Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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NO: 05-1043C (JUDGE WOLSKI) IN THE UNITED STATES COURT OF FEDERAL CLAIMS JORGE A. DELPIN APONTE, ET AL., Plaintiffs v. THE UNITED STATES OF AMERICA, Defendant PLAINTIFFS' RESPONSE TO DEFENDANT'S PROPOSED FINDINGS ON UNCONTROVERTED FACTS

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

December 14, 2006

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 RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS 1. 2. Statement number 1 is accepted. The first sentence of Statement number 2 is accepted. The second sentence of Statement number 2 cannot be accepted nor denied since the plaintiffs in this matter are not privy to said information. Conversely, if the USPS pays overtime to postal employees in those jurisdictions in the same manner in which they pay postal employees in Puerto Rico, then it follows that the USPS is not complying with FLSA and with the McQuigg decision in those jurisdictions as well. 3. 4. Statement number 3 is accepted. Statement number 4 is denied. Reference is made to the statement under

penalty of perjury filed on this same date by Dr. Jaime del Valle, and the statement filed under penalty of perjury by Mr. Roberto Rodríguez. Moreover, plaintiffs are unable to further contradict or plead as regards to this statement since certain discovery actions have not been had. 5. This statement is denied as drafted and because plaintiffs cannot either assert or deny that the USPS claim regarding when or how it changed the manner in which

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it pays overtime in TCOLA jurisdictions. Moreover, and pursuant to the evidence had to date and the statement under penalty of perjury by Dr. Jaime del Valle and by Mr. Roberto Rodríguez, the USPS is not complying with the McQuigg decision. 6. Statement number 6 cannot be denied or accepted, particularly since it expresses an opinion on behalf of the USPS without showing any support documentation. Moreover, the statement, even if proven true, is not relevant to the issue at hand, which is whether the USPS is complying or not with FLSA and the McQuigg Decision. 7. Statement number 7 is denied. All information available to date clearly shows that the USPS is not complying with the McQuigg case or FLSA. Please refer to the statements under penalty of perjury by Mr. Jaime del Valle and by Mr. Roberto Rodríguez. Also refer to Exhibits VIII, and XII. 8. Plaintiffs object to the USPS attempts at "defining" terms which are already defined under applicable law. Moreover, Statement number 8 does not require a responsive pleading from plaintiffs, since is nothing but a mere example not relating to any actual or relevant facts in connection to the issue pending before this Court. Moreover, being this a statement of purported uncontroverted facts, any references to rules or laws is inappropriate. 9. Plaintiffs deny Statement number 9 and object to it for the same reasons as stated in response to Statement number 8. Moreover, it has previously been shown that the USPS' attempts at "simplifying" the formula for the computation of TCOLA and overtime have resulted in erroneous computations and results which

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the USPS has not been able to sustain, explain or justify in any reasonable way. We refer the Court to the statement under penalty of perjury of Mr. Jaime del Valle filed on this same date as Exhibit VIII of the Plaintiffs' Opposition.... 10. Statement number 10 is denied. Please refer to the responses under statements 8 and 9. 11. Statement number 11 is denied. Please refer to the responses under statements 8 and 9. 12. Statement number 12 is denied. Please refer to the responses under statements 8 and 9. Moreover, the averments on this statement are not material to this case. 13. Statement number 13 is denied. Please refer to the responses under statements 8, 9 and 12. 14. Statement number 14 is denied. Please refer to the responses under statements 8, 9 and 12. Moreover, the McQuigg formula is not at issue in this matter, since the McQuigg decision is final and binding upon the USPS. 15. Statement number 15 is denied. Please refer to the responses under statements 8, 9 and 12. Moreover, the information available today as examined by plaintiffs and Mr. Jaime del Valle, reflect that the USPS is not in compliance with McQuigg and FLSA. Please refer to the statement under penalty of perjury executed by Mr. Jaime del Valle and filed on this same date. 16. Statement number 16 is denied. Please refer to the responses under statements 8, 9, 12 and 15. Moreover, this statement is based on assumptions and it is not based on actual pay data for postal employees.

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17.

Statement number 17 is denied. Please refer to the responses under statements 8, 9, 12 and 15.

18.

Of Statement number 18, it is admitted only that the USPS is one organization. The remainder of Statement number 18 is denied. Please refer to the responses under statements 8, 9, 12 and 15.

19.

Statement number 19 is denied. Please refer to the responses under statements 8, 9, 12 and 15. Plaintiffs reiterate that the USPS has failed to disclose, produce or somehow establish the true manner in which they compute overtime.

20.

Plaintiffs can neither accept nor deny Statement number 20. Please refer to the responses under statements 8, 9, 12, 15 and 19.

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

S/

December 14, 2006 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of December, 2006, a copy of the foregoing "Plaintiffs' Opposition to Defendant's Motion to Dismiss and for Summary Judgment" 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-González

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