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Filing # 71099381 E-Filed 04/23/2018 03:07:14 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
EVELYN FERNANDEZ,
CASE NO. 17-8126 CA 09
Plaintiff,
Vv.
MIAMI-DADE COUNTY,
Defendant.
/
CORRECTED THIRD AMENDED COMPLAINT FOR RESCISSION OF CONTRACT OR,
IN THE ALTERNATIVE, FOR BREACH OF CONTRACT AND DAMAGES
Plaintiff, EVELYN FERNANDEZ (hereinafter “FERNANDEZ’), by and through her
undersigned counsel sues Defendant, MIAMI-DADE COUNTY, and in support thereof states
as follows:
JURISDICTION AND PARTIES
1. This is an action for rescission of a contract against MIAMI-DADE COUNTY,
or in the alternative, for breach of contract and damages.
2. Jurisdiction is vested in this Court pursuant to Article V, Section 5 of the
Constitution of the State of Florida.
3. The amount in controversy exceeds $15,000.00 exclusive of costs, interest,
and attorney’s fees.
4. Plaintiff, EVELYN FERNANDEZ, was employed by the Defendant, MIAMI-
DADE COUNTY, FLORIDA, as a Police Lieutenant at all times material to this complaint.
5. Atalltimes material hereto, Defendant, MIAMI-DADE COUNTY, FLORIDA, was
and is a political subdivision organized and existing under the laws of Florida with its situsin MIAMI-DADE COUNTY, FLORIDA.
FACTUAL ALLEGATIONS
6. During her employment, Plaintiff was promoted from Police Officer to Police
Sergeant and then to Police Lieutenant, which position she held at all times materail to the
facts giving rise to this Complaint.
7. Plaintiff, EVELYN FERNANDEZ, was diagnosed with colorectal cancer in 2013.
Subsequently, the disease advanced to stage 4 colorectal cancer with metastasis to a lung.
As a result, she underwent a resection of one lung and then commenced “adjuvant
chemotherapy.” Please see letter dated August 16, 2016 from her treating oncologist, Dr. De
Zarraga, attached hereto as Exhibit “A”.
8. Due to Plaintiff's medical condition and other personal matters, Plaintiff was
desirous of retiring from her employment with Defendant MIAMI-DADE COUNTY. Asaresult,
the Plaintiff and Defendant entered into an express written contract entitled “Memorandum
of Understanding” (“MOU”) on or about December 13, 2016. A copy of the contract is
attached hereto as Exhibit “B” and incorporated by reference.
9. Defendant's employees all receive retirement benefits from the Florida
Retirement System, which offers a defined benefit plan (FRS Pension Plan) and a defined
contributor plan (FRS Investment plan). As an employee of Defendant, Plaintiff was a
member of the FRS Pension Plan which provides for regular retirement for sworn law
enforcement officers after 25 years of Special Risk Service.
10. Pursuant to the MOU, the effective date of Plaintiff's retirement was February
28, 2017. Based on this information provided by the Florida Retirement System indicating
2that Plaintiff would have 25 years of Special Risk Service and be eligible for normal
retirement. But for Plaintiff reaching 25 years of Special Risk Service and being eligible for
normal retirement, she would not have entered into this agreement because there are specific
benefits that are only available to “retired” employees, from both the Defendant and the State
of Florida.
11. One of the benefits Plaintiff would have received had she retired with 25 years
of Special Risk Service is MIAMI-DADE COUNTY’s group health insurance for the duration
of her retirement. This is imperative given her medical diagnosis. In addition, she would
receive supplemental insurance payments from both the State of Florida Retirement System
and MIAMI-DADE COUNTY via the Collective Bargaining Agreement with the Dade County
Police Benevolent Association. She would also have been eligible to participate in the
retiree’s life insurance.
12. Defendant's employees participate in the Florida Retirement System.
Defendant's Human Resources Department explains eligibility for normal retirement for
members of the Special Risk Class as meeting one of three different criteria depending upon
age, years of service and/or military service. This is based upon criteria set forth in the
Florida Statutes governing the Florida Retirement System. Given that Plaintiff was under the
age of 55, she could only qualify for normal retirement upon completion of “25 years of
credible service in the Special Risk Class.” See Exhibit C attached.
13. Defendant’s Police Department, of which Plaintiff was an employee, has
Standard Operating Procedures (SOP’s) governing the process by which employees retire.
Chapter 11 Part 10 of Defendant’s SOP’s provide in pertinent part: “As a result of
3departmental service, employees are entitled to certain accrued benefits upon retirement.”
This SOP further provides: “Departmental responsibilities and procedures outlined are
intended to assist retirees with preparing an processing appropriate retirement application
forms.” Thus, Defendant’s own procedures place the responsibility for processing requests
to retire with Defendant. This SOP further advises that upon an individual notifying Defendant
of an impending retirement date, the Department’s Personnel Management Bureau is
responsible for ensuring the retirement process is followed and the individual eligible to retire
on the impending retirement date. This specifically includes, but is not limited to:
Determination of service credit for past and prior service, military buy-back,
leave of absence and out-of-state service, and any other authorized credible
service.
See Exhibit D attached hereto.
14. As stated above, upon retirement, Defendant provides its employees with the
benefit of continuing certain insurance coverage upon proper retirement. Defendant's Human
Resources Department further explains on the website that upon retirement, employees can
continue health insurance coverage under Defendant’s plan. See Exhibit E attached.
15. Pursuant to Defendant’s established policy via its Standard Operating
Procedures, employees who retire can continue coverage in its group health insurance plan.
The SOP states in pertinent part: “The County allows employees who retire from the County
service to continue participation in our group insurance programs through the retiree group.”
In order to meet the criteria as a retiree in the Defined Benefit Plan, as Plaintiff was, the
employee has to be able to collect a pension from the FRS. Unfortunately, Plaintiff was not
able to receive a pension from the FRS and was denied this benefit by the Defendant. See
4Exhibit F attached.
16. The MOU between the parties also provided that the Internal Affairs
investigations concerning Plaintiff, which were open and pending at the time the parties
entered into the contract, were to be resolved without disciplinary action prior to Plaintiff's
retirement. It is not possible for Defendant to discipline an employee after the employee
retires or otherwise separates their employment. Therefore the investigations were to be
resolved or concluded prior to Plaintiffs “retirement.” See Exhibit B attached.
17. Aspart of the MOU, Lieutenant Fernandez submitted a letter dated December
16, 2016 requesting to “retire” effective February 28, 2017. See Plaintiff's letter of retirement
attached to and incorporated into the Memorandum of Understanding, Exhibit B attached.
18. | Subsequently, it was discovered that the information relied on from the Florida
Retirement System was incorrect and as of February 28, 2017, Plaintiff had total service
credit of over 25 years, but her Special Risk Service was only 24.08 years. Therefore,
Plaintiff did not qualify for the retirement benefits described above, nor any other benefits
available only to retired employees.
19. Plaintiff applied for Retiree Group Health Insurance, but given the incorrect
information regarding her eligibility and not having 25 years of Special Risk Class service, she
did not meet the criteria. She was also considered for an exception due to her medical
condition, and was denied. The denial is set forth in a memorandum dated March 8, 2017
. See Exhibit G attached.
20. Moreover, Defendant breached the agreement because the pending
investigations and disciplinary matters were not resolved and closed prior to the effective date
5of her attempted “retirement” from the Department.
21. — In fact, Plaintiff has been contacted in regard to several open and pending
investigations and requested to render statements in connection with the open and pending
investigations. Specifically, Plaintiff was sent letters dated March 2, 8, 9, and 24, 2017,
which indicate there are open investigations subsequent to the signing of the agreement.
See Composite Exhibit H attached.
22. — But for the resolution and closing of these investigations, Plaintiff would not
have retired from her employment with the Defendant because doing so results in negative
information being conveyed to the Florida Department of Law Enforcement regarding her law
enforcement certification and separation from employment.
23. — Specifically, ifa sworn law enforcement officer separates from an agency while
an investigation is open and pending, this information is conveyed to the Florida Department
of Law Enforcement instead of indicating that the employee has resigned or retired in good
standing.
24. Prior to filing this complaint, Plaintiff has exhausted any and all administrative
remedies or doing so would be futile.
25. Defendant has waived sovereign immunity by entering into an express written
contract attached here as Exhibit “B” and incorporated by reference.
COUNT | - RESCISSION (mutual mistake)
26. Plaintiff, FERNANDEZ, readopts and realleges the allegations in paragraphs
1 through 25, as if set forth fully herein.
27. Plaintiff and Defendant entered into a written contract entitled “Memorandum
6of Understanding.” (Exhibit B)
28. — Thecontract provided that Plaintiff would retire, thereby obtaining her retirement
benefits, including the Defendant's group retiree health insurance and supplemental
payments for her health insurance as well as participate in Defendant's life insurance for
retirees. A mutual mistake of fact occurred as a result of the parties’ utilization of the date
February 28, 2017 as Plaintiff's retirement date in the express written contract given the fact
that Plaintiff was determined ineligible for retirement and its benefits on that date.
29. Plaintiff justifiably relied to her detriment on the retirement date being correct
when she entered into the contract and submitted her letter of retirement as part of the
contract. Moreover, Defendant has materially breached the contract by not resolving the
open investigations without disciplinary action prior to her attempted retirement. Plaintiff relied
to her detriment on this representation that the investigations would be resolved without any
disciplinary action prior to her request to retire.
30. — Had Plaintiff known she was not eligible for retirement and the corresponding
benefits and/or that Defendant would not resolve the open investigations without disciplinary
actions prior to her retirement, she would not have entered into the contract titled
Memorandum of Understanding. Alternatively, the correct date upon which she would be
eligible for retirement would have been utilized in the agreement.
31. Plaintiff has no adequate legal remedy at law save and except for rescission
of the contract.
32. Plaintiff has advised Defendant, prior to filing this action, that she is rescinding
the contract.33. Plaintiff is willing to restore any benefits conferred on her as a result of the
contract.
WHEREFORE, Plaintiff requests that contract titled Memorandum of Understanding
be rescinded and that she be restored to the position she was in prior to entering into the
contract with Defendant.
COUNT Il - BREACH OF CONTRACT AND DAMAGES
34. Plaintiff, FERNANDEZ, re-adopts and realleges the allegations in paragraphs
1 through 25, as if set forth fully herein.
35. Defendant materially breached the agreement by allowing Plaintiff to “retire”
even after it was determined that Plaintiff was not eligible for retirement, nor for any of the
retirement benefits, including group retiree health insurance, life insurance and health
insurance supplements...
36. Defendant has further materially breached the terms of the contract by virtue
of its failure to resolve the open investigations prior to her date of “retirement”.
37. Defendants have refused to cure the breach of their duty to resolve the
investigations prior to her retirement, nor reinstatement Plaintiff so that she may reach
retirement status.
38. As aresult, Plaintiff has been damaged, which damages include, but are not
limited to, the reporting to the Florida Department of Law Enforcement that she retired while
under investigation.
39. — Further, Plaintiff has been damaged because she has not received retirement
benefits, including Defendant’s group retiree health insurance and health insurance
8supplement from the Defendant and the Florida Retirement System.
WHEREFORE, Plaintiff requests a judgment for damages and costs for the breach
of contract.DEMAND FOR JURY TRIAL
WHEREFORE, Plaintiff, FERNANDEZ, submits this demand for jury trial for all issues
triable of right.
Respectfully submitted,
TERI GUTTMAN VALDES LLC
Counsel for Plaintiff
1501 Venera Avenue
Suite 300
Coral Gables, Florida 33146
Telephone: (305) 740-9600
Facsimile: (305) 740-9202
/s/ Teri Guttman Valdes
Teri Guttman Valdes
Fla. Bar No. 0010741
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
electronic mail this April 23, 2018 to Ezra S. Greenberg, Assistant County Attorney, 111 N.W.
1° Street, Suite 2800, Miami, Florida 33128.
/s/ Teri Guttman Valdes
Teri Guttman Valdes
Fla. Bar No. 0010741
10
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Filing # 71099381 E-Filed 04/23/2018 03:07:14 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA EVELYN FERNANDEZ, CASE NO. 17-8126 CA 09 Plaintiff, Vv. MIAMI-DADE COUNTY, Defendant. / CORRECTED THIRD AMENDED COMPLAINT FOR RESCISSION OF CONTRACT OR, IN THE ALTERNATIVE, FOR BREACH OF CONTRACT AND DAMAGES Plaintiff, EVELYN FERNANDEZ (hereinafter “FERNANDEZ’), by and through her undersigned counsel sues Defendant, MIAMI-DADE COUNTY, and in support thereof states as follows: JURISDICTION AND PARTIES 1. This is an action for rescission of a contract against MIAMI-DADE COUNTY, or in the alternative, for breach of contract and damages. 2. Jurisdiction is vested in this Court pursuant to Article V, Section 5 of the Constitution of the State of Florida. 3. The amount in controversy exceeds $15,000.00 exclusive of costs, interest, and attorney’s fees. 4. Plaintiff, EVELYN FERNANDEZ, was employed by the Defendant, MIAMI- DADE COUNTY, FLORIDA, as a Police Lieutenant at all times material to this complaint. 5. Atalltimes material hereto, Defendant, MIAMI-DADE COUNTY, FLORIDA, was and is a political subdivision organized and existing under the laws of Florida with its situsin MIAMI-DADE COUNTY, FLORIDA. FACTUAL ALLEGATIONS 6. During her employment, Plaintiff was promoted from Police Officer to Police Sergeant and then to Police Lieutenant, which position she held at all times materail to the facts giving rise to this Complaint. 7. Plaintiff, EVELYN FERNANDEZ, was diagnosed with colorectal cancer in 2013. Subsequently, the disease advanced to stage 4 colorectal cancer with metastasis to a lung. As a result, she underwent a resection of one lung and then commenced “adjuvant chemotherapy.” Please see letter dated August 16, 2016 from her treating oncologist, Dr. De Zarraga, attached hereto as Exhibit “A”. 8. Due to Plaintiff's medical condition and other personal matters, Plaintiff was desirous of retiring from her employment with Defendant MIAMI-DADE COUNTY. Asaresult, the Plaintiff and Defendant entered into an express written contract entitled “Memorandum of Understanding” (“MOU”) on or about December 13, 2016. A copy of the contract is attached hereto as Exhibit “B” and incorporated by reference. 9. Defendant's employees all receive retirement benefits from the Florida Retirement System, which offers a defined benefit plan (FRS Pension Plan) and a defined contributor plan (FRS Investment plan). As an employee of Defendant, Plaintiff was a member of the FRS Pension Plan which provides for regular retirement for sworn law enforcement officers after 25 years of Special Risk Service. 10. Pursuant to the MOU, the effective date of Plaintiff's retirement was February 28, 2017. Based on this information provided by the Florida Retirement System indicating 2that Plaintiff would have 25 years of Special Risk Service and be eligible for normal retirement. But for Plaintiff reaching 25 years of Special Risk Service and being eligible for normal retirement, she would not have entered into this agreement because there are specific benefits that are only available to “retired” employees, from both the Defendant and the State of Florida. 11. One of the benefits Plaintiff would have received had she retired with 25 years of Special Risk Service is MIAMI-DADE COUNTY’s group health insurance for the duration of her retirement. This is imperative given her medical diagnosis. In addition, she would receive supplemental insurance payments from both the State of Florida Retirement System and MIAMI-DADE COUNTY via the Collective Bargaining Agreement with the Dade County Police Benevolent Association. She would also have been eligible to participate in the retiree’s life insurance. 12. Defendant's employees participate in the Florida Retirement System. Defendant's Human Resources Department explains eligibility for normal retirement for members of the Special Risk Class as meeting one of three different criteria depending upon age, years of service and/or military service. This is based upon criteria set forth in the Florida Statutes governing the Florida Retirement System. Given that Plaintiff was under the age of 55, she could only qualify for normal retirement upon completion of “25 years of credible service in the Special Risk Class.” See Exhibit C attached. 13. Defendant’s Police Department, of which Plaintiff was an employee, has Standard Operating Procedures (SOP’s) governing the process by which employees retire. Chapter 11 Part 10 of Defendant’s SOP’s provide in pertinent part: “As a result of 3departmental service, employees are entitled to certain accrued benefits upon retirement.” This SOP further provides: “Departmental responsibilities and procedures outlined are intended to assist retirees with preparing an processing appropriate retirement application forms.” Thus, Defendant’s own procedures place the responsibility for processing requests to retire with Defendant. This SOP further advises that upon an individual notifying Defendant of an impending retirement date, the Department’s Personnel Management Bureau is responsible for ensuring the retirement process is followed and the individual eligible to retire on the impending retirement date. This specifically includes, but is not limited to: Determination of service credit for past and prior service, military buy-back, leave of absence and out-of-state service, and any other authorized credible service. See Exhibit D attached hereto. 14. As stated above, upon retirement, Defendant provides its employees with the benefit of continuing certain insurance coverage upon proper retirement. Defendant's Human Resources Department further explains on the website that upon retirement, employees can continue health insurance coverage under Defendant’s plan. See Exhibit E attached. 15. Pursuant to Defendant’s established policy via its Standard Operating Procedures, employees who retire can continue coverage in its group health insurance plan. The SOP states in pertinent part: “The County allows employees who retire from the County service to continue participation in our group insurance programs through the retiree group.” In order to meet the criteria as a retiree in the Defined Benefit Plan, as Plaintiff was, the employee has to be able to collect a pension from the FRS. Unfortunately, Plaintiff was not able to receive a pension from the FRS and was denied this benefit by the Defendant. See 4Exhibit F attached. 16. The MOU between the parties also provided that the Internal Affairs investigations concerning Plaintiff, which were open and pending at the time the parties entered into the contract, were to be resolved without disciplinary action prior to Plaintiff's retirement. It is not possible for Defendant to discipline an employee after the employee retires or otherwise separates their employment. Therefore the investigations were to be resolved or concluded prior to Plaintiffs “retirement.” See Exhibit B attached. 17. Aspart of the MOU, Lieutenant Fernandez submitted a letter dated December 16, 2016 requesting to “retire” effective February 28, 2017. See Plaintiff's letter of retirement attached to and incorporated into the Memorandum of Understanding, Exhibit B attached. 18. | Subsequently, it was discovered that the information relied on from the Florida Retirement System was incorrect and as of February 28, 2017, Plaintiff had total service credit of over 25 years, but her Special Risk Service was only 24.08 years. Therefore, Plaintiff did not qualify for the retirement benefits described above, nor any other benefits available only to retired employees. 19. Plaintiff applied for Retiree Group Health Insurance, but given the incorrect information regarding her eligibility and not having 25 years of Special Risk Class service, she did not meet the criteria. She was also considered for an exception due to her medical condition, and was denied. The denial is set forth in a memorandum dated March 8, 2017 . See Exhibit G attached. 20. Moreover, Defendant breached the agreement because the pending investigations and disciplinary matters were not resolved and closed prior to the effective date 5of her attempted “retirement” from the Department. 21. — In fact, Plaintiff has been contacted in regard to several open and pending investigations and requested to render statements in connection with the open and pending investigations. Specifically, Plaintiff was sent letters dated March 2, 8, 9, and 24, 2017, which indicate there are open investigations subsequent to the signing of the agreement. See Composite Exhibit H attached. 22. — But for the resolution and closing of these investigations, Plaintiff would not have retired from her employment with the Defendant because doing so results in negative information being conveyed to the Florida Department of Law Enforcement regarding her law enforcement certification and separation from employment. 23. — Specifically, ifa sworn law enforcement officer separates from an agency while an investigation is open and pending, this information is conveyed to the Florida Department of Law Enforcement instead of indicating that the employee has resigned or retired in good standing. 24. Prior to filing this complaint, Plaintiff has exhausted any and all administrative remedies or doing so would be futile. 25. Defendant has waived sovereign immunity by entering into an express written contract attached here as Exhibit “B” and incorporated by reference. COUNT | - RESCISSION (mutual mistake) 26. Plaintiff, FERNANDEZ, readopts and realleges the allegations in paragraphs 1 through 25, as if set forth fully herein. 27. Plaintiff and Defendant entered into a written contract entitled “Memorandum 6of Understanding.” (Exhibit B) 28. — Thecontract provided that Plaintiff would retire, thereby obtaining her retirement benefits, including the Defendant's group retiree health insurance and supplemental payments for her health insurance as well as participate in Defendant's life insurance for retirees. A mutual mistake of fact occurred as a result of the parties’ utilization of the date February 28, 2017 as Plaintiff's retirement date in the express written contract given the fact that Plaintiff was determined ineligible for retirement and its benefits on that date. 29. Plaintiff justifiably relied to her detriment on the retirement date being correct when she entered into the contract and submitted her letter of retirement as part of the contract. Moreover, Defendant has materially breached the contract by not resolving the open investigations without disciplinary action prior to her attempted retirement. Plaintiff relied to her detriment on this representation that the investigations would be resolved without any disciplinary action prior to her request to retire. 30. — Had Plaintiff known she was not eligible for retirement and the corresponding benefits and/or that Defendant would not resolve the open investigations without disciplinary actions prior to her retirement, she would not have entered into the contract titled Memorandum of Understanding. Alternatively, the correct date upon which she would be eligible for retirement would have been utilized in the agreement. 31. Plaintiff has no adequate legal remedy at law save and except for rescission of the contract. 32. Plaintiff has advised Defendant, prior to filing this action, that she is rescinding the contract.33. Plaintiff is willing to restore any benefits conferred on her as a result of the contract. WHEREFORE, Plaintiff requests that contract titled Memorandum of Understanding be rescinded and that she be restored to the position she was in prior to entering into the contract with Defendant. COUNT Il - BREACH OF CONTRACT AND DAMAGES 34. Plaintiff, FERNANDEZ, re-adopts and realleges the allegations in paragraphs 1 through 25, as if set forth fully herein. 35. Defendant materially breached the agreement by allowing Plaintiff to “retire” even after it was determined that Plaintiff was not eligible for retirement, nor for any of the retirement benefits, including group retiree health insurance, life insurance and health insurance supplements... 36. Defendant has further materially breached the terms of the contract by virtue of its failure to resolve the open investigations prior to her date of “retirement”. 37. Defendants have refused to cure the breach of their duty to resolve the investigations prior to her retirement, nor reinstatement Plaintiff so that she may reach retirement status. 38. As aresult, Plaintiff has been damaged, which damages include, but are not limited to, the reporting to the Florida Department of Law Enforcement that she retired while under investigation. 39. — Further, Plaintiff has been damaged because she has not received retirement benefits, including Defendant’s group retiree health insurance and health insurance 8supplement from the Defendant and the Florida Retirement System. WHEREFORE, Plaintiff requests a judgment for damages and costs for the breach of contract.DEMAND FOR JURY TRIAL WHEREFORE, Plaintiff, FERNANDEZ, submits this demand for jury trial for all issues triable of right. Respectfully submitted, TERI GUTTMAN VALDES LLC Counsel for Plaintiff 1501 Venera Avenue Suite 300 Coral Gables, Florida 33146 Telephone: (305) 740-9600 Facsimile: (305) 740-9202 /s/ Teri Guttman Valdes Teri Guttman Valdes Fla. Bar No. 0010741 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was sent via electronic mail this April 23, 2018 to Ezra S. Greenberg, Assistant County Attorney, 111 N.W. 1° Street, Suite 2800, Miami, Florida 33128. /s/ Teri Guttman Valdes Teri Guttman Valdes Fla. Bar No. 0010741 10