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Agenda 06/28/2011 Item #16K3 6/28/2011 Item 16.K.3. EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners approve a Settlement Agreement among all parties in the case styled Burgesoll v. Collier COUllty, et al., Case No. 2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the Middle District of Florida, Fort Myers Division. OBJECTIVE: Recommendation that the Board of County Commissioners approve a Settlement Agreement among all parties in the case styled Barbara Burgeson v. Collier County, Tom Henning. Stan Chrzanowski. and Rudy Moss, Case No. 2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the Middle District of Florida, Fort Myers Division. CONSIDERATIONS: Collier County, Commissioner Tom Henning, and County employees: Stan Chrzanowski and Rudy Moss, have been sued in a sexual and gender discrimination case by fonner employee, Barbara Burgeson; styled Burgeson v. Collier COUnTY, et aI., Case No. 2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the Middle District of Florida, Fort Myers Division. Ms. Burgeson's retaliation claims aganst the County were dismissed with prejudice by the Trial Judge after thc County's third motion to dismiss. Plaintiff's remaining claims against the County are: Violation of the EP A, 29 ns.c. ~ 206(d); Violation of Title VII of Civil Rights Act of 1964,42 U.s.C. ~ 2000(e); Violation ofFCRA, Fla. Stat., ~ 760.10; Sexual Harassment in Violation of Title VII of Civil Rights Act of 1964, 42 U.S.c. ~ 2000(e); Sexual Harassment in Violation of FCRA, Fla. Stat. ~760.01; and Negligent Supervision. Plaintiffs claims against the other individual Defendants are: Assault and Battery against Rudy Moss; Intentional Infliction of Emotional Distress against Rudy Moss and Stan Chrzanowski; Tortious Interference with Employment Relationship, and Defamation against Commissioner Henning. To date, the County has expended approximately $] 95,000.00 for two (2) outside counsels' fees plus costs for the three (3) individual defendants. This case is covered by the County's insurance policy. Under the policy, the first $100,000 in fees were payable by the County, and further fees are reimbursed by the carrier. Accordingly, all future fees are the obligation of the insurance carrier. Ms. Burgeson's first attorney resigned and her second attorney wants to settle. Future costs up to mediation are anticipated at approximately $65,000.00. Trial cost would undoubtedly be much higher. Our insurance carrier through the adjusting company, .John's Eastern, is driving the settlement process. They are viewing it as a busincss decision. i.e.. that it is cheaper to settle than to try the case, even though the County has an cxcellent defense and a good chance for summary judgment. The attached Settlement Agreement amounts to a full and final settlement for a payment of $75.000.00, paid solely by the County's insurance carrier, to Plaintiff Burgeson, on behalf of all Packet Page -1738- 6/28/2011 Item 16.K.3. of the Defendants. The Plaintiff also has a pending bankruptcy case, and payment will be made only upon a signed Order from the Bankruptcy Court, approving the settlement. All parties are to bear their own attorneys' fees and costs. A stipulation of dismissal signed by all counsel will be filed with the Court once the settlement is approved. The approval of the settlement by the Board of County Commissioners is contingent upon approval by the Bankruptcy Court. If the settlement is not approved by the Bankruptcy Court, the Board's approval is null and void. FISCAL IMP ACT: None; the settlement will be paid by the County's insurance carrier. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This is a regular matter requiring a simple majority vote. It is the recommendation of the County Attorney that Commissioner Henning abstain from voting on this matter as he is a party to the litigation. Please note that this matter is being placed on the consent agcnda. lf any Commissioner wishes to discuss the ternlS of this Settlement with their fellow Commissioners, please notify me and I will request a continuance of this item and announce a Shade Session to be held at the next Board meeting. RECOMMENDATION: That the Board of County Commissioners approve the attached Settlement Agreement between all parties in the case styled Barbara Burgeson v. Collier County. Tom Henning, Stan Chrzanowski. and Ru,{1' Moss, Case No. 2:09-CY-220-FTM-9 DNF, now pending in the United States District Court for the Middle District of Florida, Fort Myers Division. Prepared by: Jacqueline Hubbard, Litigation Section Chief, and Jeffrey A. Klatzkow, County Attorney 2 Packet Page -1739- 6/28/2011 Item 16.K.3. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.3. Item Summary: Recommendation that the Board of County Commissioners approve a Settlement Agreement among all parties in the case styled Burgeson v. Collier County, et aI., Case No. 2:09-CV-220-FTM-99-DNF, now pending in the United States District Court for the Middle District of Florida, Fort Myers Division. Meeting Date: 6/28/2011 Prepared By Name: CrotteauKathynell Title: Legal Secretary ,County Attorney 6117/201112:03:09 PM Approved By Name: Walker.Teff Title: Director - Risk Management,Risk Management Date: 6/20/2011 7:48:52 AM Name: GreenwaldRandy Title: ManagementlBudget Analyst.Office of Management & B Date: 6/20/2011 9:04:27 AM Name: Klalzkow.Teff Tille: County Attorney, Date: 6/20/2011 11:41 :30 AM Name: lsacksonMark Title: Director-Corp Financial and Mgmt Svs,CMO Date: 6/20/2011 2:04:27 PM Packet Page -1740- 6/28/2011 Item 16.K.3. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA IN FORT MYERS, FLORIDA CIVIL ACTION ) ( BARBARA BURGESON Plaintiff, v. Case No. 2:09-cv-00220-CEH-DNF COLLlER COUNTY, TOM HENNING, STAN CHRZANOWSKI, RUDY MOSS Defendants. / SETTLEMENT AGREEMENT AND MUTUAL RELEASE In consideration of the promises, covenants and conditions contained herein, Plaintiff, Barbara Burgeson, hereinafter referred to as "Burgeson," and Defendants Collier County, Tom Henning, Stan Chrzanowski, and Rudy Moss, hereinafter referred to as "the Defendants," agree as follows: 1. Settlement Amount. Collier County, on behalf of all the Defendants will pay to BURGESON the full and final settlement amount of $75,000.00, (Seventy-Five . Thousand Dollars), upon receipt of an Order from the Bankruptcy Court in Case No.:9:09-bk-24347-DHA; payable as directed by that Order. The payment of any income taxes shall be the sole responsibility of the Plaintiff and her Attorney, limited to their respective interests. Collier County shall make payment within 30 (thirty) days of the Order of the Bankruptcy Court. Burgeson will indemnify Collier County for any liability for income tax from the Settlement Amount. Burgeson agrees to indemnifY Collier County for any liability it may incur to the Social Security Administration for disability or medical expenses attributable to the claims in this lawsuit. 2. Settlement Payment. Plaintiff stipulates and agrees that the payment of Settlement Amount shall be solely the obligation of Collier County, and the individual Defendants will not have any independent obligation to pay the Settlement Amount. 3. Stipulation for Dismissal. Within 14 days ofreceipt of the $75,000.00, counsel for BURGESON shaIl prepare, execute and deliver to counsel for DEFENDANTS a Stipulation for Dismissal with Prejudice with a proposed Order on the Stipulation, which shall provide that this entire action is dismissed with prejudice, including any and all claims which could have been made by the Plaintiff pertaining to the allegations of her Second Amended Complaint. All Packet Page -1741- 6/28/2011 Item 1~.K.;~--l parties agree to release each other from any and all claims pertaining to the incidents related to the employment of the Plaintiff by the County as set forth below. BURGESON shall bear her own attorneys' fees and costs, and DEFENDANTS will not seek recovery of their attorneys' fees and costs from Plaintiff, but which Order shall also provide that the Court reserves jurisdiction to enforce the terms of this Settlement Agreement. 4. Mntual General Release And Covenant Not To Sue. Except for the obligations of this Settlement Agreement, which are not hereby released and which shall survive the execution hereof, in exchange for the consideration set forth herein, BURGESON and DEFENDANTS do hereby with prejudice mutually release, settle, acquit, remise, satisfy and forever discharge each other including Collier County's past and present commissioners, employees, officers, directors, agents and representatives, in their official and individual capacity, their heirs and legal representatives and on behalf of anyone who could claim by and through BURGESON and DEFENDAl\'TS, their predecessors and successors, from any and all claims and demands, actions, causes of action, damages, expenses or cost of whatever nature, including but not limited to any and all claims for handicap or disability discrimination, national origin discrimination, sex discrimination, race discrimination, retaliation, whistle blowing, breach of contract, rescission, promises, claims under the Employment Retirement Income Security Act of 1974 ("ERISA"), as amended, torts of all kind, including but not limited to misrepresentation, negligence or otherwise, fraud, defamation, libel, slander, worker's compensation retaliation, interference with an advantageous business relationship, negligent hiring, negligent retention, discrimination claims or rights under State and Federal law including but not limited to legislation including Section 448.101 - 448.105, Florida Statutes, and Section 120.3187, Florida Statutes, the Consolidated Omni-Budget Reconciliation Act ("COBRA"), the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA"), the Equal Pay Act, Title VII of the Civil Rights Act of 1964, the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes, the Fair Labor Standards Act ("FLSA"), as amended and the Drug-free Workplace Act and any other claim of any kind, in law or equity. 5. The aforementioned mutual release and covenant not to sue does include any rights afforded to BURGESON under the Age Discrimination and Employment Act ("ADEN'), and the Older Workers Benefits Protection Act ("OWBPA"). In accordance with the OWBPA, BURGESOl\' understands her rights under the ADEA that she is entitled to consult an attorney prior to executing this release and waiver of those rights. Further, BURGESON understands that she has seven (7) days from the date of her execution of this Release and Waiver to revoke her waiver of her claims under the AD EA. Should BURGESON revoke her waiver of claims under the ADEA, this Agreement shall bccome null and void. 6. BURGESON and DEFENDANTS further specifically waive any rights of action and administrative and judicial relief which either might otherwise have available in the State and Federal Courts, including all common law claims and claims under Federal and State Constitutions, statutes and regulations and Federal 2 Packet Page -1742- 6/28/2011 Item 16.K.3. Executive Orders, County and Municipal ordinances and regulations or any claim arising out of the employment relationship between BURGESON and DEFENDANTS with the exception of being able to challenge the validity of the ADEA waiver. 7. Due Dates Fallin!!: on Weekends or Holidavs. In the event that the date of any act required to be performed by this Agreement (including, but not limited to, the payment of any money) falls on a weekend or a federal holiday, then the same shall not be required to be performed until the next business day thereafter. 8. Entire A!!:reement. This Agreement sets forth the entire understanding of the parties and no verbal or written warranties or representations have been made or have been relied upon which do not appear in writing within this Agreement. Any reliance on verbal or other representations which do not appear within this Agreement shall be deemed unjustifiable reliance. Each party hereto is represented by that party's own counsel (or has had the opportunity to confer with counsel of their own choosing) and has had the benefit of such counsel's advice in reviewing, commenting upon, and modifying this Agreement. 9. Modification of Aereement. This Agreement may not be amended or modified except by written instrument signed by all of the parties hereto, and the parties agree that this provision may not be waived except in writing. 10. Waiver The rights of the parties under this Agreement are to be considered cumulative, and the failure on the part of any party to exercise or enforce properly or promptly any rights arising out of this Agreement shall not operate to forfeit or serve as a waiver of any of those or other rights. The waiver by one party of the performance of any covenant or condition herein shall not invalidate this Agreement, nor shall it be considered to be a waiver by such party of any other covenant or condition herein. The waiver by any party ofthe time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. 11. CooDeration. The parties hereto agree to cooperate fully in the execution of any documents or performance in any way which may be reasonably necessary to carry out the purposes of this Agreement and to effectuate the intent of the parties hereto. 12. No Admission of Liabilitv. By this settlement, no party admits any liability, but rather the parties have agreed to this settlement as a compromise of disputed claims in the interests of avoiding the costs and uncertainty of continued litigation. 13. Time is of the Essence. Time is of the essence of this Agreement. 3 Packet Page -1743- 6/28/2011 Item 16.K.3. 14. Headinl!8. The headings used in this Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any provision in it. 15. Severabilitv. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, whether on its face or as applied, the remaining provisions shall remain in full force and effect. 16. Benefit and Bindinl! Effect. This Agreement shall inure to the benefit of and be binding upon the parties, their heirs, successors and assigns. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The individuals signing below on behalf of entities represent and warrant that they have the full authority to bind their respective entities to all of the provisions hereof. SignatW'es by facsimile transmission or other electronic transmission of this Agreement shall be acceptable and binding upon the Parties. A copy hereof shall be as binding as the executed original. 17. Goveminl! Law. This Agreement shall be governed by the laws of the State of Florida, without regard to its principles of conflicts of law. 18. Effective Date: This Settlement Agreement and Mutual Release shall take effect upon the execution of it by all the parties, and upon the approval of the Collier County Board of County Commissioners at a duly noticed, regularly scheduled public meeting. Additionally, however, the approval of the Board of County Commissioners is contingent upon acceptance of the Settlement Agreement and Mutual Release by the Bankruptcy Court. If the Settlement is not approved by the Bankruptcy Court, the Board of County Commissioners' approval is null and void. The parties have executed this Agreement on the dates shown below. ATTEST: Dwight E. Brock, CLERK BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: By: DEPUTY CLERK FRED W. COYLE, CHAIRMAN r:!I-pproved as to~orm and leg~ sufficiency: Jacqueline W. Hubbard Litigation Section Chief Collier County Attorney's Office 4 Packet Page -1744- 6/28/2011 Item 16.K.3. WITNESS: BY:'rj~~ ~ Barbara Burgeson Signed Name Date: &r It; - c,2{) II L ' I './t; 4/ - c"- M) C. uJ; SDAl By: Douglas Attorney Wilson, Esq. or Barbara Burgeson WITNESS: By: Tom Henning Signed Name Date: Printed Name Signed Name By: Ricardo A. Reyes, Esq. Attorney for Tom Henning Printed Name WITNESS: By: Stan Chrzanowski Signed Name Date: Printed Name By: Rudy Moss Signed Name Date: Printed Name Signed Name By:_ Andrew H. Reiss, Esq. Attorney for Stan Chrzanowski and Rudy Moss Printed Name 5 Packet Page -1745-