Kohout v. The Sherwin-Williams Company

Filing 15

CONSENT JUDGMENT AND CONSENT ORDER - Signed by District Judge Louise Wood Flanagan on 04/14/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
JOHN J. KOHOUT,

)
)
Plaintiff,
)
)
v.
)
)
THE SHERWIN-WILLIAMS COMPANY,
)
)
Defendant.
)
___________________________________ )

Civil Action No.:
5:14-cv-878-FL

CONSENT JUDGMENT AND CONSENT ORDER
This matter is before the Court on the parties’ Joint Motion
for Approval of Settlement Agreement asking the Court to approve
the settlement agreement executed by Plaintiff John J. Kohout and
Defendant

The

Sherwin-Williams

Company

with

respect

to

plaintiff’s claims under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 201 asserted in this case.
This

is

an

action

brought

pursuant

to

Standards Act ("FLSA"), 29 U.S.C. §§201 et seq.

the

Fair

Labor

Plaintiff alleges

that the defendant regularly employed him for in excess of 40
hours in the same workweek in the four (4) workweeks from December
15, 2012 through January 12, 2013 as part of their enterprise
engaged in interstate commerce to sell paint and other paintrelated products and services to various customers both within and
without North Carolina.
The allegations of the complaint essentially allege that the
defendant violated the rights of the Plaintiff under the FLSA by
failing to pay him at the overtime wage rate required by 29 U.S.C.

1

§ 207(a)(1) under the FLSA during those same four (4) workweeks.
The defendant denies any such wages were due and contends, among
other things, that the plaintiff was employed in a bona fide
executive capacity under 29 U.S.C. § 213(a)(1) and was thus exempt
from any overtime wage rate requirement under the FLSA.
The defendant The Sherwin-Williams Company has at all times
denied, and continues to deny, any violation of the FLSA.

In

addition, nothing in this consent order or in the settlement of
this action should be construed as an admission or finding of any
violation of the Act or wrongdoing of any kind or nature by this
same defendant, and that therefore, upon the date that final
payment is made and all other actions specified in this Consent
Judgment and Consent Order are taken in compliance with its terms
by

the

Defendant,

Plaintiff,

for

himself,

his

heirs,

representatives, successors and assigns, does and will hereby
irrevocably

and

unconditionally

release,

acquit

and

forever

discharge the Defendant, Defendant’s past, present and future
parent companies, subsidiaries, affiliates, related companies and
partnerships,
employees,

as

well

agents,

as

each

of

attorneys,

their

officers,

representatives,

directors,
successors,

assigns and insurers, both individually and in their corporate
capacities (hereinafter collectively referred to as the “Released
Parties”), from any and all claims, complaints, demands, damages,
penalties, costs, attorneys’ fees or causes of action, suits and
liabilities arising at any time up to and including the date of

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this

Consent

limited

to

Judgment
claims

and

Consent

arising

Order,

from

or

including

otherwise

but

relating

not
to

Plaintiff’s employment or separation from employment with any of
the Released Parties.

This release includes any and all claims,

demands, grievances, causes of action, lawsuits and liabilities
of every kind, character, and description whatsoever, both legal
and equitable, under federal or state statutes or common law,
whether known or unknown, foreseen or unforeseen, and whether
asserted or not, including but not limited to claims under the
Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et
seq., the North Carolina Wage and Hour Act, N.C. Gen. Stat. § 9525.1 et seq., the Americans with Disabilities Act of 1990, as
amended, and claims under federal or North Carolina statutes or
common

law,

compensatory
treble

and

includes

damages,

damages,

back

but

is

punitive
pay,

not

limited

damages,

front

attorneys’ fees, expenses and costs.

to

claims

liquidated

pay,

emotional

for

damages,
distress,

This release specifically

includes but is not limited to those claims which were or could
have been raised in this lawsuit.

This Agreement is not intended

to waive any claims that may arise after the date of this Consent
Judgment and Consent Order is filed by the Court, nor is it
intended to waive any claims not subject to release.
The plaintiff and defendant The Sherwin-Williams Company have
decided

to

enter

into

plaintiff’s

claim

and

this

consent

potential

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order

claims

and

against

to

settle

the

defendant

The

Sherwin-Williams

Company

in

this

case

in

an

effort

to

avoid

further protracted and costly litigation.
To that end, the plaintiff and defendant The Sherwin-Williams
Company have mutually stipulated to the entry of this Consent
Order, and the Court, therefore, upon consideration of the record
herein and being fully advised of the premises,
ORDERS and DECREES:
(1)

The

parties

have

waived

findings

of

fact

and

conclusions of law pursuant to Rule 52(a) of the Federal Rules of
Civil Procedure.
(2)

The

Agreement
parties

Court

that

have

is

finds

that

documented

filed

with

the

in

the

terms

their

Court

of

Joint

is

a

the

Settlement

Motion

fair

and

that

the

reasonable

resolution of a bona fide FLSA dispute, and that the relief
requested

in

the

Joint

Motion

for

Approval

of

Settlement

Agreement is appropriate.
(3)

The Settlement Agreement is therefore APPROVED.

(4)

By

consent

of

the

plaintiff

John

J.

Kohout

and

defendant The Sherwin-Williams Company, the terms of this Consent
Order shall be subject to enforcement by any person(s) who would
receive any benefit from a full and complete execution of its
terms.
(5)

Defendant The Sherwin-Williams Company is and shall be

liable and shall pay the plaintiff or the plaintiff’s counsel a
total of Ten Thousand Five Hundred and no cents ($10,500.00) to

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the following persons pursuant to the following payment schedule:
(A)

Within thirty (30) days of the date that the Court

files this Consent Order, defendant The Sherwin Williams Company
shall

pay

a

total

of

$5,000.00

to

plaintiff

John

J. Kohout.

Defendant shall make payment of this amount to plaintiff’s counsel
at the Raleigh, North Carolina office of plaintiff’s counsel.

For

tax purposes fifty percent (50%) of that payment shall be treated
as wages, and Defendant will take normal and ordinary payroll
withholdings

from

that

payment

amount.

The

remaining

fifty

percent (50%) shall be paid without withholding and treated as
payment of liquidated damages under 29 U.S.C. § 216(b).
(B)

Within thirty (30) days of the date that the Court

files this Consent Order, defendant The Sherwin-Williams Company
shall pay a total of $5,500.00 to plaintiff’s counsel, the Law
Office of Robert J. Willis, P.A.

Defendants shall make payment of

this amount to plaintiff’s counsel at the Raleigh, North Carolina
office of plaintiff’s counsel.
The parties to this action agree and stipulate that
this Consent Order resolves all matters between Defendant The
Sherwin Williams Company and plaintiff John J. Kohout that are
alleged in the plaintiff’s Complaint that was filed in the abovecaptioned action, and the plaintiff’s claims against defendant The
Sherwin-Williams Company is dismissed with prejudice.

However,

the Court shall retain jurisdiction over this action to the extent
necessary to enforce the provisions of paragraphs (5)(A)-(B) above

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of this Consent Judgment and Consent Order.

14th
April
This the _____ day of _____________________, 2015.

___________________________________
U.S. District Court Judge

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