Agenda 03/26/2013 Item #16K23/26/2013 16.K.2.
EXECUTIVE SUMMARY
Recommendation to approve a Mediated Settlement Agreement in the sum of $70,000 and
direct the County Attorney to file all documents necessary to end with prejudice the lawsuit
styled Nyankadau Korti v. Collier County Board of County Commissioners, Case No. 11-
3710 -CA, pending in Collier County Circuit Court (Fiscal Impact: $70,000).
OBJECTIVE: To approve a Mediated Settlement Agreement of an employment discrimination
lawsuit now pending in Collier County Circuit Court.
CONSIDERATIONS: The Plaintiff, Mr. Nyankadau Korti, was a long -time Project Manager in
the Transportation Department prior to his separation from service due to a County -wide
reduction in force (RIF) in April 2010. Mr. Korti alleged that his separation from service was
not in compliance with the County's RIF policy, and that he was actually separated based on his
age, race, sex, and national origin. The County filed an Answer denying this claim.
The parties attended Court Ordered Mediation on Friday, March 15, 2013, and the parties agreed
to $70,000 to settle this case, 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.
LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County
Attorney's Office and the Risk Management Department and requires a majority vote by the
Board for approval. The proposed settlement is based on the potential exposure associated with
trying this type of employment discrimination claim. Typically, tort claims against the County
are subject to a $200,000 per person limitation. However, since this is a Federal claim, the
sovereign immunity cap (found in Section 768.28, Fla. Stat.), does not apply here. The County
Attorney is, recommending that the Board accept this settlement for the following reasons:
1. The Plaintiff's actual damages (lost wages and benefits) are approximately $180,000.
2. This case would be referred to outside counsel to try this case, and the County's
attorney's fees would be expected to run $50,000.
3. If the County does not prevail, then in addition to the $50,000 in legal fees we expect to
incur, the County would also be responsible under Federal law for Plaintiff's legal fees,
expected to also be approximately $50,000, together with the approximately $180,000 in
actual damages. In addition, if the jury finds that the County's actions were willful, the
jury could award additional damages, including emotional distress in an unknown
amount, and doubling the $180,000 actual damages.
FISCAL IMPACT: Funds in the amount of $70,000 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 $70,000 and directs the County Attorney to file all documents necessary to end with
prejudice the lawsuit referred to above. The County Attorney requests that if any Commissioner
wishes to discuss this item, that the item be continued to allow the County Attorney to conduct a
Shade Session for the following Board meeting.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney and Colleen M. Greene, Assistant
County Attorney
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3/26/2013 16.K.2.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.2.
Item Summary: Recommendation to approve a Mediated Settlement Agreement in the
sum of $70,000 and direct the County Attorney to file all documents necessary to end with
prejudice the lawsuit styled Nyankadau Korti v. Collier County Board of County Commissioners,
Case No. 11- 3710 -CA, pending in Collier County Circuit Court (Fiscal Impact: $70,000).
Meeting Date: 3/26/2013
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
3/18/2013 12:16:49 PM
Approved By
Name: WalkerJeff
Title: Director - Risk Management,Risk Management
Date: 3/18/2013 1:20:14 PM
Name: GreeneColleen
Title: Assistant County Attomey,County Attorney
Date: 3/18/2013 3:05:02 PM
Name: GreenwaldRandv
Title: Management/Budget Analyst,Office of Management & B
Date: 3/18/2013 5:03:22 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 3/19/2013 8:41:26 AM
Name: OchsLeo
Title: County Manager
Date: 3/19/2013 3:23:58 PM
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3/26/2013 16.K.2.
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 , 2013 by and between NYANKADAU KORTI, (hereinafter
referred to as "Plaintiff') and Board of County Commissioners for Collier County
(hereinafter referred to as the "County').
WITNESSETH:
WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for the
Twentieth Judicial Circuit in and for Collier County, Florida, styled Nyankadau Korti v.
Collier County, Case No.: 11- 3710 -CA, (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 § 1395y; and
WHEREAS, Plaintiff agrees to be responsible for any tax consequences or
liabilities, 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 Seventy Thousand Dollars and 00/100 ($70,000.00) 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, the
parties, on behalf of themselves, their attorneys,. agents, representatives, insurers,
heirs, successors and assigns, hereby expressly release and forever discharge each
other, as well as their 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.
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4. Notwithstanding anything that may be to the contrary in Paragraph 3 of 100_�'
this Agreement and Release, Plaintiff and the County agree that either of them (as well
as any other 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 Plaintiffs 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 Plaintiff's 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
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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.
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 speck 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 Plaintiffs 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, if any, as a
result of this Settlement Agreement.
[Signature page to follow.]
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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
Deputy Clerk
Approved as to form and
legal sufficiency:
462en--M. Greene
Assistant County Attorney
STATE OF Rcrld(�-
COUNTY OF 0,1) 1* -e
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
Georgia A. Hiller, Esq., Chairwoman
By:
ANKADAU KORTI, Plaintiff
By:
Dougl L. Wilson, Esq.
Attom y for Plaintiff
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COL �ER COUNTY, FLOWAS SWORN TO .and subscribed by NYANKADAU
K9R, bef tyre met on is � day of L rar-C L'1 , 2013.
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Signature of Notary Rublic
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
HEATHER L. BILLY
Notary Public - State of Florida
y? My Comm. Expires Sep 20, 2013
Commission # DD 926512
Personally Known
or
Produced Identification .
Type of Identification Produced
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