VII(C) Discussion Re: Claim of Former City Manager Gleason – Randall Lord, Esq Agenda 04-20-2004
Item VII C;
Mem or a n d u m
TO: MAYOR S. SCOTT VANDERGRIFT CC: Paul Rosenthal, Esq.
OCOEE CITY COMMISSIONERS
JEAN GRAFTON, CITY CLERK
FROM: RANDALL W. LORD, ESQ.
SPECIAL COUNSEL
DATE: APRIL 12, 2004
RE: CORRESPONDENCE FROM TOM PILACEK, ATTORNEY FOR JIM
GLEASON ?'40 attached is correspondence from Tom Pilacek, an attorney who represents Jim
Gleason. I would like to discuss this at the next meeting of the Commission.
THOMAS J . PILACEK ED
& ASSOCIATES MAR 317nn4
Attorneys at Law BY:
THOMAS J. PILACEK DEBORAH C. BROCK
Florida Bar Certified Legal Assistant/Firm Administrator
Specialist in Labor and Employment Law
JOHN C.PALMERINI
March 30, 2004
JACKSON LEWIS,LLP
390 North Orange Avenue,
Suite 1285
Orlando,FL 32801
AT1 ENTION: RANDALL W. LORD,Esquire
Re: Gleason v. City of Ocoee
Dear Randy:
As you know, my office represents the interests of James Gleason. Enclosed please find
a draft complaint which we will file unless the instant controversy is resolved. Pursuant
to your earlier request, this letter will constitute Gleason's demand for settlement.
Because of the method and manner in which Gleason has been terminated, it appears as
though he will most likely have difficultly in locating other employment. Moreover, the
public humiliation and embarrassment to which Gleason has been subjected can never
adequately be entirely remunerated. Nevertheless, I have been authorized by my client
to propose that the entire controversy in this matter may be settled for the following
amounts, which include the salary and benefits to which he is already entitled by virtue of
his employment agreement: $104,000.00, base salary; $7,200.00, car payment;
$8,800.00, accrued personal leave; $13,000.00, deferred compensation; $10,940.00,
medical insurance premiums; $1,080.00, dental/vision insurance; $500.00, short term
disability/long term disability premium; $30,000.00, relocation/realtor expenses involved
in selling his residence and moving to another location in order to obtain future
employment; $45,000.00, representing a "gross-up" tax effect caused by receipt of
settlement amounts in a lump sum; and $60,000.00, attorney's fees, for a total of
$280,520.00.
Red Willow Plaza• 5844 Red Bug Lake Road•Winter Springs,FL 32708 •407.660-9595 •Facsimile 407.660-8343
JACKSON LEWIS,LLP
Attention: Randall W. Lord, Esq.
March 30,2004
Page 2.
Please notify the appropriate individuals to determine whether the City is interested in
resolving this matter in an amicable fashion, or whether it will be necessary for my client
to file the enclosed proposed complaint. If we have not heard from you by April 16,
2004, we will assume that the City is not interested in settling, and will file the complaint.
If you have any further questions,please do not hesitate to contact me.
Very truly yours,
1,/I'I,,'►
homas J.Pilacek
TJP/gmd
Enclosure
cc: James Gleason (w/enclos.)
RECEIVED
• MAR 3 1 7nna
UNITED STATES DISTRICT COURT BY:
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES GLEASON, CASE NO:
Plaintiff,
vs. DRAFT
CITY OF OCOFF.,FLORIDA,
Defendant.
COMPLAINT FOR DAMAGES WITH REQUEST
FOR EQUITABLE RELIEF AND DEMAND FOR JURY TRIAL
Plaintiff sues Defendant and alleges:
JURISDICTION
1. This is an action for damages and other relief arising under the First and Fourteenth
Amendments to the Constitution of the United States and 42 U.S.C. §1983 for compensatory
damages in excess of $75,000.00, attorney's fees and Court costs. This Court has jurisdiction
pursuant to 28 U.S.C. §1331. Plaintiff alleges a deprivation of his constitutional right to freedom of
speech by the Defendant. In addition, Plaintiff alleges a violation by the Defendant of the Florida
Public Sector Whistle-Blower Protection Act, §112.3187, Fla.Stat.,thereby invoking supplemental
jurisdiction pursuant to 28 U.S.C. §1367.
PARTIES
2. Plaintiff, JAMES GLEASON [hereinafter referred to as "GLEASON"], is an adult
individual who resides in Orange County,Florida. At all times material GLEASON was employed
by the Defendant,CITY OF OCOEE,FLORIDA[hereinafter referred to as"CITY"] in the position
DRAFT
of City Manager from his date of hire on April 19, 2001 to and including his termination effective
March 4, 2004.
3. Defendant,CITY OF OCOEE,FLORIDA is a political subdivision of the State of Florida
duly created and existing pursuant to the constitution and laws of the State of Florida,situate within
Orange County,Florida. Defendant CITY is a "municipality"for purposes of 42 U.S.C. §1983.
VENUE
4. The employment and the injury complained of occurred within Orange County,Florida.
Plaintiff resides,Defendant exists, and the injury occurred within this judicial district and division.
ALLEGATIONS COMMON TO ALL COUNTS
5. GLEASON was initially hired by CITY on January 15,2001 as interim City Manager. On
or about April 19, 2001 GLEASON became the permanent, full-time City Manager, in which
position he remained continuously employed until his involuntary termination from employment on
or about March 4, 2004.
6. GLEASON's employment was pursuant to a contract entered into effective April 19,2001
for a fixed term of one year. The contract contained an"evergreen"provision for a one-year renewal
if GLEASON was not furnished a written notice of non-renewal 90 days prior to April 18, of each
succeeding calendar year.
7. For calendar year 2004, the 90 day non-renewal notice was required to have been
furnished to GLEASON by January 18, 2004. However, the City Council failed to take official
action to provide a non-renewal notice to GLEASON, or to officially decide to terminate
GLEASON's employment. Accordingly,GLEASON's contact renewed for the period commencing
April 19, 2004 and ending April 18, 2005.
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• 8. On March 4, 2004, a majority of the City Council voted to terminate GLEASON's
employment as City Manager effective that date.
9. The reasons advanced for GLEASON's termination were ostensibly performance-based;
however, GLEASON had never been formally evaluated in his performance; he had never been
warned of any alleged performance deficiencies;and each and every one of the alleged performance
deficiencies was false, and known to and proven to the City Council to be false.
10. The real reason for GLEASON's termination from employment were based upon
GLEASON's notification to the majority commissioners that he would not violate the law or ethics
in performing his duties, and his notification that he would expose violations of the law and/or
breaches of ethics by the commissioners in majority which include, but are not limited to: (a)
refusing to follow directives by commissioners in the majority that GLEASON favor their positions
on certain political issues in derogation of the rights of those holding opposing positions and/or of
the citizens; (b) refusal by GLEASON to advance personal loans; (c) refusing to call meetings in
violation of notice and/or Sunshine law requirements;and(d) threatening to expose violations of the
Sunshine law committed by the commissioners in majority.
11. The damages incurred by GLEASON include deprivation of his employment and loss of
wages, health insurance coverage, retirement benefits, and other benefits and emoluments of
employment;damage to GLEASON's good name and reputation for competence and integrity in his
position and in the performance of his professional duties;foreclosure in GLEASON's ability to take
advantage of other employment opportunities;exposure to ridicule,humiliation,and embarrassment;
deprivation of a meaningful opportunity to obtain future employment based on the public
circumstances of GLEASON's termination during the term of his employment agreement;and other
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damages incident thereto including,but not limited to, severe mental anguish and distress.
FREEDOM OF SPEECH
12. This is an action redress the deprivation by Defendant CITY of GLEASON's right to
freedom of speech, brought pursuant to 42 U.S.C. §1983.
13. GLEASON incorporates herein and realleges the allegations of 9[9[ 1- 11 of this
complaint.
14. Defendant CITY violated GLEASON's constitutional right to freedom of speech by
engaging in the conduct complained of herein,the conduct being initiated,carried out and continued
by Defendant CITY in direct retaliation for GLEASON's speaking out on matters of public concern
as set forth above.
15. The subject of GLEASON's speech concerned matters which may fairly be characterized
as matters of public concern, and which are therefore protected by the Constitution of the United
States as a matter of law. No legitimate governmental interest was served by the denial of
GLEASON's rights.
16. GLEASON would not have been terminated and would have continued in CITY
employment, in the absence of his constitutionally protected speech.
17. The conduct complained of herein was taken under color of the laws of the State of
Florida.
18. The persons who engaged in the conduct of which GLEASON complains were of such
position and authority so that their acts may fairly be said to constitute the official expression of
CITY custom, policy or usage.
19. As the result of the conduct by Defendant CITY in retaliation for GLEASON's exercise
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of his constitutionally protected right to freedom of speech, GLEASON has been subjected to
deprivation of his right and privilege of freedom of speech as secured and protected to him by the
First and Fourteenth Amendment to the Constitution of the United States, and has been thereby
damaged.
WHEREFORE, GLEASON, respectfully prays:
(a) that he be awarded compensatory damages in excess of$75,000.00, including, but not
limited to, past and future lost compensation caused by the loss of his employment; damage to
GLEASON's career; damage for severe mental anguish and suffering; damage to GLEASON's
reputation as an individual and as a professional employee; and other direct and consequential
damages suffered by GLEASON as the direct and approximate result of Defendant CITY's violation
of GLEASON's constitutional rights;
(b)that he be awarded attorney's fees and costs pursuant to 42 U.S.C. §1988; and
(c)that he be awarded such other and further relief as may be appropriate
COUNT II: FLORIDA PUBLIC SECTOR WHISTLE-BLOWER PROTECTION ACT
20. This is an action for the violation by Defendant CITY of the Florida Public Sector
Whistle-Blower Protection Act, §112.3187,Fla.Stats. Supplemental jurisdiction over this Count is
invoked pursuant to 28 U.S.C.§1367 on the basis that this claim involves operative facts and issues
which are inseparably intertwined and connected with the facts and issues forming the basis for
GLEASON's Federal claim set forth in Count I.
21. GLEASON incorporates herein and realleges the allegations of "'! 1 - 11 of this
Complaint.
22. Defendant CITY is an "agency" as defined in §112.3187(3)(a), Fla. Stats. and
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§112.3187(4) and (7),Fla. Stats.
23. The State Attorney's Office of Orange County, Florida and/or the State of Florida
Commission on Ethics are "agencies having the authority to investigate,police,manage or otherwise
remedy the violation or act" within the meaning of§112.3187(3)(a) and (6),Fla. Stats.
24. At all times GLEASON was an"employee"within the meaning of§112.3187(3)(b)and
§112.3187(7),Fla. Stats.
25. Prior to GLEASON's termination from employment,GLEASON threatened to disclose
to the Office of the State Attorney,Orange County,Florida and/or the Florida Commission on Ethics
the fact that a majority of commissioners committed a violation of Florida's Sunshine Law by
discussing and reaching an agreement upon a course and scheme to effectuate GLEASON's
termination from employment because GLEASON refused to violate the law and ethics in dealing
with the demands of the commission majority.
26. GLEASON's termination from employment and denial of continued employment in
retaliation for threatening to disclose such information violates §112.3187(4)(a),Fla.Stats.
27. Prior to GLEASON's termination from employment,GLEASON notified the CITY and
the CITY commission of the Sunshine Law violations,and of his threats to disclose them. The CITY
commission is an"agency having the authority to investigate,police,manage or otherwise remedy
the violation of act" within the meaning of§112.3187(3)(a) and (6), Fla.Stats.
28. The nature of the information disclosed,and further threatened to be disclosed,is of the
type for the disclosure of which GLEASON is protected by §112.3187.
29. GLEASON has exhausted all available contractual or administrative remedies prior to
bringing this action.
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30. This action is brought within 180 days of the final administrative determination of the
adverse action.
31. Unless injunctive relief is issued, GLEASON will continue to be deprived of his
employment with the CITY, and further,in the event of reinstatement,GLEASON will continue to
be subjected to adverse personnel actions in his employment. GLEASON is therefore entitled to
injunctive relief affirmatively reinstating him to his employment as City Manager, including
reinstatement of full fringe benefits and seniority rights as if the termination had not occurred; and
injunctive relief restraining and enjoining Defendant CITY,its elected officials,its employees,and
all others in concert therewith or under the control thereof from taking any adverse personnel actions
against GLEASON in the future subsequent to his reinstatement because of GLEASON's truthful
disclosure of information as alleged herein, and/or because of bringing this action.
WHEREFORE,GLEASON respectfully prays:
(a) that he be reinstated to his former position as City Manager;
(b) that GLEASON's pay, fringe benefits and seniority rights which he enjoyed prior to the
adverse action be reinstated as if GLEASON had not terminated;
(c) that GLEASON be awarded compensatory damages for lost wages, benefits, or other
remuneration caused by the adverse action;
(d) that GLEASON be awarded further compensatory damages for intangible losses;
(e) that injunctive relief be issued as prayed for herein; and
(f) that GLEASON be awarded attorney's fees and costs of this action pursuant to
§112.3187(9)(c), together with such other legal or equitable relief as may be appropriate.
DEMAND FOR JURY TRIAL
•
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GLEASON hereby demands trial by jury on all issues triable as of right before a jury.
THOMAS J. PILACEK&ASSOCIATES
Red Willow Plaza
5844 Red Bug Lake Road
Winter Springs,FL 32708
(407) 660-9595
BY:
Thomas J. Pilacek
Fla. Bar No. 143576
Attorneys for Plaintiff
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