware that "look like new, operate like new" was the
benchmark "from the start of my employment."
11. On January 30, 2009 Dr. Yilmaz sent an email to Appellant Edwards noting
deficiencies Dr. Yilmaz had discovered at Lift Station 300.20, asking Appellant Edwards to
1 It is not my intention to restate the extensive documentary evidence, summarize all the testimony, or address every
point raised during the hearing. Rather, I will address the facts material to the County's termination decision and
Appellant Edwards' appeal thereof.
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inspect the station and to provide Dr. Yilmaz with a list of all stations Appellant Edwards had
visited to date.
12. Appellant Edwards responded that up until that point, inspections had been done
informally and there was no documentation of which stations had been visited, what deficiencies
were noted, or what corrective actions were taken. Appellant Edwards stated that in the future he
would tie the inspections into the Antero system "with the goal of inspecting all pumping
stations in a year" with appropriate documentation and accountability for Senior Crew Leaders.
13. Dr. Yilmaz concluded the exchange by asking Appellant Edwards to "keep track
of your site visits and documentation station by station by having your laser eyes on increasing
expectations for all stations `look like new and operate like new. "'
14. On February 12, 2009, Dr. Yilmaz issued a directive to the managers in his
department, including Appellant Edwards, concerning their responsibility to manage overtime,
compensatory time, and sick leave in connection with employee schedules and emergency
responses.
15. Appellant Edwards responded to Dr. Yilmaz's directive, copying all the original
recipients, stating that Dr. Yilmaz's directive "Needs more thought and discussion" and
questioning why Dr. Yilmaz wanted to be involved in the issue of emergency overtime.
16. Dr. Yilmaz instructed the managers to execute his directive as stated, and asked
Appellant Edwards to call him.
17. Appellant Edwards did not call Dr. Yilmaz.
18. Dr. Yilmaz considered Appellant Edwards' actions to be inappropriate and
insubordinate and Dr. Yilmaz commenced a BAP on February 16, 2009, for a Written
Counseling and Instruction (hereinafter "BAP-1"). An additional incident involving what Dr.
Yilmaz considered similar conduct by Appellant Edwards relating to the use of a County vehicle
subsequently occurred between February 17 -20 and was incorporated in BAP -1.
19. On February 16, Dr. Yilmaz requested a cumulative list of pump stations visited
by Appellant Edwards and Appellant Edwards' assessment of each against the benchmark.
20. Appellant Edwards responded on February 17, that he had only visited 3 stations
since his last report and asked for clarification as to what Dr. Yilmaz wanted him to do.
21. Later that day, Dr. Yilmaz and Appellant Edwards discussed the inspection
reports Dr. Yilmaz wanted for each station given the operates /looks like new benchmark.
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22. On February 17, 2009, Dr. Yilmaz began a BAP concerning Appellant Edwards'
performance regarding the station inspections (hereinafter "BAP -2 ").
23. On Friday February 20, Appellant Edwards sent an email to Dr. Yilmaz, copying
James W. DeLony, Administrator of the Public Utilities Division, stating that although they had
been using the operates /looks like new benchmark for inspections, Appellant Edwards now
believed the standard was "difficult to define and impossible to reach."
24. Dr. Yilmaz responded later that day asking for Appellant Edwards' current
checklist for pump station inspections and additional items necessary to get to the operates/looks
like new standard. Dr. Yilmaz instructed Appellant Edwards to set up a meeting between
Appellant Edwards, Dr. Yilmaz and Mr. DeLony for no later than the following Thursday to
explain why the benchmark could not be met.
25. In response to Dr. Yilmaz's request for Appellant Edwards' pump station
checklist, Appellant Edwards forwarded a 2 -item list applicable to all infrastructure and stated
that the "delta between existing conditions and `looks like new and performs like new' is beyond
what normal maintenance can achieve" and was "obviously unattainable and therefore
unenforceable."
26. Dr. Yilmaz replied by again asking for Appellant Edwards' current checklist for
pump stations and additional items necessary to get to the standard, again instructing Appellant
Edwards to set up the meeting with Mr. DeLony.
27. Later that day, at 10:43 p.m. Appellant Edwards sent an email to HR Director
Amy Lyberg to initiate a complaint under CMA 5350 (Commitment to Fair Treatment).
Appellant Edwards stated that in the prior two weeks he "felt an increase in tension for some
unknown reason to me." Noting prior tension with certain members of the HR department,
Appellant Edwards requested that his concerns be addressed by someone outside the PUD and
HR. Appellant Edwards sent a copy of his email complaint to the County Manager, Deputy
County Manager, Mr. DeLony, and Dr. Yilmaz.
28. On February 24, Dr. Yilmaz was informed by the Water Department that the
Water Department had discovered a wastewater lift station lacking a required backflow
prevention device. Over the next few days, the Water Department inspected 51 lift stations and
found 12 to have deficiencies requiring correction, leading the Water Department to schedule
further inspections for compliance issues. Because he considered this indicative of Appellant
Edwards' failure to properly perform the pump station inspections, Dr. Yilmaz added the
incident to BAP -2.
29. Marla Ramsey, Public Services Administrator, was identified as the person to
whom Appellant Edwards should present his concerns regarding the prior handling of the
computer investigation. Appellant Edwards provided her with written information describing his
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concerns with the handling of the investigation and the resulting discipline on March 3, and he
also met with Ms. Ramsey in person.2
30. On March 23, BAP -1 (Written Counseling and Instruction) and BAP -2 (3 -day
Suspension) were presented to Appellant Edwards.
31. Appellant Edwards timely appealed the suspension (the written counseling called
for in BAP -1 not being subject to appeal).
32. A post - suspension hearing was duly held on April 9, 2009, before hearing officer
Norman Feder (Administrator, Transportation Services Division). Appellant Edwards read a
prepared statement and declined to answer- questions.
33. On April 15, 2009, Mr. Feder issued a decision upholding the suspension.
34. Appellant Edwards received a second 3 -day suspension on April 23, 2009 based
on communications sent by Appellant Edwards about Dr. Yilmaz that contained statements that
Dr. Yilmaz considered inaccurate and inappropriate as well as Appellant Edwards' failure to
comply with a directive regarding the use of a County vehicle (hereinafter "BAP -3 ").
35. Appellant Edwards timely appealed and a post- suspension hearing was duly held
on May 6, 2009 before Mr. Feder. Appellant Edwards again read a prepared statement and
declined to answer questions.
36. On June 3, Mr. Feder issued a decision upholding the second suspension.
37. On August 15, 2009, Dr. Yilmaz commenced the fourth and final BAP for
Appellant Edwards, recommending that Appellant Edwards' employment be terminated
(hereinafter "BAP -4 ").
38, BAP -4 recommended termination based on less than satisfactory job performance,
continued insubordination, and prior disciplinary action.
39. On September 14, 2009, Appellant Edwards was presented with BAP -4 and
informed of Dr. Yilmaz's decision to recommend the termination of Appellant Edwards'
employment,
40. Appellant Edwards timely appealed the termination recommendation and a pre -
termination hearing was scheduled for September 28. It was rescheduled to October 1, by the
hearing officer, Marla Ramsey, following Appellant Edwards' objection to having received
insufficient notice on September 23.
Z No evidence was presented as to the result of Appellant Edwards' meeting agth Ms. Ramsey.
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41. At the hearing, Appellant Edwards read a short statement that the reasons for
termination stated in BAP -4 were not the true reasons he was being fired. Appellant Edwards
stated that the "real" reason was "the way I judiciously tried to handle the porn investigation"
and because he was injured while inspecting a pumping station. Although he stated that the
disciplinary documentation was not complete or accurate, Appellant Edwards declined Ms.
Ramsy's offer to go through the facts or documents at the hearing.
42. On October 2, 2009, Ms. Ramsy upheld the recommendation for discharge noting
that Appellant Edwards had not availed himself of the process to "discuss your termination or
refute any of the material provided to me by the Wastewater Department."
43. Appellant Edwards timely appealed that decision and the instant hearing was
accordingly held on October 29 and November 9.
44. The specific events set forth in BAP -4 were thoroughly documented and
supported by competent testimony.
45. Appellant Edwards did not present evidence to dispute that the events described in
BAP -4 took place, or that they were not viewed by Dr. Yilmaz as presented in BAP -4.
46. Appellant Edwards' assertion that he was not terminated for the reasons stated by
the County, but in retaliation for complaining about the handling of the computer investigation is
not supported by the evidence.
47. Appellant Edwards argues that the temporal proximity between his February 20
email complaint and the initiation of formal discipline in March, 2009, is evidence that the
discipline was caused by the complaint.
48. The February chronology, detailed above, does not support Appellant Edwards'
temporal proximity argument. Rather, it is undisputed that prior to Appellant Edwards'
Complaint, he sensed dissatisfaction with his performance by Dr. Yilmaz for reasons he did not
understand. Thereafter, he initiated the complaint.
49. The only specific communications identified by Appellant Edwards prior to
February 20, 2009, evincing his criticism of the handling of the investigation occurred, according
to the evidence he presented at the hearing, between May 28 and June 1, 2008. During the
period immediately following the airing of these concerns, Appellant Edwards received an
exemplary performance appraisal.
50. As stated in the BAP -4, Appellant Edwards performance was less than
satisfactory to Dr. Yilmaz.
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51. As stated in the BAP -4, Appellant Edwards continued to violate CMA 5311.1
(A) & (Y).
52. The procedural requirements of CMA 5351 were properly followed throughout
the process and Appellant Edwards presented no evidence to the contrary.
53. Although counsel for Appellant Edwards contends that Marla Ramsy should not
have acted as the pre - termination hearing officer because she had previously dealt with
Appellant Edwards in connection with his computer investigation concerns, no evidence was
presented that this fact rendered Ms. Itamsy ineligible to serve as the hearing officer. No
evidence was presented that she had previous involvement in the imposition or adjudication of
any disciplinary actions involving Appellant Edwards or that she had any input regarding
Appellant Edwards' perfonnance.
54. In accordance with the post - termination appeal procedures set forth in CMA
5351(D)(3)(d), "The Hearing Officer will not make any recommendation as to the actual
resolution of the discharge," I make no such ultimate recommendation.
OWI:csl
cc: Scott R. Teach, Esq.
Colleen M. Greene, Esq.
Samuel C. Gold, Esq.
QB \9264243.1
Respectfully submitted,
Otto W. Immel, Esq.
Hearing Officer
Partner, QUARLES & BRADY LLP
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