Free Motion for Leave to File - District Court of Federal Claims - federal

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INDEX TO PLAINTIFFS' EXHIBITS Exhibit I: Exhibit 1: 1 Exhibit Ill: Plaintiff's First Set of Interrogatories and Request for the Production of Documents to Defendant Defendant's Response to Plaintiff's First Set of Interrogatories and Requests for Production of Documents Notices of Depositions A. Jo Ann E. Mitchell B. James Friedman C. Roberto Perez De Leon D. Technical Officer Pension of Payroll Accounting Office United States Postal Service E. Technical Officer Minneapolis Payroll Accounting Office United States Postal Service F. Cheryl1 Hubbard Letter sent by Defendant's Counsel to Plaintiffs' Counsel dated August 20,2004 Letter sent by Plaintiffs' Counsel to Defendant's Counsel dated August 26,2004 Plaintiffs' Expert Witness Report prepared by Jaime L. del Valle dated July 26, 2004 Defendant's Expert Witness Report prepared by James L. Valin dated November 23,2004

Exhibit IV: Exhibit V: Exhibit VI: Exhibit VII:

Exhibit Vlll: Statement under Penalty of Perjury of Jaime L. del Valle Exhibit IX: Exhibit X: Exhibit XI: Exhibit XII: Letter sent by Defendant's Counsel to Plaintiffs' Counsel dated April 21, 2004 Letter sent by Plaintiffs' Counsel to Defendant's Counsel dated April 21, 2004 Memorandum and Order from the United District Court for the District of Puerto Rico Statement under Penalty of Perjury of Roberto Rodriguez

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EXHIBIT I

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UNITED STATES DISTRICT COURT JUDICIAL DISTRICT OF PUERTO RlCO
ORGE A. DEPHIN APONTE, ET AL

CIVIL NO. 02-1787(JAG)

Plaintiffs

vs.
OHN E POTTER, ETAL

Defendants

PLAINTIFF'S FIRST SET OF INTERROGATORIES AND REQUEST FOR THE PRODUCTION OF DOCUMENTS TO DEFENDANTS Pursuant to Rules 26, 33 and 34 of the Federal Rules of Civil Procedure, 'laintiffs hereby propound the following First Set of Interrogatories and Request for
'reduction of to the United States Postal Service (USPS hereinafter) who is required to

lnswer the Interrogatories separately and fully in writing, under oath, within thirty (30) ,ays of service. A copy of defendant's responses to the Interrogatories and Document squested shall be served upon Santiago Lampon, Attorney for Plaintiff at PO Box 566, haynabo PR 00970-0566. INSTRUCTIONS

A.

Pursuant to Federal Rules of Civil Procedure 33, and 34, you are hereby

squested to answer the interrogatories and document requests listed below. You are dvised that you must make a written response to each question, except to the extent iat objections are made, and in that event you are state the specific reasons for your

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quested, which you deem, is not objectionable.

B.

For each answer to the following interrogatories or document requests

which is answered other than from personal knowledge of the person signing the answers, identify in accordance with the Definitions section, below, each person who has knowledge of the truth and the facts given in each such answer. C. If you find of these interrogatories or document requests unclear or

ambiguous, you shall assume a reasonable meaning, state what the assumed meaning is, and responded to the interrogatory or document request according to the assumed

D.

If any interrogatory or document request cannot be answered in full, it

should be answered to the extent possible, and accompanied by and explanation as to (a) the nature of the information or knowledge that cannot be furnished; and (b) why the remainder cannot be answered.

DEFINITIONS
A.
When used in connection with an individual, "identify" means set forth the

person's or business entity's full name; present or last known address; present or last known home and business telephone numbers; and any past andlor present affiliation ith any persons or entity involved in the matters addressed in the Complaint. When used when referring to a document, "identify" hall mean state the author; ddressee' the person who prepared the document, if different from the author' any erson who was sent copies or blind copies' date of preparation' date of transmittal'

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subject matter, number of pages, and attachments or appendices' and the physical location of the document. When sued when referring to a communication, "identify" shall mean state the mode of communication; the date the communication was made' the substance of the communication; the parties tot he communication and any documents related to the communication.

B.

When used in connection with an event, "describe: means that you should

include in you answer the date of the event that is the subject of your answer. When
used in connection with a statement, "describe" means that you should set forth the

date of the statement, the content of the statement, the name, address and telephone number of the person who made the statement and then name, address and telephone number of all witnesses to each such statement.
C.

"United States Postal Service", "Postal Service", "USPS", or "Agency"

shall mean the United States Postal service or any person whom you claim to be acting on its behalf.

D.

"Document" shall have the meaning ascribed to it in Rule 34 of the Federal

Rules of Civil Procedure, and include the original, drafts, and each copy that is not identical to any other produced copy.

E.

"Plaintiff or "Named Plaintiff refers to each of Jorge Delpin Aponte; Noel

Concepcion Rivera; Juan C. Gonzalez Del Valle; Edwin Hernandez; Samuel A. Hernandez Algarin; Albert0 Ortiz Torres; Melvin Henry Ramos; Davis Rios Ramos; Ricardo Rivera Ortia; Roberto Rodriguez Maldonado; Jorge L. Rosario Oliveras; Marcelino Velazquez Olivencia; and Jose L. Otero.

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F.

"Class Members" means all persons who are named as plaintiffs and who

lave filed a consent in this case, as of the date of answering these Interrogatories INTERROGATORIES In accordance with the Definitions and Instructions above, please answer the ollowing: NTERROGATORY NO. 1 Identify the person answering these interrogatories. NTERROGATORY NO. 2 Identify step by step the formula used by the Postal Service to pay overtime in he jurisdiction of Puerto Rico before the McQuigg Formula as define by the USPS in iaragraph 8 of the Joint Response to Court Ordered Case Management Plan. NTERROGATORY NO. 3 Identify the formula used by the Postal Service to pay overtime in the jurisdiction if Puerto Rico between the McQuigg Formula and July 1992, when the Revised or New >ostal Service Formula was implemented as defined by the USPS in paragraph 16 of he Joint Response to Court Ordered Case Management Plan. NTERROGATORY NO. 4 Identify step by step the Revised or New Postal Service Formula implemented in July 1992. NTERROGATORY NO. 5 Identify step by step the differences between the Revised or New Postal Service -ormula and the McQuigg Formula. NTERROGATORY NO. 6

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requirements of the McQuigg Formula. INTERROGATORY NO. 7 Identify each layperson consulted by you or on your behalf in connection with your claims in this case. Include the subject matter on which the person was consulted and the substance of any communications with such person. INTERROGATORY NO. 8 Identify each expert you have consulted andlor except to call as an expert itness at trial. Include the subject matter on which the person was consulted or is pected to testify, the person's qualify for providing expert testimony, and the bstance of each person's testimony. TERROGATORY NO. 9 Identify for each plaintiff at least one workweek during which said plaintiff worked ertime hours and said overtime was calculating following the McQuigg Formula. TERROGATORY NO. 10 For each and all answers given in interrogatory number 9 proceed to calculate ep by step the overtime period following the McQuigg formula. TERROGATORY NO. 11 State for each plaintiff the amount of overtime payment paid to said plaintiff in ars 1999 to 2002. TERROGATORY NO. 12 State the exact date when the USPS used for first time the New Postal Service ormula in: a) Puerto Rico; b) Hawaii; c) Alaska and d) Virgin Islands.

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INTERROGATORY NO. 13 Identify the dates and contents of any change done by the USPS to the New Postal Service Formula since its adoption. INTERROGATORY NO. 14 Identify the

REQUESTS FOR DOCUMENTS
1. All payroll records, which you have in relation to the overtime payments

paid to each plaintiff in the last 10 years. 2. Any documents which reflect the basis for the computation of the New

Postal Service Formula.

3.

Any documents related or pertaining to the decision-making process,

evaluation of determination to use the New Postal Service Formula.
4.

Any Manual of Rules of Regulations pertaining to the computation of

overtime payment for each of the plaintiff.

5.

Any document in which an opinion, statement or manifestation to the

effect that the New Postal service Formula deviates or is not in accordance with the McQuigg's formula.
6.

All documents related to any individual whom you have consulted as an

expert or whom you intend to call as an expert witness at the trial of the abovecaptioned matter, including but not limited to, any correspondence, curriculum vitae, or preliminary reports or findings.

7.

Each document, which you have sent to each plaintiff in relation to his or

her wages, hours of work, or classification.

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8

Documents that show demonstrate or evidence your allegations that

a)fter the McQuigg decision, plaintiff`s counsel carefully review the New Postal Service
3 rrnuI a "

9.

Documents that show, demonstrate or evidence that "(s)ince there were,

i d still are so many variables that are considered when calculating a Postal Service

nployee's pay, the Postal Service determined that the formula used by the plaintiff is cQuigg was too simplistic for practical applications. I HEREBY CERTIFY that on this same date an exact copy of this motion has 3en sent to Santiago F. Lampon, Esq. PO Box 566, Guaynabo PR 00970-0566 and idel A. Sevillano del Rio, Esq., Torre Chardon, Suite 1201, 350 Carlos Chardon treet, San Juan PR 00918. RESPECTUFLLY SUBMITTED in San Juan, Puerto Rico, this 1st day of March,

304
COBIAN & VALLS PO Box 9066522 San Juan, PR 00906-6522 Tel. (787) 722-8400/Fax (787) 721-2869

USDC No. 220506
323

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EXHIBIT II

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NO o i l

P.3

IN THE UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO
JORGE ,4. DELPIN APONTE, ET AL
.b
I

V,

1 1 1 1

1

JOHN E. POTTER, General Postmaster of the United States of America, ROBERTO PEREZ DELEON, Caribbean District Manager and acting Postmaster for the Office of the General Pos~naster of the United States of America, and the UNITED STATES POSTAL SERVICE, Defendants.

1 1 1

) Civ. A. No, 02-1787 (JAG)

1
)

1

1

DEFENDANT'S RESPONSE TO PLAINTIFFS' FIRST SET OF INTERROGATORIES AND REOUESTS FOR PRODUWION OB DOCUMENTS Pursuanr t~ Rules 26, 33 and 34 of the Federal Rules of CiviI Procedure, Defendant John E. Potter

("Postal Service", "agency", or "USPS")hueby responds to Plaintiffs' First Set of Interrogatories and Requests

for Production of Documents as follows.
General Obiections
The Postal Service generally objects to plaintiffs' interrogatories and requests to t e extent that they require the h
disclosure of information protected by the attorney-client,work-product, or deliberative process priviiege(s); they art overbroad and/or burdensome; they are vague or ambiguous; or they seek information which is
irrelevant to the issues i this cast. Each response set forth below is subject to these g e n d objections. n

Reservation of RlPhts

The Postal Service expressly reserves the right to supplamcnt, chi@, revise or correct any or all of their

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responses at any time. By providing the following responses to Plaintiffs' interrogqtoriesand requests, the Postal Service does not waive, and hereby e x p k l y reseriresis ngbt to assert any and d objections as t the t ! o

admissibility of such responses into evidence at the trial of this' action, or i0 any other proceedings, on any and

all grounds, including, but not limited to, competency,nlwaucy, materiality and privilege. Furthermore,

defendants pro6de the responses herein without i my manner implying or admitting that they consider the n
\

information provided to be relevant or material to the subject matter of this action.

LNTERROGATOFUES

Identify the person answering these interrogatories.
Jo Ann E, Mitchell, Acting Manager, Payroll Accounting 475 L'Enfant Plaza, SW Washington, DC 20260

RESPONSE:

INTERROGATORY NO,2 Identify step by step the formula used by the Postal Service to pay overtime in the jurisdiction of Puerto
Kico before the McQuigg Formula as defined by the USPS in paragraph 8 of the Joint Response to Court

Ordered Case Management Plan,
RESPONSE: Defendants object to t h l s interrogatoryto the extent that it incorrectly states ta in paragraph 8 of ht
the Joint Response to Court Ordered Case Manqgemmt Plan (Joint Response) the Postal Sentice defines the

"McQuigg Fomwla." However, for purposes of answuing these interrogatories, the Postal Service assumes that
by the "McQuigg Formula" the plaintiffs mean the holding ofthe United States Court of Appeals for the Ninth
Circuit in Frank v. McOuig, 950 F.2d 590 (9Ih Cir. 1991) that an employee must be paid 1 `/z times the regular
2

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il i

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hourly rare of pay for those hours actually worked over 40 in a work week.
Subject to the foregoing objection and without waiver thereof,Defendant states that prior to the Ninth

Circuit's I991 ruling in Frank v. McOuip,g, the Postal Service calculated pay for employees m TCOM
jurisdictions according to the following methodology. The Postal Service first computed the total straight-time earnings for the week. This was done by adding the total straight-timepay for all hours that an employee worked 111 a work week, inchding those over 40, together w t the amount of TCOLA earned dunng the work ih week. The Postal Service then computed the employee's "regular rate" of pay for each hour, i accordance with n

--

-.

the FLSA and a United Stares Department of Labor interpretive bulletin, by dividing this total remuneration figure by the total number of hours worked. Next, the PostaI Senrice caIculated the additional premium pay due

for the overtime hours under the FLSA, by multiplying one-half times the regular rate times the number of hours
worked over 40.

INTERROGATORY NO.3
Identify the formula used by the Postal Service to pqy overtime in the jurisdiction of Puerto Rko

between the McQuigg Formula and July 1992,when the Revised or New Postal Service Formula was

implemented as defined by the USPS in paragraph 16 of the Joint Response to C u t Ordered Case Management or

Plan.

RESPONSE: The Postal Service objects to this interrogatory as vague and ambiguous because it does not define
what is meant by the `Xevised or New Postal Service Formula"or the "McQuigg Formula''. Defendant further
objects because this inknogatoIy incorrectly states that the USPS dcfiacs the "Revised or New Postal Service

Formula" in paragraph 16 of the Joint Response. Defendant assumes for purposes of answering the%
interrogatories that by "Revised or New Postal Service Formub'"p1ahtiffs moan the revised FLSA overtime

3

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calculation f o m d a unplemented by the Postal Service in July 1992. Defendant M e r assumes that in this
Interrogatory No, 3 plaintiffs arc asking how the USPS calculatedFLSA overtime pay for employees i TCOLA n
:-

jurisdictions, including the Caribbean District, from the period between December 6,1991 when the Ninth Circuit issued its decision in Frank v.. McOuigg and July 1992 when the USPS implemented its current overtime

calculation formula.
Subject to the foregoing objections and without waiver thexeof, and under the assumptions stated herein

and in response to lntenogatory No. 2 above, the Postal Service states that during the above-referenced time
period, the Postal Service used the formula detailed in response to InterrogatoryNo. 2 above.

INTERROGATORY NO.4 Identify step by step the Revised or New Postal Service Formula implemented in July 1992. WSPONSE: The formula used to calcuIatc overtime from July 1992 to the present is set forth in detail i the n
dacument labeled as USPS 00001 and previously provided to the plaintiffs.

INTERROGATORY NO,5
A L i i u * j

-.

."

LJ

bilL

.

uaubiLiicCS 5

..""

~ t w CU:Cn ~ Rcviscd or NCW PostaI Scrvicc Formula and thr:

McQuigg Formula.
RESPONSE: The Postal Service's current fornula for calculating paying FLSA overtime i TCOLA n

jurisdictions, including the Caribbean District, does not differ from what the Postal Senice has assumed to be
meant by the plaintiffs' reference to the `?he McQuigg Fannula" because it results in payment of 1 ! times the h

regular rate for hours actually worked in cxccss of 40 i a work week, in accordance with the Ninth Circuit's n
decision i McOuing and the Fair Labor Standards Act. n

4

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INTERROGATORY NQ. 6

` .5. -

Identify step by step why the Revised or N w Postal Service Formula meets t h e requirements of the

McQuigg Formula
RESPONSE: Defendant assumes that plaintiffs are asking why the Postal Sewice's current method of

calculating F L U overtime premium payments for employees in TCOLA jurisdictions, including the Caribbean

District, complies with the Ninth Circuit's ruIing in Frank v. McQuipg.

The Postal Service's current methodology complies with the McOuigg decision because it pays all hours
worked in excess of 40 in a work week at not less than I '/1times the regular hourly rate and because the

calculation no longer has the effect of what the court rcfmcdto as "pro-hting" the TCOLA payment. Indeed,

under the Postal Service's current method of calculatipg overtime in all TCOLA jurisdictions, the l i l amount of TCOLA is paid once when employees are compensated for the first forty hours at their base rate plus TCOLA,
and then a portion of the TCOLA is paid again, when the PostaI Service adds in an additional FLSA premium on

TCOLA, This FLSA premium on TCOLA,represented in tho formula (USPS00001) as 1.O x [TCOLA FLSA
Amountl(H)] x [ch)-4ujand as part or' "P", the FLSA premium liability, eliminates the proration of the TC0L.A payliient,

INTERROGATORY N0.7
Identify each layperson consulted by you OF on your behalf in connection with your claims i ohis case. n Include the subject m t e on which the person was consulted and the substanoe of any communicationswith atr

such person,
RESPONSE: The Postal Service objects to this intcrrogatqto the extent that it seeks privileged information.

Subject to this objection and without waiver thereof, USPS responds that it has not consulted any laypersons outside of the agncy in connection with the claims in this lawsuit.

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INTERROGATORY NO. 8
Identify each expert you have consulted andor expect to call as m e x p d witness a t r i a l . Include the t subject matter on which the person w s consulted or is expected t test& the person's qualify (sic) for a o
providing expert testimony, and the substance of each person's ocstimony.
-7J.J

RESPONSE: The Postal Service received pIaintiffs' completed expert report as of July 12,2004, Within a
reasonable time thereafter and subject to the court's approval, the agency will make its expert disclosures
regarding tcstifyrng experts, if any.

INTERROGATORY NO.9
Identify for each plaintiff at least one workweek during which said plaintiff worked overtime hours and

said overtime was calculated following the McQuigg Formula.
JWSPONSE: Under the assumption stated in response to InterrogatoryNo.2, Defendant responds that for

every pay period that the plaintiffs were employed with the Postal Service from July 11,1992 until the present,
they were paid all FLSA overtime hours actually worked over 40 in a work week at not less than 1 % times thkr

INTERROGATORY NO.10
For each and all mswers given in interrogatorynumber 9 proceed to calculate step by step the o v a t h e
period following the McQuigg Formula.

W P O N S E : Defendant objects to this interrogatory as vague and ambiguous because it does not state what it

means by catculating the "overtime period" or by "following the McQuigg Formula" Defendant Mr e
objects to this interrogatory as overbroad and burdensome because it requests the calculations for all answers given in response to InterrogatoryNo. 9, Subject to these objections and without waiver thereof, the P o d

6

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S m i c e provides step by step calculations ofthc FLSA overtime premium payment for one work week for each
plaintiff. (see attached USPS 015~4-C, 15`763,
-h
I

INTERROGATORY NO.11
State for each plaintiff the amount of overtime payment paid to said plalntiffin years 1999 to 2002.

RESPONSE: Defendant objects to t h ~ s interrogatoryas vague and ambiguous because it does not specify what
type of "overtime" it is refaring to. In addition to satisfymg its overtime obligations under the FLSA, the

Postal Service also pays "overtime" puIsuant to its policies and its agreements with labor organizations representing the plaintiffs, inchding without limitation, so-called "postal overtime", "penalty overtime'', and
"guarantee overtime". Subject to this objection and without waiver thereof, h e total mount of overtime

payments (including contractual and FLSA obligations) for each plaintiff &om January 1, 1999 through ApriI 5 ,

2002 is as follows:
1. 2. 3, 4.
7.

Roberto Rodriguez Maldonado Ricardo Rivera Marcelino Velazquez Olivencia Jose Otcro 5. Albert0 Ortiz

$16,629,90
$12,3 13.02
$10,049.28

$25,083.17 $16,302.73 $1'7,508.39 $30,360.84
$11,486.76 $10,387.28 $zs$75 88 $30,48 1.I 1
a

6, Samuel Hemandez-Algarin
Jorge L. Rosario Oliveras Edwin Hernandez J. Delpin Aponte Melvin H, Ramos Davis Rios Ramos Noel Concepcion Juan C, Gonzalez

8. 9.

10.
11. 12. 13.

$16,537,83 $17 4 1.64 .3

INTERROGATORY NO. 12
State the exact date when the USPS uscd for first time the New Postal Service Formula in:a) Puerto

Rico; b) Hawaii; c) Alaska and d) Virgin Islands.

FUBPONSE: The current overtime calcdatiw formula was implemented simultaneously for all eligible

7

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cmp1oyecs in Puerto Rico, Hawaii, Alaska, the Virgin Islands, and all other locations where Postal Service

employees receive the TCOLA payment, beginning July 11,1992, pay period 16 of 1992.
INTERROGATORYNO.13
Identifjl the dates and contents of any change &ne by the USPS to the New Postal SeniceFormula since
its adoption.
i

_RESPONSE: UndeJ the assumptions stated in response to IntenogatoryNo.3, Defendant states that there have
been no matend changes to the Postal Service's F L U overtime calculation fonnula since its implementation in

July 1992,

REQUESTS FOR DOCUMFNTS
1.

AI1 payroll records, which you have in relation to the ovcrtime payments paid to each plaintiff in

the last 10 years.
MSPONSE: Defendant objects to this request as overbroad and irrelevant as it seeks information outside of the

reIevant limitahns period of three years. Subject to this objection and Without waiver thereof, defendant has
produced the responsive documents artachd hereto. (USPS28-1332)

2.

Any documents which reflect the basis for the computation of the New Postal Service Formula

RESPONSE: Defeadant objects to this request to the extent it seeks privileged documents. Defendant further
objects to this request as overbroad and vague because it docs not specify a time period for the requested

documents and i t does not define the "New Posw S d c e Formula," Subject to this objectim and withaut
waiver thereof, defendant has produced the responsive documents attached hereto. (USPS 1333-1563,15771629)

3,

Any documents related or pertaining to the decision-makingproces~, evaluation or determination

to use the New Postal Service Formula,

JESPOWSE: Defendant objects to this interrogatorybecause it does not define "the New Postal Service
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Formula" and to the extent that it requests privileged documents or documents w i h are not relevm to the hc
issucs in this case. Subject to this objection and without waiver thereof, defendant has produced the responsive
_.

documents attached hereto. (USPS 1333.1563, USPS 1577-1629)

4,

Any Nand of Rules or Regulations pertaining t the computation of overtime payment for each o

of the plaintiffs. WSPONSE: Defendant objects to this interrogatory as vague and ambiguous because it does not explain or define what type of " ~ - ~ ~ a i m c "referring to or the time period requested, Defendant further objects to tbis it is
interrogatory to the extent it seeks documents wbich are not relevant to the issues i this case. Subject t this n o nbjection and without waiver thereof, defendant has produced the responsive documents attached hereto. (USPS
1422- I 563)
5,
Any document in which an opinion, statement or manifestation to the effect that the New PostaI

service Formula deviates or is not in accordance wt the McQuigg formula, ih

RESPONSE: Defcnd+t objects to this interrogatory to the extant that it requests privileged documents and
because it does not explain or define what is meant by the "New Postal Service Formula" or `TvicQuigg's

fmnuIa." Notwithstanding these objections and without waiver thereof, Defendant responds that it dms not
possess any and is unaware of the existence of any documents responsive to this request.
6.

All documents related to any individual whom you have consulted as an expert or whom you

intend to call as an expert witness at the trial of the above-captioned matter, including but not limited to,any comspondcncc, curriculum vitae, or preliminary reports or findings.

RESP-ONSE: Defendant objects to this request to the extent that it sccks privileged documents. Subject to this
objection and without waiver thereof, Defendant responds that it does not possess any responsive docurnma

7,

Each document which you have given to each plaintiff in relation to his or her wage$,burs of

work, or classification.

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JtESPONSE: Defendant objects to this request as overbroad and burdensome. Subject to this objection and

without waiver thereof, the Postal Senice has undertaken a search for relevant documents which are responsive
:-

to this request and will supplement its responses with

such documents,

6.

Documents that show, demonstrate ar evidence your allegations that "(a)Aer the McQuigg

decision, plaintiffs' counseI carefully review (sic) the New Postal Service Fornula"

RESPONSE: Defendant objects to plainti&' characterization ofthe above statement as a "allegation". n Defendant fiuther objects to this request to the extent it seeks privileged documents or documents which are not relevant to the issues in this case.
9.

Documents that show, demonstrate or evidence that "(s)ince there were, and still are so many

variables that are considered when cdcdating a PostaI Service employee's pay, the Postal Service determined

that the formula used by the plaintiff is McQuigg was too simplistic for practical applications."

RESPONSE: The rcsponsive documents are attached. (USPS 1333-1563,157'7-1629)

Dated t h i s 1gthday of July 2004. I, Jo h E, ivlitchcii, s~ate undcr the penalty of perjury that I have read the foregoing Interrogatory answers and h o w the contents thereof; that said answers were prepared with the assistance and advice of

counsel; that the answers set forth above, subject to inadvertent or undiscovmd erron, are based on and
therefore necessarily limited by the records and information still in existence, presently recollected, and thus far

discovered in the course of the preparation of these answers: that the USPS reserves the right to make any
changes i the answers if it appears at any time that omissions or errors have been made therein or that m r n oe accurate information is available; and that subject to these limitations the Iaterrogatory answers are true to the

best of my knowledge, information, and belief.
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3 - . v ow
States
1 .

E, Mitchh ` Jo Ann Manager, Compensation Acting United PostaI Service

u
.i
1

FOR THE OBJECTIONS:

H.S, Garcia

United States Attorney
Fidel A. Sevillano Del Rio Assistmt United States Attorney USDC 117812 Tore Chardbn, Suite 1201 350 Carlos Cbandhn Avenue San Juan,Puerto Rico 009 18 (787) 766-56561282-1844
(787) 766-6219hI93(fa)

Nicole Wynn USDCrPR 600102 United States Pasta1 Service Law Departmenl! 475 L'Enfant Ptaza, sw
Washington, DC 20260 (202) 268-7544 (202) 268-4997 (hx)

CERTIFICATE OF SERVlCE I HEREBY CERTFY that on this same date an exact copy of Defendant's Responses to PI&tiffi' First
Set of Interrogatories and Requests for Production ofDocments has been sent to Santiago F.Lampdn, Esq., PO

Box 566, Guapabo PR 00870-0566 via USPS Express Mail.

11

I

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 22 of 163

NO.611

P.14

21.52
(48) HlolldeySctwdullng Prernkn x 1 (53) Ovehme x 113 (73) Out-af-Schedule Prornlumr 1 (74) ChrlnUnas Work x 1rJ (43) Penalty Qverclme x 112
PCSA Premlurn Offwet Cfedlr

10.7600 x

nSAFlaunoum403.38 =

3.e 83m

Add:

ma33
0.0000

0.0000

sue- : s

0

?ala1 FLSA Duo hum Btep 0`

Subtmd FLSA Ofhat tarn Step 7

43.34
92.80

USPS 01564

4114m

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 23 of 163

U S Postal Senrlcb Calculatlors of FLSA Premium

Pay Petid:

em plop^:

Finance NumW;
Oliicrc Name: T C O U Lacstun: TCOM Rata: TCOLA Maximum Wwk(y Compsnsatlon: Empwyse h l C Hwrty Rlcs:

Employee ::alary!

S t r e n e b t A n r l h u t a b l s to T

m

FrSB.Remuneraclon
1072.67

dMdadby

11.85oO

m

526

Ic!uhhm-

06 71

45.26

5.26

62.3310
10.0772
Totti FLSA Prrmhm Dqe

FLSA

to C

o

w

FLSA Pramlum OfM6t Credll

9uD@! 0 -

Total FLSA Due from Sfep 6: Subtract FLSA Offwlfmm Step 7:

72.41 49.58

rivnff,tUecle. FTR

USPS 01565

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 24 of 163

FCSAHwnCodrAGtudHwrn
36
43

AcmLea Ma
7W.M 119.37

62
63 57 62

3903
388

am
0.00

m3 .8
78.58

0.00

0.00
0.00

9-00
0.00

0.00

513

38.88
TCMA FLSA 5
FLSA Romuneratlan

12.0560 I

-3.E
46.6601
791134

10661 16.3

81.36

11 -

fatal R S A Prsmlum Due

FLSA Prernlum Offeet Crdlt

r-mij
Y.D1

Tale1 R S A Due fram Step 6: Subtna FLSA O W Wn Skv 7

38.78

USPS 01566

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

N O . 25 .17 Page ~ L Iofp163

U S Postal Servfce Calculatlon of FLSA Pramrum

FLSF.HounCodrA!awuR
35
43

Actuum

62
67 62
74
FLSA HOUR3Lj

53

40,W
0.70

0,w 0.00 7w 7 22 8 0.M
0.w
O M

Iam5 ck a-

m.51

40.10

0.10

-

0,2232

FLSA Prrmlum Mhot Cndlt

( -1
0.87
1.31

falPl PLSA DM fmm Step 6; Subtract FLSA D(fs01 ffom Step 7:

USPS 01567

cu1Mwd

11 : ZOQ4 4: 39PM LRW Caseq1:05-cv-01043-VJW

DEPTZ022685402 Document 41-2

Filed 12/15/2006

Page 26 of 163

N0.611

P !ii

U S Postal Service Celculatian of FLSA Premium

Pay P&d: Flnanw Number:
TCOLA TCOU Rata:
TCOM Mexhurn Wmkly Compa6elbn:

Emplowe:

OntuNems:

Ernplqw Way,

t m w o p a B m c tlauly Hele

19.34

dlvlded by

7-1-d

F l s A Haurl Re ular) Rate

22.13

x 1/2 9

1.73

Total FLSA Pmmfum Due

FLSA Prornlum Dthr( C n 4 t
4f F L S -

44e.65
4.8 a7

Total FLSA pua ham Slsp 6 Submn FLSA Offwthwn Slap 7:

oct(r.dE. FrR

USPS 01568

4: 3YPM LRGJ Case 1:05-cv-01043-VJW DEPT2022685402 Document 41-2

Filed 12/15/2006

Page 27 of 163

N0.631

P.19

U S Porstal hrvlca Calculatlon of FLSA Premium

QLtDzts:

3
36
43

-52 53 57

Llmlmeu
0.W
642.62 lQ16
QqO

40.00 121

aa9

,
[ M L

642.82

O D

1844

e2
74
FLSA HUS OR[ 1 -

am

ILW

0.00

nm
OW

736.48

TC#RSA$ FCSA Aernunerrtlon

11-4

7P90

wd bv e

lQB 4 x u W-

73.80

41.21

1

.a

. I

RSA.
2.1688

1I -

Total CLSA Promlum 0110

FLSA Prsmlum O W o t C w l t

[i
12.97

TDMI FLSA PWJ from arep I :

Subma FLSA o h r from stop 7;

0.72

hemanderrls. FTR

USPS 01569

1 2@Od J 39PW LRW Document 41-2 Case 1:05-cv-01043-VJW DEPT2022685402
4

Filed 12/15/2006

1 1 28 '0 Page.611 of P.20 163

U S Postal Servlce Calcutation of FLSA Prernlurn

FLSAH4unCada35

kkw.b.v-

m
0.W
0.00

787.77 300.18

OW

0.00 71.41 38.88
TCOU RSA S
FLSA hrnunmtlon
81.74

0.00

23.63
(48) Hlolldey-Scheduling Prwnlun x 1 (53)overtime s lo (73) Outdf-SchaquIsPismiurnx 1 (74) ChrtPtmBS wO(x X 15 (43) Penalty Orartlrnsx 1R
FLSA Prrmlum offret Credlt

116194 x

P
15.06

177.0169

e a

160.0768

0,om 0m , o

Tolsl FLSP Due from Step 8: Subtact PLSA Wl from Step 7

2M.W 166.M

USPS 01570

mmm

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 29 of 163

N0.611

P.21

U S Postal Service cdculatlon of FLSA Premium

Rsiwmm3 00 .0
616.69 27.63
0.00 0,OO 4.i fel 34.07
TCOLA FLSA S FLSA Rernunrrrtlon

00 .0

om

!3ai&m
41.74

total FLSA Prrrnlum Due

(48)HlolIdry.Schrcrulm0h i m x 1 (53) Ovenlrne x 1 B (73) Out.ol5c)ledule Pntmlum x 1
(74) Christmas W o h n 113 (43) Pollally Ov6rcunO x 112

hpp;

13.8133

0.W 0.m

Total FLSA Dua turn Step 6 Bubtraet FLSA O / h l tmm strp 7:

19.49 13,01

USPS 01571

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 30 of 163

U S Postal Sarvlca Calculation of FLSA Premium

Pay Parlad. Fkrana Number: O m NBIM. m TCOLA Locetlon: TCOLA Rate: Employee Sslery: K O L A Maxlrnum Wmkly Compenratlan: Employee M c Houdy Rere;

Enplow:

18.12

xm=
u u Q m

e.w
P

x

1.06

=

EL3hPrernlurnon~

~

10.0380

I

i

70.10

2

41,05

1.06

=

203 .23

FLSA Premlum MfrrlCrrUIt

Tole1 FLSA Duo hwnSlsp 6: SuPbnet FLSA CVbattarn Slop 7:

12.M

8.03

FLSA P e y m e n i l j P a y dlllrnnce If Step 6 I IeCger lhen Stdp 7,aihrrrAsr pay 0 s .

USPS 01n2

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 31 of 163

LJ S Portal Servlcd Calculatlon of FLSA Prelltlum

-52 53
?4

35 43

A!auJY

om

Etlumwd

5 7 62
U W

32.00 9.19
0w

00 .0

651.61 10T.31

0.00 0.00

163.63
0.M)

0.00
f y

FLSA H

O

10.10

22.38
FLSA P

TWLA IUAI FLSA Muneratlon

x 112 =

11.1ow

x

-8.1R
2

Qr.5751

R S A Premium car t C O L 4
12.7707

.

p

pzq

Total FLSA Premlum Due

FLSA Premlum M a t Crdlt

Totel FLSA DUB i Sbp B: b n SUPlf!3Cl FLSA Offset hwn Step 7:

104.36 B3.65

USPS 01573

ulM2ofn

JUL . 19.22804 4 : 40PM LACi Case 1:05-cv-01043-VJW

IEPr213226854E12 Document 41-2

Filed 12/15/2006

Page 32 of 163

U S Postal Service Calculatlon of FLSA Premium

7eil.85

0.00 0.00

139.81

0.00
0.00

am
39.00

4833

11.9150 K

5.46

1-

e6,oae

148) Hlolldsy-ScheduIlng Pmrnlurn x 1 153) Overtlme x 113

A@$

FLSA Premium OMet Credit

-

Total FLSA Pramlum Dur

USPS 01574

4/14/2004

.

JUL .19.2804 4 :40PM LRW Document 41-2 Case 1:05-cv-01043-VJW DEPT20226R5402
* I

Filed 12/15/2006

NO.611 Page 33 of P.25 163

,

U S Portal Sed-

CalculationofFLSA Premium

11.2150 x

J3wwwma3188

43.6284

FLSA Pfrmlum Offsat Cmull

c 3 E l
61.19

Tatal FLSA Due horn Stap 6. SuMrmd FLSA otlssl fmm Sup 7:

3.6 60

USPS 01575

UtbM04

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 34 of 163

EXHIBIT Ill-A

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 35 of 163

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
als. ,

JORGE A. DELPIN APONTE, et Plaintiffs, V.

CIVIL NO. 02-1787 (JAG) OVERTIME PAY, COMPUTATION OF OVERTIME PAY, CLASS ACTION, CONSTRUCTIVE TRUST AND DAMAGES.

JOHN POTTER General Postmaster of the United States of America, et als., Defendants.

NOTICE OF DEPOSITION

TO

:

Joanne Mitchell Acting Compensation Manager United States Postal Service

C/O

:

Nicole Wynn,Esq. L a w Department , USPS 475 L'Enfant Plaza, SW Washington DC 20260
Plaintiffs

FROM :
C/O
:

Vladirnir Mihailovich, Esq. P 0 Box 566 Guaynabo, Puerto Rico 00970-0566

You are hereby notified that plaintiff's attorney will take the deposition of Joanne Mitchell, Acting Compensation Manager, United States Postal Service at the Law Department Office of United States Postal Service located a t 475 L'Enfant Plaza, SW, Washington DC commencing on Monday, August 30, 2004, 9:30 a.m. pursuant to Rule 30 of the Federal Rule of Civil Procedure. You are required to have the deponent present at the time, date and place for oral examination.

USDC-PR NO. 220011 P. 0. Box 566 Guaynabo, Puerto Rico 00970-0566 Tel. 787-977-1575 / Fax 787-977-1579

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 36 of 163

EXHIBIT Ill-B

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 37 of 163

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO JORGE A. DELPIN APONTE, et als. , Plaintiffs, V. JOHN POTTER General Postmaster of the United States of America, et als., Defendants. OVERTIME PAY, COMPUTATION OF OVERTIME PAY, CLASS ACTION, CONSTRUCTIVE TRUST AND DAMAGES. CIVIL NO. 02-1787 (JAG)

NOTICE OF DEPOSITION

TO c/o

:

James Friedman

:

Nicole Wynn,Esq. Law Department, USPS 475 L'Enfant Plaza, SW Washington DC 20260
Plaintiffs

FROM :
c/o
:

Vladimir Mihailovich, Esq. I? 0 Box 566 Guaynabo, Puerto Rico 00970-0566

You are hereby notified that plaintiff's attorney will take the deposition of James Friedman, at the Law Department Office of United States Postal Service located at 475 L'Enfant Plaza, SW, Washington 5C commencing on Monday, August 30, 2004, 9:30 a.m. pursuant to Rule 30 of the Federal Rule of Civil Procedure. You are required to have the deponent present at the time, date and place for oral examination.

In San Juan, Puerto Rico

Vladimir Mihailovich, Esq. USDC-PR NO. 220011 P. 0. Box 566 Guaynabo, Puerto Rico 00970-0566 Tel. 787-977-1575 / Fax 787-977-1579

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 38 of 163

EXHIBIT Ill-C

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 39 of 163

U N I T E D STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO R I C O

als.,

JORGE A.

D E L P I N APONTE,

et

C I V I L N O . 02-1787

(JAG)

Plaintiffs,
V.

J O H N POTTER G e n e r a l P o s t m a s t e r of t h e United S t a t e s of America, e t a l s . ,

OVERTIME PAY, COMPUTATION OF OVERTIME BAY, CLASS ACTION, CONSTRUCTIVE TRUST AND DAMAGES.

Defendants.

NOTICE OF DEPOSITION
TO :
:

R o b e r t o P e r e z De L e o n

c/o

N i c o l e Wynn, Esq. Law Department , USPS W 475 L ' E n f a n t P l a z a , S Washington DC 20260 Plaintiffs V l a d i n i r M i h a i l o v i c h , Esq. P 0 Box 566 Guaynabo, P u e r t o R i c o 00970-0566

FROM :

c/o

:

You a r e h e r e b y n o t i f i e d t h a t p l a i n t i f f ' s a t t o r n e y w i l l t a k e t h e d e p o s i t i o n o f R o b e r t o P e r e z De Leon, at t h e Law Department O f f i c e of U n i t e d S t a t e s P o s t a l S e r v i c e l o c a t e d a t 475 L ' E n f a n t P l a z a , SW, Washington DC commencing on Monday, A u g u s t 3 1 , 2 0 0 4 , 9:30 a . m . p u r s u a n t t o R u l e 30 of t h e Federal R u l e o f C i v i l Procedure. You a r e r e q u i r e d t o h a v e t h e d e p o n e n t p r e s e n t a t t h e t i m e , d a t e and p l a c e f o r o r a l ex amin atio n .

USDC-PR N O . 228011 P . 0 . Box 566 Guaynabo, P u e r t o R i c o 00970-0566 T e l . 787-977-1575 / Fax 787-977-1579

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 40 of 163

EXHIBIT Ill-D

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 41 of 163

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO JORGE A. DELPIN APONTE, et als. , Plaintiffs,
V.

CIVIL NO. 02-1787 (JAG) OVERTIME PAY, COM,PUTATION OF OVERTIME PAY, CLASS ACTION, CONSTRUCTIVE TRUST AND DAMAGES.

JOHN POTTER General Postmaster of the United States of America, et a l s . , Defendants.

NOTICE O F DEPOSITION

TO

:

Technical Officer Pension of Payroll Accounting O f f i c e United States Postal Service

c/o

:

Nicole Wynn,Esq. Law Department, USPS 475 L'Enfant Plaza, SW Washington DC 20260
Plaintiffs

FROM :

c/o

:

Vladimir Mihailovich, Esq. P 0 Box 566 Guaynabo, Puerto Rico 00970-0566

You are hereby notified that plaintiff`s attorney will take the deposition of Technical Officer, Pension of Payroll Accounting O f f i c e , United States P o s t a l Service, at the Law Department Office of United States Postal Service located at 475 L'Enfant Plaza, SW, Washington DC commencing on Monday, August 31, 2004, 9:30 a.m. pursuant to Rule 30 of the Federal Rule of Civil Procedure. You are required to have the deponent present at the time, date and place for oral examination. In San Juan, Puerto Rico

Vladimir Mihailovich, Esq. USDC-PR NO. 220011 P. 0. Box 566 Guaynabo, Puerto Rico 00970-0566 Tel. 787-977-1575 / Fax 787-977-1579

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 42 of 163

EXHIBIT Ill-E

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 43 of 163

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO R I C O
JORGE A .

DELPIN APONTE,

et
C I V I L NO.

als., Plaintiffs,
V.

02-1787

(JAG)

J O H N POTTER G e n e r a l P o s t m a s t e r o f t h e U n i t e d S t a t e s of America, e t a l s . ,

OVERTIME PAY, COMPUTATION OF OVERTIME PAY, CLASS ACTION, CONSTRUCTIVE TRUST AND DAMAGES.

Defendants.

NOTICE OF DEPOSITION
TO
:

Technical Officer Minneapolis Payroll Accounting Office United States Postal Service
Nicole Wynn, E s q .

c/o

:

Law D e p a r t m e n t , USPS 475 L ' E n f a n t P l a z a , S W Washington DC 20260

FROM :

Plaintiffs
V l a d i m i r M i h a i l o v i c h , Esq. P 0 Box 566 Guaynabo, P u e r t o Rico 00970-0566

c/o

:

You a r e h e r e b y n o t i f i e d t h a t p l a i n t i f f ' s a t t o r n e y w i l l t a k e t h e d e p o s i t i o n of Technical Officer, Minneapolis Payroll Accounting Office, U n i t e d S t a t e s P o s t a l S e r v i c e , a t t h e Law D e p a r t m e n t O f f i c e o f U n i t e d S t a t e s P o s t a l S e r v i c e l o c a t e d a t 475 L ' E n f a n t P l a z a , SW, W a s h i n g t o n DC commencing o n Monday, August 31, 2004, 9:30 a.m. p u r s u a n t t o R u l e 30 o f t h e F e d e r a l R u l e o f C i v i l P r o c e d u r e .
You a r e r e q u i r e d t o h a v e t h e d e p o n e n t p r e s e n t date and place f o r o r a l examination.
a t the time,

I n San J u a n , P u e r t o Rico

Vladimir M i h a i l o v i c h , E s q . USDC-PR N O . 2 2 0 0 1 1 P. 0 . Box 566 Guaynabo, P u e r t o R i c o 00970-0566 T e l . 787-977-1575 / Fax 787-977-1579

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 44 of 163

EXHIBIT Ill-F

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 45 of 163

UNITED STATES DISTRICT COURT FOR THE DISTRICT O F PUERTO R I C O

JORGE A .

als.

,

D E L B I N APONTE,

et
CIVIL NO.

02-1787

(JAG)

Plaintiffs,
V.

JOHN POTTER G e n e r a l P o s t m a s t e r of t h e United S t a t e s of

OVERTIME PAY , COMPUTATION OF OVERTIME PAY, CLASS ACTION, CONSTRUCTIVE TRUST AND DAMFiGES .

America, e t als., Defendants.

NOTICE OF DEPOSITION

TO
C/O

: :

C h e r y l l Hubbard

N i c o l e Wynn,Esq. Law Department , USPS 475 L ' E n f a n t P l a z a , S W Washington DC 20260
Plaintiffs

FROM

:

C/O

:

Vladimir Mihailovich, Esq. P 0 Box 566 Guaynabo, P u e r t o Rico 00970-0566

You a r e h e r e b y n o t i f i e d t h a t p l a i n t i f f ' s a t t o r n e y w i l l t a k e t h e d e p o s i t i o n o f C h e r y l l Hubbard, a t t h e Law Department O f f i c e o f U n i t e d S t a t e s P o s t a l S e r v i c e l o c a t e d a t 475 L ' E n f a n t P l a z a , SW, Washington DC commencing on Monday, A u g u s t 3 0 , 2 0 0 4 , 9:30 a.m. p u r s u a n t t o R u l e 3 0 of t h e F e d e r a l Rule o f C i v i l P r o c e d u r e .
You a r e r e q u i r e d t o have t h e d e p o n e n t p r e s e n t d a t e and p l a c e f o r o r a l e x a m i n a t i o n ,

at the

time,

I n San J u a n , P u e r t o R i c o t h i s 1 7 t h d a y o f A u g u s t , 2004.

Vladimir b USDC-PR No. 2 2 0 0 1 1 P . 0. Box 5 6 6 Guaynabo, P u e r t o R i c o 00970-0566 T e l . 787-977-1575 / Fax 787-977-1579

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 46 of 163

EXHIBIT IV

Case 1:05-cv-01043-VJW

Document 41-2 USPS Filed 12/15/2006 HR CORP LW

Page 47 ofPAGE 02 163

I .hW DEPARTMENT

UN/ D STATES Tf POSTAL SERVICE

August 20,2004

Via Facsimile
Vladimir Mihailovich, Esq. S. Lamp6n 4 Associates P.O. Box 566 Guaynabo, PR 00970-0566
RE:

Aponte, et a/. v. John Potter, Postmaster General of the United States Postal Setvice and Roberto Perez De Leon, Caribbean District Manager ofthe United States Postal Sewice, Civil Action No. 02-CIV1787 (JAG)

Dear Atbmey Mihailovich: This is in response to your letter of August 19, 2004, regarding the deposition notices sent to this ofice via fax on August 18. Since the deadline for taking depositions and the close of discovery have long passed, depositions at this juncture would be highly prejudicial to the Postal Service and would be in direct contravention of more than one standing court order. See Local Rule 160). Moreover, the agency sees no grounds for plaintiffs' request to depose these six individuals outside of the ordered case deadlines. James Friedman is an agency attorney whose relevant testimony would be privileged and whose identity the plaintiffs have known since March 2003 at the latest. (Mr. Friedman was agency counsel in the published McQuigq case.) The plaintiffs have withdrawn claims against Mr. Perez de Leon. Ms. Hubbard and Ms. Mitchell were identified in the agency's January 2004 initial disclosures and were also known to plaintiffs as early as March 2003. Deposition of a Technical Ofker far Pension Payroll is without grounds since the plaintiffs have withdrawn their claims for pension payments for the retiree class. Finally, the deposition of any other payroll technical officer could have been had at anytime during the prescribed deposition period.
As you know, this case is now poised for dispositive motions and then, possibly, trial. if plaintiffs persist in their efforts to take the depositions in question, the Postal Service will seek a Protective Order from the court, Please consider this response t h e agency's effort to confer with you prior to filing such a motion.
476 L'ENFANT PLAZA SW WASHIWTON DC 20280.

z02-2ea-7~44 FAX.202-288-4897

08/20/2004 1:05-cv-01043-VJW Case 18:33 .!Gt?_t,? I

USPS Filed 12/15/2006 HQ CORP LAW Document 41-2

Page 48 ofPAGE 163

d3

-2-

Calamoneri, Chief Counsel, USPS National Employment Litigation Unit (Tel. 202268-3876, fax - 202-268-4997) or the Assistant United States Attorney, Fidel Sevillano, in my absence.

6,2004. Please continue any discussion of this matter with Attorney Kevin

I will be out of the office from Monday, August 23,2004 through Monday, September

Very truly yours,

Nicole Wynn

adr
Fidel A. Sevillano Del Rlo, Esq. Kevin A. Calamoneri, Esq.

cc

Case 08/20/2004

1:05-cv-01043-VJW Document 41-2 USPS HQ CORP LPlJ Filed 12/15/2006 18: 32 ?lJ-.)k `997

PAGE Page 49 of 163

03

NICOLE WYNN USPS LAW DEPARTMENT 475 L`ENFANT PLAZA. SW WASHINGTON, DC 2626.j
202-266-7544

To:

Vladimir Mihailovich, Esq.

From:

Nicole Wynn

Fax:

787-977-1579

Panes: 3
bate:
Cc:

Phone: 787-977-1575
Re:

8/20/2004

Detpin-Apontev. Potter

Urgerit

a For Review

0 Please Comment

Please Reply

0 Please Recycle

To:

Asst. US Attorney Fidel Sevlllano

From:

NicoleWynn

Fax:
~~

787-766-621 9

Pages: 3
bate:
CC

Phone! 787-282-1844

8/20/2004

Re:

Delpin-Aponte v. Potter
For Review

-.
13 Please Reply
Kl Please Recycle

0 Urgent

! Please Comment 2

Case 1:05-cv-01043-VJW

Document 41-2

Filed 12/15/2006

Page 50 of 163

EXHIBIT V

Case 1:05-cv-01043-VJW

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SANTIAGO F. LAMPON & ASSOCIATES
Attorneys and Counselors at Law El Caribe Building, Suite 502 #53 Palmera Street San Juan, Puerto Rico 00901

TEL'S: (787) 977-1575 / 977-1576 TELECOPIER: (787) 977-1579 E-Mail: [email protected] Website: WWW.LAMPONLAW.COM

POSTAL: S.LAMP6N & ASSOCIATES P.O. BOX566 GUAYNABO, PR 00970-0566

August 26,2004

BY FAX: 1-202-268-4997
Kevin Calamoneri, Esq. Attorney, United States Postal Service Law Department United States Postal Service Washington, DC 202260
Re: Aponte. et al. v. John Potter. et als. Civil No. 02-1787 (JAG)

Dear Mrs. Alamoneri: This is to acknowledge the receipt of the fax dated August 20. Due to the fact that we received it at 6:30Pm, Friday afternoon, I have not been able to answer it before. You stated that the depositions announced by the undersigned would be highly prejudicial for USPS because the close of discovery has long passed. However, you fail to mention that the USPS answered Plaintiffs Interrogatories on July 16, 2004 and we needed time to study your answers. This was long passed the thirty day term allowed by the Federal Rules of Civil Procedure. Furthermore, you have not asked for any extension of time regarding answers to the interrogatories. In addition, on August 18 you asked the Court for extension of deadline for disclosure of Expert Witnesses until October 11,2004 and Pre Trial for October 18. Isimply fail to grasp how would depositions be highly prejudicial for the USPS if you ask for extension of time to complete the discovery. For the reasons expressed, we are of opinion that the depositions should take place. Since you refused to make the witnesses available on 30th and 3Ist of August, I offer you 8 and 9 of September to depose witnesses in the same order.

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On the other hand, you argue that Mr. Friedman is an agency attorney and that his relevant testimony is privileged. Well, you announced him as a witness, hence you waved the privilege. The rest of the witnesses have also been announced by you, therefore Plaintiffs want to depose them. You can take of the list the Technical Officer for Pension Fund. Moreover, we have not received the Expert's Witness Report. Once we receive it, we shall decide whether to depose the expert witness or not. I shall wait for your answer until tomorrow, Friday 27. In case that you still refuse to make available your witnesses for deposition, I shall be forced to ask the Court to compel USPS to make available your witnesses, as well as any other remedy available.
A

c: Marcos Valls Sanchez, Esq. By Fax: 721-2869

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TRANSMISSION VERIFICATION REPORT
I

I

TIME NAME FAX TEL SER.#

: : : : :

08/26/2004 11:23 SANTIAGO F LAMPON 787-273-6868 787-273-6767 BROLlJ760252

DATE, TIME FAX t.IO . t'PIAME DURATION FAGE ( 2 ' ) HESIJLT MODE

08/26 11:22 12022684997099 00: 00: 35 02 OK STANDARD

ECM

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EXHIBIT VI

Case 1:05-cv-01043-VJW
July 26, 2004

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Mr. Santiago Lampon Gonzalez. Esq.
S. Lampdn & Associates

PO Box 566 Guaynabo, Puerto Rico 00970-0566
Re: Jorge A . Delpin Aponte. et als. v John Potter General Postmaster o f t h e United States of America, et als. USDC P R Civil N o . 02-1787 (JAG)

Dear Mr. Lampon Gonzalez, Continuing our evaluation of the "US Postal Service Calculation of FLSA Premium", I present my analysis of the 13 plaintiffs' cases submitted by Ms. Jo Ann E. Mitchell, Acting Manager, Compensation, US Postal Service, and Ms. Nicole Wynn, US Postal Service, Law Department, in their July 19, 2004 letter, and identified as USPS 0 1564- to 0 1576. First of all I would like to state that I had the opportunity to revise all the accompanying documents cited in this letter (USPS 00028-USPS 01629). I would also like to state that although I would have liked to reproduce the examples submitted, the pages showing the pay period reproduced for each and every one of the 13 plaintiffs were not included in the various payroll journals identified as USPS 0028 to USPS 001332. For example, plaintiff Juan C. Gonzalez's example is for pay period 04-2-2002 (second week of pay period 4,2004). Mr. Gonzalez's payroll documents (USPS 00028-USPS 00109) begin in pay period 08/02 (the two weeks are included in each pay period page), going back to the last pay period included which is 05/99. Nevertheless, from pay period 05/02 we jump to pay period 03/02; pay period 04/02 is missing. A similar situation occurs for all the other plaintiffs. We do not know the reason, if any, for this consistent omission. Since we could not reproduce Ms. Mitchell and Ms. Wynn's examples, we chose a different pay period for each of the 13 plaintiff. The criteria used for the selection of the pay period was that first, there should be FLSA overtime, and secondly that we could verify all the information needed to reproduce the US Postal Service worksheets. As in my first analysis, since "FLSA Premium" computation is made on a weekly basis and the pay periods are bi-weekly, for every pay period I made two separate computations, one for each week. After each two-week pay period is calculated, two additional tables are produced, showing the difference in the calculation of FLSA overtime, between the Postal Service methodology and Plaintiffs' methodology. These are shown in the Appendix. As can be verified from these computations, I have been able to reproduce, once more, US Postal Service calculation of FLSA premium for the new cases. Only in the cases of Juan Gonzalez and Samuel Hernandez, there appeared to be a difference between the payroll report and my results. After thorough revision of the data, the methodology and the computational process, I have been unable to find out the nature of the discrepancies.

Jaime L. del Valle, Ph.D. Economista

PO Box 1918

Trujillo Alto

Puerto Rico

00977-1918

(787) 760-6757 (787) 642-1029 % (787) 283-8994
(D

\

[email protected]

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aimc L. del Valle Caballero, Ph. D.

Economist

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After each computation of the US Postal Service Calculation of FLA Premium I have included a table which shows the difference in the results between the Postal Service's methodology and plaintiffs' methodology, for each week. Let us analyze the first case prescnted; that is for Mr. Jorge L. Rosario's second week of pay period 06/2000. From the payroll report we can verify that Mr. Rosario worked 40 hours of regular time and 8 additional hours in overtime. Of these 48 hours, 47.87were worked at night, and 8 hours were worked on a Sunday. Given an annual salary of $40,527($19.4841Basic rate per hour) and a TCOLA rate of lo%, we can reproduce the US Postal Service calculation of FLSA premium, and verify these results with the payroll report. From our calculations, we can corroborate that Mr. Rosario worked 48 "FLSA hours" and that his "FLSA remuneration" was $1,130.16, for a At "FLSA hourly rate" of $23.545. this stage it is important to state that we do not dispute US Postal Service methodology for the computation of FLSA hours, FLSA remuneration of FLSA hourly rate. (That is, Steps 1-4of their calculations). From this example we can corroborate US Postal Service results that, according to their methodology, "Total FLSA Premium Due" is $107.17,"FLSA Premium Offset" is $77.94,for a "FLSA Payment Due" of $29.23. (The $0.02difference with payroll report might be due to rounding up differences).
If we look now at the small table on the right hand side of the computations, we can see that, given that the Fair Labor Standardkt stipulates that:

"The FLSA provides that the Postal Service must pay an employee covered by the overtime provisions of the Act (an FLSA nonexempt employee) at one and one-half times the employee's regular rate for all hours of actual work in excess of 40 hours in any FLSA work week." (Bold emphasis added.) (http://www.usps.com/cpim/ftp/manuals/elm/htm~elmc4/elm44O.html, 444.1) Section we should re-compute overtime payment using this determination. Thus, from the example being used, we multiply the 8 hours over the 40 hours worked, that is the 8 hours in "FLSA overtime", by one and a half time the previously computed FLSA hourly rate. This gives us a total overtime remuneration of $282.54.We do not credit any "Postal Overtime" since, in this case, all overtime is FLSA overtime. We do not either credit any FLSA adjustment, since we are paying overtime by FLSA's standards. Nevertheless we do credit the FLSA premium on TCOLA, since this would for correspond to the "effective hourly rate" of $23.545instead of the basic $19.4841. the FLSA overtime. After having done these calculations it is clear to see that Mr. Jorge L. Rosario was underpaid by $32.49 in that week. Following the same procedure for the first week, we can also see that Mr. Rosario should have been paid $42.57more than he was actually paid. In this second case, notice that FLSA overtime was less than total overtime, so we credited the full 6.25FLSA overtime and at one and a half time this week's FLSA hourlyrate (1.5x $23.568), deducted these 6.25hours

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aime L. del Vallc Caballero, Ph. D.

Economist

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from the 8 hours worked as overtime, at the actually paid rate of one and a half time the basic rate of $19.484 1 . Thus only 1.75 hours (8 - 6.25) are paid at that Postal Office overtime rate, for a total of $51.15 ($19.4841 x 1.5 x 1.75 hours). This procedure is followed for each and every one of the cases presented in the Appendix, so there is no need to go over each and every one of them. Nevertheless, there are several cases I would like to analyze here. These are the cases of Alberto Ortiz, JosC L. Otero, Roberto Rodriguez and Ricardo Rivera. In all these cases we had penalty and straight time overtime that we had to credit against FLSA overtime. In the case of Alberto Ortiz we credited the full 1.87 hours of FLSA overtime against the 5.66 hours of straight time overtime, thus paying 1.87 hours at 1.5 times FLSA hourly rate and the remaining 3.79 hours at 1.5 times basic rate. Total penalty overtime is still credited at 2 times regular rate.

In the cases of Mr. Otero, Mr. Rodriguez and Mr. Rivera, total FLSA overtime was higher than straight time overtime, so we credited only the number of hours worked at straight time overtime at 1.5 times FLSA hourly rate, and then credited the full amount of penalty overtime at its regular rate of twice the basic rate. This is done this way due to the fact that penalty overtime is paid at a rate higher than FLSA hourly rate, and also to avoid any double counting of hours and pay. Therefore, if we take for example Mr. Ricardo Rivera's first week of pay period 04/2000 we can see that he worked 10.74 hours in FLSA overtime, of which 10 hours were straight time overtime and 0.74 were penalty overtime. Since penalty overtime is paid at twice the basic rate (2 x $18.6933 = $37.55) and FLSA overtime is paid at 1.5 times that week's FLSA hourly rate of $22.434 (1.5 x $22.434 = $33.65), we credit only 10 hours at FLSA rate and the remaining 0.74 hours at the stipulated penalty rate.

'

As we can see from all the cases worked out, there is a difference between what the Post Office is paying its employees and what it should pay, if one makes a straightforward computation of FLSA overtime compensation. This result is based on the general agreement and understanding that FLSA overtime must be paid at one and a halftime FLSA hourly rate, which includes all remuneration for employment, including TCOLA and several premiums (night, Sunday, etc.). It does not follow from the examples produced here, that US Postal Service methodology "results in payment of 1%
I. This is not the only "solution" to the issue of how to credit FLSA overtime when this overtime is greater than lower paying hours of overtime. Nevertheless, for the purpose of this analysis, we think it reasonable to allow Postal workers to receive the highest rate for any creditable work hour. Another solution would be to pay the remaining FLSA overtime at twice the FLSA hourly rate, and the remaining penalty overtime at the stipulated rate of twice the basic rate. That is, in the example of Mr. Ricardo Rivera, once the first ten (10) hours have been credited against the straight time overtime, of the additional 2 hours of penalty overtime, 0.74 hours can be paid at twice the FLSA regular rate (2 x $22.434 x 0.74) and the remaining penalty overtime (1.26 hours) can be paid at the stipulated rate of twice the basic rate (2 x $18.6933 x 1.26). Needless to say, this formula is more complicated and makes use of FLSA hours in a manner not envisaged by the Act of any other labor agreement or compensation manual, that I have been made aware of.

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aime L. del Valle Caballcro, Ph. D.

Economist

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times the regular rate for hours actually worked in excess of 40 in a workweek, in accordance with the Ninth Circuit's decision in McQuigg and the Fair Labor Standard Act." (Defendants response to First set of Interrogatories and Request for Production of Documents; p.4) We reaffirm our claim that the problem seems to be that the Post Office is definitely not crediting one a halftimes FLSA 's hourly rate to FLSA's overtime, separately from Postal overtime. Steps 1 to 4 of their methodology simply compute FLSA hours, FLSA remuneration and FLSA hourly rate, with which we have stated on more than one occasion that we have no difference. Step 5 clearly and explicitly computes one halJ`times FLSA hourly rates to FLSA hours over 40. Step 6 adds a FLSA "premium" on TCOLA, an amount which by formula is bound by the maximum TCOLA payment in any week. Step 7 only credits, or "offsets" the premiums paid on special work (holidays, overtime, etc.) at basic rate. That is, since overtime is paid at 1.5 times basic rate, by multiplying by 1/3, we are effectively deducting the 50% premium on overtime. By the same token, since penalty overtime is paid at 2 times basic rate, by multiplying by 1/2 we deduct the 100% premium. Finally Step 8 is simply the balance of Steps 5 to 7.

PO Box 9066522 San Juan, Puerto Rico 00906-6522
Mr. Jorge L. Rosario American Postal Workers Union, AFL-CIO Puerto Rico Area Local 1070, inc. GPO Box 366047 San Juan, Puerto Rico 00936-6047

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APPENDIX

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_.

aime L. del Valle Caballero, Ph. D.

Economist

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aime L. del Valle Caballcro, Ph. D.

Economist

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I

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I aime

L. del Valle Caballero, Ph. D.

Economist

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06-2000 Week 2

Post Offie $1,237.33

Postal Workers $1,269.82

35 43 52 53

ExtraTlme PenaltyOvertune S t m g h tune Work overtune Postal FLSA

$0.00 $0.00 $779 36 $233 81 $0 00 $0 00

$0 .OD $0.00 $779 36
$0 00 $282.54
$0.00 $0.00 $0.00 $78.03
i

57 Hol~dayWork 62 GuaranteeTim 74 ChnstmasWork 54 N e t Differential 72 SUndayPrermum Lm e

$0.00

$0.00 $78 03 $38.96 $77.94 $29.23 $0.00

$38 96 $77 94

TCQLA

$12.99

$0 .OO

J o g L Rosano 06-2000 Week 1

Total Final payment: Postal workers Post Office $1,177.15 $1,219.72 Difference: $42.57
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35 ExtraTime 43 PenaltyOvertm 52 S t e t u n e Work 53 overtune Postal

$0 00 $0.00 $745.27 ". $233.81 $0.00
1

$0.00 $0.00 $745 27 $51.15 $220.95 $0.00 $0.00 $0 00 $75 39

I-

FLSA
57 HolidayWork 62 G k t e e T i r n e 74 ChristmasWork

__

01 $0.00

$000

$75.39

I

FLSA Adjustment FLSA on TCOLA

$77.94 $5 78 $0.00

;

$0.00
$10.07

4

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aime L. del Valle Caballero, Ph. D.

Economist

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aime L. del Valle Caballero, Ph. D.

Economist

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step 1.DetmnmeFLSADohAmihtabbtoTCOLA

TCOLAFLSADoM

$8328 Code523xu&thnehaUrs140 *TCOLAWe&iyhCnamum

step 2 & 3.Detamim FLSAHmm 8 n d D o h ~ P a y r o l l J o u m a l
FLSAHoursCod ActllalHours 35 0 43 2 52 3814 53 10 57 0 62 0 0 74,. FLSAHOdI 50761

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