United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
McCOY UNITED STATES MAGISTRATE JUDGE.
before the Undersigned are the parties' Joint Stipulation
for Dismissal With Prejudice, filed on March 12, 2019, (Doc.
32), and the Joint Filing of Additional Information and
Motion for Approval of Settlement Agreement, filed on April
8, 2019, (Doc. 34). Plaintiff Michael Ashworth and Defendant
Glades County Board of County Commissioners jointly request
that the Court approve the parties' settlement of the
Fair Labor Standards Act (“FLSA”) claims asserted
in this case.
procedural history is instructive. On March 12, 2019, the
parties filed a Joint Stipulation for Dismissal With
Prejudice (Doc. 32). On March 18, 2019, the Undersigned
entered an Order requiring the parties to provide additional
information concerning the terms and conditions of the
settlement. (Doc. 33). The parties filed the Joint Filing of
Additional Information and Motion for Approval of Settlement
Agreement (Doc. 34) in response to the March 18 Order. (Doc.
34 at 1). After a careful review of the parties'
submissions, the Undersigned cannot recommend approval of the
proposed settlement, as it currently stands.
approve the settlement of FLSA claims, the Court must
determine whether the settlement is a “fair and
reasonable resolution of a bona fide dispute” of the
claims raised pursuant to the FLSA. Lynn's Food
Stores, Inc. v. United States, 679 F.2d 1350, 1355 (11th
Cir. 1982); 29 U.S.C. § 216. There are two ways for a
claim under the FLSA to be settled or compromised.
Id. at 1352-53. The first is under 29 U.S.C. §
216(c), providing for the Secretary of Labor to supervise the
payments of unpaid wages owed to employees. Id. at
1353. The second is under 29 U.S.C. § 216(b) when an
action is brought by employees against their employer to
recover back wages. Id. When the employees file
suit, the proposed settlement must be presented to the
district court for the district court's review and
determination that the settlement is fair and reasonable.
Id. at 1353-54.
Eleventh Circuit has found settlements to be permissible when
the lawsuit is brought by employees under the FLSA for back
wages. Id. at 1354. The Eleventh Circuit has held
[a lawsuit] provides some assurance of an adversarial
context. The employees are likely to be represented by an
attorney who can protect their rights under the statute.
Thus, when the parties submit a settlement to the court for
approval, the settlement is more likely to reflect a
reasonable compromise of disputed issues than a mere waiver
of statutory rights brought about by an employer's
overreaching. If a settlement in an employee FLSA suit does
reflect a reasonable compromise over issues, such as FLSA
coverage or computation of back wages, that are actually in
dispute; we allow the district court to approve the
settlement in order to promote the policy of encouraging
settlement of litigation.
Id. at 1354.
are six (6) primary issues that preclude a finding of
fairness and reasonableness in this case: (1) the Agreement
and General Release is not signed by any of the parties, the
parties agree to allow Plaintiff twenty-one days to sign the
Agreement, and allow Plaintiff seven days thereafter to
revoke it; (2) the discrepancy between the amount originally
claimed in Plaintiff's Answers to Court Interrogatories
and the ultimate settlement amount; (3) the non-payment or
non-allocation of liquidated damages; (4) the non-payment or
non-allocation of consideration for certain concessions,
including: (a) the mutual general release; (b) the
restriction against applying for jobs with the Defendant; (c)
the no-rehire provision; and (c) the neutral reference
provision; (5) the lack of explanation as to attorney's
fees; and (6) the conflicting language concerning
Plaintiff's retaliation claim. The Court addresses each
of these issues in detail below.
Lack of Signatures and Plaintiff's Right to
parties have not signed the Agreement and General Release.
(Doc. 34-1 at 4). Until such time as the parties sign and are
bound by the terms of the settlement-subject ultimately to
court approval, of course-the Undersigned is unable to find
or to recommend that the proposed settlement is fair and
reasonable. Otherwise, there is nothing to preclude the
parties from either (1) further modifying the Agreement and
General Release before it is fully executed without seeking
further court approval or (2) returning to the Court with
successive motions to approve further modifications to the
Agreement and General Release. Either result would run
contrary to the requirements of Lynn's Food
Stores, 679 F.2d at 1355 and its progeny, and undermine
the Agreement and General Release permits Plaintiff up to
twenty-one (21) days in which to sign and then affords
Plaintiff an additional seven (7) calendar days thereafter to
revoke his agreement. (Id. at 4 ¶ 17). As long
as the proposed settlement remains unexecuted and subject to
the Plaintiff's right to revoke, there is no actual
agreement in place for the Court to review and approve with
any assurance of finality. Moreover, upon approval of the
settlement by the presiding United States District Judge, the
Court would typically dismiss the action pursuant to the
settlement. Any delay in executing the Agreement and General
Release or any exercise by the Plaintiff of his right to
revoke his agreement to the settlement threatens to create
procedural and logistical challenges for the Court and for
the parties to re-open the case. Considerations of judicial
economy weigh very heavily against premature judicial review
and approval of a proposed settlement agreement that is not
fully executed by the relevant parties or that is subject to
any right by a party to revoke the agreement after judicial
approval is given. Therefore, the Undersigned finds that the
inclusion of a delayed execution provision and a revocation
period-even one that facially inures to the benefit of the
Plaintiff-precludes a finding of fairness and reasonableness
at this time.
The Amount Originally Claimed Versus the Amount ...