Burkett v. Hickory Foods, Inc.
REPORT AND RECOMMENDATION recommending (1) granting 17 the parties' motion and approving the parties' settlement, Doc. 17-1, as a fair and reasonable resolution of disputed issues; (2) dismissing the case with prejudice; and (3) directing the Clerk of Court to close the file. Signed by Magistrate Judge Patricia D. Barksdale on 10/7/2019. (KNR)
United States District Court
Middle District of Florida
HICKORY FOODS, INC.,
Report and Recommendation
Before the Court in this case under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201–219, is the parties’ joint motion under Lynn’s Food Stores, Inc. v. U.S.
by & through U.S. Dep’t of Labor, 679 F.2d 1350, 1354 (11th Cir. 1982), for approval
of a settlement agreement and dismissal of the action with prejudice. Doc. 17.
In May 2019, Ronald Burkett sued Hickory Foods, Inc., on behalf of himself
and others similarly situated. Doc. 1. In the complaint, he alleges these facts.
Hickory distributes meat wholesale to grocery retailers. Doc. 1 ¶ 14. Hickory
hired Burkett in January 2010 as a machine technician. Doc. 1 ¶ 20. Burkett would
weld, build, troubleshoot, and repair meat-manufacturing equipment. Doc. 1 ¶ 21.
From January 2010 to July 2018, Hickory failed to pay Burkett at one and one-half
times his regular rate of pay for any overtime hours worked. Doc. 1 ¶ 22. He worked
more than forty hours a week most weeks. Doc. 1 ¶ 24. Hickory failed to maintain
proper time records. Doc. 1 ¶ 24.
He alleges the facts are common to a class of machine technicians who worked
for Hickory within the last three years and were not paid time-and-a-half for overtime
hours. Doc. 1 ¶¶ 25–34.
He brings one claim: a FLSA claim for failure to pay overtime wages, Doc. 1
¶¶ 35–43. He seeks certification of the action as a class action; overtime wages;
liquidated damages; pre- and post-judgment interest; attorney’s fees, costs, and
expenses; and a declaration stating that Burkett violated FLSA, failed to keep
accurate time records, has a legal duty to pay overtime wages, failed to prove a goodfaith defense, and that Burkett is entitled to damages and attorney’s fees. Doc. 1 ¶ 43.
He also filed a notice of consent to join the action. Docs. 2, 2-1.
Hickory filed an answer denying liability. Doc. 7. Hickory raises 29 affirmative
or other defenses, including that Hickory is not a proper party to the action, executive
or administrative exemptions apply, Burkett cannot properly represent the class, and
that Hickory did not act willfully. Doc. 7. Regarding the proper entity to sue, Hickory
states, “Defendant admits that Hickory is a management company that provides
administrative and payroll services to [nonparty] Flanders Provision Company LLC,”
and that Flanders “is engaged in the manufacturing and wholesale distribution of
meat for retail grocery customers throughout the United States.” Doc. 7 ¶¶ 14, 17.
In July 2019, Burkett answered the Court’s interrogatories. Doc. 13. He states
his regularly scheduled work period was Monday through Friday from 3:00 p.m. to
1:00 a.m., but because of the work he was often required to work longer or on the
weekends. Doc. 13 at 1. He states that, in 2014, his title changed from “technician” to
“supervisor,” but his duties did not change. Doc. 13 at 1. He states his regular rate of
pay was $960 a week. Doc. 13 at 1–2. He provides an accounting from May 2016
(assuming a three-year statute of limitations) to July 2018. Doc. 13 at 2. He states he
worked approximately 13 hours of overtime each week. Doc. 13 at 2. He answers the
interrogatories on wages owed as this:
Doc. 13 at 2. 1
Burkett alleges he complained orally and in writing to his supervisor beginning
in 2014. Doc. 13 at 2. He alleges the supervisor responded Burkett could work
overtime without an hourly fee because he was labeled as a supervisor. Doc. 13 at 3.
He states he has some time stubs and pay sheets and a copy of a complaint he
submitted to the vice president. Doc. 13 at 3.
Hickory provided a verified summary of the hours worked and wages paid.
Docs. 14, 14-1. Hickory explains Burkett was an employee of nonparty Flanders, was
paid a salary for all hours worked, was exempt from FLSA requirements, and
is unclear whether the $51,940 is his regular salary, because he later asks
for $13,074.58 in unpaid wages, and had responded to the question asking for “pay
received versus pay claimed” by answering “Please see response to 7(e) below.” Doc.
13 at 2. He also adds that he does not concede that a half-time rate would be
appropriate. Doc. 13 at 2 n.1.
received a one-hour lunch break. Doc. 14 at 1. Neither Hickory nor Flanders has
records of the hours Burkett worked. Doc. 14 at 1. The verified summary shows the
pay date, gross pay, no overtime hours listed, and the weekly payrate ranging from
$942.30 in 2016 to $990.38 in 2018. Doc. 14-1.
No one consented to join the action. In September 2019, the parties filed a
notice they had settled. Doc. 15. The Court entered an order directing them to submit
settlement documents for the Court’s review if they had compromised or a notice
certifying they had not compromised. Doc. 16. The parties filed the current motion to
approve the settlement agreement with a copy of the agreement. Docs. 17, 17-1.
In the motion, the parties explain that although the complaint included
collective-action allegations, no one has opted in, and Burkett has not moved for
conditional certification. Doc. 17 at 1. They explain the parties dispute whether
Burkett was exempt from overtime requirements because of an executive,
professional, or administrative exemption, and they dispute the number of hours he
worked. Doc. 17 at 1. Hickory maintains it is not the proper party, is only a
management company, and that Flanders was the actual employer. Doc. 17 at 1–2.
The parties explain Burkett did not name Flanders but he “acknowledges his
association with both companies,” and Flanders is therefore included in the
settlement agreement. Doc. 17 at 2 n. 1. The parties explain Hickory maintains it
paid Burkett in full and did not act willfully, and the parties dispute whether defenses
like laches would apply. Doc. 17 at 2. And Hickory maintains that if Burkett were
entitled to overtime, a “fluctuating workweek method” should apply. Doc. 17 at 2.
The parties explain that, after exchanging payroll, time records, and other
evidence, they attended an in-person settlement conference and agreed to this
settlement. Doc. 17 at 2. They explain that while Hickory denies liability, the parties
wish to avoid the expense and uncertainty of continued litigation, including with
further discovery and risk of trial. Doc. 17 at 2–3. The parties and their counsel
believe the settlement is a fair and reasonable resolution of the issues. Doc. 17 at 3.
The parties explain Burkett will receive wages and liquidated damages, and the
attorney’s fees and costs were negotiated separately. Doc. 17 at 3. Hickory will pay
Burkett $5688.90 in wages and an equal amount in liquidated damages (for a total of
$11,377.80), which Burkett agrees is a fair resolution of the claims based on the
documented work hours. Doc. 17 at 3. Hickory will separately pay Burkett’s counsel
$4622.20 in attorney’s fees and costs (for a total payment of $16,000). Doc. 17 at 3.
The parties assert there has been sufficient investigation to evaluate the
claims and defenses, and before the in-person settlement conference, they had
engaged in settlement negotiations for months. Doc. 17 at 6. The amount to Burkett
accounts for his “personal interest” in ending litigation at this stage. Doc. 17 at 6.
Burkett has accepted this compromise after being made aware of any potential
damages. Doc. 17 at 6. Burkett is receiving a full recovery under the “fluctuating work
week method,” and in his responses to interrogatories, Burkett did not account for
periodic pay raises. Doc. 17 at 7. Both parties are represented by competent counsel
experienced in labor law. Doc. 17 at 7-8. The parties ask the Court to approve the
settlement agreement and dismiss the case with prejudice. Doc. 17 at 8.
In exchange for $16,000 (the total to Burkett and his counsel), Burkett agrees
to release Hickory and Flanders from all actions “arising out of [Burkett’s] claim for
unpaid wages that arose or may have arisen prior to the execution of this Agreement,”
specifically agreeing to release them from claims under FLSA, common law, and any
other statute that could have been asserted here regarding overtime compensation
and the attorney’s fees. Doc. 17-1 ¶ 1. The agreement contains a provision regarding
the payment amounts and timing, ¶ 2; a provision regarding filing the settlement
motion, ¶ 3; provisions that any violations of the settlement agreement entitle the
non-violating party to injunctive relief, damages, and attorney’s fees and costs, ¶¶ 4,
5; another provision regarding the release of overtime claims against Hickory and
Flanders, ¶ 6; a provision regarding taxes, ¶ 7; a provision stating that the agreement
is not an admission of fault by Hickory or Flanders, ¶ 8; a provision that the parties
have made no other promises, ¶ 9; a provision regarding enforceability of the terms,
¶ 10; a provision that this agreement constitutes the entire agreement, ¶ 11; a
provision stating that Burkett is competent, ¶ 12; a provision stating that the
agreement shall be interpreted under Florida law, ¶ 13; 2 and a provision that the
agreement shall survive despite any unenforceable provision, ¶ 14. Doc. 17-1.
Passed in 1938, FLSA establishes minimum wages and maximum hours “to
protect certain groups of the population from substandard wages and excessive hours
which endanger[ ] the national health and well-being and the free flow of goods in
interstate commerce.” Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 706 (1945). If
an employee proves his employer violated FLSA, the employer must pay him unpaid
wages (for up to two years or three had the employer intentionally violated the law,
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 (1988)), an equal amount as
liquidated damages (absent the employer’s proof of good faith and reasonable grounds
for believing it was not violating FLSA, 29 U.S.C. § 260), and attorney’s fees and costs.
29 U.S.C. § 216(b).
To foster FLSA’s purpose and to prevent an employer from using its superior
bargaining position to take advantage of an employee, the Eleventh Circuit, in Lynn’s
Food Stores, Inc. v. U.S. by & through U.S. Dep’t of Labor, 679 F.2d 1350, 1354 (11th
Cir. 1982), placed limits on the ability of private parties to settle a FLSA case. Nall
v. Mal-Motels, Inc., 723 F.3d 1304, 1307 (11th Cir. 2013). To do so, they must present
their agreement to the court, and the court must scrutinize it for fairness. Id. at 1306–
report and recommendation does not address whether federal or Florida
law would govern in an action seeking enforcement of the agreement.
07. If the agreement reflects a fair and reasonable compromise over a disputed issue,
the court may approve it to promote the policy of encouraging settlement. Lynn’s, 679
F.2d at 1354.
A court should presume a settlement is fair and reasonable. Cotton v. Hinton,
559 F.2d 1326, 1331 (5th Cir. 1977). Factors pertinent to fairness and reasonableness
may include (1) the existence of collusion behind the settlement; (2) the complexity,
expense, and likely duration of the case; (3) the stage of the proceedings and the
discovery completed; (4) the probability of the plaintiff’s success on the merits; (5) the
range of possible recovery; and (6) the opinions of counsel. Leverso v. SouthTrust Bank
of Ala. Nat. Ass’n, 18 F.3d 1527, 1530 n.6 (11th Cir. 1994).
“FLSA provides for reasonable attorney’s fees; the parties cannot contract in
derogation of FLSA’s provisions.” Silva v. Miller, 307 F. App’x 349, 351 (11th Cir.
2009). Besides reviewing a compromise of a FLSA claim, a court must “award a
reasonable attorney’s fee to [the plaintiff’s] counsel,” id. at 352, and must “insure that
no conflict has tainted the settlement,” Bonetti v. Embarq Mgmt. Co., 715 F. Supp. 2d
1222, 1228 (M.D. Fla. 2009). If the parties negotiated attorney’s fees separately from
the amount to the plaintiff, the court need not undertake a lodestar review of the
attorney’s fees for reasonableness. Bonetti, 715 F. Supp. 2d at 1228.
Based on the parties’ representations and a review of the complaint, the
answer and affirmative defenses, Burkett’s answers to the Court’s interrogatories,
Hickory’s verified summary, the motion to approve the settlement, and the settlement
agreement, the undersigned finds the agreement is a
fair and reasonable
compromises of disputed issues. 3
a case filed as a FLSA collective action is settled after conditional
certification of a collective action, the court may consider whether final certification
is appropriate before approving a settlement. Compare, e.g., Ruddell v. Manfre, No.
The parties had an opportunity to consult with experienced counsel and
entered into the agreement knowingly and voluntarily. Doc. 17 at 6–8. Burkett claims
unpaid overtime and liquidated damages, but Hickory contends he would be entitled
to no overtime or overtime calculated under a “fluctuating workweek method,” for
which he is being paid in full here. Doc. 17 at 2, 7. While denying liability, Hickory
and Flanders have agreed to pay $5688.90 for wages and an equal amount in
liquidated damages, plus a separately negotiated amount for attorney’s fees. There is
no stated or apparent collusion. Without a settlement, the parties would have to
continue discovery, possibly engage in motion practice, and possibly proceed to trial,
and Burkett would risk receiving nothing. The parties and their counsel believe this
is a reasonable settlement. Doc. 17 at 3.
The agreement contains no provisions commonly found objectionable, such as
a general-release provision, a confidentiality provision, or a non-disparagement
provision, and the motion does not ask the Court to retain jurisdiction to enforce the
3:14-cv-873-J-34MCR, 2015 WL 7252947, at *1–3 (M.D. Fla. Nov. 17, 2015)
(unpublished) (deeming consideration of final certification necessary), with Campbell
v. Pincher’s Beach Bar Grill Inc., No. 2:15-cv-695-FtM-99MRM, 2017 WL 3700629, at
*1–2 (M.D. Fla. Aug. 24, 2017) (unpublished), report and recommendation adopted,
2017 WL 3668889 (deeming consideration of final certification unnecessary).
Because Burkett has not moved for conditional certification of a collective
action, no special consideration is required for a fairness review under Lynn’s Food.
This Court has approved individual FLSA settlements without special analysis where
the Court had not yet granted conditional certification. See, e.g., Serino v. Enhanced
Recovery Co., LLC, No. 3:15-cv-1418-J-25PDB, 2017 WL 11048878, at *3 (M.D. Fla.
Feb. 9, 2017) (unpublished), report & recommendation adopted, 2017 WL 11048879.
judges will not approve an agreement to settle a FLSA overtime claim
that includes a general release because, without an indication of the value of the
released claims, the fairness and reasonableness of the compromise cannot be
determined. See, e.g., Moreno v. Regions Bank, 729 F. Supp. 2d 1346, 1351−52 (M.D.
Some judges will strike a non-disparagement provision because its placement
of a prior restraint on one’s ability to speak freely about the case contravenes public
On attorney’s fees and costs, given the parties’ representation they agreed on
the attorney’s fees separately from the amounts to Burkett, the Court need not
undertake a lodestar review. See Bonetti, 715 F. Supp. 2d at 1228. Moreover, the fees
and costs appear reasonable considering the time to prepare and file a complaint,
answer the Court’s interrogatories, review discovery, and engage in settlement
granting the parties’ motion, Doc. 17, and approving the parties’
settlement, Doc. 17-1, as a fair and reasonable resolution of
dismissing the case with prejudice; and
policy and the First Amendment. See, e.g., Loven v. Occuquan Grp. Baldwin Park
Corp., No. 6:14-cv-328-Orl-41TBS, 2014 WL 4639448, at *3 (M.D. Fla. Sept. 16, 2014)
Some judges will strike a no-reemployment provision because its impact could
be substantial and result in an unconscionable punishment for asserting FLSA
rights. See, e.g., Nichols v. Dollar Tree Stores, Inc., No. 1:13–cv–88(WLS), 2013 WL
5933991, at *5–6 (M.D. Ga. Nov. 1, 2013) (unpublished).
directing the Clerk of Court to close the file. 5
Done in Jacksonville, Florida, on October 7, 2019.
The Honorable Marica Morales Howard
Counsel of Record
14 days after being served with a copy of [a report and
recommendation on a dispositive motion], a party may serve and file specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2).
“A party may respond to another party’s objections within 14 days after being served
with a copy.” Id. A party’s failure to serve and file specific objections to the proposed
findings and recommendations alters the scope of review by the District Judge and
the United States Court of Appeals for the Eleventh Circuit, including waiver of the
right to challenge anything to which no specific objection was made. See Fed. R. Civ.
P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1; Local Rule 6.02.
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