United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION 
MCCOY UNITED STATES MAGISTRATE JUDGE.
before the Court is the parties' Amended Joint Motion for
Approval of Settlement Agreement, filed on August 25, 2019.
(Doc. 24). Plaintiffs, Sarah Kean and Jennie Nelson, and
Defendants, Petro Gate, Inc. and Behnam Bagheri, jointly
request that the Court approve the terms of their proposed
settlement of the Fair Labor Standards Act
(“FLSA”) claims asserted in this case. The
proposed Settlement Agreement is fully executed and attached
as Exhibit A to the parties' motion. (Doc. 24-1). The
parties previously sought approval of the proposed
settlement, but the presiding United States District Judge
adopted the Undersigned's recommendation that the
settlement be rejected because the parties had not explained
why Plaintiff Kean should not receive liquidated damages for
her minimum wage claim under the proposed settlement.
(See Docs. 22, 23, 25). After a careful review of
the parties' amended renewed submissions and the court
file, the Undersigned respectfully recommends approval of the
amended motion sub judice, the parties succinctly
explain that this case involves a bona fide dispute under the
The Plaintiffs alleged that they were paid through a payroll
company for all work performed up to forty (40) hours per
week, and they were provided a separate check compensating
them at a straight time rate for all hours over forty (40) in
certain work weeks. Petro Gate disputes that the additional
compensation paid to Plaintiffs was pay for hours worked at a
straight time rate and has evidence that Plaintiffs may not
have worked all hours for which they are claiming overtime
pay. Additionally, this matter involves a bona fide dispute
regarding whether and to what extent Ms. Kean is entitled to
payment for hours that she alleges that she worked in her
final pay period for which she was never paid. Specifically,
Defendants allege that Ms. Kean was terminated prior to the
time that she alleges that she was not paid, and that the
reason for her termination was her decision to close the
store earlier than its scheduled closing time, which would
result in fewer hours worked. Defendants allege that
Kean's final week of work was the week ending December
16, 2019, and that she did not perform any work beyond that
date. Defendants have no time records that demonstrate that
Kean performed work after December 16, 2019. Ms. Kean alleges
that Defendants' Manager-Anthony (last name unknown)-knew
she was working after December 16, 2018. However, Defendants
denied that Anthony had such knowledge and argue that even
assuming arguendo that Ms. Kean performed work after the date
that she was terminated, it was without Defendants', or
Defendants' management's knowledge.
(Doc. 24 at 1-2). The parties' explanation of the
Plaintiffs' claims is consistent with the allegations in
the Complaint. (SeeDoc. 1).
August 14, 2019, the parties filed a Joint Motion Approval of
Settlement Agreement. (Doc. 22). The parties settled this
matter before the Defendant filed an Answer, before the Court
entered the standard FLSA Scheduling Order, and before
Plaintiffs were required to respond to court interrogatories
concerning the bases for their claims. (See Docs.
August 19, 2019, the Court entered a Report and
Recommendation recommending that the Joint Motion Approval of
Settlement Agreement be denied without prejudice. (Doc. 23).
The Undersigned found the proposed settlement in this case
would have been fair and reasonable but for an unexplained
reduction in the amount of liquidated damages to be paid to
Plaintiff Kean in connection with her unpaid minimum wage
claim. The Undersigned recommended, therefore, that the
parties be required to elect one of the following options by
an appropriate deadline to be selected by the presiding
District Judge: (1) File an amended joint motion to approve a
settlement agreement that adequately addresses all the issues
identified in the Report and Recommendation; or (2) File an
appropriate notice indicating their intention to proceed with
the litigation, in which case the Undersigned recommended
that the Court (i) order the Defendants to respond to the
Complaint by a date certain and (ii) enter a standard FLSA
Scheduling Order, if appropriate. (Doc. Id. at 7).
The presiding District Judge adopted the Undersigned's
Report and Recommendation on September 4, 2019. (Doc. 25).
August 25, 2019 the parties filed the Amended Joint Motion
for Approval of Settlement Agreement. (Doc. 24). In the
Amended Joint Motion for Approval of Settlement Agreement,
the parties “address, in further detail, the reasons
why Plaintiff Kean is receiving less than full liquidated
damages on her minimum wage claim.” (Id. at
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 to determine whether the settlement is fair
and reasonable. Id. at 1353-54.
Eleventh Circuit has found settlements to be permissible when
employees bring a lawsuit under the FLSA for back wages.
Id. at 1354. The Eleventh Circuit 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 ...