Free Answer - District Court of Federal Claims - federal

Case 1:05-cv-01192-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MICHAEL J. DONAHUE, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-1192C (Judge Bush)

DEFENDANT'S ANSWER For its answer to Plaintiff's Complaint, defendant admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 are

plaintiff's characterization of his case and conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied, except to admit that plaintiff is presently employed by the Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives as a Telecommunications Specialist. 2. The allegations contained in paragraph 2 are

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 3. Admits the allegation contained in paragraph 3 that the

individual plaintiff identified in the caption of plaintiff's Complaint and other persons similarly situated are present or former employees of defendant; the allegation contained in paragraph 3 that plaintiff is or was an employee within the meaning of 5 U.S.C. § 2105 and 29 U.S.C. § 203(e) is a conclusion

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of law to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 4. Admits the allegations contained in paragraph 4 to the

extent supported by the attachment cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 4. 5. Denies the allegations contained in paragraph 5, except

to admit that the individual plaintiff has been employed by defendant during pay periods from 2002 to date. 6. 7. 8. Admits. Denies. Admits that at various times defendant has considered

plaintiff as being "FLSA exempt" and, during those times, has not accorded plaintiff the rights to which FLSA non-exempt employees of defendant are entitled; otherwise denied the allegations contained in paragraph 8. 9. The allegations contained in paragraph 9 are

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. Denies that plaintiff occupied positions in grade levels

GS-12 or GS-13 since at least 2002. 10. The allegations contained in paragraph 10 are

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied.

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11.

Defendant incorporates its responses to paragraphs 1

through 10 in response to paragraph 11. 12. Denies; alleges that plaintiff was exempt or was

determined in good faith to be exempt from the overtime pay provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. 13. Defendant incorporates its responses to paragraphs 1

through 12 in response to paragraph 13. 14. Denies; alleges that plaintiff was exempt or was from the overtime pay

determined in good faith to be exempt

provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. 15. Defendant incorporates its responses to paragraphs 1

through 14 in response to paragraph 15. 16. Denies; alleges that plaintiff was exempt or was from the overtime pay

determined in good faith to be exempt

provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. 17. Defendant incorporates its responses to paragraphs 1

through 16 in response to paragraph 17. 18. Admits the allegations contained in the first sentence

of paragraph 18 that plaintiff has taken annual, sick, jury, witness, administrative or military leave, paid holidays, or has had excused absences; the allegations contained in the first sentence of paragraph 18 that plaintiff and others were entitled to enjoy their leave, holidays and excused absences under applicable Federal law and regulations without suffering a loss -3-

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of, or reduction in, pay, including FLSA overtime compensation, are conclusions of law to which no response is required; denies the remainder of the allegations contained in the first sentence of paragraph 18. Denies the allegations contained in the second

sentence of paragraph 18. 19. 20. Denies. Admits the allegations contained in the first sentence

of paragraph 20 that the employment, time, work and compensation records for plaintiff is in the possession, control, and custody of defendant and its officers and agencies except to the extent that such records may have been destroyed inadvertently or in accordance with Government schedules for the retention and destruction of documents; denies the remainder of the allegations contained in the first sentence of paragraph 20 for lack of knowledge or information sufficient to form a belief as to their truth. The allegations contained in the second sentence of

paragraph 20 are conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 21. Denies that plaintiff is entitled to any of the relief

requested in the prayer for relief. 22. Denies each and every allegation not previously

admitted or otherwise qualified. AFFIRMATIVE DEFENSES 23. Plaintiff has received full payment under all

applicable statutes and regulations for all of the hours which he has worked. -4-

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24.

To the extent that defendant violated the terms of the

Fair Labor Standards Act, its violations occurred notwithstanding its good faith efforts to comply with the terms of the Act. 25. To the extent that defendant violated the terms of the

FLSA, its violation was not willful. 26. Plaintiff's claims are barred in part by the statute of

limitations. WHEREFORE, defendant requests that the complaint be dismissed and that defendant be granted such other and further relief as the Court may deem just and proper. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

Filed Electronically

s/Shalom Brilliant SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 305-7561 Fax: (202) 305-7643 Attorneys for Defendant

January 9, 2006

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