Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO: 05-1043C

JORGE A. DELPIN APONTE, et al., v. UNITED STATES OF AMERICA

SECOND AMENDED COMPLAINT BEFORE THE HONORABLE COURT: COMES NOW plaintiffs in the above captioned complaint and as further detailed in Exhibit A hereto, through undersigning counsel, and respectfully STATE and PRAY: I. NATURE OF THE CASE 1. This is a class action lawsuit seeking declaratory,

injunctive, and monetary relief against the United States Postal Service and its and officers willful and officials, and for engaging of in a

continuing

pattern

practice

underpaying

overtime to postal employees in the Commonwealth of Puerto Rico and across the whole Postal Service System in the United States and its territories. Plaintiffs are postal employees that have seen their income and their livelihoods historically prejudiced by the United States Postal Service's practice of incorrectly, in bad faith and, perhaps, maliciously calculating postal

employees' overtime as pleaded in this complaint.

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II. JURISDICTION AND VENUE 2. 1390 This Honorable Court has jurisdiction pursuant to 28 USC because the claims presented in this Complaint
"

arise

pursuant to the Fair Labor Standards Act (hereinafter

FLSA"), 29

U.S.C. § 203(e) (2) (B) (1988); 29 U.S.C. § 207(a) (1) (1988); 29 C.F.R. § 778.109(1990). 3. Jurisdiction is also found pursuant to the Postal Service This matter was transferred to this

Act, 39 USC 101 et seq.

Court pursuant to an order from the U.S.D.C. for the District of Puerto Rico, where the class described herein was certified. Plaintiffs understand that the U.S.D.C. case file was

transferred to this Court accordingly or, at the very least, that the certification of the class before the USDC Puerto Rico be accepted as a putative class for all legal purposes within this jurisdiction. III. 4. THE PARTIES

Plaintiffs are the individuals listed in attachment A of this These by the individuals United are employed or were formerly

Complaint. employed "USPS"). 5.

States

Postal

Service

(hereinafter

Each of these individuals currently resides in Puerto Rico,

or resided within the Commonwealth of Puerto Rico during the time which the facts pertinent to this complaint and to the

respective cases occurred.

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6.

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Co-defendants JOHN POTTER is the General Postmaster of the States of America as of the date of filing of this

United

complaint, and is the chief executive officer of co-defendants USPS. 7. 8. (as This paragraph was left blank on purpose. Co-Defendants USPS at all relevant times hereto, is or was stated below) plaintiffs employer and is an independent

establishment of the executive branch of the Government of the United States, which may sue and be sued in its official name or capacity. 30 USDC sec. 401(1). IV. FACTS COMMON TO ALL CAUSES OF ACTION 9. A postal employee's
"

Basic Workweek" consists of 40 hours of

work per week. The amount paid to any postal employee for the Basic Workweek is called the "Basic Pay". 10. To compute the Basic Pay, the amount of hours up to 40

hours worked during any given week is multiplied by the "Base Rate" applicable to said employee. The Base Rate is the normal, hourly wage paid to an employee not including special bonuses and adjustments. 11. Postal employees in Puerto Rico and other jurisdictions are

entitled to the benefits of Territorial Cost of Living Adjustment (hereinafter "TCOLA"). TCOLA is calculated as a percentage of the employee's Base Rate, and is paid in addition to the basic pay. 12. Besides TCOLA, postal employees may also be eligible to

receive certain special compensation or bonuses under certain 3

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circumstances. 13. A postal

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employee's

earning

for

any

given

week

is

comprised of Basic Pay, plus TCOLA, plus any bonuses he/she may earn. The dollar sum of these items divided by the total hours worked is the "Regular Rate". 14. Regular Rate is defined by the applicable regulations as remuneration" (excluding the overtime premium but

"total

including the TCOLA payment), divided by the "total number of hours actually worked" during a Basic Workweek. 29 C.F.R. § 778.109. Nonetheless, since TCOLA is an adjustment to Basic Pay, TCOLA may not be prorated utilizing hours worked by any given employee beyond the regular 40-hour week. In other

words, the TCOLA should be paid in full during the basic 40hour workweek and may not be prorated by using the overtime hours. 15. The Regular Rate has to be used to calculate overtime pay

under the FLSA. With regards to postal employees, the FLSA requires wages of 1 ½ times the Regular Rate for each overtime hour worked. 29 U.S.C. § 207(a)(1). Hereinafter we will refer to this wage as the
"

Overtime on

Rate ". the

Defendants that it

publicly has an

acknowledge

and

admitted

record

obligation to pay overtime to postal employees at 1 ½ times the Regular Rate. 16. In Puerto Rico and States of America across and Postal its Service System the in the has 4

United

Territories,

USPS

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always failed to calculate and pay overtime at the required 1 ½ times the Regular Rate. The result is that the USPS has

historically underpaid overtime to all postal employees within the Postal Service System. 17. Defendant is calculating overtime pay at less than 1 and

½ Regular Pay across the whole Postal System, which means that Defendant is in violation of the FLSA dispositions on payment of overtime for all postal employees in the system and it is also in violation of its own regulations or

policies on this regards. 18. Each of the plaintiffs in this case has worked overtime

for the USPS. Each of the plaintiffs in this case claims that the USPS has historically calculated their overtime using a formula other than 1 ½ the Regular Rate. They also claim that they are entitled the to and are owed the of amounts which pay may as

result

from

correct

computation

overtime

demanded herein, back pay, compensatory damages, interests, costs, attorneys' fees and any and all compensation that they are entitled to under applicable law. 19. with Moreover, each of the plaintiffs is similarly situated regards System to in all the postal United seek employees States for this within its the Postal

Service

and

territories. to certify a

Accordingly,

plaintiffs

Court

class for all postal employees within the Postal Service who have worked overtime and have not had their overtime 5

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compensation computed at at least 1 ½ times the Regular Rate. V. CLASS ACTION PREREQUISITES CLASS OF CURRENT POSTAL EMPLOYEES: 20. For the purposes of the relief sought in this case, all

the plaintiffs bring this action pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, on behalf of themselves and all other persons similarly situated. Each of these

individual representatives is currently a postal employee who has received overtime payment calculated at less than 1 and ½ Regular Rate. employee, worked but Plaintiff Mr. José L. Otero is not a postal who and while employed by the for Postal said Service, in

overtime

received

payment

overtime

violation of FLSA as pleaded herein. 21. Each plaintiff seek declaratory and injunctive relief

pursuant to Rule 23(a) and (b) (2), on behalf of him or herself and the plaintiff class. 22. and The number of postal employees who in the past have been prospectively will continue to be deprived
1/2

of

correct

computation of overtime pay (e.g., using 1 Rate) is too numerous for practicable

times the Regular In that

joinder.

connection, it is noteworthy that in Puerto Rico alone there are presently over 4,000 postal employees and, historically, since either stopped inception, been tens of thousands of individuals or the have have

terminated, for the

have USPS

resigned, without

otherwise of a 6

working

benefit

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correct Moreover, possibly computation across hundreds the of

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as

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herein. are are

overtime

pleaded System

Postal

Service of

there which

thousands

employees

victims of this erroneous computation of overtime as pleaded in this amended complaint. 23. There are questions of law and fact common to all

members of the class and all class members are and/or will be directly affected by the challenged actions of the

Defendant. Each putative class member has been and/or will continue to be prejudiced by the USPS erroneous, bad faith computation of the members ' overtime pay . 24. The circumstances of each representative plaintiff are of the claims of the class as a whole. Each

typical

representative plaintiff as well as all members of the class have had and will have their overtime pay computed on the basis of less than 1 and ½ Regular Pay. 25. Plaintiffs will be adequate representatives of the class in

that all of the relevant questions of fact and law applicable to the class also apply to each of them. Plaintiffs are individuals of high integrity, and will responsibly and vigorously pursue the claims of the class. Also, they are adequately represented by counsel who has litigated for numerous years in Federal Court and who is familiar with the applicable law and the particular facts of this matter.

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26. The prosecution

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actions by

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individual

members of the class would create a risk of adjudications which would be inconsistent or varying with respect to the individual class members, establishing incompatible standards of conduct for the defendants, or which would as a practical matter be dispositive of the interests of other members of the class who are not currently parties to the adjudication. Considering that the violations for which a remedy is sought is akin to every state an territory within which the Postal Service has employees victim of this erroneous calculations, it is completely reasonable to only have one litigation in one court within one case within which this Honorable Court can provide a remedy applicable to all these individuals

regardless of post, amount of pay and/or place of employment. VI. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF 27. Plaintiffs and all class members incorporate all the

paragraphs of this complaint as if pleaded herein. 28. Defendants litigated the case of Donald D. McQuigq, et

al., vs. Preston R. Tisch, Postmaster General of the United States, et al., case No. A83-092 before the United States

District Court, Judicial District of Alaska. The judgment in that case was essentially defendants. favorable the to plaintiffs in that matter, which by

involved

miscalculation

of

overtime

pay

The case was subsequently appealed and the United 8

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States Court of Appeals for the Ninth Circuit affirmed in part and remanded in part. Frank v. McQuigq, 950 F2d 590(1991). 29. In the McQuigq case, the courts decided that the correct

formula for computation of Overtime Pay is 1 and ½ times the Regular Rate instead of Basic Rate, and that the Regular Rate includes the TCOLA payment paid to a given postal employee

during the 40-hour workweek.

Currently and as pleaded in this

complaint, the Postal Service is not paying postal employees 1 and ½ the Regular Rate and, instead, is paying on the basis of a formula which pays less that 1 and ½ the Regular Rate. means that Defendants, notwithstanding the McQuigg This

decision,

continues to be in breach of the FLSA dispositions for overtime pay which, in essence, on its face shows that Defendants

willfully breached FLSA. 30. Accordingly, plaintiffs and all class members seek

declaratory relief against defendants on the liability aspects of this complaint. SECOND CLAIM FOR RELIEF 31. Plaintiffs incorporate all the paragraphs of this

complaint as if pleaded herein. 32. Plaintiffs and the members of the Class move the Court for and prospective injunctive relief against the

immediate

Defendant. Plaintiffs request that the Defendant be immediately ordered to correctly compute overtime pay at 1 and ½ times the Regular Rate. 9

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THIRD CLAIM FOR RELIEF 33.

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Plaintiffs incorporate all the paragraphs of this complaint

as if pleaded herein. 34. The Defendant has incorrectly and improperly calculated

plaintiffs' and members of the class Overtime Rate by failing to pay at least 1 ½ 35. 36. times the Regular Rate.

Defendants have performed these calculations in bad faith. Plaintiffs and members of the Class are entitled to the

proper and correct calculation of the overtime they have worked ever since hired by the Postal Service, and hereby request that such an accounting be performed at the USPS' expense and that the appropriate amounts be paid to all postal employees within the Postal System of the United States of America. FOURTH CLAIM FOR RELIEF 37. Plaintiffs incorporate all the paragraphs of this

complaint as if pleaded herein. 38. Plaintiffs and the by members the of the of class have been

historically

deprived

defendants

certain

amounts

they have been entitled to for overtime pay. The total amount payable to each employee or former employee computed. 39. Nevertheless, the total amounts owed by the defendants remains to be

to the plaintiffs and to all the members of the class are estimated to be not less than $100,000,000.00 exclusive of damages, compensatory damages, penalties, interests, costs, 10

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attorneys fees and any other amount plaintiffs are entitled to under applicable law. 40. Plaintiffs to enter and all the members of the the class move to the pay

Court

judgment

ordering

defendants

plaintiffs the amounts due as claimed herein pursuant to the accounting of said amounts at the defendants'' expense, plus an additional amount for back pay, damages, compensatory

damages, penalties, interests, costs and attorneys fees, plus any other relief that plaintiffs and members of the class may be entitled to even it not pleaded herein. FIFTH CLAIM FOR RELIEF 41. Plaintiffs incorporate all the paragraphs of this

complaint as if pleaded herein. 42. As a result of the Defendant's failure to properly and

legally pay overtime to plaintiffs and to the members of the class, plaintiffs have been deprived of their hard earned income for overtime, and have seen their lives negatively affected by the lack of additional income. 43. The amounts of money illegally retained by the Postal

Service has improperly benefited and unjustly enriched Defendant to the detriment of plaintiffs and the members of Class.

Accordingly, plaintiffs move the Court to certify a constructive trust which shall benefit plaintiffs and the members class. of the

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44.

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The benefits to plaintiffs include, without limitation: any of money Defendant may have earned because of the

amounts

failure to disburse the funds owed to plaintiffs and to the members of the class, including any interests earned; any

amounts of money Defendant may have saved in expenses, interests or the like, because it did not perform on its obligations to disburse the funds to plaintiffs and to the members of the

class; any benefit whatsoever that Defendant may have received because of its failure to adequately calculate and disburse

overtime payments to plaintiffs and to the members of the class. WHEREFORE, enter judgment to plaintiffs as the respectfully herein, move any the Court to

requested facts and

plus

other

remedy this

applicable

circumstances

pleaded

in

complaint including penalties were applicable as a matter of law, plus an additional amount for interests, costs, expenses and a reasonable amount for attorneys' fees. In San Juan, Puerto Rico, April 25, 2008. RESPECTFULLY SUBMITTED, S/ Santiago F. Lampón

SANTIAGO F. LAMPÓN LAMPÓN & ASSOCIATES PO BOX 363641 SAN JUAN, PR 00936-3641 Tel: (787) 273-6767 Fax: (787) 758-3679 Attorney for Plaintiffs

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ATTACHMENT A Ada Caraballo Agustin Torres Alberto Ortiz Torres Amalia Lopez Santiago Angel Luis Torres Comes Angel M. Velez Sotomayor Angel R. Lorenzana Anibal D. Rios Adorno Anthony Melendez Anthony Reyes Miranda Arcadio Mendoza Arsenio Claudio Arshilla Awilda Rodriguez Benjamin Hernandez Benjamin Otero Bernardo Brito Carlos D. Carambot Carlos D. Santiago Carlos E. Berrios Torres Carlos J. Rudas Carlos Pacheco Rodriguez Carlos R. Rentas Acevedo Carlos Ramos Salgado Carlos Sanchez Carmen Gaud Carmen Astacio Belen Carmen L. Banda Carmen M. Rodriguez Carmen M. Salgado Colon Cristino Delgado Ocasio Cristobal Otero Daisy Albino Damian Fonseca Daniel Santos Rivera Daniel Soto Davis Rios Ramos Dorca I. Flores Eddie Diaz Gonzalez Santiago Edna Rijos Edwin Arroyo Borras 13

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Edwin Berrios Edwin Hernandez Emilio Burgos Rodriquez Eneida Soto Enrique Resto Rodriguez Epifanio Moya Ramos Ernesto Colon Garcia Ernesto Lopez Merced Ernesto Melendez Nieves Esteban Amaro Pintor Evelyn Valpais Felix A. Perez Felix Echevarria Rivera Felix Ortiz Felix Santos Ortiz Francisco A. Crespo Ortiz Francisco Jusino Francisco Ortiz J.R. George. L. Torres Suarez Gerardo Gomez Arroyo Gilberto Vazquez Sierra Gilberto Velazquez Mendez Gloria E. Arroyo Casiano Gloria M. Gonzalez Gloria W. Gonzalez Gumersindo Gonzalez Harry Rodriguez Haydee Cintron Quinones Hector Brignoni Hector L. Castro Hector L. Perez Rivera Hector M. Segui Caban Hector Rivera Arzola Isidro Moran Perez Ismael Castillo Ivan Camacho Ivonne Rosario Cora Jaime Perez James Smith Jeffrey Gonzalez Garcia Jenaro Laguer Jessica M. Dones Oliva Jesus E. Adorno 14

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Jesus E. Bermudez Joe Curet Lopez John A. Pastrana John A. Rolón Jorge A. Delpin Jorge Jadee Nietzsche Hernandez Jorge L. Nieves Rodriguez Jorge L. Rosario Oliveras Jose A. Marquez Jose A. Mena Gonzalez Jose Curet Lopez Jose David Muñoz Meléndez Jose L. Rabell Baez Jose L. Sostre Jose Luis Otero Jose M. Reyes Jose M. Rosario Jose O. Espada Jose Rafael Beitia Perez Jose V. Roman Rivera Joseph A. Rodriguez Sanchez Josephine Ayllon Ortiz Juan A. Feliciano Ayala Juan A. Fernandez Concepcion Juan A. Marcano Perez Juan C. Gonzalez del Valle Juan Camacho Juan L. Toro Mercado Julio Cuevas Julio M. Ortiz Leopoldo Martinez Santiago Lidia Gonzalez Longino Lebren Lorenzo Silva Luis A. Camacho Luis A. Lopez Ruiz Luis A. Zayas Hernandez Luis Angel Marquez Montanez Luis Angel Palacios Alvarez Luis E. Casillas Luis R. Garcia Luis R. Giron Luis R. Rivera Martinez 15

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Luis Rene Torres Rivera Magali Reyes Mojica Manuel A. Izquierdo Manuel Morales del Valle Manuel Rivera Manuel Tirado Marcelino Velazquez Olivencia Mariano Perez Vazquez Marta Nieves Rodriguez Martin Nieves Martin O. Febres Melba Agosto Febo Melvin Henry Ramos Merciadel Rodriguez Bermudez Miguel A. Burgos Vega Miguel A. Gonzalez Miguel A. Monges Marzan Miguel A. Pizarro Miguel L. Lozada Rolon Milton Martinez Hernandez Nancy Fontan Nancy Garcia Nilda J. Garcia Noel Concepcion Rivera Norberto Ramirez Caraballo Norma I. Meurer Nydia V. Rivera Orlando Hiraldo Otilio Melendez Gonzalez Pedro A. Tirado Pedro Colon Melendez Pedro L. Ortiz Pedro Rivera Catzo Rafael A. Diaz Nuñez Rafael A. Nieves Rafael Antonio Monge Berrios Rafael Hernandez Rafael Medina Hernandez Rafael Rivera Ricardo Rivera Ortia Richard Garcia Aleman Richard H. Sierra Richard Lugo 16

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Roberto Marrero Almodovar Roberto Rodriguez Maldonado Rogelio Lopez Rosa Cedeño Rosa J. Aponte Padilla Ruben Lugo Sabalier Ruben Merced Merced Samuel A. Hernandez Algarin Sandra I. Maldonado Santa Santiago Ronda Santiago Rosado Feliciano Santos Felix Ortiz Sigfredo Rios Sixto Acevedo Sol Edwin Berrios Tomas J. Hernandez Victor A. Falcon Victor D. Navarro Victor M. Torres Sanchez Victor Manuel Arroyo Hatct Wilfredo Sanchez Rivera William Ayala Serrano William Cortez William Rios Wilson Zayas Xavier A. Vega Sanchez Yolanda Marrero Alamo Zaida Malave Torres Zandra M. Garcia

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