Loading...
Agenda 11/13/2012 Item #16K611/13/2012 Item 16.K.6. EXECUTIVE SUMMARY Recommendation to approve a Settlement Agreement in the sum of $61,250 and direct the County Attorney to file all documents necessary to end with prejudice the lawsuit styled David Scribner v. Collier County Board of County Commissioners, Case No. 2:10- cv -728- FtM-29-JES-DNF, now pending in the United States District Court, Middle District of Florida Fort Myers Division. (Fiscal Impact: $61,250). OBJECTIVE: To end a federal discrimination and retaliation lawsuit now pending in the Federal Court House in Fort Myers. CONSIDERATIONS: The Plaintiff, David Scribner, is a former Manager of Investigation in the Code Enforcement Department. Mr. Scribner voluntarily resigned from employment with Collier County in July 2009 although Mr. Scribner alleges constructive discharge claiming that he was required to resign based on intolerable working conditions. Mr. Scribner's complaint generally alleges gender discrimination and retaliation under the Department Director. The County sought to have this case dismissed, however the Motion to Dismiss the Amended Complaint was denied by the Court. The parties attended Court Ordered Mediation on January 27, 2011 and reached impasse. The parties have completed initial discovery including written discovery and depositions. Prior to the initiation of additional and costly discovery (starting with 9 depositions), the parties again engaged in settlement discussions. On October 30, 2012, the parties agreed to a $61,250 payment by the County, 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. The County Attorney is recommending that the Board accept this settlement for the following reasons: 1. This case would be referred to outside counsel to try this case in federal court, and the attorney's fees would start at approximately $50,000 and may reach as high as $75,000.00 2. If the County does not prevail, then in addition to the $50,000- $75,000; in legal fees we expect to incur, the County would be responsible under Federal law fox plaintiff's legal fees, plus whatever damages may be awarded by the jury. FISCAL IMPACT: Funds in the amount of $61,250 will come out of Fund 516, Property and Casualty Insurance. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: The County Attorney's Office has reviewed this settlement with the Risk Management Department and recommends that the Board of County Commissioners approve this Settlement Agreement. This item is legally sufficient for Board action and requires a majority vote for approval. — CMG Packet Page -2912- 11/13/2012 Item 16.K.6. RECOMMENDATION: That the Board approves the attached Settlement Agreement in the total sum of $61,250 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: Colleen M. Greene, Assistant County Attorney Jeffrey A. Klatzkow, County Attorney Packet Page -2913- 11/13/2012 Item 16.K.6. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.6. Item Summary: Recommendation to approve a Settlement Agreement in the sum of $61,250 and direct the County Attorney to file all documents necessary to end with prejudice the lawsuit styled David Scribner v. Collier County Board of County Commissioners, Case No. 2:10 -cv- 728- FtM- 29- JES -DNF, now pending in the United States District Court, Middle District of Florida Fort Myers Division. (Fiscal Impact: $61,250). Meeting Date: 11/13/2012 Prepared By Name: AllenDebbie Title: Legal Office Administrator,County Attorney 11/2/2012 10:26:54 AM Approved By Name: WalkerJeff Title: Director - Risk Management,Risk Management Date: 11/5/2012 7:31:10 AM Name: GreeneColleen Title: Assistant County Attomey,County Attorney Date: 11/5/2012 3:19:42 PM Name: KlatzkowJeff Title: County Attorney Date: 11/5/2012 3:54:58 PM Name: FinnEd Title: Senior Budget Analyst, OMB Date: 11/5/2012 4:51:19 PM Name: OchsLeo Title: County Manager Date: 11/5/2012 6:14:22 PM Packet Page -2914- 11/13/2012 Item 16.K.6. 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, 2012 by and between DAVID SCRIBNER, (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 United States District Court, Middle District, Case No.: 2:10 -cv- 728- FtM- 29- JES -DNF, (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. Packet Page -2915- 11/13/2012 Item 16.K.6. 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 One Thousand Two Hundred Fifty Dollars and 00 /100 ($61,250.00) 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, 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 Packet Page -2916- 11/13/2012 Item 16.K.6. 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 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 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 3 Packet Page -2917- 11/13/2012 Item 16.K.6. 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. 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, if any, as a result of this Settlement Agreement. [Signature page to follow.] 11 Packet Page -2918- 11/13/2012 Item 16.K.6. j 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: V Vic\ erfleen M. Greene Assistant County Attorney STATE OF COUNTY OF BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA I: Fred W. Coyle, Chairman DAVID SCRIBNER, Plaintiff Bradley P. Rothman, Esq. Attorney for Plaintiff THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by DAVID SCRIBNER, before me on this day of 2012. Signature of Notary Public Commissioned Name of Notary Public (Please print, type or stamp) My Commission expires: 5 Personally Known or Produced Identification Type of Identification Produced Packet Page -2919-