124482848.1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

CASE NO. 2:20-cv-14222 AMC

PERCY KEPFER, on behalf of himself

and those similarly situated,

Plaintiff,

v.

LAWNWOOD MEDICAL CENTER, INC., a 

Florida for Profit Corporation d/b/a Lawnwood 

Regional Medical Center,

Defendant. /

JOINT MOTION FOR APPROVAL OF SETTLEMENT AND DISMISSAL WITH 

PREJUDICE OF COUNT I

COME NOW, the parties hereto, Plaintiff, PERCY KEPFER (hereinafter referred to as 

“Plaintiff”), and Defendant LAWNWOOD MEDICAL CENTER, INC., (hereinafter referred 

to as “Defendant”), hereby give notice to the Court that they have reached a settlement in the 

above-styled case brought by Plaintiff, and jointly move for approval of the Settlement 

Agreement and Dismissal of Claim with Prejudice entered into in this action and attached hereto 

as Exhibit “A” (the “Agreement”). The Parties have agreed that the terms reflected in the 

Agreement are mutually satisfactory and represent full compensation, without compromise of the 

claim for which the Parties seek approval. The Court’s approval and eventual entry of an order 

of dismissal with prejudice of Count 1 upon Plaintiff’s receipt of payment under the Agreement, 

will consummate the Agreement between the Parties. The grounds for this joint motion are set 

forth as follows: 

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FACTUAL BACKGROUND

1. Plaintiff filed his initial Complaint on July 3, 2020 [D.E. 1], in which he alleged 

in Count I that Defendant, along with HCA Health Services of Florida, violated the Fair Labor 

Standards Act (the “FLSA”) by failing to pay overtime compensation for hours he worked in 

excess of 40 in a workweek during his employment as a Mental Health Technician at Lawnwood 

Medical Center. 

2. In Counts II and III, Plaintiff brought related State-law claims for unjust 

enrichment and wrongful enrichment, respectively, invoking this Court’s supplemental 

jurisdiction. 

3. In Count IV of the Complaint, Plaintiff brought a cause of action for retaliatory 

discharge in violation of the FLSA. 

4. Subsequently, HCA Health Services of Florida was dismissed from the lawsuit. 

5. Defendant denied and continues to deny all liability as to Plaintiff’s claims. 

6. While Plaintiff maintains that he was discharged for complaining about being 

required to delete hours worked, he did not claim that he was required to delete hours daily, or 

even weekly, and did not allege that the increments of time he was required to delete amounted 

to hours at a time. 

7. In fact, in the example Plaintiff mentioned in his Complaint, he alleged he was 

required to delete fifteen minutes of time worked past his scheduled shift. See D.E. 1 at ¶¶38-39.

8. Plaintiff claimed that this practice took place over about 14 months. See id. at 

¶32. Over that time, Plaintiff alleges that between five and 8 hours of time were deleted from his 

pay in 15-30 minute increments. Again, Defendant vehemently denies this allegation, but agrees 

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to its inclusion in this joint motion only for purposes of showing that this resolution does not 

compromise Plaintiff’s claims for wages or liquidated damages. 

9. Plaintiff’s final rate of pay was $23.90 per hour. His overtime rate was $35.85. 

Plaintiff did not allege that all hours deleted were overtime hours. However, even if all 8 of the 

maximum hours alleged to have been deleted were overtime hours, Plaintiff would be owed 

$286.80 for this claim. With potential liquidated damages, the maximum damages for this claim 

(which, again, would only be owed if all of the allegedly unpaid time were overtime) would be 

$573.60.

10. Defendant, on the other hand maintains that, during Plaintiff’s employment he 

was paid all amounts owed. Defendant maintains that witnesses and documentary evidence

would support this position.

11. Under the terms of the Settlement Agreement, Plaintiff will receive $300 for 

allegedly unpaid wages, and another $300 for claims for liquidated damages. These amounts are 

to be paid separate and apart from any attorneys’ fees and costs to be received by Plaintiff’s 

attorney.

12. Under the Agreement, Plaintiff’s counsel will receive $2,000.00 for the time spent 

litigating Mr. Kepfer’s claim for unpaid wages and liquidated damages. For purposes of 

settlement, Defendant does not dispute the reasonableness of this fee. 

13. Prior to resolving the case, the Parties engaged in lengthy discussions regarding 

the case, propounded and responded to significant discovery, reviewed and analyzed discovery 

responses and prepared extensively for depositions. 

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14. Much of the work in this matter was directed toward Plaintiff’s claim in Count 

IV, that his termination was retaliatory. The Parties do not seek approval or dismissal of that 

claim through this Motion. 

15. All parties have been represented by experienced counsel throughout the 

litigation. Counsel for all parties represent that the settlement entered into by the Parties is 

without compromise as to all allegedly unpaid wages claimed by the Plaintiff.

16. The parties stipulate that they had a bona fide dispute under the FLSA and that 

they are resolving this matter at this stage in order to avoid the cost involved in litigating issues 

of liability, hours worked, liquidated damages, and willfulness, among other things. Moreover, 

the range of possible recovery, together with the complexity, expense, and length of future 

litigation also militate in favor of this settlement. The parties further stipulate that their 

settlement, as reflected in the Agreement for Mr. Kepfer, is an uncompromised dispute of his 

claim for unpaid wages and liquidated damages. The Parties and their undersigned counsel 

further represent that there was no collusion with regard to the settlement of this matter.

MEMORANDUM OF LAW

Pursuant to the law of this Circuit, parties may seek judicial review and approval of a

settlement of FLSA claims for back wages when there is a compromise of such claims. Lynn 

Food Stores, Inc. v. U.S. Dep’t of Labor, 679 F. 2d 1350 (11th Cir. 1982). Here, as there is no 

compromise of the claim for allegedly earned wages and liquidated damages thereon, the Court 

need not review or approve the resolution at all. See id. However, even if the Court does elect to 

review the uncompromised resolution for fairness, it is the Parties’ position that it is fair, and 

should be approved. The Eleventh Circuit held in Lynn Food Stores, 

There are only two ways in which back wage claims arising under the 

FLSA can be settled or compromised by employees. First, under section 

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216(c), the Secretary of Labor is authorized to supervise payment to 

employees of unpaid wages owed to them ... The only other route for 

compromise of FLSA claims is provided in the context of suits brought 

directly by employees against their employer under section 216(b) to 

recover back wages for FLSA violations. When employees bring a private 

action for back wages under the FLSA, and present to the district court a 

proposed settlement, the district court may enter a stipulated judgment 

after scrutinizing the settlement for fairness. Id. at 1352-53.

Before approving a compromised FLSA settlement, the court must ensure that it is “a fair 

and reasonable resolution of a bona fide dispute.” Id. at 1354-55. If the settlement reflects a 

reasonable compromise over issues that are actually in dispute, the court may approve the 

settlement “in order to promote the policy of encouraging settlement of litigation.” Id. at 1354. In 

determining whether the Parties’ Agreement is fair and reasonable, the Court should consider the 

following factors: (1) the existence of fraud or collusion behind the settlement; (2) the 

complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the 

amount of discovery completed; (4) the probability of plaintiff’s success on the merits; (5) the 

range of possible discovery; and (6) the opinions of counsel. See Leverso v. South Trust Bank of 

Ala., Nat. Assoc., 18 F. 3d 1527, 1531 n.6 (11th Cir. 1994); Hamilton v. Frito-Lay, Inc., No. 

6:05-cv-592-Orl-22JGG, 2007 U.S. Dist. LEXIS 10287, at *2-3 (M.D. Fla. Jan. 8, 2007). The 

Court should be mindful of the strong presumption in favor of finding a settlement fair. 

Hamilton, 2007 U.S. Dist. LEXIS at *2-3; Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 

1977). 

Here, the Parties jointly submit there has been sufficient investigation and exchange of 

information and documents to allow counsel for Plaintiff and Defendant to evaluate the Parties’ 

claims and defenses and make recommendations to each party in agreeing upon the resolution of 

Plaintiff’s claim as set forth in their Agreement. After exchanging comprehensive information 

and records, researching claims and defenses, and engaging in further negotiations since then, 

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and in order to avoid the uncertainties and costs of discovery, dispositive motions and trial, the 

Parties agreed to a resolution which provides Plaintiff with more than 100% of the damages he 

alleges based on allegedly deleted time, and more than 100% of any alleged liquidated damages 

to which he alleges he is entitled. 

Accordingly, in light of Defendant’s agreement to pay the Plaintiff the sum of $600.00 in 

alleged unpaid overtime compensation and potential liquidated damages, plus attorneys’ fees and 

costs, the Parties stipulate that their Agreement is fair and reasonable. Moreover, Plaintiff’s

attorneys’ fees and costs were claimed by Plaintiff and his counsel separate and apart from the 

amounts sought by Plaintiff for his underlying claims, and were negotiated independently. As 

Judge Presnell explained in Bonetti v. Embarq Management Co., 2009 U.S. Dist. LEXIS 68075 

at *11-12 (M.D. Fla. Aug. 4, 2009), where a 

plaintiff’s attorneys’ fee was agreed upon separately and without regard to 

the amount paid to plaintiff, then unless the settlement does not appear 

reasonable on its face or there is reason to believe that the plaintiff’s 

recovery was adversely affected by the amount of fees paid to his attorney, 

the Court will approve the settlement without separately considering the 

reasonableness of the fee to be paid to plaintiff’s counsel.

The compromise agreed upon by the Parties resolves all of Plaintiff’s claims for 

attorneys’ fees in connection with Count I, and Plaintiff has no responsibility to his counsel for 

any out of pocket sums. In addition, and as set forth above, the fees in this matter are reasonable 

based on the work performed in reaching this resolution. Importantly, throughout the entirety of 

the litigation in this case, Plaintiff was represented by competent counsel, board certified in labor 

and employment law and Defendant also has been represented by experienced counsel over the 

course of more than five months. The Parties further advise the Court that their settlement herein 

includes every term and condition of the settlement between Plaintiff and Defendant as to Count

I.

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Counts II, III, and IV have been resolved by separate confidential agreement. Because 

the confidential settlement agreement resolves state law claims (Counts II and III) and a claim 

for retaliation (Count IV), that agreement is not subject to the approval requirements of Lynn’s 

Food,. See Thompson v. Dealer Mgmt. Servs., Inc., No. 616CV1468ORL40KRS, 2016 WL 

7644856, at *1 (M.D. Fla. Dec. 13, 2016), report and recommendation adopted, No. 

616CV1468ORL40KRS, 2017 WL 37941 (M.D. Fla. Jan. 4, 2017) (“Lynn's Food applies only to 

back wage claims brought under the FLSA. That is, it does not apply to state law claims... or

FLSA retaliation claims.”); Hernandez v. Iron Container, LLC, No. 13–22170–CIV, 2014 WL 

633848, at *1–2 (S.D. Fla. Feb. 18, 2014) (collecting cases) (A settlement of FLSA retaliation

claims does not require court approval, so long as the settlement does not contaminate the 

settlement of an FLSA back wage claim). As Magistrate Judge Goodman noted in Hernandez:

Some courts in this circuit have noted that Lynn's Food requires only 

“compromises of FLSA back wage or liquidated damage claims” to be presented 

to the court. Lynn's Food, 679 F.2d at 1355; Yost v. Wyndham Vacation Resorts,

Inc., No. 6:10–CV1583–Orl–36GJK, 2012 WL 1165598, at *3 (M.D. Fla. Mar.26, 

2012), report and recommendation adopted, No. 6:10–CV–1583–Orl–36GJK, 

2012 WL 1165468 (M.D.Fla. Apr.9, 2012); McQuillan v. H.W. Lochner, Inc., No. 

6:12–CV–1586–ORL–36, 2013 WL 6184063, at *3 (M.D.Fla. Nov. 25, 2013). 

Thus, these courts reason that an FLSA retaliatory discharge claim that is settled 

along with a wage claim does not need to be reviewed for its fairness, “provided 

that its terms do not serve to contaminate the [settlement] Agreement as to the

FLSA [wage] claim.” Yost, 2012 WL 1165598, at *3; McQuillan, 2013 WL 

6184063, at *3.

Similarly, another court, not in this circuit, reached the same conclusion by 

examining the language of the FLSA. Dorner v. Polsinelli, White, Vardeman &

Shalton, P.C., 856 F.Supp. 1483 (D.Kan.1994). There, the court noted that § 

216(c) requires the Department of Labor to supervise settlements of FLSA wage 

claims brought under § 216(b), but says nothing regarding supervision of FLSA

retaliatory discharge claims, which are brought under § 215(a) (3). Id. at 1489.

This circumstance caused the court to reason that the plain language of the FLSA

and the omission of any reference to supervision of FLSA retaliatory discharge 

claims in § 216(c) (while specifically referencing FLSA wage claims) supports 

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the conclusion that no supervision of FLSA retaliatory discharge claims is

required. Id.

The Court finds the rationales outlined in Dorner, Yost, and McQuillan persuasive 

and likewise finds that Lynn's Food and the FLSA do not compel the Court to

approve the fairness of an FLSA retaliatory discharge settlement, provided that 

the terms of that settlement do not “contaminate” or affect the settlement of the

FLSA wage claim.

Hernandez, at *1–2. 

Here, there is no possibility that the resolution of the FLSA wage claim is ‘contaminated’ 

by the resolution of the retaliation and state law claims, because there is no dispute that Plaintiff 

is receiving over 100% of the damages he claimed with respect to the claim for back wages and 

liquidated damages thereupon. The bulk of Plaintiff’s claim was the retaliation claim, which 

does not require approval. See id. As such, this uncompromised settlement of Count I may be 

approved, without review of the resolution of Counts II, III, and IV, as to which confidentiality is 

an important component negotiated separately and agreed to by the Parties. 

As such, the Parties respectfully request that the Court approve this settlement and 

dismiss Count I with prejudice. The Parties will file a separate stipulation of dismissal with 

prejudice as to Counts II, III, and IV, which will conclude this matter in its entirety. 

Dated this 25th day of January, 2021.

/s/ ANGELI MURTHY

Angeli Murthy, Esq., B.C.S. 

FL Bar No.: 887585

MORGAN & MORGAN, P.A.

8151 Peters Road

Suite 4000

Plantation, FL 33324

Tel: 954-807-7759

Fax: 954-807-7781

E-mail: amurthy@forthepeople.com

Counsel for Plaintiff

/s/ JENNIDER YASKO___

Alexander D. Del Russo, Esq.

FL Bar No.: 350273 

Jennifer Yasko, Esq.

FL Bar No.: 109604

CARLTON FIELDS, P.A.

CityPlace Tower

525 Okeechobee Blvd., Ste. 1200 

West Palm Beach, Florida 

Tel: (561) 659-7070

Fax: (561) 569-7368

Email: adelrusso@carltonfields.com

E-mail: jyasko@carltonfields.com

Counsel for Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 25th day of January, 2021, I electronically filed the 

foregoing with the Clerk of Court by using the CM/ECF system which will send notice of 

electronic filing to all counsel of record.

/s/ ANGELI MURTHY

ANGELI MURTHY, ESQUIRE 

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