Opinion
6:21-cv-2130-CEM-DCI
10-07-2022
PERRY GOUTZOS, Plaintiff, v. AMERICAN LEAK DETECTION, INC. and PATRICK DESOUZA, Defendants.
AMERICAN LEAK DETECTION. INC. PATRICK DESOUZA
AMERICAN LEAK DETECTION. INC. PATRICK DESOUZA
CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE
PERRY GOUTZOS
This Confidential Settlement and General Release (“Agreement”) is made by and between PERRY GOUTZOS (“GOUTZOS”), AMERICAN LEAK DETECTION, INC. (“ALD”), and PATRICK DESOUZA (“DESOUZA”).
WHEREAS, GOUTZOS filed a lawsuit in the United States District Court for the Middle District of Florida, Orlando Division (Case No.: 6:21-cv-2130-CEM-DCI) against ALD and DESOUZA arising out of his former employment with ALD; and
WHEREAS, ALD and DESOUZA deny liability herein and any wrongdoing with respect to GOUTZOS; and
WHEREAS, the Parties wish to avoid litigation and settle and resolve all controversy between them amicably and expeditiously;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby
STIPULATED AND AGREED by and between the undersigned parties that the aboveentitled matter is hereby resolved as follows contingent upon: (1) final payment pursuant to the terms of the settlement agreement and (2) final approval by the Court, as follows:
1. RECITALS . The foregoing recitals are true and correct and are incorporated herein by this reference.
2. GENERAL RELEASE OF CLAIMS .
a. GOUTZOS shall withdraw, in writing and with prejudice, any and all actions, claims or proceedings that GOUTZOS has filed against ALD and DESOUZA, to the extent said actions, claims, or proceedings are not dismissed pursuant to Court order.
b. In exchange for the consideration identified in Paragraph 3 below, this Agreement shall constitute a waiver and release of all claims GOUTZOS might have under the Fair Labor Standards Act and/or applicable Florida law against Releasees [as defined in paragraph 2(c) below)] for unpaid wages and/or overtime compensation, liquidated damages and attorneys' fees. GOUTZOS hereby knowingly and voluntarily releases and forever discharges ALD and DESOUZA together with its parents, predecessors, successors, assigns, subsidiaries, affiliates, and insurers, and their past, present and future directors, officers, shareholders, members, employees, agents, insurers and attorneys, both individually and in their capacities as directors, officers, shareholders, members, employees, agents, insurers or attorneys (collectively, “Releasees”), from claims of unpaid wages, overtime compensation, liquidated damages and/or attorneys' fees under the Fair Labor Standards Act of 1938, as amended, and applicable Florida law.
c. In exchange for the separate consideration identified in Paragraph 3 below, GOUTZOS hereby knowingly and voluntarily releases and forever discharges ALD and DESOUZA together with ALD's parents, predecessors, successors, assigns, subsidiaries, affiliates, and insurers, and its past, present and future directors, officers, shareholders, members, employees, agents, franchisees, and attorneys, both individually and in their capacities as directors, officers, shareholders, members, employees, agents, heirs or attorneys (collectively “Releasees”), of and from any and all claims, whether known or unknown, anticipated or unanticipated, disclosed or undisclosed, against any of the Releasees, which GOUTZOS has or might have as of the date of execution of this Agreement including, but not limited to, any claims arising out of or in any way connected with GOUTZOS's employment with any of the Releasees. Such claims include, but are not limited to, any claim that has been, could have been or could be alleged against Releasees under:
• Title VII of the Civil Rights Act of 1964, as amended;
• The Civil Rights Act of 1991;
• Sections 1981 through 1988 of Title 42 of the United States Code, as amended;
• The Employee Retirement Income Security Act of 1974, as amended (except for any vested benefits under any tax qualified benefit plan);
• The Immigration Reform and Control Act, as amended;
• The Americans with Disabilities Act of 1990, as amended;
• The Age Discrimination in Employment Act of 1967, as amended;
• The Worker Adjustment and Retraining Notification Act, as amended;
• The Fair Credit Reporting Act;
• The Fair Labor Standards Act of 1938, as amended;
• The Occupational Safety and Health Act, as amended;
• The Sarbanes-Oxley Act of 2002;
• The Equal Pay Act;
• The Family and Medical Leave Act, as amended;
• The Families First Coronavirus Response Act;
• The Florida Civil Rights Act - Fla. Stat. § 760.01, et seq.;
• Florida's Private-Sector Whistleblower's Act - Fla. Stat. §448.101 et seq.;
• Florida's Public-Sector Whistleblower's Act - Fla. Stat. §112.3187 et seq.;
• Florida's Statutory Provision Regarding Retaliation /Discrimination for Filing a Workers Compensation Claim - Fla. Stat. § 440.205;
• Florida's Statutory Wage Rate Discrimination Law - Fla. Stat. § 448.07;
• The Florida Equal Pay Act - Fla. Stat. § 725.07;
• The Florida AIDS Act - Fla. Stat. § 110.1125, § 381.00 and § 760.50;
• Florida Discrimination on the Basis of Sickle-Cell Trait Law - Fla. Stat. §§ 448.075 et seq.;
• Florida OSHA - Fla. Stat. § 442.018(2);
• Florida's Wage Payment Laws - Fla. Stat. §§ 448.01, 448.08;
• Florida's Minimum Wage Act - §§ 448.109, 448.110;
• Florida's General Labor Regulations - Fla. Stat. Ch. 448;
• Florida's Domestic Violence Leave Act - Fla. Stat. §741.313;
• Florida's Preservation & Protection of Right to Keep & Bear Arms in Motor Vehicles Act - Fla. Stat. §790.251;
• Any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance;
• Any public policy, contract, tort, or common law; and
• Any claim for costs, fees, or other expenses including attorneys' fees incurred in these matters.
d. ALD and DESOUZA release GOUTZOS from any and all claims they have or might have as of the date of execution of this Agreement including, but not limited to, any claims arising out of or in any way connected with GOUTZOS's employment.
e. If any claim is not subject to release, to the extent permitted by law, GOUTZOS waives any right or ability to be a class or collective action representative or to otherwise participate in any punitive or certified class, collective or multi-party action or proceeding based on such a claim in which any Releasee is a party.
3. SETTLEMENT SUMMARY .
a. If (1) GOUTZOS delivers to ALD's and DESOUZA's attorneys an executed original of this Agreement, W-9 Forms executed by GOUTZOS and GOUTZOS's counsel, and a W-4 Form executed by GOUTZOS; and (2) the Court approves this settlement and enters an order dismissing the above-referenced case with prejudice, then, in consideration of the matters set forth herein, ALD and DESOUZA shall pay to GOUTZOS the total sum of Eighty Thousand Dollars and Zero Cents ($80,000.00) (hereinafter the “Settlement Sum”). Such Settlement Sum shall be allocated as follows and delivered within seven (7) days of the court approving this settlement:
• $3,333.00, less applicable withholdings, made payable to PERRY GOUTZOS as and for alleged overtime wages, for which an IRS Form W-2 shall issue to PERRY GOUTZOS;
• $3,333.00, made payable to PERRY GOUTZOS as and for alleged liquidated damages, which amount shall not be subject to deductions or withholding, for which an IRS Form 1099 shall issue to PERRY GOUTZOS;
• $11,833.50, made payable to PERRY GOUTZOS as and for alleged backpay wages, which amount shall be subject to deductions and withholdings, for which an IRS Form W-2 shall issue to PERRY GOUTZOS;
• $35,500.50, made payable to PERRY GOUTZOS as and for alleged compensatory damages, which amount shall not be subject to deductions or withholding, and for which an IRS Form 1099 shall issue to PERRY GOUTZOS;
• $250.00, made payable to the PERRY GOUTZOS as and for the general release of claims provision contained herein, which amount shall not be subject to deductions or withholding and for which an IRS Form 1099 shall issue to PERRY GOUTZOS;
• $250.00, made payable to the PERRY GOUTZOS as and for the non-disparagement provision contained herein, for which an IRS Form 1099 shall issue to PERRY GOUTZOS;
• $250.00, made payable to the PERRY GOUTZOS as and for the no-rehire provision contained herein, for which an IRS Form 1099 shall issue to PERRY GOUTZOS;
• $250.00, made payable to the PERRY GOUTZOS as and for the confidentiality provision contained herein, for which an IRS Form 1099 shall issue to PERRY GOUTZOS; and
• $25,000.00, made payable to CAMPBELL TROHN TAMAYO & ARANDA as attorneys' fees and costs, for which an IRS Form 1099 shall issue to CAMPBELL TROHN TAMAYO & ARANDA.
GOUTZOS understands and acknowledges that he would not receive the payments specified in this Paragraph, except for his execution of this Agreement, including Releases contained herein, and his fulfillment of the promises contained herein.
b. ALD and DESOUZA make no representation as to the taxability of the amounts to be paid to GOUTZOS. GOUTZOS agrees to pay federal or state taxes, if any, which are required by law to be paid with respect to this settlement. Moreover, GOUTZOS agrees to indemnify ALD and DESOUZA and hold them harmless from any interest, taxes or penalties assessed them by any governmental agency as a result of the non-payment of taxes on any amounts paid to GOUTZOS under the terms of this Agreement.
c. The parties have fully considered Medicare's interests, pursuant to the Medicare Secondary Payer rules, and in doing so, GOUTZOS has declared that GOUTZOS claim does not involve any illness, injury, incident, or accident in which medical expenses were incurred. GOUTZOS agrees to indemnify and hold harmless the Releasees, their insurance carriers, their attorneys and all others in privity with them, from any such claim by, through and/or under GOUTZOS including, but not limited to, any direct claim by Medicare and/or Social Security for reimbursement of any funds paid by them relating to the injuries and claims arising from any such accident.
4. RETURN OF PROPERTY . GOUTZOS represents that, as of the date of this Agreement, GOUTZOS has returned any and all documents, lists, data, confidential information, trade secrets, equipment or other property in GOUTZOS's possession belonging to ALD and/or DESOUZA.
5. AFFIRMATIONS .
a. GOUTZOS affirms that GOUTZOS has not filed, caused to be filed, or presently is a party to any claim, complaint, or action against Releasees in any forum or form, except GOUTZOS's lawsuit filed in the United States District Court for the Middle District of Florida, Orlando Division (Case No.: 6:21-cv-2130-CEM-DCI).
b. The Parties acknowledge that this Agreement does not limit either Party's right, where applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency. To the extent permitted by law, GOUTZOS agrees that if such an administrative claim is made for violations of the Fair Labor Standards Act, GOUTZOS shall not be entitled to recover any individual monetary relief or other individual remedies.
c. GOUTZOS acknowledges that because of circumstances unique to GOUTZOS including, but not limited to, irreconcilable differences with ALD and DESOUZA, GOUTZOS is not qualified to hold any position with ALD now or in the future and, therefore, shall not apply in the future for employment with ALD or any of its franchisees. This is a negotiated, non-retaliatory settlement term.
6. NO ADMISSION . Neither this Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed at any time for any purpose as an admission by ALD AND DESOUZA of any liability, unlawful conduct of any kind or violation of any of the laws identified in paragraph 2.c. herein.
7. CONFIDENTIALITY .
a. Except as required by law, rule, regulation or subpoena, neither GOUTZOS nor GOUTZOS's representatives including, but not limited to, GOUTZOS's attorneys, shall disclose to any person or entity any information whatsoever regarding: (i) the substance of this action; (ii) the facts surrounding this action or GOUTZOS's claims of alleged unlawful or improper conduct by ALD and/or DESOUZA; (iii) the existence or substance of this Agreement; or (iv) any matters pertaining to this action. If asked about the disposition of GOUTZOS's claims, GOUTZOS or GOUTZOS's representatives will state only to the effect that “...the matter has been resolved to the satisfaction of all parties concerned.” The above limitation does not include GOUTZOS's disclosure of such information to GOUTZOS's spouse, attorneys, accountants and/or professional tax advisers with whom GOUTZOS chooses to consult or seek advice regarding GOUTZOS's consideration of and decision to execute this Agreement.
b. The Parties shall not disparage or defame the other Party.
c. GOUTZOS shall direct all prospective employment reference requests to Hallie Lynn, HR Representative or her successor at 203-433-2510 or hlynn@americanleakdetection.com, who will provide GOUTZOS's dates of employment and last position held.
d. GOUTZOS understands and agrees that the payment of the Settlement Sum is not to be construed as an admission of liability on the part of ALD or DESOUZA or the entities hereby released, all of whom expressly deny same.
e. The Parties acknowledge and agree that any violation of Paragraph 7 will constitute a material breach of this Agreement, which will cause the non-breaching party to suffer immediate, substantial and irreparable injury, in an amount which cannot be readily calculated, and such breach will be a sufficient basis for a court to award injunctive relief, attorney's fees and costs to the non-breaching party.
f. The Parties fully agree and understand that the Settlement Sum, as set forth in Paragraph 3, has been given in consideration for Plaintiff's full compliance with the terms of the confidentiality and non-disparagement provisions in Section 7 of this Agreement.
8. REVOCATION. GOUTZOS acknowledges and understands that the settlement of his FLSA claims as set forth in this Agreement is binding immediately and cannot be revoked. The settlement of the FLSA claims is enforceable and is no way impacted by the Revocation Clause described in this Paragraph. GOUTZOS acknowledges and understands that he may revoke any non-FLSA provisions of this Agreement, such as the general release, non-disparagement clause, no-rehire provision, and confidentiality provision, for a period of seven (7) calendar days from the day he executes this Agreement (the “Revocation Clause”). Any revocation within this period must be submitted, in writing to ALD's and DESOUZA's attorney, Jessica DeBono Anderson, Esq. at Cole, Scott and Kissane, P.A., 1900 Summit Tower Blvd., Suite 400, Orlando, Florida 32810 and state, “I hereby revoke my acceptance of the general release, non-disparagement clause, no-rehire provision, and confidentiality provision.” The revocation must be personally delivered to Ms. Anderson or her designee, or mailed to Ms. Anderson and postmarked within seven (7) calendar days of execution of this Agreement. The non-FLSA provisions of this Agreement shall not become effective or enforceable until the revocation period has expired. If the last day of the revocation period is a Saturday, Sunday, or legal holiday in the state in which GOUTZOS was employed at the time of his last day of employment, then the revocation period shall not expire until the next following day which is not a Saturday, Sunday, or legal holiday.
9. OPPORTUNITY TO REVIEW .
a. GOUTZOS acknowledges that GOUTZOS is aware that GOUTZOS is giving up all claims GOUTZOS may have against Releasees. GOUTZOS acknowledges that GOUTZOS has been advised in writing to consult with an attorney and has had the opportunity to seek legal advice before executing this Agreement. In fact, GOUTZOS acknowledges consulting with GOUTZOS's counsel-of-record, Robert Aranda, Esq. with the Campbell Trohn Tamayo & Aranda prior to executing this Agreement. GOUTZOS acknowledges GOUTZOS enters into this Agreement voluntarily.
b. ALD and DESOUZA also acknowledge that they have been advised in writing to consult with an attorney and has had the opportunity to seek legal advice before executing this Agreement. In fact, ALD and DESOUZA acknowledge consulting with their counsel-of-record, Jessica DeBono Anderson, Esq. with Cole, Scott & Kissane, P.A., prior to executing this Agreement. ALD and DESOUZA acknowledge that they enter into this Agreement voluntarily.
10. SEVERABILITY . Except as set forth below, should any provision of this Agreement set forth herein be declared illegal or unenforceable by any court of competent jurisdiction such that it cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect. However, if any portion of the general release language is ruled to be unenforceable for any reason, GOUTZOS shall return the Settlement Sum paid hereunder by ALD and DESOUZA.
11. VENUE AND GOVERNING LAW . This Agreement shall be governed by the laws of the State of Florida without regard to its conflict-of-laws provisions. In the event of any action arising hereunder, GOUTZOS agrees that venue Seminole County, Florida is proper and waives any objections based upon forum non conveniens. In the event that a party commences an action for damages, injunctive relief, or otherwise to enforce the provisions of this Agreement, the prevailing party in any such action shall be entitled to an award of its reasonable attorneys' fees and all costs, including appellate fees and costs, incurred in connection therewith as determined by the court in any such action.
12. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between GOUTZOS, ALD and DESOUZA, and it supersedes any and all prior oral or written agreements, understandings, representations or warranties between the parties.
13. AMENDMENTS . This Agreement may not be amended, modified, altered, or changed, except by a written agreement which is both signed by all parties and which makes specific reference to this Agreement.
PERRY GOUTZOS IS ADVISED THAT HE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT AND GENERAL RELEASE.
PERRY GOUTZOS MAY ONLY REVOKE THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 8 ABOVE.
PERRTY GOUTZOS AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND GENERAL RELEASE, DO NOT
RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE SETTLEMENT SUM AND BENEFITS SET FORTH IN PARAGRAPH 3 ABOVE, PERRTY GOUTZOS FREELY AND KNOWINGLY AND AFTER DUE CONSIDERATION, ENTERS INTO THIS CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS GOUTZOS HAS OR MIGHT HAVE AGAINST RELEASEES. PERRY GOUTZOS ACKNOWLEDGES THAT GOUTZOS HAS NOT RELIED ON ANY REPRESENTATIONS, PROMISES, OR AGREEMENTS OF ANY KIND MADE TO PERRY GOUTZOS IN CONNECTION WITH PERRY GOUTZOS'S DECISION TO SIGN THIS AGREEMENT, EXCEPT THOSE SET FORTH IN THIS AGREEMENT.
THE SIGNATORIES HAVE CAREFULLY READ THIS ENTIRE AGREEMENT, HAVE BEEN REPRESENTED BY COUNSEL THROUGHOUT THE NEGOTIATION OF THIS AGREEMENT, AND HAVE CONSULTED WITH THEIR ATTORNEYS BEFORE SIGNING THIS AGREEMENT. THE PARTIES FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT. THE ONLY PROMISES OR REPRESENTATIONS MADE TO ANY SIGNATORY ABOUT THIS AGREEMENT ARE CONTAINED IN THIS AGREEMENT.
THE PARTIES ARE SIGNING THIS AGREEMENT VOLUNTARILY AND KNOWINGLY.