IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

MICHAEL RIVERS,

Plaintiff,

v. CASE NO. 1:20-cv-107-MW-GRJ

ZENO OFFICE SOLS.,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court is Defendant’s Motion to Dismiss. ECF No. 

6. Because, in its motion, Defendant raises waiver as an affirmative 

defense and relies on matters outside the Complaint, on August 3, 2020, 

the Court converted the motion to dismiss to a motion for summary 

judgment and provided the parties a reasonable opportunity to submit 

supplemental evidence or briefing. ECF No. 9. Plaintiff, who is proceeding 

pro se, filed a response in opposition to Defendant’s motion, ECF No. 11, 

and Defendant filed a timely reply memorandum in accordance with Local 

Rule 56.1, ECF No. 10.

The instant motion is ripe for consideration. For the reasons 

explained below, it is respectfully RECOMMENDED that Defendant’s

converted motion for summary judgment should be GRANTED.

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I. BACKGROUND

This is a case under the Fair Labor Standards Act (“FLSA”), 29 

U.S.C. § 201, et seq. ECF No. 1. Defendant employed Plaintiff to install 

and service Xerox copy machines from December 10, 2018, until his 

resignation in July 2019.1 Id. at 9, 11. Plaintiff alleges that Defendant did 

not pay him for “several hundred” hours of overtime work he performed 

from home, such as re-stocking service parts and answering phone calls, 

emails, and text messages. Id. at 9–10.

Plaintiff filed a wage complaint with the United States Department of 

Labor (“DOL”) on October 13, 2019, in which he claimed that he was not 

compensated by Defendant for his mileage and overtime hours between 

December 2018 and July 2019. ECF No. 11-1 at 2–6. DOL opened an 

FLSA investigation into Defendant, and, on November 7, 2019, DOL 

informed Defendant that it would need to examine its payroll records, 

employment records, and tax returns. ECF No. 6-1 at 2. On February 21, 

2020, DOL sent Defendant a “[s]ummary of unpaid back wages and 

receipts for payment of back wages.” ECF No. 6-2 at 2. DOL directed 

1 Plaintiff’s allegations as to his resignation date are inconsistent. Compare ECF No. 1 

at 10 (“On January 15, 2019, the Plaintiff resigned from Zeno Office Solutions.”); with id.

at 11 (Plaintiff was “[e]mployed from December of 2018 through July of 2019”). The 

record demonstrates Defendant employed Plaintiff until July 2019. See, e.g., ECF No. 6-

4; ECF No 11-1 at 4.

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Defendant to sign and return the summary (a WH-56 form) and advised 

Defendant that the receipts (WH-58 forms) would need to be signed by the 

employees and returned to Defendant for submission to DOL as “proof of 

payment.” Id. DOL imposed deadlines on Defendant to pay its employees 

and return the WH-58 forms. Id.

DOL determined that Plaintiff was the only employee entitled to 

unpaid wages (in the amount of $1,417.50). ECF No. 6-3 at 2. On March 

3, 2020, Defendant mailed Plaintiff a check for $1,203.79, ECF No. 6-5 at 

2, and a WH-58 form, ECF No. 6-4 at 2–4. The WH-58 form explained that 

the $1,203.79 payment by Defendant (for back wages minus legal 

deductions) was required under the FLSA for Plaintiff’s work between 

December 15, 2018, and July 13, 2019. Id. at 2. The WH-58 form also 

included the following notice:

NOTICE TO EMPLOYEE: Your acceptance of this payment of 

wages and/or other compensation due under the Fair Labor 

Standards Act (FLSA) or Family Medical Leave Act (FMLA), 

based on the findings of the WHD means that you have given up 

the right you have to bring suit on your own behalf for the 

payment of such unpaid minimum wages or unpaid overtime 

compensation for the period of time indicated above and an 

equal amount in liquidated damages, plus attorney’s fees and 

court costs under Section 16(b) of the FLSA or Section 107 of 

the FMLA. Generally, a suit for unpaid wages or other 

compensation, including liquidated damages, must be filed within 

two years of a violation of the FLSA or FMLA. Do not sign this 

receipt unless you have actually received this payment in the 

amount indicated above.

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Id. Finally, as explained above, the WH-58 form serves as a receipt and, 

consequently, included a place for Plaintiff’s signature. Id.

Plaintiff deposited the check from Defendant on March 6, 2020, ECF 

No. 6-6 at 2, but, according to Defendant, he did not return the 

corresponding WH-58 form, ECF No. 6 at 8. Plaintiff filed his Complaint in 

this case two months later, on May 11, 2020. ECF No. 1.

II. LEGAL STANDARD

The entry of summary judgment is appropriate when the Court is 

satisfied “there is no genuine dispute as to any material fact and the 

movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

In applying this standard, the Court must examine the pleadings,

depositions, answers to interrogatories, and admissions on file, together 

with any affidavits and other evidence in the record “in the light most 

favorable to the nonmoving party.” Samples on Behalf of Samples v. 

Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). “The nonmovant need not 

be given the benefit of every inference but only of every reasonable 

inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 

(11th Cir. 1999).

2

2 See also Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988) (“The 

summary judgment standard requires that we resolve all reasonable doubts in favor of 

the non-moving party, but it does not require us to resolve all doubts in such a manner.”).

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As the Supreme Court held in Celotex Corp. v. Catrett, 477 U.S. 317 

(1986), the moving party bears the initial burden of establishing the 

nonexistence of a triable issue of fact. Where the motion for summary 

judgment concerns a claim or defense for which the movant would bear the 

burden of proof at trial—such as a defendant asserting an affirmative 

defense—the movant has the additional burden of showing the evidence, 

as it exists in the summary judgment record, establishes the claim or 

defense. Int’l Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 

(11th Cir. 2006); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 

1993); Blue Cross and Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1552 

(11th Cir. 1990).

3

If the movant is successful on this score, the burden shifts to the nonmoving party to show the existence of a genuine, material factual dispute. 

Celotex, 477 U.S. at 324. The non-moving party may not simply rest on the 

pleadings but must use affidavits, depositions, answers to interrogatories, 

3 See also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (“[I]f the movant 

bears the burden of proof on an issue, either because he is the plaintiff or as a defendant 

he is asserting an affirmative defense, he must establish beyond peradventure all of the 

essential elements of the claim or defense to warrant judgment in his favor.” (emphasis 

in original)); Williams v. United Launch Alliance, LLC, 286 F. Supp. 3d 1293, 1307 (N.D. 

Ala. 2018) (“Because ULA bears the burden of proof on its affirmative defenses, its status 

as the summary-judgment movant requires it to establish there is no genuine dispute of 

material fact as to all of the elements of its affirmative defense and, concomitantly, that it 

deserves judgment as a matter of law on the defense.”). 

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or other admissible evidence to demonstrate that a material fact issue 

remains to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); Castleberry v. Goldome Credit Corp., 408 F.3d 773, 785–86 (11th 

Cir. 2005). Conclusory allegations based on subjective beliefs are 

insufficient to create a genuine issue of material fact. Leigh v. Warner 

Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000).

III. DISCUSSION

Defendant argues that the uncontroverted record evidence 

demonstrates Plaintiff waived his right to bring this lawsuit when he cashed 

the March 3, 2020, check from Defendant for back wages. The Court 

agrees and, accordingly, concludes Defendant is entitled to summary 

judgment.

The relevant statutory scheme is straightforward. Plaintiff’s sole 

FLSA claim against Defendant arises under 29 U.S.C. § 207, which 

requires payment for overtime work (i.e., that in excess of forty hours per 

week not subject to an exemption). White v. Dixie, 741 F. App’x 649, 661–

62 (11th Cir. 2018). An employer who violates § 207 is liable to the 

employee for unpaid overtime compensation plus an equal amount of 

liquidated damages. 29 U.S.C. § 216(b). The DOL Secretary may 

supervise the payment of unpaid overtime compensation owed to an 

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employee under § 207, and an employee’s agreement to accept the 

supervised payment waives his or her right to sue for unpaid overtime 

compensation and liquidated damages under § 216(b). 29 U.S.C. § 216(c).

Viewed through the lens of Rule 56’s summary judgment standard, 

this leaves two questions for the Court to resolve: (1) whether there is a 

genuine issue of material fact precluding summary judgment?; and (2) 

whether Defendant is entitled to judgment as a matter of law on its § 216(c) 

waiver defense? The Court will answer each question in turn.

First, the record does not present a genuine dispute of material fact. 

Defendant attached business records to its motion for summary judgment, 

all of which “could be reduced to admissible evidence at trial or reduced to 

admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 

1999); see also Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 

(11th Cir. 2012). These records demonstrate, as explained above, that: (1) 

DOL initiated an investigation into Defendant’s overtime compensation 

practices; (2) DOL directed Defendant to sign a WH-56 form 

acknowledging it owed unpaid wages to Plaintiff and to pay Plaintiff those 

unpaid wages; (3) Defendant issued Plaintiff a check and WH-58 form in 

accordance with DOL’s instructions; and (4) Plaintiff cashed the check. 

ECF Nos. 6-1, 6-2, 6-3, 6-4, 6-5, 6-6.

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Plaintiff, as the non-movant, fails to offer any evidence of his own 

establishing a material factual issue. The Court cannot consider as 

evidence Plaintiff’s Complaint, ECF No. 1, and his response to Defendant’s 

motion for summary judgment, ECF No. 11-1, because they are not sworn

under penalty of perjury. McCaskill v. Ray, 279 F. App’x 913, 915 (11th 

Cir. 2008) (“Unsworn statements, even from pro se parties, should not be 

‘considered in determining the propriety of summary judgment.’” (quoting 

Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980)) (alterations 

adopted)). Even if they were admissible, they would not manufacture a 

genuine issue of material fact. Plaintiff does not dispute the authenticity or 

admissibility of Defendant’s records, contest Defendant’s claim that he 

received the WH-58 form along with the March 3, 2020, check, or offer 

conflicting evidence. Plaintiff’s response raises only legal challenges to the

sufficiency of the payment directed by DOL, ECF No. 11, which are 

addressed below. Lastly, Plaintiff’s records of his communications to DOL 

and hours worked, ECF No. 11-1, are not relevant to Defendant’s § 216(c) 

waiver defense. In sum, there is not a genuine issue of material fact that 

precludes reaching the issue of whether Defendant is entitled to judgment 

as a matter of law.

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Second, Defendant is entitled to judgment as a matter of law on its § 

216(c) waiver defense. Dressed down, the waiver provision of § 216(c) has 

four essential elements that Defendant must prove: (1) an underlying claim 

by an employee for overtime compensation under § 207; (2) DOL 

supervision of payment; (3) an agreement by the employee to accept such 

payment; and (4) payment in full. 29 U.S.C. § 216(c). Only the last three 

elements are in dispute.

DOL Supervision. Although “there is no fixed standard for what 

constitutes sufficient supervision,” Sanchez-Rosa v. Mun. of San Juan, No. 

18-1558 (RAM), 2020 WL 5821063, at *8 (D.P.R. Sept. 30, 2020), “mere 

investigation of a complaint” is insufficient, Cables v. SMI Sec. Mgmt., Inc., 

No. 10-24613-CIV, 2012 WL 12863144, at *4 (S.D. Fla. Apr. 6, 2012). 

Instead, “DOL must take affirmative steps to ensure that employees receive 

payment of their wages.” Id. Several cases illustrate the appropriate level 

of DOL involvement to satisfy § 216(c). See Niland v. Delta Recycling 

Corp., 377 F.3d 1244, 1247–48 (11th Cir. 2004) (DOL Regional Director 

spent “many hours over several months” negotiating and completing a 

settlement agreement with the defendant, reviewing correspondence, 

approving formulas and assumptions used to calculate unpaid wages, 

reviewing employee waiver language, coordinating DOL activities to track 

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employee payments, and answering questions from employees); Sneed v. 

Sneed’s Shipbuilding, Inc., 545 F.2d 537, 538 (5th Cir. 1977)4 (DOL 

Compliance Specialist investigated claim, determined the amount owed, 

presented the check to the employee on the employer’s behalf, and 

required employee to sign a receipt and waiver); Walton v. United 

Consumers Club, Inc., 786 F.2d 303, 306 (7th Cir. 1986) (DOL’s decision 

that it has “achieved enough” for employees and sending agreement to 

employee that would release his or her right to sue for unpaid wages is “the 

kind of supervision that [§ 216(c)] contemplates”).

Defendant argues that DOL supervised the March 3, 2020, payment 

of Plaintiff’s overtime compensation because it investigated Plaintiff’s claim 

for four months, determined the amount of unpaid overtime compensation, 

directed Defendant to render payment to Plaintiff, provided the necessary 

forms for payment and waiver, and established deadlines. ECF No. 6 at 7–

8. Plaintiff’s only retort is that “DOL failed to communicate in writing or by 

phone what the actual agreement was and for how much[.]” ECF No. 11 at 

3. Even so, it is clear that DOL’s involvement here went beyond mere 

4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the 

Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit decided 

prior to October 1, 1981.

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investigation and is akin to that considered proper by the courts in Niland, 

Sneed, and Walton. See Seelen v. Med Coach, LLC, No. 8:19-cv-936-T60SPF, 2019 WL 5423370, at *2 (M.D. Fla. Oct. 23, 2019) (DOL played a 

“significant role in key tasks necessary to ensure employees received 

payment” when it “provided instructions regarding: (1) the letter Defendant 

would send to employees; (2) the calculation and payment of the monies 

owed; (3) the deadlines for compliance; (4) the inclusion of the Form WH58; and (5) proof that payments were made”). Defendant, therefore, has 

satisfied the second (“DOL supervision”) element of § 216(c).

Agreement to Accept Payment. There is no dispute that Defendant 

sent Plaintiff the DOL supervised payment of $1,203.79 for overtime 

compensation and that Plaintiff cashed the check. Agreement, however, 

requires more than a showing that the employee accepted the money

offered. Walton, 786 F.2d at 305. Defendant’s records reflect that it sent 

Plaintiff a WH-58 form with the March 3, 2020, check, ECF No. 6-3, and, 

notably, Plaintiff does not refute this contention in his response. “A WH-58 

is a standard form used by the DOL to inform an employee that, although 

he has the right to file suit under [§ 216(b)], acceptance of the back wages 

offered will result in waiver of those rights.” Niland, 377 F.3d at 1248. That 

is, the unambiguous language of WH-58 is “sufficient to create an 

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enforceable waiver of [an employee’s] right to sue.” Id. Accordingly, 

Plaintiff’s “receipt of a WH-58 form and cashing of the employer’s check is 

sufficient to effect a waiver of the right to sue under the FLSA.” Blackwell 

v. United Drywall Supply, Inc., No. 1:07-cv-2351-ODE, 2009 WL 10672533, 

at *5 (N.D. Ga. 2009), aff’d, 362 F. App’x 56, 58 (11th Cir. 2010).

The fact that Plaintiff did not sign and return the WH-58 form is 

inconsequential. See Seelen, 2019 WL 5423370, at *3 (“Osborn and Belk 

did have sufficient notice of waiver, and by cashing their checks—even 

though they did not sign the WH-58 form—they waived their right to sue for 

unpaid wages.”); Selz v. Investools, Inc., No. 2:09-cv-1042-TS, 2010 WL 

1451347, at *5 (D. Utah Apr. 8, 2010) (“The undisputed facts are that 

Plaintiff received a check accompanied by the Receipt Form with its Notice 

to Employee and waiver language and that Plaintiff endorsed and cashed 

the check. Under the statute and supporting caselaw, the Court finds the 

act of endorsing and cashing the check cannot be anything other than a 

waiver as laid out in the Receipt Form.”); Mion v. Aftermarket Tool & Equip. 

Grp., 990 F. Supp. 535, 541 (W.D. Mich. 1997) (“[T]he terms of the release 

form predicated waiver on Mion's acceptance of Aftermarket's payment, 

and not on Mion's signature.”). Defendant, therefore, has satisfied the third 

(“agreement”) element of § 216(c).

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Payment in Full. An employee’s waiver is only effective “upon 

payment in full[.]” 29 U.S.C. § 216(c). Liberally construing Plaintiff’s 

response, ECF No. 11 at 2, Plaintiff argues that he has not waived his right 

to bring this lawsuit because the DOL supervised payment was not 

payment in full for his claimed unpaid wages and mileage. ECF No. 11 at 

2. This argument is unavailing because it is based on a plainly incorrect 

reading of the statute. The term “payment in full” in § 216(c) refers to the 

DOL supervised payment, not full satisfaction of the underlying claim. 

Walton, 786 F.2d at 305; Mion, 990 F. Supp. at 540. Plaintiff does not point 

to any authority to the contrary, and the Court is not aware of any. It would 

be an absurd (and thus untenable) reading of § 216(c) if, as Plaintiff 

contends, the statute left DOL with no room to settle unpaid wage claims 

for anything less than the full amount of the claim plus liquidated damages. 

Moreover, Plaintiff did not raise any claim for unpaid mileage in his 

Complaint, ECF No. 1, even though he raised the matter in his initial

communication to DOL, ECF No. 11-1 at 2–6. Defendant, therefore, has 

satisfied the final (“payment in full”) element of § 216(c).

* * *

Defendant is entitled to summary judgment on its affirmative defense 

of waiver. That is, Defendant has established, based on the undisputed 

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record, that Plaintiff waived his right to sue Defendant for overtime 

compensation under the FLSA because he agreed to accept the DOL 

supervised payment of $1,203.79.

Success on this defense notwithstanding, the Court is not persuaded 

by Defendant’s argument that Plaintiff’s claims are moot because he 

waived the right to bring this lawsuit under § 216(c). ECF No. 6 at 5–6. In 

short, the plain language of the waiver provision in § 216(c) does not tether 

an employee’s acceptance of a DOL supervised payment for unpaid wages

to a jurisdictional limitation. See Arbaugh v. Y&H Corp., 546 U.S. 500, 511 

(2006) (“[W]hen Congress does not rank a statutory limitation on coverage 

as jurisdictional, courts should treat the restriction as nonjurisdictional in 

character.”); Aubrey v. Zamam, LLC, No. 4:17-cv-446-JLH, 2017 WL 

5180427, at *2 (E.D. Ark. Nov. 8, 2017) (“[S]ection 216(c) challenges the 

validity of the FLSA claims, rather than the court’s jurisdiction over the 

subject matter.”); Min Fu v. Hunan of Morris Food Inc., No. 12-05871 (KM), 

2013 WL 5970167, at *4 (D.N.J. Nov. 6, 2013) (“[T]he waiver provision of [§ 

216(c)] ... contains no such limitation on jurisdiction.”). Waiver under the 

FLSA is, instead, an affirmative defense. Tomason v. Stanley, 297 F.R.D. 

541, 547 (S.D. Ga. 2014). The Court, therefore, has subject-matter 

jurisdiction to enter summary judgment in Defendant’s favor.

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IV. CONCLUSION

Accordingly, it is respectfully RECOMMENDED that Defendant’s 

Motion to Dismiss, ECF No. 6, which has been converted to a motion for 

summary judgment, should be GRANTED.

IN CHAMBERS this 2nd day of October 2020.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations 

must be filed within fourteen (14) days after being served a copy 

thereof. Any different deadline that may appear on the electronic 

docket is for the court’s internal use only, and does not control. A 

copy of objections shall be served upon all other parties. If a party 

fails to object to the magistrate judge's findings or recommendations 

as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal 

the district court's order based on the unobjected-to factual and legal 

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

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