Free Sur-Reply - 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

PLAINTIFF'S SUR-REPLY

BEFORE THE HONORABLE COURT: COMES NOW Plaintiffs in the above captioned complaint and as further detailed, through undersigning counsel, respectfully STATE and PRAY: 1. On January 29, 2007 (Dk. 47) defendant United States Postal Service

("USPS") filed a reply in this matter claiming that plaintiffs have not demonstrated to this Court that further discovery would lead to specific and essential information regarding the underlying facts of this case. Specifically, we are looking at whether the USPS pays overtime to postal employees in Puerto Rico in accordance with what has been named the McQuigg Case previously cited in the parties' briefing, and the Fair Labor Standards Act ("FLSA"). 2. In this particular case, there is no dispute that the issue at hand is whether

the USPS is correctly paying overtime to postal employees in Puerto Rico. 3. Through this sur-reply, plaintiffs will show that the USPS is clearly mis-

representing the information submitted to this Court, specifically as to the

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"completeness" of the information about the USPS formula and on the need for additional discovery. 4. The statement by Dr. Jaime del Valle is specific and clear enough to

communicate that the USPS has failed to produce the true basis for the computation of overtime pay for postal employees in Puerto Rico. In itself, Dr. Del Valle's statement and the exhibits filed by plaintiffs state sufficient evidence which warrant that summary judgment not be entered as requested by defendant. Nevertheless, Dr. del Valle's statement also shows that the USPS has denied to plaintiffs and now to this Court the specific data needed to evaluate the true base formula used by the USPS to compute overtime for postal employees in Puerto Rico. 5. Dr. del Valle also makes it very clear, that the USPS is not paying

overtime as required as a matter of law, and his documentations, calculations, formulas and conclusions are very specific in this regards. 6. documents In Paragraph 9 Dr. Del Valle states that he has carefully reviewed all the pertaining the USPS computation and that, notwithstanding the

representation by defendant: "it has been impossible to determine or conclude that the USPS is in compliance either with the McQuigg formula or with FLSA and that on the contrary, there are strong indications that payments are not being done in accordance to FLSA." Del Valle's Statement at Paragraph 9, Exhibit VIII of Plaintiffs' Opposition. 7. Moreover, Dr. del Valle also stated in paragraph 10, that even when he

followed the methodology proposed by the USPS he was unable to duplicate the results reached by the USPS.

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8.

Following along with Dr. Del Valle's statement, in paragraph 12 he

concludes that the USPS is not in compliance with overtime requirements as follows: "It is our firm understanding that the nature of the discrepancies observed arise from the USPS definitely not crediting one a half times FLSA's hourly rate to FLSA's overtime, separately from Postal overtime." 9. Finally, in paragraph 13 Dr. Del Valle stated that: "In all of USPS-provided

examples original data was excluded, precluding me from corroborating their results." 10. As we stand in this matter, plaintiffs have demonstrated that: a. The USPS has failed to disclose the original data requested by plaintiffs in an attempt and specific desire to impede that plaintiffs understand and learn the true manner in which the USPS computes overtime for postal employees in Puerto Rico. b. Postal Employees in Puerto Rico are not paid overtime pursuant to the McQuigg Formula or as required under FLSA. c. The computations presented by the USPS through different statements and motions are incorrect. 11. Dr. Del Valle's statement clearly communicates to this Honorable Court

which is the data missing and which the USPS is intentionally withholding. Dr. Del Valle's statement also shows that by compelling the USPS to produce such information and by compelling it to present their payroll executives to depositions on this subject, plaintiffs and the Court could learn the truth about their methodology and/or basis for the computation of overtime pay for postal employees in Puerto Rico.

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12.

In any event, the amount of information needed and the effort required to

produce it weights in favor of conducting such discovery for the benefit of the thousands of postal employees in Puerto Rico and perhaps elsewhere, who are affected by the injustice imposed upon them by the USPS. WHERETOFORE, plaintiffs move the Court to deny Defendant's reply to plaintiff's opposition....

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

March 27, 2007

CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2007, a copy of the foregoing "SurReply" has been filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

S/ Santiago F. Lampón

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