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Res No 096-14-14190RESOLUTION NO. 96-14-14190 A Resolution authorizing the City Manager to execute settlement documents in the case of Michael Weissberg vs. City of South Miami and to pay Michael Weissberg and his attorney for wages, damages, attorney's fees and costs. WHEREAS, Michael Weissberg ("Weissberg") filed a lawsuit against the City of South Miami (the "City") in Case No. 13-CV-23875-Moore/McAliley, titled Michael Weissberg -vs- City of South Miami, alleging that the City violated the Fair Labor Standards Act ("FLSA") by failing to pay him time and one-half for work performed in excess of forty hours per week; and WHEREAS, Weissberg initially demanded overtime payments for the period of time from approximately November 1,2012 through August 23,2013, for between 5 to 10 overtime hours per week at the time and one half rate of $46.36 per hour plus liquidated damages equal to the same amount; and WHEREAS, the City denied these claims and maintained that Weissberg was properly paid for all his hours, and otherwise denied any violation of the FLSA. The City'S position is that Weissberg is owed nothing and was properly compensated; and WHEREAS, the FLSA provides that an employee is entitled to double his overtime wages that are wrongfully withheld as well as an award of attorney's fees and costs; and WHEREAS, Weissberg's attorney claims that he has incurred $10,000 in fees and costs as of two months ago and that his fees have been continuing to accrue; and WHEREAS, the City disputed the records ofMr. Weissberg and disputes the calculations made from Mr. Weissberg's records; and WHEREAS, the City'S outside counsel has negotiated a settlement for the total sum of $17,500, including wages, liquidated damages and attorney fees and costs in lieu of a costly and lengthily trial; and NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA: Section 1. The City Manager is authorized to execute settlement documents the case of Michael Weissberg vs. City of South Miami and limiting the settlement to disputed overtime hours for alleged work performed as a shift supervisor prior to roll call and to cause the issuance of a check in the amount of $4,125 to Michael Weissberg for wages and $4,125 for liquidated damages, as required by the federal Fair Labor Standards Act, and a check in the amount of $9,250 to his attorney's firm for attorney's fees and costs from account 001-1500-514-3410 with a current balance of $181 ,681. Page 10f2 Res. No. 96-14-14190 Section 2. If any section clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this resolution. Section 3. This resolution shall become effective immediately upon adoption by vote of the City Commission. PASSED AND ADOPTED this 5th day of_M_a---=y~ __ , 2014. ATTEST: APPROVED: QhzG~ CITY CLERK/ COMMISSION VOTE: 4-1 Mayor Stoddard: Yea Page 2 of2 Vice Mayor Harris: Yea Commissioner Edmond: Yea Commissioner Liebman: Nay Commissioner Welsh: Yea Case 1:13-cv-23875-KMM Document 29 Entered on FLSD Docket 04/2112014 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 13-CV-23875-Moore/McAliley MICHAEL WEISSBERG, Plaintiff, -vs- CITY OF SOUTH MIAMI, Defendant. ____________________ ~I JOINT MOTION TO APPROVE SETTLEMENT AND DISMISS CASE WITH PREJUDICE The Plaintiff, Michael Weissberg ("Plaintiff') and the Defendant, City of South Miami ("Defendant") (collectively referred to herein as the "Parties"), by and their undersigned attorneys, hereby file their Joint Motion to Approve Settlement and to Dismiss Case With Prejudice, and state as follows: 1. On October 25,2013, the Plaintiff filed the instant lawsuit claiming entitlement to unpaid overtime compensation under the Fair Labor Standards Act ("FLSA"). See DE 1. 2. The City employed Plaintiff as a Patrol Sergeant from December 4, 2012, until August 23, 2013. His time records reflected that he 40 hours per week. The Plaintiff contends that he routinely worked in excess of 40 hours per week ("overtime") by (1) donning and doffing his police uniform; (2) maintaining his take-home vehicle; (3) maintaining his service weapon(s); (4) maintaining his uniform; and (5) engaging in various work-related activities in order to prepare for roll call prior to his scheduled shift start time. 3. The Defendant denies the Plaintiff's allegations and asserts (1) the time Plaintiff spent Case 1:13-cv-23875-KMM Document 29 Entered on FLSD Docket 04/21/2014 Page 2 of 5 donning and doffing a police uniform is not compensable under the FLSA; (2) the time Plaintiff spent maintaining his take-home vehicle is barred by the applicable collective bargaining agreement; (3) the time Plaintiff spent maintaining his uniform is barred by the applicable collective bargaining agreement; (4) the time Plaintiff spent maintaining his service weapon(s) is not compensable under the FLSA because such time is de minimis; and (5) the Defendant had no knowledge that Plaintiff was engaging in work-related activities prior to his scheduled shift start time. 4. Notwithstanding the Defendant's position, in an effort to avoid the costs and uncertainties oflitigation, the Parties have negotiated a compromise and reached a settlement in this matter. Under the settlement agreement the Plaintiff and his attorney will be paid jointly a total of $17,500.00. The payment of $17,500.00 is inclusive of any claims for liquidated damages and attorney's fees and represents and includes full compensation for the Plaintiffs claimed overtime. However, Defendant has only agreed to the above-referenced settlement amount as a result of Plaintiffs alleged performance of work-related activities as a Patrol Sergeant prior to his scheduled shift start time and not any of the other activities specified in paragraph 3 above. Specifically, payment will be made as follows: (a) One Check in the amount of Four Thousand One Hundred Twenty-Five Dollars ($4,125.00), made payable to MICHAEL WEISSBERG, which shall constitute all amounts potentially payable to him for any alleged unpaid wages (including overtime compensation) for work-related activities as a Patrol Sergeant prior to his scheduled shift start time and interest; (b) One check in the amount of Four Thousand One Hundred Twenty-Five Dollars ($4,125.00) for liquidated damages, and any similar forms of relief he may have sought in the Lawsuit. In connection with these payments, DEFENDANTS shall issue PLAINTIFF an IRS Form W-2 and IRS Form 1099 at the appropriate time; plus -2- Case 1:13-cv-23875-KMM Document 29 Entered on FLSD Docket 04/21/2014 Page 3 of 5 (b) One Check in the amount of Nine Thousand Two Hundred Fifty dollars ($9,250.00), as payment for PLAINTIFF'S attorneys' fees and litigation expenses, made payable to the F AIRLA W FIRM. DEFENDANT will issue IRS Form 1099 to THE F AIRLA W FIRM in connection with this payment. 5. Pursuant to Lynn's Food Stores, Inc. v. u.s., 679 F.2d 1350 (lIth Cir. 1982), claims arising under the FLSA may be settled only with the approval of the Court or Secretary of Labor. 6. Subject to the approval by written resolution of the City of South Miami, the Parties stipulate that the negotiated settlement reached between the Parties represents a "fair" resolution of the Plaintiff s FLSA claim, as well as the Plaintiff s reasonable attorneys' fees and costs. The Parties also stipulate that the settlement reached between them advances judicial economy. 7. The Parties further stipulate to the dismissal, with prejudice, of this action upon approval by the Court as requested above. However, if the City of South Miami does not approve the settlement, either party may petition the Court to have the case reinstated. 8. The parties request that the Court retain jurisdiction for 90 days from the date of this order to enforce the terms of the Settlement Agreement, if necessary. WHEREFORE, the Parties respectfully request that this Court dismiss this case, with prejudice, and approve the terms of the settlement referenced herein. Dated this 21 st day of April, 2014. Dated: April 21, 2014 -3- Respectfully submitted, IslDamian H. Albert Damian H. Albert, Esquire (145040) Albert@jambg.com Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Blvd., Suite 1000 Case 1:13-cv-23875-KMM Document 29 Entered on FLSD Docket 04/2112014 Page 4 of 5 Dated: April 21, 2014 Fort Lauderdale, Florida 33304 Telephone: (954) 463-0100 Facsimile: (954) 463-2444 Attorneys for Defendant Respectfully submitted, lsi Brian H. Pollock Brian H. Pollock, Esq. (174742) brian@fairlawattorney.com F AIRLA W FIRM 9130 S. Dadeland Blvd. Suite 1500 Miami, Florida 33156 Telephone: (305) 230-4884 Facsimile: (305) 230-4844 Attorneys for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 18th day of April, 2014, I electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I further certify that I either mailed the foregoing document and the Notice of Electronic Filing by first class mail to any non CM/ECF participants and/or the foregoing document was served via transmission of Notice of Electronic Filing generated by CM/ECF to any and all active CM/ECF participants. -4- By: lsi Damian H. Albert Damian H. Albert Fla. Bar No. 145040 Case 1:13-cv-23875-KMM Document 29 Entered on FLSD Docket 04/21/2014 Page 5 of 5 SERVICE LIST Michael Weissberg v. City of South Miami Case No. 13-CV-23875-Moore United States District Court, Southern District of Florida Brian H. Pollock, Esquire brian@fairlawattomey.com FairLaw Firm 9130 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Phone: 305-230-4884 Fax: 305-230-4844 Damian H,. Albert, Esquire albert@jambg.com; shore@jambg.com JOHNSON, ANSELMO, MURDOCH, BURKE, PIPER & HOCHMAN, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 Phone: 954-463-0lO0 Fax: 954-463-2444 Thomas Frank Pepe, Esquire thomaspepe@pepenemire.com;tpepe@southmiamifl.gov Pepe & Nemire, LLC 1450 Madruga Avenue, #202 Coral Gables, Florida 33146-2945 Phone: 305-667-2564 Fax: 305-341-0584 -5- LIMITED RELEASE MICHAEL WEISSBERG, hcrcinallcrrcfcm,:d!o as "first party," I'i.lr and in consideration ofthc sum ofSEVIGNTEI':N THOUSAND FIVI': HUNDREI) DOLLARS and NO/CENTS ($11,500.00) funded through: (l) a check in the amount ofS8,250 to be paid to MiCHAEL WEiSSBERG for alleged unpaid wages for work performed as a shHt supervisor prior to roll call. Of this amount, $4,125 shall be for back wages from which figure aU appropriate payroll taxes and other typical City of South Miami payroll deductions shall be taken and t{)r which a W -2 shall the remaining shail bc paid as liquidated damages for which a 1099 shall issue, and; (2) a check made payable to the FairLaw Finn in the amount of $9,250, for alleged attorneys' fees and costs, and other valuable consideration received from or on behalf of CITY OF SOUTH MIAMI ("City"), and; (3) ail checks to be delivered to the FairLaw fiml within 30days of approval ofihe settlement by the City of Soulh Miami City Commission or within 30 days of the Court's approval of the JOInt Motion to Approve :;lettlement and Dismiss Case with prejudice, whichever is later. The City of South Miami shaH place the approval ofthe settlement referenced herein on the next city commission agenda following the execution of this limited release. HEREBY irrevocably remises, acquits, and lhteverdiseharges the City and each of its insurance employees, agents, representatives, and officiais, hereinafter collectively referred to as "sccond party:' of and from and aU manner of action and actions, cause Of causes of action, suits, attorneys' fees and covenants, contracts, controversies, agreements, liens, subrogated interests, rightsofindcmnity andcomribution, promises, variances, trespasses, damages, awards, judgments, remedies, execlltions, demands and claims whatsoever in hl\V and (collectively "CLAiMS") whieh said tlrs! party ever had, now h,lS, or which any personal representative. successor, of said first party, hereafter can, shaH or may have, second party, from the beginning of the world to the day of these present,;;; for all elahns under the Fair Labor Standards Act (,'FLSA ") and ail other unpaid wage related claims raised orthal could have been raised in, the litigation captioned: MICHAEL WEISSBERG, Plaintiff v. eIT'!:' OF SOUTH MiAMi, Defendant (,'Litigation"), CASE NO. 13-CV -23875- MoorefMcAlilcy, .!N THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF FLORIDA No claims other than those under the FLSA, breach of contract, or fhr unpaid wages allegedly due to Michael Weissberg shaH be affected by this Limited Release. First party acknowledges that payment of the sum referenced above is intended oniy to resol've pending litigation and shall not be deemed or considered allY admission or acceptance of blame, liability, or responsibility in ,any for thc matters claimed in the Litigation. First party also acknowledges that paymenl of the sum referenced above is contingent upon City CommiSSion and court approval and upon dismissal of the with prejudice. First party has carefully read this Limited with the assistance of his attorney, Brian H. Pollock, Esq., and understands its terms. ohligations, opemtion, and effect. IN WITNESS WHEREOF, I have hereunto set my hand and seal this .. k" ............ -..• y ofApril20i4, Signed, sealed and delivered in the presence STATE OF FLORIDA ) )S3: COUNTY OF MIAMi-DADE ') I HEREBY CERTIFY that on this day, hefore me, an officer duly authorized in the State aforesaid and in the County aforesaid to take personally appeared MICHAEL WEISSBERG to me known to he the person described or \vno presented the identification, and who executed titc foregoing instrument and acknowledged before me that he executed the same. WITNESS my hand and -l.-J~.:...L.. __ , 2014. seal in the County and State last aforesaid this,"~~ Commission Expires: Commission No. BRIAH ii, POI.I.OOK M'{ COMMISSIOH #00991714 £X?iReS: MAY 13, 2014 ~Il W{tlltilll1Jt SUIt 1l1111., '-----*"'-~_ .. _ ----..-.I 2 LimiH:a Release v. ofSolitn Miami CASE NO. 13-CV-23!?75 . ~ ..