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Item J2*2:00 P.M. CLOSED SESSION * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 7/20/11 - KW Division: County Attorney Bulk Item: Yes No XX Staff Contact Person: Bob Shillinger, 292-3470 AGENDA ITEM WORDING: An Attorney -Client Closed Session of the Board of County Commissioners in the matter of Benjamin Moore v. Monroe County, Case No. 10-CIV-10088. ITEM BACKGROUND: Per F.S. 286.011(8), the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorney Susan Grimsley, Assistant County Attorney Derek Howard and a certified court reporter. PREVIOUS RELEVANT BOCC ACTION: 6/15/11 BOCC scheduled Closed Session for 7/20/11 BOCC @ 2:00 p.m. in Key West CONTRACT/AGREEMENT CHANGES: N/A STAFF RECONEWENDATIONS: N/A TOTAL COST: Court Reporter costs INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: Court Reporter costs SOURCE OF FUNDS: REVENUE PRODUCING: Yes No xx AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included Not Required X DISPOSITION: AGENDA ITEM # Revised 2/05 County of Monroe The Florida Keys Robert B. Shillinger, County Attorney" Pedro J. Mercado, Assistant County Attorney ** Cynthia L. Hall, Assistant County Attorney ** Christine Limbert-Barrows, Assistant County Attorney ** Derek V. Howard, Assistant County Attorney** Steven T. Williams, Assistant County Attorney** Peter H. Morris, Assistant County Attorney Patricia Eables, Assistant County Attorney Chris Ambrosio, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law May 25, 2017 Kevin Madok, Clerk of the Circuit Court Sixteenth Judicial Circuit, State of Florida Monroe County Courthouse 500 Whitehead Street Key West, FL 33040 BOARD OF COUNTY COMMISSIONERS uIrMayor George Neugent, District 2 Mayor Pro Tem David Rice, District 4 Danny L. Kolhage, District 1 Heather Carruthers, District 3 Sylvia J. Murphy, District 5 Office of the County Attorney 1111 121n Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax In Re: Benjamin Moore v. Monroe County, Case No.: 10-cv-10088 U.S. District Court, Southern District of Florida Dear Mr. Madok: Please find enclosed herewith the transcript of the July 20, 2011 closed attorney/client session of the Monroe County Board of County Commissioners regarding the above -referenced matter. Under F.S. 286.011(8), the transcript may be part of the public record because the litigation has concluded. Thank you for your assistance with this matter. Please contact me should you have any questions. Sincerely, /obZB. Shiringer Monroe County Attorney Enclosure N, BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY ATTORNEY -CLIENT CLOSED SESSION HARVEY GOVERNMENT CENTER 1200 Truman Avenue Key West, Florida 33040 WEDNESDAY, JULY 20, 2011 1:57 - 2:26 PM Re: BENJAMIN MOORE V. MONROE COUNTY CASE NO. 10-CIV-10088 COUNTY COMMISSIONERS: Heather Carruthers, Mayor Kim Wigington, County Commissioner David Rice, County Commissioner George Neugent, County Commissioner Sylvia Murphy, County Commissioner STAFF: Suzanne A. Hutton, County Attorney Robert B. Shillinger, Chief Assistant County Attorney Roman Gastesi, County Administrator All Keys Reporting Olde Town Centre 600 Whitehead Street 9701 Overseas Highway Suite 207-208 Marathon Key West 305-289-1201 305-294-2601 All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 P R O C E E D I N G S MS. HUTTON: A closed attorney -client session pursuant to Section 286.011 Subsection 8, Florida Statutes, will now be held. It is estimated the meeting will take approximately thirty minutes. The persons attending the meeting will be the County Commissioners, County Administrator Roman Gastesi, County Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, and a certified court reporter. Since the law prohibits any other person from being present at the closed session, the Commissioners, the County Administrator, the attorneys for the County, and the court reporter will remain in the meeting room, and all other persons are required to leave the room. When the closed session is over, we will reconvene and reopen the public meeting. The Mayor will close the public meeting, please. MAYOR CARRUTHERS: The public meeting is hereby closed, and now we will open the closed session. MS. HUTTON: For the record, this meeting is being held upon the request of County Attorney Suzanne Hutton, who announced at a prior BOCC meeting held June 15, 2011, that I needed advice in the matter of Benjamin Moore v. Monroe County, Case No. 10-CIV-10088. At that meeting the board approved holding a closed session today, July All Keys Reporting Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20th, at 2:00 p.m. It's a little bit before 2:00 p.m. Public notice was given through public announcement of the meeting at the June 15 BOCC meeting and through publication of the July 20 BOCC meeting agenda on the County's website. For the record and the benefit of the court reporter, each of us will state our name and position, starting with the Commission. COMMISSIONER WIGINGTON: Kim Wigington, District 1, County Commissioner. COMMISSIONER RICE: David Rice, District 4, County Commission. MAYOR CARRUTHERS: Heather Carruthers, District 3, County Commission. COMMISSIONER NEUGENT: George Neugent, District 2, County Commissioner. COMMISSIONER MURPHY: Sylvia Murphy, District 5, County Commission. MS. HUTTON: Suzanne Hutton, County Attorney. MR. GASTESI: Roman Gastesi, County Administrator. MR. SHILLINGER: Bob Shillinger, Chief Assistant County Attorney. MS. HUTTON: Just as a reminder, we will only be discussing settlement negotiations and strategy relating to litigation expenditures. You cannot take decisive All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 79mi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 action at this meeting. We can only provide information, and you can provide direction to the attorneys. Any decisions the board makes concerning this case must be done in a meeting open to the public. And I'm going to turn this over to Bob Shillinger. MR. SHILLINGER: Thank you. We've handed out letters from our outside counsel, Hudson Gill. The associate Mike Burke is the partner that's handling the case. They're tied up in another mediation for us today so they can't be here today. That's why we're doing this in a little bit different format. A letter that I've handed you is dated July 12, 2011. It's on the law firm letterhead of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, and it's signed by Hudson Gill. It's privileged. Each of your names are on there. I'm going to collect them back on my way back so I know whose I'm missing. I'm going to incorporate it into the record for the court reporter so we're not violating the Sunshine Law, so no portion of this record is supposed to be off the record, our discussion, she can have what you're reading, and at the close I will give you a copy of the letter. It will remain privileged until the end of the lawsuit, whether it's settled by a settlement or it's tried, a verdict, and appealed upon. This is an employment case. We are set to go to All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 trial on it in front of Judge King on August 8th. We have a mediation set for August 1st. Today we're going to discuss the case a little bit once you've finished reading it, because you can read it much quicker than I can read it to you. Those are my highlights on what I think are the real salient portions of it. This is not one where we think we're going to stand much of a chance of victory at trial in terms of actual liability. In terms of damages, it could be as low as a dollar, it could be as high as the sky. The counsel has given us an estimate somewhere in the range of five to twenty thousand as a reasonable estimate, but really you should know that that's just a best guesstimate. The employee at issue is a former employee. It's not an issue of him coming back. His termination was a separate count. That was upheld. So we're just talking about monetary damages for the emotional pain and suffering based on the time he was working for us. Yes? MAYOR CARRUTHERS: Moore's termination? MR. SHILLINGER: Moore's termination. Now, the supervisor, Mark Gates, is retired and gone, so we've solved that problem through attrition. In terms of, just a little outside of what we could talk about but just so you're aware in the context of where do li All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 we go from here, is the Public Works Director and I have consulted, he's already reached out to HR about doing some remedial training for his supervisors so we don't have a repeat. So I just wanted to throw that in if that was a question in the back of your mind. We have spent defending this case to date roughly $50,000. Our insurance policy kicks in once we've spent a hundred thousand. To go to trial, trial counsel estimates in the letter twenty-five to thirty thousand. By way of comparison just to show you how close his estimate to the mark is, when he tried the Bruno trial it was just over twenty thousand. So it's a pretty good number, maybe a little high an estimate. Appeals, you know, were we to prevail in such a manner at trial on this count they would likely appeal the summary judgments that they had already been ruled against them, we'd end up having to litigate an appeal. That's going to take us up and over our hundred thousand limit. What I'm trying to say in the long -handed way is our next $50,000 is spent one way or the other. MAYOR CARRUTHERS: Right. MR. SHILLINGER: Whether we contribute to a settlement or whether we continue to fight this. The League, Florida League of Cities, our insurance carrier, has let us know that we do have a, they are willing to All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 put money on the table to help solve this case once the County has reached its self-insurance retention fund. So what I'm here to do today is to first of all introduce you to the case because I know many of you probably haven't heard about this one before, two, get some temperature on whether the County would be willing to try and resolve this through a settlement or whether we should just spend our money in fighting it, and regardless of the outcome we're probably going to spend the same amount of money one way or the other because either we resolve it, maybe we can get them under fifty, but probably not. That seems to be our best chance of getting something under fifty without hitting our limit. Otherwise be prepared to spend the rest of the fifty thousand we have left before we hit our limit and then everything dollar for dollar that's spent we get reimbursed from the League over that hundred thousand dollar amount. COMMISSIONER WIGINGTON: Does Mr. Gates have any liability in this? MR. SHILLINGER: No. The claim is did the employer, the County, have adequate measures in place. We have a policy. Did we enforce it adequately to prohibit, prevent a hostile working environment. And counsel's best estimation is that a jury would likely find that All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 N. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 yeah, we had a policy, but it wasn't adequately enforced. So he has no personal liability from this. MAYOR CARRUTHERS: Can I ask, how is our, how frequently do we go over these kinds of policies? MR. SHILLINGER: How often do they go out for bid? MAYOR CARRUTHERS: No, no. I don't mean that. What I mean is from a human resources perspective how often do we go through discrimination training? You know, I know that after people work together for a while they get loosy-goosy about stuff and things that they think are not, I mean this is, do you have to teach this? Apparently you do have to teach it, but you have to teach it because sometimes people think I'm your friend now, I can throw this stuff around, not knowing that in that moment, yeah, you may be a friend, but two months later it could come back to bite you. So from protecting the assets of the company or in this case the County, people need to be, sadly, constantly reminded of it. MR. SHILLINGER: Right. Mr. Pierce and I's conversation on how we would like to do this is like an every six month reminder, have a separate training for the supervisors and then for the staff, as well. We don't want to do the same training for everybody, but we want to have an additional training for supervisors. COMMISSIONER NEUGENT: One, in response to what All Keys Reporting - Court Reporters ... (305) 289-1201 Locations in Key Largo, Marathon & Key West A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 91 Commissioner Wigington said and then in response to what Mayor Carruthers said, yes, and we have a responsibility, I would say even a legal and moral responsibility, to deal with our employees on this situation, and for a supervisor to hear it one time and not reprimand that person and as stated in here to ask if you want me to reprimand him, that doesn't fly with me. Somebody, you know, we live in a day and age now, especially at a government level, that that's for me immediate suspension, administrative leave, look into it, and automatic termination. COMMISSIONER WIGINGTON: And can we make them personally liable? MR. SHILLINGER: No. COMMISSIONER WIGINGTON: We cannot make them personally liable? The taxpayers are going to be liable for their action? COMMISSIONER NEUGENT: We're the employer. MR. SHILLINGER: Are you saying, suggesting like through some ordinance or policy in that regard? COMMISSIONER WIGINGTON: Yeah. COMMISSIONER MURPHY: I think firing them is kind of holding them responsible. MR. SHILLINGER: I'm willing to look into that and see if that's a possibility, but generally under the All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 i 13 14 15 16 17 18 19 20 21 22 23 24 25 10 1 statutes, under the civil rights statutes they're not personally liable. But maybe we can go over and above that as the employer and put it in our policy. MAYOR CARRUTHERS: But if the employer gives them all the training in the world and they still have this attitude -- COMMISSIONER NEUGENT: Then you fire them because you are not liable until you don't take care of your responsibility, so if we're taking care of our responsibility we mitigate, eliminate our responsibility. COMMISSIONER MURPHY: Okay. COMMISSIONER NEUGENT: But in this case just based upon the highlights you have we had a supervisor that dropped the ball. Two supervisors that dropped the ball. COMMISSIONER MURPHY: And probably a lot more than two because this went on for a long time. This was a very foul-mouthed man, period. He's been like that for years. I've been hearing it from the people who work with him and I wondered why it was allowed to continue. But to really -- COMMISSIONER NEUGENT: Why didn't you pursue it? COMMISSIONER MURPHY: I can see a County Commissioner going out and doing anything with a Public Works employee. Come on. COMMISSIONER NEUGENT: I would have. All Keys Reporting - Court Reporters (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 II COMMISSIONER MURPHY: Anyway, the point being if you go along the route of shall we say defending the County against this, how are you then going to go to the employee and tell them it's wrong? So I would say drop it now, pay the man, and try better later. I wouldn't embarrass myself by -- MAYOR CARRUTHERS: Try to make it as little as possible. MR. SHILLINGER: Well, and that's the recommendation, get some settlement authority, but again we can't get that authority until we get direction from �i� MAYOR CARRUTHERS: Commissioner Rice? COMMISSIONER RICE: We've got to remember we're not here today to revise our County policies and procedures. All I can say is been here before and done that, settle the damn thing. MAYOR CARRUTHERS: With that said, maybe our County procedures need to be refreshed. COMMISSIONER RICE: Oh, no question. COMMISSIONER WIGINGTON: And I'd like for us to pursue at least looking into whether an employee can be held personally liable. COMMISSIONER NEUGENT: They can sue us outside of what, but we can't remove our obligation. All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 COMMISSIONER WIGINGTON: Well, true. MR. SHILLINGER: I'm just looking for some statute or ordinance that would allow us to go after him as an indemnification if we're found to be liable for that. COMMISSIONER WIGINGTON: Because on the other hand -- COMMISSIONER NEUGENT: Our supervisor didn't do what he should have done. MS. HUTTON: I think in this case, you know, the horse is out of the barn. COMMISSIONER NEUGENT: Right. For future. MS. HUTTON: If we have a procedure in place I think what they're asking is for us to look at creating a future process where perhaps we can hold them liable if we go through what we're supposed to do. COMMISSIONER WIGINGTON: But on the other side this redneck and cracker and the word that starts with mother is not something that is endearing, either, and I don't even know what one of these is. You're going to have to tell me. COMMISSIONER NEUGENT: Well, you went to the right person. MAYOR CARRUTHERS: I don't know what that is, either. COMMISSIONER WIGINGTON: Someone from Louisiana All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 explain later. MR. SHILLINGER: I think it's pronounced geechee. COMMISSIONER MURPHY: Oh. MR. SHILLINGER: All right. Well, I think I have the direction that we need. Because of the timing, because Mike has told us, Mr. Burke has told us that he doesn't think Senior Judge King will postpone the trial based on a tentative settlement agreement, assuming we reach a settlement agreement on the lst we'll have a week to confirm it with you so we're going to need to have a special meeting. Connie's already checked with aides and there is four of you is what I've heard are available on the 2nd. So when you get a notice of special meeting it's news that we've got a settlement that we're going to be bringing to you. We may go ahead and schedule it and pull it off the calendar. COMMISSIONER WIGINGTON: Could we approve today a settlement under X amount? MAYOR CARRUTHERS: No. COMMISSIONER WIGINGTON: We could do that, but then we'd let the cat out of the bag? MR. SHILLINGER: Yeah. We don't want to negotiate against ourselves. COMMISSIONER WIGINGTON: Understood. MR. SHILLINGER: So we already went through as many All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I R 14 Possibilities as we could, and this is unfortunately the best way to do it. COMMISSIONER WIGINGTON: And my calendar is gone. MR. SHILLINGER: And we can hold it in Marathon, we can hold it in Key West. Assuming everybody's on board with the settlement, I mean, whatever the end dollar amount would be we will end up writing a check for that amount and then we'll get reimbursed for the amount that's over the hundred thousand in self-insurance retention, and that includes defense costs. So if Mike Burke spends another fifty getting the settlement we'll get everything we paid back. MAYOR CARRUTHERS: Okay. So do you feel that you have sufficient direction? MR. SHILLINGER: I do. MR. GASTESI: Yeah. I just have a couple of questions. When they give you this kind of advice do they look at the files, you know, the personnel files of these two individuals? Because both of these files are quite peppered, and I think they need to know that. MR. SHILLINGER: Absolutely. MAYOR CARRUTHERS: By both you mean -- MR. SHILLINGER: The employee and supervisor. MR. GASTESI: Especially the supervisor. COMMISSIONER NEUGENT: The supervisor. And All Keys Reporting - Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West �A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 Commissioner Murphy was exactly right. I don't know if we need an ordinance for them to be personally liable, just that he needed to be fired fifteen, twenty years ago. COMMISSIONER MURPHY: Yes, he did. MR. GASTESI: Okay. And it wasn't until recently when I got involved and I had to be the grievance officer because nobody wanted to supervise this man because he was one of the Conchs, one of the bubbas, and it wasn't until I got involved that we finally suspended this guy and he finally quit, he finally retired. Everybody was scared of this guy. COMMISSIONER WIGINGTON: Why? MR. GASTESI: He was just one of the old guys, they all went to high school together, and this is another thing -- COMMISSIONER NEUGENT: But there's a difference. Being scared is one thing, and then dealing with your responsibilities is something else, so anybody that's not dealing with their responsibilities doesn't need to be in that job in the first place. MR. GASTESI: Exactly. And that's where I'm headed with this and that's why I wanted to mention it because you know how I feel. I've talked to you individually how I feel about Public Works and the changes we're making. All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 Here's yet another example that this went on for a long, long time and now it's going to cost us tens of thousands of dollars because he wasn't being supervised properly and it wasn't until it came to my attention, and it wasn't this particular case, either, it was a different case, and we did the right thing and we actually suspended the guy I think for a week, possibly two weeks, and then he finally saw that the writing was on the wall and he retired. So this kind of thing -- and there's a half a dozen more of these guys that are in our organization that are causing this kind of trouble, and I think we need to get rid of them, too. COMMISSIONER NEUGENT: Why are they still in our organization? MR. GASTESI: Well, because the guys aren't supervising. They're not being supervised properly. We're doing that, but it takes a while to get to these people and show them that they haven't been supervised, they haven't had their performance reviews and they haven't had, you know, any kind of feedback. COMMISSIONER NEUGENT: Roman, how do you, so we would call an employee in and we interview them or do we get other people to corroborate what the accusation, allegations are? MR. GASTESI: Yes and yes and yes. It's almost like l All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 a little trial. And in this particular case what gets me upset is that I had to do it because nobody, my division director didn't want to do it, not even my deputy wanted to do it. COMMISSIONER NEUGENT: Does this go before the Career Service board? MR. GASTESI: No. MR. SHILLINGER: If we had fired the employee, it would have. MR. GASTESI: Right. MR. SHILLINGER: But he retired. Career Service Council has jurisdiction if you fire them, if you suspend them, if you demote them. MS. HUTTON: But only if they appeal that action. MR. SHILLINGER: Right. MAYOR CARRUTHERS: What if we had fired the supervisor? MS. HUTTON: Well, the supervisor could have had that opportunity to go to Career Service. MAYOR CARRUTHERS: So, Roman, you just said that we're not giving performance reviews. So that means that we have no record of this kind of behavior? MR. GASTESI: And that's what happened here, and that's why it took me about six, eight months of talking to this guy, giving him warnings, and he did it again. All Keys Reporting - Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 And it makes it a lot easier with a guy like that because he's very volatile but, you know, some guys get it together for six, eight months, a year, two years, and they do it again. So it takes a while. That's what takes a while. But I'm telling you we still have six or seven of these guys out there because, you know, they start behaving and then it comes out again. But the initial documentation hasn't been done. It hasn't been done until the last couple of years, really. MR. SHILLINGER: And historically five, ten years ago, fifteen years ago the Career Service Council was seen as much more forgiving toward the employee than it currently is, so that while it's not an excuse it may be an explanation as to why some of these folks that have this type of behavior weren't disciplined in the past. The thought was that they were going to be put right back in by Career Service. COMMISSIONER NEUGENT: Right. Marty Arnold. MR. SHILLINGER: Yeah, right. Case in point. So again, not an excuse, perhaps an explanation as to historically how we got to that position. But things have changed and we have a different Career Service Council and I think all the participants in that process, the Aqueduct the Energy Service, the Mosquito Control, I think all of the lawyers that we've talked with, it's a All Keys Reporting... Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 different day for Career Service. So that's one positive step that's happened in the last several years. So I have the direction that I think I need to go ahead and try and negotiate the best deal that we can. Obviously we can't bring an action item in front of you in closed session and we can't bring one today because we don't have that settlement, but we're going to go ahead and schedule a special meeting for the 2nd of August at probably 10:00 a.m., place to be announced, and we'll bring back what we think will be a settlement agreement that will come out of that. COMMISSIONER RICE: If I could add something, I'm scheduled on the 2nd to be in the Lower Keys from 10:00 to 2:00, so if you could schedule around that I would think you were a really nice guy. MR. SHILLINGER: All right. Would you prefer it to be before 10:00 or after 2:00? Which site will you be closer to, Key West or Marathon? COMMISSIONER RICE: It's at the navy base. MR. SHILLINGER: So Key West would be a better location? COMMISSIONER RICE: Yeah. If you want to schedule it at 2:30 in Key West I would have no problem. MR. SHILLINGER: Okay. And just so the record's clear, I'm incorporating by reference the letter from All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 Johnson Anselmo into the record and I'm going to hand a copy to the court reporter. Before we close I'm going to collect back your letters, not because I don't trust you but just in the event that we don't waive the privilege if anything gets out. COMMISSIONER MURPHY: But because he doesn't trust US. MAYOR CARRUTHERS: Yeah. Exactly. COMMISSIONER WIGINGTON: August 2nd in this building at 2:00 p.m. is an ad hoc committee meeting for the Key West International Airport. MS. HUTTON: Well, we can meet someplace else as long as it's accessible to the public. So we may find another location. COMMISSIONER WIGINGTON: And I'm chairing that meeting, which I can always have the vice -chair chair. MR. SHILLINGER: And it can be in the little conference room off of here, as long as it's open to the public. COMMISSIONER WIGINGTON: Oh, okay. That's fine. Okay, good. MS. HUTTON: All right. Are you ready to close the closed session, Madam Mayor? MAYOR CARRUTHERS: The closed session is now closed. (Proceedings concluded at 2:26 p.m.) All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West Im 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C E R T I F I C A T E STATE OF FLORIDA ) COUNTY OF MONROE ) 21 1 I, Susan L. McTaggart, Court Reporter and Notary Public, State of Florida at Large, do hereby certify that I was authorized to and did report by stenotype the proceedings in the above -entitled matter, and that the transcript is a true record of said proceedings. Dated this 14th day of September, 2011. 1 � VIC �� Susan L. McTaggart, Court Reporter All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West ' 17v„„1,171 E p LAW OFFICES JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. A PROFESSIONAL ASSOCIATION DAMIAN H.ALBERT,P.A. ROBERT E.MURDOCH SCOTT D.ALEXANDER,P.A. 2455 EAST SUNRISE BOULEVARD MICHAEL R.PIPER• 1000 CHRISTOPHER AMBROSIO SUITE FORT LAUDERDALE,FL 33304 ANASTASIA PROTOPAPADAKIS MICHAEL T.BURKE't DAVID M.SCHWEIGER,P.A. HUDSON C.GILL TAMARA M.SCRUDDERSt JEFFREY L.HOCHMAN,P.A. CHRISTOPHER L.SMITH E.BRUCE JOHNSON* (954)463-0100 Broward CHRISTOPHER J.STEARNS,P.A. J.MARCOS MARTINEZ (305)945-2000 Dade (561)640-7448 WPB RETIRED TELECOPIER(954)463-2444 RONALD P.ANSELMO BOARD CERTIFIED CIVIL TRIAL LAWYERS • BURL F.G E O RG E 1.BOARD CERTIFIED APPELLATE LAWYERS July 12, 2011 Robert Shillinger, Esquire Chief Assistant County Attorney Monroe County Attorney's Office P.O. Box 1026 Key West, Florida 33041-1026 Re: Benjamin Moore v. Monroe County Case No.10-CIV-10088-KING Our File No. 13 51/30-298 Dear Mr. Shillinger: The following is an updated case evaluation and settlement report in the above-referenced litigation. As you are aware, on July 8, 2011, the Court granted in part and denied in part the County's Motion for Summary Judgment. Following the Courts Order,the claims that remain to be tried are Benjamin Moore's claims that he was subjected to a hostile work environment based on race by his supervisor,Marty Gates,under 42 U.S.C. §1981,Title VII of the Civil Rights Act, and Chapter 760 of the Florida Statutes. o pre a���1H�®n a �s cla�h r si 1. ogre' d` ra e ahat . "vor a` lace pe sated y ' � � _ a e c �t� ox a vas�x�e '©a��ter ;dxscri�i�,�nato Y���s�®o� o.,t, �a ,nd��cu1 o ..�sup�� ez� ��: � � e�><.=, ..,ti 5�i�3- . r�a. ,� � ', ,�.: :. f �� �.,nk: s, �' � �. � .-.,n • re�condite onsr of h s,e e s ro,lo a 4,s;ent._.�_•d tocreate arn abus ue wor 9 k 1:,en�v�roF1 A ent�.Y His claim carries both a subjective and an objective component. Moore must establish (1) that he subjectively perceived Gates's comments to be sufficiently severe or pervasive to alter his employment conditions, and (2) that his subjective perception was objectively reasonable. >• .`,.. Sr Moor clad s t� at •Gra'es st.t ,pd us,'� g wo ds *e "nigger" • o `btlack .} ' oo e o directed © i 6 2®®90. clam„s he 'unc 0 ,t fo', ,b r xa;tes sift g sue . r,'r �' bY�..0 a rF h r"' M1 •� ,�9 , >:v� y 'S ',iS k>�,� J" i` orris;a '`o �� "=t F edkiatel ,T4asked ,Gate o o Moore c1a� 1 despifie =9 s com o la; t, x; y s ! a f r m �g " ,� • 1,3' _ , �F� d�kc �,t� ,a: z 'cons'�ued toy;use �sucheterms:and N lames:in ,his;presencethrough 2009, As a result, Moore complained about Gates's use of the derogatory language to John King, Senior Director for Lower Keys Facilities Management, in July 2009 and Teresa Aguiar, Division Director of Employee Services,in October 2009. Moore claims that no action was taken was respect to Gates's conduct. 1)Kill 1`,..1Q Robert Shillinger Chief Assistant County Attorney July 12,2011 Page-2 - In addition, Moore claims that King heard Gates refer to Moore as "nigger"once, but did nothing to reprimand Gates. Gates has admitted to,referring to Moore as a `,'nigger" and "geechee nigger" on several. occasions during working hours. Gates claims ,at't s was part of back and forth,,banter between he and Moore and that Moore would refer toGates as a redneck, cracker, .no neck mother fucker;" and"mother fucker" in response According to Gates, all the comments were made in a joking manner and were never meant to be harassingItie AlaraSs'ingAjtmatiCiOus. Gates.claims that once he was made.'aware that Moore objected to his use of such language, Gates ceased using it in Moore's resence. (Ding admitted that he heard Gates refer,to Moore as,a"nigger"once during the summer of 2009. King asked Moore if he wanted Gates repr;manded'for s use of the language, but;Moore stated it was unnecessary. King then-infor41edMoore and:Gates that it was inappropriate to use such language ,n the workplace-:and,asked:that they before civil toeach other. King believed that Moore and Gates were joking with one another when Gates used the word.) Aguiar testified that in October of 2009,Moore complained to her that Gates referred to him as a"nigger"some time in the past. Moore's complaint to Aguiar was made during a meeting where Moore was complaining about several things, including his evaluation. While Moore was in Aguiar's office, King entered and confirmed that he had heard Gates refer to Moore as a"nigger." Aguiar concluded her conversation with Moore regarding the evaluation and,after he left the room, questioned King about the incident. King informed Aguiar that Gates and Moore often used such language in a joking manner with one another. Aguiar said it was still inappropriate and recommended that a diversity video be shown to all employees in the division. King agreed with Aguiar's recommendation. While Gates eventually received a written reprimand for his use of derogatory language, it was not until February 2010 and only after the County conducted its investigation into Moore's charge of discrimination filed with the EEOC. (In our opinion,the language that Gates admits to using and that Moore alleges was used will be found by most jurors to be objectively lhoos 'he 0sue e. efore,, is whether Gates is:telling the truth as to the non-hostile and non inalicious use of the language and whether the language,was. in fact perceived in such a manner by Moore.Some evidence exists that Moore only complained to avoid discipline from the County.) In this regard,'we believe that a jury wit not find in the County's favor on this issue. It is (more likely than not that a jury will find that'Gates's language was perceived by Moore as being JOHNSON,ANSELMO,'MURDOCH, BURKE, PIPER & HOCHMAN, P.A. , . , ' --p/R jAil LE c ET) ' Robert Shillinger Chief Assistant County Attorney July 12,201 1 Page-3 - 0,10 ent0 severe a ad, pervasive sotN gtto a erlhisk employment conditions and that'M i'ore's ubjective'perception was objectively reasonable.) cco din l: -the Go°n a 'F ly©e�,,� o rind f is o e lut °slx t e testa '1 gat t e 'rc i.ed .�'p x-.talloiAtat6 `.x'4�'& , . j.,,... ,�� �;:W�. Fw,e�� �., ;,;F.�i .,.?Hfe r�?i�',ref 't:y�,`9 ..� '�6��-4 4 "�a.Niak�KB w,.�-: I �p.�� -. �}i`�r5p a...reasia ;to' a revent racia e ise a =aF A a' a ,,a ;:t .e,erc�6'- reaso,,,a,n,r , e�;to a sec: r e '"s43.x{F + " , ip i, v x.r xlyf ,,k v;,,� 63,- "uRe.. Yr fir+ "ri ..v ,,�"r.-..',s'xt' x^� ... w}a 4 ation Herethe't o# 'ad �t Q,o �� ss el G es ...pry a es 4 d� ess a '' ..� .,. �,.k J�.:. a x.K,'-.<s>6,Sp�,,� s�r��,d.`t 1„�.. �'e... .� s Apt �'6� 8 +��=' N.,ka S i�,.,.4,i c 13 t .e co- duct;.co$ ,w as a d u a K:a ,��,:off, e ,- a esi�:,-a o c'e d o.N oc,,�ae�a es. aP'`€e � llae.s.. ',.'' ..I.,...-.,,,'v ��'�c���53� "t���r �� y�;' �gjt'• 'r)'� 3' ',FF�t1:� >'aF�r-Ari' t^"� •..`'a^.`� "�#, a., •�� ��#� J "�,upFa" k °3"Y aMc do #um caged,ito em ogees!a b' P,i a 9 0`iiii?m.aha a a Q„ I e'r1 a� ngss µ ons ov�v,�- tr�j e ;�"'k� w 1 't' A x r,,,i1 ^fix' W,. , i°�,. ,4%'ry `�» ��i,7 ': d fi'1 r ,,.,,,,, F. xi°...� a ,y '��:y.j. ,=il �':1 ( A,t.:�k. C+U: Y.- _ X fi, iGi4..4 t+.l�tn�„�a"7�j 4 �. 4 r�-..: V'cR 4'�£„ '' ^"m,�� `r alai K :.s tow lave com_lained to;Ki -and A i °on!at least ytwo se arate':occas ons,'abut that,no remedial action was taken. Gates admitted to being aware of at least one incident where Gates used derogatory languages and claims to have informed Gates and Moore that use of such language was inappropriate. Aguiar admits that Moore complained to her and she claims that after receiving Moore's complaint, she spoke with King regarding the matter and instructed that the employees 4,40,6is**)1,4 Floota within the division should review a video on diversity y ��.,::y _ -�''�a F...,.:.� .�a.a>-: J�. `#,n Yk?, `Y.�k_-r�cipt � : {:�i -'�-�,+.? i ,, os . 1 .d {.ittg's`and.Agu ar''s responses'were,,-inrsu�ffi-#c ent'and woixld'therefore not acce l the ounty's defense. tlf "5. ' b 'Lsy�,. ��.� r� +�u.�'��"r` s'�.ws"9.Y�&J'<Y .4t,. 64 k,ir,.,7i ,z r„ f y„ s C+xw'' Yk.3+a � 1k prevai°ls,,'MMoore v it be ent�i 'ed to o I e� ato�rY� da�.na'ges v hi�ch vv e b lie L ourld be -`f a�° v S a` '?��,°' � ''�;-'.-k"'r�=X�.K..t y..,,,A._, •','� :y�%' A,'�"��•°li 'v.sx F• +, Lt 'z., '�� � r ed so ely to �intaza.gib'le sdamage,s,F�r,s�.c,4 �o on�l. pa Land z 5 en*tarl an.gufish: Tn valuing intangible damages,there is no set standardNoz cal"culaton to'be used by the jury, Rather,the jury will be instructed as follows: Thus, no evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced In that respect,it is not a value you ,✓s*�%Y�>S=":�hvi�'� ��%fit hx Y��fit x�r.N+xl+� wy��'a� `7,:5 7 R;Sf vs"1�a. 2•:'s b4"ra0 � are trying to determine, but(an a o F E of aFt Mill "�ai{rl co� ,pe 4'� ate, �e,'la 3��of �.,.-- °�"�.t�+ ,!'�+ �""'•3� �sr&��.��''�'&°"-s,Fj9�. a�ra y x`Y,;® &�` Y� ''t-r,,,��+,.y�,o-e ��,a those,�claims of damage.j :Mere i nox s_,:fidard=toi be a l�phed,any such award.shoukld be•fair and just in light of the evidence.,) 9 x,,: -a: u.k g�, id, -t z y4 p 5 ., ' S I` ' X Although difficult to estimate,we believe that(a' v a;�yd[ga tl i c a 01, o ilPd Rheas low as 5;00'0 `'�� .: r � F' �. '�?�s�n,o-��"�, cp� �'"�.Y'-,�R.'�5'+u, nfa��,,. r E'-ivi" t, (oar as high as $50,000 with a reasonable rang e being between$'1a5`o l0 and"$20,000) In addition,(Moore will:also be entitled treasonable attorneys fees sts and co to if K\loore frevails. Taxable costs would include any filing fees, any fees for service, the cost of any depositions and transcripts,and any costs for making copies of any materials necessarily obtained for use in the case. With respect to attorney's fees,Moore would be entitled to obtain fees based on a reasonable hourly rate for a reasonable number of hours. The Court would likely set the reasonable hourly rate at between $250.00 an hour and $350.00 an hour. If possible, the number of hours reasonably incurred would be limited to only the claims on which Moore was ultimately successful. However, if it was not possible to separate the hours, Moore could be entitled to all of the hours JOHNSON,ANSELMO,MURDOCH, BURKE, PIPER & HOCHMAN, P.A. , , , . , , + i , � i r E,:7 Robert Shillinger Chief Assistant County Attorney July 12,2011 Page-4- incurred in litigating his claims. (In our opinion, the Plaintiffs attorney's fees through the) (culmination of trial will be between$50,000 to$150,000.) (Based on the foregoing,we believe that if the County were to lose at trial,the final judgment including the Plaintiff's attorney's fees would be between$60,000 to $200,000,which would not includes the fees incurred by the County in defending Moore's claims through trial. Based on this estimate,we believe it will cost between$35,000 and$150,000 to settle the case. In our opinion,. a reasonable settlement value at this time inclusive of the Plaintiffs costs and attomey's fees is between$50,000 to $75,000) If you have any questions upon receipt of this correspondence,please call. Very truly yours, Hudson C. Gill Hudson C. Gill For the firm HCG:bbl cc: Maria Slavik Crosby Coleman JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A.