Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

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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' OPPOSITION TO DEFENDANT'S PARTIAL MOTION TO DIMISS AND MOTION FOR SUMMARY JUDGMENT

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

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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

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT BEFORE THE HONORABLE COURT: COME NOW plaintiffs in the above captioned complaint and as further detailed, through undersigning counsel, respectfully STATE and PRAY: INTRODUCTION Defendant United States Postal Services ("USPS" or "Defendant") has filed before this Honorable Court a Motion to Dismiss and for Summary Judgment on various grounds, accompanied by a statement of purported uncontested facts and exhibits in support thereto. As we described further below, this Honorable Court will quickly

conclude that Defendant's motion should not prosper, except for the withdrawal by plaintiffs of a certain claim as stated under separate motion. What will become noticeable and pertinent, is what the USPS did not state to this Court about the discovery held while the case was in USDC Puerto Rico. Moreover and directly on point with regards to the medullar issue in this case, the UPSP has never disclosed to plaintiffs the complete formula it uses for the computation of wages and overtime in Puerto Rico or elsewhere, and have never granted plaintiffs 2

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the opportunity to make a full and comprehensive discovery and evaluation of the way in which it computes and pays overtime to postal employees in Puerto Rico. As a matter of fact, together with this motion we present certain exhibits which clearly reflect the USPS adamant refusal, both on and of the record while the case was pending before the USDC Puerto Rico, to produce any such information which is crucial to this matter. In that regards, such information is not only crucial to the 2,900 plus plaintiffs in this matter, but also for this Honorable Court and in order for the truth to prevail. In sum, the motion by Defendant does not and cannot impede what is otherwise unavoidable, which is that there is discovery to be had and a trial must be held in order to fully understand the truth in this matter. Without such discovery, plaintiffs would not be awarded due process. Moreover and as a matter of law, Defendant is forbidden to relitigate the matters already decided in the McQuigg cases. As we further discuss in this Motion, the USPS is bared by the doctrine of Res Judicata besides having openly admitted that it is not applying the McQuigg formula in Puerto Rico or elsewhere. For the reasons discussed in detail in this response, plaintiffs move the Court to deny Defendant's motion to dismiss and for summary judgment as further detailed heretofore. ARGUMENT A. The Status of Discovery and the Motion for Summary Judgment While the case was pending before the USDC Puerto Rico, the parties exchanged interrogatories and requests for production of documents. The parties also

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exchanged certain partial expert witness reports and other correspondence connected thereto. The parties never held depositions, including those related to expert witnesses. We start by addressing the discovery held before the USDC at this stage, mainly to dispel the claim made by the USPS before this Court regarding the discovery had by the parties while the case was pending before the USDC Puerto Rico. The USPS infers that discovery was completed at that time. See Defendant's Partial Motion to Dismiss and Motion for Summary Judgment at page 9. This discussion will also establish that Defendant has not produce to plaintiffs the full overtime formula used with postal employees in Puerto Rico, and has not explained, justified or in any meaningful and comprehensible way detailed the manner in which it truly computes overtime for postal employees in Puerto Rico. On March 1, 2004, plaintiffs notified to the USPS a First Set of Interrogatories and a First Set of Request for Production of Documents. See Exhibit I to this motion. Interrogatories number 1, 2, 3, 4, 5, and 6 directly addressed the request of information regarding the formula used by the USPS for the computation and payment of overtime to postal employees in Puerto Rico. The USPS's response to all interrogatories was similar, and we reproduce herein the interrogatories and the responses: INTERROGATORY NO. 1 Identify the person answering these interrogatories. RESPONSE: Jo Ann e. Mitchell, Acting Manager, Payroll Accounting 475 L'Enfant Plaza, SW Washington, DC 20260

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INTERROGATORY NO. 2 Identify step by step the formula used by the Postal Service to pay overtime in the jurisdiction of Puerto Rico before the McQuigg Formula as define by the USPS in paragraph 8 of the Joint Response to Court Ordered Case Management Plan. RESPONSE: Defendants object to this interrogatory to the extent that it incorrectly states that in paragraph 8 of the Joint Response to Court Ordered Case Management Plan (Joint Response) the Postal Service defines the "McQuigg Formula". However, for purposes of answering these interrogatories, the Postal Service assumes that by the "McQuigg Formula" the plaintiffs mean the holding of the United States Court of Appeals for the Ninth Circuit in Frank v. McQuigg, 950 F.2d 590 (9th Cir. 1991) that an employee must be paid 1 ½ times the regular hourly rate 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 1991 ruling in Frank v. McQuigg, the Postal Service calculated pay for employees in TCOLA 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-time pay for all hours that an employee worked in a work week, including those over 40, together with the amount of TCOLA earned during the work week. The Postal Service then computed the employee's "regular rate" of pay for each hour, in accordance with the FLSA and a United States Department of Labor interpretive bulletin, by dividing this total remuneration figure by the total number of hours worked. Next, the Postal Service calculated 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 pay overtime in the jurisdiction of Puerto Rico 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 Court Ordered Case Management Plan. RESPONSE: The Postal Service objects to this interrogatory as vague and ambiguous because it does not define what is meant by the "Revised or New Postal Service Formula" or the "McQuigg Formula". Defendant further objects because this interrogatory incorrectly states that the USPS defines the "Revised or New Postal Service Formula" in paragraph 16 of the Joint Response. Defendant assumes for purposes of answering these interrogatories that by "Revised or New Postal Service Formula" plaintiffs mean the revised FLSA overtime calculation formula implemented by the Postal Service in July 1992. Defendant further assumes that in this Interrogatory No. 3 plaintiffs are asking how the USPS calculated FLSA overtime pay for employees in TCOLA jurisdiction, including the Caribbean District, from the period between December 5

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6, 1991 when the Ninth Circuit issued its decision in Frank v. McQuigg and July 1992 when the USPS implemented its current overtime calculation formula. Subject to the foregoing objections and without waiver thereof, and under the assumptions stated herein and in response to Interrogatory No. 2 above, the Postal Service states that during above-referenced time period, the Postal Service used the formula detailed in response to Interrogatory No. 2 above. INTERROGATORY NO. 4 Identify step by step the Revised or New Postal Service Formula implemented in July 1992. RESPONSE: The formula used to calculate overtime from July 1992 to the present is set forth in detail in the document labeled as USPS 00001 and previously provided to the plaintiffs. INTERROGATORY NO. 5 Identify step by step the differences between the Revised or New Postal Service Formula and the McQuigg Formula. RESPONSE: The Postal Service's current formula for calculating paying FLSA overtime in TCOLA jurisdictions, including the Caribbean District, does not differ from what the Postal Service has assumed to be meant by the plaintiffs' reference to the "the McQuigg Formula" because it results in payment of 1 ½ times the regular rate for hours actually worked in excess of 40 in a work week, in accordance with the Ninth Circuit's decision in McQuigg and the Fair Labor Standards Act. INTERROGATORY NO. 6 Identify step by step why the Revised or New Postal Service Formula meets the requirements of the McQuigg Formula. RESPONSE: Defendant assumes that plaintiffs are asking why the Postal Service's current method of calculating FLSA overtime premium payments for employees in TCOLA jurisdictions, including the Caribbean District, complies with the Ninth Circuit's ruling in Frank v. McQuigg. The Postal Service's current methodology complies with the McQuigg decision because it pays all hours worked in excess of 40 in a work week at not less than 1 ½ times the regular hourly rate and because the calculation no longer has the effect of what the court referred to as "pro-rating" the TCOLA payment. Indeed, under the Postal Service's current method of calculating overtime in all TCOLA jurisdictions, the full 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. This FLSA premium on TCOLA, represented in the formula (USPS 00001) as 1.0 x [TCOLA FLSA Amount/(H)] x [(H)-40] and as part

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of "P", the FLSA premium liability, eliminates the probation of the TCOLA payment. In the request for production of documents, plaintiffs made similar requests, specifically, requests number 2, 3, 4, and 5 as shown in page 6 of Exhibit I. Defendants' responses are located starting in page 8 of Exhibit II, bearing similar objections which resulted in Defendant not producing documents which plaintiffs could identify as being responsive to the request or to the interrogatories as stated before. Such investigation was and is to be conducted during the course of depositions and, if needed, upon further discovery. Prior to filing their responses, the USPS requested and obtained from plaintiffs numerous extensions of time. The fact that they needed more time was not and is not an issue, since plaintiffs understood that the amount of documents the USPS had to obtain and inspect would be broad, and that the production could reasonably require additional time. The problem is that the USPS used the additional time they requested to later renege on the holding of depositions in this matter. With the USPS responses to interrogatories and requests for production of documents at hand, on August 17, 2004 plaintiffs timely served upon the USPS a series of Notices of Depositions following the list of individuals cited by the USPS in their Initial Disclosures, and pursuant to the discovery responses as stated before in this motion. Copy of both parties' initial disclosures are on record with this Court. Plaintiffs submit as Exhibits III-A, III-B, III-C, III-D, III-E, and III-F of this motion the notices of depositions by plaintiffs.

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It is noteworthy that, as reflected by Exhibit III-A, Ms. Jo Ann Mitchell is one of the individuals plaintiffs wish to depose. Mrs. Mitchell's sworn affidavit is filed in this case on support of Defendant's motion for summary judgment. In response to the notices, counsel for the USPS, Ms. Nicole Wynn, wrote to undersigning counsel informing that the USPS refused to hold depositions claiming that the discovery period had expired. Ms. Wynn's letter is included as Exhibit IV hereto. Plaintiffs counsel immediately protested and demanded that depositions be scheduled. See Exhibit V of this motion. The case was subsequently referred to the attention of this Court and the discovery issues were not presented for consideration before the USDC Puerto Rico. Plaintiffs will depose those individuals directly related or connected to the manner in which the USPS computes overtime in Puerto Rico. Among those individuals is Ms. Jo Ann E. Mitchell (See Exhibit III-A of this motion). As noted before, Mrs. Mitchell has not been deposed yet her self-serving statement is being used as the main support for the USPS attempt at dismissing the captioned complaint. In this regards, it is pertinent to state that the parties also hired their respective expert witnesses in an attempt to further understand and disclose information regarding the formula purportedly used by the USPS in its computation and payment of FLSA overtime in Puerto Rico. Plaintiff hired Mr. Jaime L. del Valle, and Defendant hired Mr. James L. Valin. The parties exchanged their expert reports, with plaintiff's expert

report included hereto as Exhibit VI, and Defendant's expert report annexed hereto as Exhibit VII.

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Neither of these individuals was deposed. Absent these depositions and the depositions of Defendant's representatives, particularly Mrs. Mitchell, it is impossible to obtain the information and knowledge required to understand what the USPS is and is not doing with regards to the computation of overtime for Postal Employees in Puerto Rico. The particularities of this case and the issue in controversy are such, that it is impossible to conduct the needed discovery otherwise. As a matter of fact, only through depositions will plaintiffs be able to establish the path to follow in order to learn the truth regarding the issue currently pending before this Court. This aspect of the discovery is pertinent to this motion, since in plaintiffs' expert, Mr. Jaime del Valle, clearly stated that he is unable to understand or duplicate the USPS's claim that they formula is in compliance with the McQuigg formula. As a matter of fact, Mr. del Valle states that he is unable to verify that the USPS is complying with FLSA at all. Please refer to the report by Dr. del Valle, Exhibit VI of this motion, and his statement under penalty of perjury which is Exhibit VIII hereto. In this regards, Mr. del Valle also stated that he examined the documents produced by the USPS, and that from said examination he was unable to identify documents which one way or another explained the USPS rationale in computing overtime pay for postal employees in Puerto Rico. Exhibit VI at page 1. Mr. del Valle has recently reviewed the documentation in this matter and his report at the time, and he has re-stated that with the information provided by the USPS it is absolutely impossible to determine if the USPS is in compliance with FLSA and the McQuigg formula. Mr. del Valle once more reaffirms that his conclusion at this time is

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that the USPS is not complying with neither FLSA nor McQuigg. See Mr. Jaime del Valle's statement, Exhibit VIII of this motion. We want to clarify at this time, that we requested Mr. del Valle to make a statement under penalty of perjury, in order to present to this Court sufficient certainty that the documents produced by the USPS fall short of the intended purpose of the discovery had, that being, that the USPS claims to have produced to plaintiffs all the information regarding the formula it uses for establishing and paying overtime under FLSA in Puerto Rico. Mr. del Valle, because of his background and technical skills and preparation, is in a better position and certainly more able to communicate any such understanding and particularly the USPS' failure to explain or justify in any meaningful way its basis for computing and paying overtime in Puerto Rico as it currently does and has been doing at least since 1992, but clearly since the late 70's. Plaintiffs also submitted a report by their expert, Mr. Valin. The report is attached hereto as Exhibit VII. As expected, Mr. Valin (who has not been deposed) claims that the USPS computation and payment of overtime in Puerto Rico complies with FLSA and McQuigg. In his report, he also states that he read and followed Mr. del Valle's report and used the examples stated therein to reach his conclusions. Plaintiffs stand by their claim that further discovery is needed in order to properly evaluate and further determine the compliance or non-compliance by the USPS with FLSA. At this point, plaintiffs believe and propose to this Honorable Court that, with the information at hand, it is impossible to establish that the USPS is complying either with

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FLSA or with the McQuigg formula. Conversely, we do have on the record statements by the USPS acknowledging that they do not follow the McQuigg formula, but rather purportedly apply a formula which is an alleged mathematically on arithmetical equivalent of the formula established by the USDC Alaska and later the 9th Circuit Court. See Defendant's Partial Motion to Dismiss and Motion for Summary Judgment at pages 13, 14, 15 and 22. The USPS for many years claimed that it was complying with applicable law, only for the McQuigg Court to find that was not the case. Not only the USPS claims today that the McQuigg Court erred, and it is also attempting to litigate the same subject a third time, they also want us to accept what equates to a "blank check" statement that they are in compliance with McQuigg without applying the same formula ordered by the Court but claiming that the judgment they are complying with is erroneous. Does it make sense? No it does not. At this stage we have to state and establish, that the USPS has before claimed that it produced to plaintiffs the full formula for the computation of overtime in Puerto Rico. On April 21, 2004, counsel for the USPS sent a letter to undersign counsel claiming that the USPS had provided to plaintiffs its full formula for the computation of overtime in Puerto Rico. See Exhibit IX of this motion. Immediately, undersign counsel responded Defendant's letter disclaiming such statement. See Exhibit X of this motion. Thereafter this last letter was sent, the USPS did not respond, clarified or somehow established that in fact they had produced the full formula we requested as early as March of 2003. Conversely, as shown in the responses to interrogatories and in the

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statement by Mr. del Valle, the USPS has adamantly refused to provide the full information on the formula it uses to compute overtime in Puerto Rico or elsewhere. It is also obvious, that the plaintiffs have presented and accordingly established sufficient information to support and conclude that a fact material to this matter--whether the USPS is correctly paying overtime to postal employees in Puerto Rico--is clearly in controversy and motion for summary judgment cannot be entered on this issue without allowing the parties, particularly the plaintiffs, further discovery on this matter. B. Statute of Limitations Defendant has summarized the applicable standard under FLSA for the statute of limitations. In essence, FLSA mandates a two year statute of limitations for non-willful violations of the act, but it also allows a three year statute of limitations for willful violations. 29. U.S.C. §255(a). We agree with said proposition yet disagree with the remedy requested by Defendant. In Ewer, et. al. v. United States, 63 Fed. Cl. 396 (December 21, 2004), this Court faced a similar situation as a result of a motion to dismiss filed by the defendant in that case. Plaintiffs in Ewer filed their overtime claim under FLSA, and equally claimed that the United States willfully violated the Act by failing to pay plaintiffs in that case overtime in accordance with FLSA. The Ewer Court, following Hickman v United States, 43 Fed. Cl. 424 (1999), also stated that a plaintiff is entitled to invoke the equitable tolling doctrine if he filed a defective pleading within the statutory period. Though other tolling instances were also discussed in Ewer, this particular method is applicable in this case. Plaintiffs initiated the captioned case on May 24, 2002 by filing a complaint before the United Stats District Court for the District of Puerto Rico ("USDC Puerto

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Rico"). As stated by the USPS in its motion, the case was subsequently transferred to this Court on June 15, 2005. Def. Mot. at page 8-9. In Ewer this Court also held that the proper date for statute of limitations was the date the complaint was filed, including a determination that plaintiffs who joined after the filing date would have their claims "date back" to the filing date under RCFC 20(a). Accordingly, in the captioned case the date can be initially established as being the date the complaint was filed before the USDC Puerto Rico, meaning May 24, 2002. The original plaintiffs in this case were 13 postal employees similarly situated and to whom the USPS had not correctly paid overtime as pleaded in the complaint. Subsequently, and additional number plaintiffs joined the complaint, all of them making similar claims. In fact, as the record in this matter reflects, many additional plaintiffs joined this matter on different dates and while the request for certification of the class was pending. On September 2, 2003, the USDC Puerto Rico certified this case as a class action under FRCP 23. Plaintiffs attach a copy of the order issued by the USDC Puerto Rico on this regards, as Exhibit XI of this motion. It is understood that about 2,900 postal employees are similarly eligible to overtime pay upon correction of the USPS formula as has been pleaded in this matter. The USDC Puerto Rico received this

information and, after due process, issued the referenced certification. Moreover, in 2001 on various dates prior to the filing of the original complaint with the USDC Puerto Rico, many postal employees (in the hundreds) filed administrative grievances against the USPS similarly claiming that overtime pay was not being correctly computed pursuant to FLSA. As Exhibit XII to this motion, we submit a

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statement under penalty of perjury by one of the original plaintiffs, Mr. Roberto Rodríguez, now the president of the American Postal Workers Union (hereinafter "APWU"), accompanied with records of administrative claims initiated by postal employees or the APWU on behalf of some of its members. On pages a, b, c, d, e, f, g, h, i, j, and k of said exhibit, a total of 129 cases are listed. Following Ewer, this Honorable Court should hold in abeyance any resolution as to the application of the statute of limitations pending further discovery and trial. Moreover, this Court must also hold in abeyance any determination as to the application of statute of limitations to specific members of the class, a determination that, at the appropriate time, would have to be made on a case by case basis. Of course, all members of the class should benefit of the tolling caused by the filing of the complaint. C. Res Judicata forbids the relitigation by Defendant of the FLSA Overtime Formula the USPS previously litigated and lost in the McQuigg case: The Complaint, Defendants Motion to Dismiss... and other documents on record, establish with sufficient certainty that the USPS litigated and lost the case DONALD D. McQUIGG, et.al. vs. PRESTON R. TISCH, Postmaster General of the United States; UNITED STATES POSTAL SERVICE; and the UNITED STATES OF AMERICA, Case No. A83-092 (Civil) ("the McQuigg Decision") before the United States District Court for the District of Alaska (hereinafter "USDC Alaska"). It is also well established on the record that the USPS appealed the McQuigg Decision before the United States Court of Appeals for the Ninth Circuit, under case Anthony M. Frank, Postmaster General, et al. v. Donald D.McQuigg, et al. Case number 90-5108. The USPS lost this appeal as well.

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The USPS now tries to explain and, in fact, litigate once again before this Court exactly the same issue presented before the USDC Alaska and later on appeal before the 9th Circuit, essentially if it does or does not pay overtime in accordance with FLSA in jurisdictions where Territorial Cost of Living Allowance ("TCOLA") is paid. There is only one argument put forward by the USPS for making this plead, which is that the 9th Circuit decision is not binding upon this Court. We respectfully propose that the USPS cannot litigate once more what they have already lost, and if they so insist and in fact succeed, then the captioned complaint and the class certification must be amended to include postal employees in all TCOLA jurisdictions, including Hawaii and The US Virgin Islands, in order for justice to prevail. This would be based on the USPS insistence that they pay FLSA/TCOLA overtime in the same manner in all TCOLA jurisdictions, and the plaintiffs claim and evidence to date that the actual or current formula is in violation of McQuigg and/or FLSA. Res Judicata is a well established doctrine that can be briefly summarized and requires little or no discussion, particularly pursuant to the facts in this matter. Starting with Cronwell v. County of Sac, 94 U.S. 351 (1877) (as quoted in Montana infra) and the longevity of related decisions, the standard is simple and has been essentially the same throughout the years. Under Res Judicata a final judgment on the merits bars further claims by the parties or their privies based on the same cause of action. See Montana Et Al. v. United States, 440 U.S 147 (1979), at page 153. The purpose of this doctrine is simple: To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on

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judicial action by minimizing the possibility of inconsistent decisions. Montana at 153-154. In the McQuigg case, the USPS litigated and lost exactly the same point it is trying to litigate now in this case. AS a matter of fact, the arguments laid out by the USPS are exactly the same and in the same as those argued in the McQuigg case which resulted in the McQuigg Decision. It is vexatious for the USPS to pretend that plaintiffs and the Court relitigate an issue which the USPS had all the opportunity and resources to amply litigate in Alaska against postal employees in that state, and later in the 9th Circuit (only to see any hope washed away) and to do it again but this time against employees in Puerto Rico only because those in Puerto Rico reside and work in a different jurisdiction. The fact remains that the USPS is litigating against the same category of individuals, meaning individuals who the USPS employs in TCOLA jurisdictions. Moreover, it is noteworthy that, pursuant to Defendant's Exhibit 4, the USPS acknowledged its duty to pay postal employees in all jurisdictions as stated in the McQuigg case. This brings about the fact that the USPS maliciously withheld such information from postal employees in localities other than Alaska to avoid paying the amounts these employees were rightfully owed under applicable law. We have to assume, and perhaps consider suspicious, that 14 years later the USPS wishes to attack McQuigg after the fact and after removing this case from Puerto Rico to this Court, with the sole purpose of obtaining an inconsistent opinion which would deprive thousands and thousands of postal employees in TCOLA jurisdictions from collecting the correct pay they are truly owed. Moreover, we have to understand that what the USPS is in fact attempting to do, is create a new case with a new decision 16

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that will give the USPS the opportunity to appeal the McQuigg Decision they decided not to appeal once loosing before the 9th Circuit. This Court does have before it, that even after McQuigg the USPS is not complying with the McQuigg Decision at least in Puerto Rico, and that by the USPS' admissions as stated in its Motion to Dismiss as previously outlined herein, it is clear that Defendant is not applying the McQuigg formula for the payment of overtime in TCOLA jurisdictions like Puerto Rico. As a matter of fact, it is clear that the USPS is not complying with FLSA. By allowing the USPS to relitigate an issue which was amply and properly litigated, which was appealed and, after due process, the USPS lost a second time around, this court would not be precluding the expense of time, money and other resources required to relitigate a matter which the USPS already defended against and lost. Nevertheless, if the Court understood somehow that the USPS claim to an erroneous McQuigg Decision can be relitigated in this matter, the current circumstances not allowing for the grant of summary judgment also operate in favor of holding in abeyance any decision on the correctness of the current USPS formula for payment of overtime in T-Cola jurisdictions until discovery can be completely had. Finally, we must also emphasize, that relitigating the McQuigg controversy in this case, which would be one and the same, would require that postal employees in Alaska, Hawaii and other TCOLA jurisdictions be included in this complaint as members of the class already certified by the USDC Puerto Rico. D. Plaintiffs make no claim for retirement pay regarding retired postal employees 17

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Defendant plead in their motion at page 20, that plaintiffs are somehow making a claim for retirement pay because of Defendant's failure to properly pay overtime to postal employees in Puerto Rico--though it now appears that it may be in noncompliance everywhere TCOLA is paid. Defendant cites paragraph 19 of the Complaint filed before this Court. In fact, paragraph 19 does make reference to such a possibility. NONE of the claims filed in this case plead such a remedy. Plaintiffs had previously withdrawn such a claim while the case was pending before the USDC Puerto Rico. This of course does not mean, that former postal employees who may have a claim for the period they were employed, are somehow renouncing or withdrawing their claims. WHERETORE, plaintiffs move the Court to deny Defendant's motion to dismiss and motion for summary judgment. Respectfully submitted, S/ 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

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. 18

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S/ Santiago F. Lampón-González

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