Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 1 of 10 PageID 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

MARK PASEK, an individual, MEREDITH CIVIL ACTION

CARR, an individual, PATRICIA MORGAN, an
individual, STEVEN MORGAN, an individual,
and JAMES MOLENAAR, an individual, Case No. 2:21-cv-020

Plaintiffs, Judge:

v. Mag. Judge:

CRYSTAL K. KINZEL, in her official and

individual capacities,

Defendant.

COMPLAINT AND DEMAND FOR JURY TRIAL

NOW COME the Plaintiffs, MARK PASEK (“PASEK”), MEREDITH

CARR (“CARR”), PATRICIA MORGAN (“P. MORGAN”), STEVEN MORGAN

(“S. MORGAN”), and JAMES MOLENAAR (“MOLENAAR”)(collectively

“PLAINTIFFS”), by and through undersigned counsel, and state the following for

their Complaint:

CAUSES OF ACTION

1. This is an action brought under 42 U.S.C. §1983 (§1983) for violation

of their First Amendment right to engage or not engage in political activity without

coercion or deprivation of employment (Elrod/Branti claim).

1
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 2 of 10 PageID 2

PARTIES

2. Plaintiff PASEK is an individual and a resident of Florida who

currently resides, and at all material times resided, in Lee County, Florida. He was

employed by the Defendant from July 5, 2017 to September 1, 2020 and was

employed as a Auditor.

3. Plaintiff CARR is an individual and a resident of Florida who

currently resides, and at all material times resided, in Collier County, Florida. She

was employed by the Defendant from 2006-2008 and 2015 to September 1, 2020

and was employed as a Recording Clerk I at the time of her termination.

4. Plaintiff P. MORGAN is an individual and a resident of Florida who

currently resides, and at all material times resided, in Collier County, Florida. She

was employed by the Defendant from October 2002 to September 1, 2020 and was

employed as a Director of Board Minutes & Records.

5. Plaintiff S. MORGAN is an individual and a resident of Florida who

currently resides, and at all material times resided, in Collier County, Florida. He

was employed by the Defendant from June 2002 to September 1, 2020 and was

employed as an Asst. Director of Information Technology.

6. Plaintiff MOLENAAR is an individual and a resident of Florida who

currently resides, and at all material times resided, in Collier County, Florida. He

was employed by the Defendant from 2014 to May 12, 2020 and was employed as

the Manager of Internal Audit and subsequently promoted to Sr. Legal Counsel.

2
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 3 of 10 PageID 3

7. Defendant, CRYSTAL K. KINZEL is the current Collier County Clerk

of the Circuit Court and Comptroller, an elected position she has held since 2018

when she was appointed to the position following the death of then-Clerk, Dwight

Brock. Prior thereto, KINZEL joined the Office of the Collier County Clerk of

Courts, serving as the Director of Finance until 2016 when Clerk Dwight Brock

named her his Chief Deputy. KINZEL’s primary roles are to serve as the

accountant and guardian of county taxpayer money, which was forecast to be $1.4

billion as of 2020, serve as clerk to the board of commissioners and maintain court

and official county records. Her salary in 2020 is $147,293.

8. At all times relevant to the instant action, the Defendant was

Plaintiffs’ employer within the meaning of 42 U.S.C. §1983 and each Plaintiff is a

“person” within the meaning of §1983.

JURISDICTION AND VENUE

9. This Court has jurisdiction of this matter under 28 U.S.C. §1331.

10. Venue is proper in the United States District Court for the Middle

District of Florida because the Plaintiffs reside in either Lee or Collier County, and

the Defendant conducts business in, and some or all of the events giving rise to

Plaintiffs’ claims occurred in Collier County, Florida, which is within the Middle

District of Florida. Venue is proper in the Fort Myers Division under Local Rule

1.02(b)(5) since Collier County is within the Fort Myers Division.

3
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 4 of 10 PageID 4

GENERAL ALLEGATIONS

11. In 2020, KINZEL faced an election for her position.

12. KINZEL’s challenger was MOLENAAR, a longtime public servant,

who began working for the clerk’s office in 2014 as manager of internal audits.

13. MOLENAAR was fired as senior legal counsel in May 2020 by

KINZEL, days after he filed to run for her position.

14. During MOLENAAR’s termination, KINZEL communicated that she

was terminating MOLENAAR as a direct result of him having exercised his First

Amendment rights by filing paperwork to run against her in the upcoming

election.

15. However, MOLENAAR was not employed by KINZEL as an

“officer” as that term is defined by F.S. §99.012(1) and he was simply a regular

employee.

16. After being fired and during his candidacy, MOLENAAR was critical

of the clerk’s handling of the coronavirus pandemic and highlighted a phishing

scam that cost the office $184,000 as one of the reasons to improve audit and

internal control protocols.

17. Each of the Plaintiffs always performed their assigned duties in a

professional manner and were very well qualified for their respective positions.

18. Each of the Plaintiffs met all necessary performance standards and

quantitative performance requirements during their employment.

4
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 5 of 10 PageID 5

19. None of the Plaintiffs’ positions required political affiliation, nor is

party affiliation an appropriate requirement for the effective performance of their

respective job duties. Moreover, none of the Plaintiffs were policy-makers or alter-

egos of KINZEL.

20. None of the Plaintiffs had the same duties and powers as KINZEL

under state or local law. Indeed, none of the Plaintiffs possessed any signing

authority in KINZEL’s absence, nor did KINZEL ever grant them the same.

21. After MOLENAAR filed his pre-qualifying paperwork with the

Supervisor of Elections, each of the Plaintiffs supported his campaign, and did so

in various ways, from volunteering with MOLENAAR’s campaign to soliciting

donations on his behalf. However, they never engaged in public support for

MOLENAAR in the workplace, nor did they engage in any conduct that could be

perceived to be disruptive to the normal operation of the workplace.

22. Nevertheless, KINZEL discovered the Plaintiffs’ support for

MOLENAAR and was irate.

23. After MOLENAAR lost to KINZEL in the primary election on August

18, 2020, KINZEL turned her attention to those that had supported her opponent,

terminating each of the other Plaintiffs in successive meetings on September 1,

2020.

24. During the termination meetings, KINZEL read a prepared, typed

statement to each Plaintiff stating that she (KINZEL) “no longer had trust and

5
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 6 of 10 PageID 6

confidence in your abilities necessary to carry out the duties and functions” of the

Plaintiffs’ respective positions. KINZEL provided no other reason and no

specifics, except for responding to PASEK’s question as to why he was being fired

that “if you think long and hard about it, you'll know exactly why.”

25. However, KINZEL authorized a spokesman to provide a public

comment to the news media that stated the Plaintiffs were terminated because

their positions were eliminated.

26. However, the only positions that were being “eliminated” were those

held by the Plaintiffs who were known to KINZEL to support her political rival

and never were the Plaintiffs informed their positions were supposedly being

eliminated at the time they were terminated.

27. At no time were the Plaintiffs ever even informed their position could

be subject to elimination, nor was there a realistic possibility of the same given that

their positions had all been fully budgeted and the Clerk’s Office was operating at

a surplus.

28. As a direct and proximate result of supporting MOLENAAR’s

campaign and the Plaintiffs’ support therefore, KINZEL terminated the Plaintiffs.

29. As such, the PLAINTIFFS were wrongfully terminated in violation

of the First Amendment.

6
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 7 of 10 PageID 7

COUNT I – VIOLATION OF THE FIRST AMENDMENT OF THE UNITED

STATES CONSTITUTION VIA 42 U.S.C. §1983

30. Plaintiff incorporates by reference Paragraphs 1-29 of this Complaint

as though fully set forth below.

31. This is a claim for violation of Plaintiffs’ First and Fourteenth

Amendment rights to freedom of speech and association consisting of a prohibited

termination from employment based on political patronage, as defined by the

Supreme Court in Elrod v. Burns and Branti v. Finkel, brought pursuant to 42 USC

§1983.

32. At all material times, the Plaintiffs were employees and KINZEL was

their public employer.

33. None of the Plaintiffs’ positions were positions for which political

affiliation or political loyalty is an appropriate requirement for the effective

performance of the public office or the execution of the duties of the positions and

no overriding governmental interest exists in conditioning Plaintiffs’ occupancy

of their respective positions upon political loyalty or affiliation.

34. The Plaintiffs were terminated because of their perceived political

loyalties.

35. KINZEL’s acts as alleged herein were in knowing and willful

disregard of the Plaintiffs’ First Amendment rights.

7
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 8 of 10 PageID 8

36. The conduct complained of was taken under color of the laws of the

State of Florida.

37. The conduct taken was an expression of KINZEL’s custom, policy or

usage. The person who engaged in the conduct complained of – KINZEL as Clerk

of Court – may fairly be said to constitute the official expression of KINZEL’s

custom, policy or usage within the Clerk of Courts.

38. As the direct result of KINZEL’s conduct, the Plaintiffs have been

subjected to deprivation of their rights as secured and protected to them by the

First and Fourteenth Amendments to the Constitution of the United States, and

have been thereby damaged.

39. As a direct and proximate result of the violations referenced and cited

herein, the Plaintiffs have lost all of the benefits and privileges of their

employment and have been substantially and significantly injured in their career

path.

40. As a direct and proximate result of the violations referenced and cited

herein, and as a direct and proximate result of the prohibited acts perpetrated

against them, the Plaintiffs are entitled to all relief necessary to make them whole

as provided for under 42 U.S.C. §1983.

41. As a direct and proximate result of KINZEL’s actions, the Plaintiffs

have suffered damages, including but not limited to, a loss of employment

opportunities, loss of past and future employment income and fringe benefits,

8
 Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 9 of 10 PageID 9

humiliation, and non-economic damages for physical injuries, mental and

emotional distress.

WHEREFORE, Plaintiffs request trial by jury of all issues so triable as of

right, and:

i. Injunctive relief directing this Defendant to cease and desist from all

retaliation against employees who engage in speech or conduct

protected by the First Amendment of the United States Constitution;

ii. Back pay and all other benefits, perquisites and other compensation

for employment which Plaintiffs would have received had they

maintained their positions with the Defendant, plus interest,

including but not limited to lost salary and bonuses;

iii. Front pay, including raises, benefits, insurance costs, benefits costs,

and retirement benefits, or reinstatement;

iv. Reimbursement of all expenses and financial losses Plaintiffs have

incurred as a result of the Defendant’s actions;

v. Declaratory relief declaring the acts and practices of the Defendant to

be in violation of the statutes cited above;

vi. Reasonable attorney's fees plus costs;

vii. Compensatory damages, and;

viii. Such other relief as this Court shall deem appropriate.

9
Case 2:21-cv-00020-JLB-NPM Document 1 Filed 01/07/21 Page 10 of 10 PageID 10

DEMAND FOR JURY TRIAL

NOW COMES the Plaintiffs, by and through their undersigned attorneys,

and demand a jury trial under Federal Rule of Civil Procedure 38 on all issues

triable of right by a jury in this action.

Respectfully submitted,

Dated: January 7, 2021 /s/ Benjamin H. Yormak

Benjamin H. Yormak
Florida Bar Number 71272
Trial Counsel for Plaintiffs
YORMAK EMPLOYMENT & DISABILITY LAW
9990 Coconut Road
Bonita Springs, Florida 34135
Telephone: (239) 985-9691
Fax: (239) 288-2534
Email: byormak@yormaklaw.com

10