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

Case 1:05-cv-01043-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO: 05-1043C
JORGE A. DELPIN APONTE, et al., v. UNITED STATES OF AMERICA

PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACTS 1. Mr. Jorge Rosario is a plaintiff in the captioned case. Mr.

Rosario is currently a postal employee as reflected by the statement to opt into this case which is on file with the Honorable Court, a copy of which is attached as Exhibit 1 of this statement. 2. Though Mr. Rosario has been a postal employee for many years, for purposes of this motion Mr. Rosario was a postal employee on the years 2000, 2002, 2003, 2004, 2005, 2006 and 2007. 3. Defendant publishes a manual named the Employee and Labor

Relations Manual, commonly known as the "ELM". See Ms. Jo Ann Mitchells' Deposition at page 70, line 5 through page 71, line 8, Exhibit 2 hereto. 4. The ELM published on June of 2007 contains section 432.21 wherein the Defendant publishes its interpretation of the term "Basic Rate". See Ms. Jo Ann Mitchells' Deposition at page 75, line 5 through page 76, line 8, Exhibit 2 hereto. 5. The ELM published on June of 2007 contains section 444.10 wherein the Defendant publishes its interpretation of the term

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Overtime Rate". See Ms. Jo Ann Mitchells' Deposition at page 100, line 20 et seq., Exhibit 2 thereto. 6. The ELM published on June of 2007 contains section 444.21 wherein the Defendant publishes its interpretation of the term "Regular Rate". See Ms. Jo Ann Mitchells' Deposition at page 87, line 16 through page 88, line 5, Exhibit 2 thereto. 7. Exhibits 3 and 4 attached to this statement of uncontroverted facts are true and exact copies of Payroll Journals for coplaintiff Mr. Jorge Rosario. Defendant produced these

journals to plaintiffs during the course of discovery in the captioned case. These exhibits are identified, organized and

presented as follows: Exhibit # Exhibit 3 Exhibit 4 Bates Stamp # USPS 01203 USPS 002619 USPS 002628 USPS 002630 USPS 002631 USPS 002632 USPS 002635 USPS 002661 USPS 002662 USPS 002663 USPS 002675 USPS 002676

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USPS 002677 USPS 002678 USPS 002712 USPS 002713 USPS 002740 USPS 002758 USPS 002619 8. In each of Mr. Rosario's Payroll Journals presented in

Exhibits 3 and 4, there is at least one pay period in which Mr. Rosario reported overtime hours and received overtime pay from the Defendant. journal itself. 9. In each of Mr. Rosario's Payroll Journals presented in The basis for this fact is the payroll

Exhibits 3 and 4, the overtime pay computation was performed by the Defendant. The basis for this information is the

payroll journal itself. 10. In each of Mr. Rosario's Payroll Journals presented in

Exhibits 3 and 4 in which overtime hours were reported, the number "53" identifies the overtime information for a given pay period. The basis for this information is the payroll journal itself. 11. In each of Mr. Rosario's Payroll Journals presented in

Exhibits 3 and 4, the number immediately to the right of the number "53" reflects the total overtime hours Mr. Rosario

worked in that given pay period.

See Exhibit 2, Ms. Jo Ann

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Mitchell's Deposition at page 125 line 12, through page 126 line 8 and Exhibit 7-A thereto. 12. In each of Mr. Rosario's Payroll Journals presented as

Exhibits 3 and 4, the number immediately to the right of the total number of overtime hours--as explained in Plaintiffs' Undisputed Statement Number 10--is the overtime pay to Mr. Rosario as was computed by the Defendant for that given pay period. 13. In each of Mr. Rosario's Payroll Journals presented as

Exhibits 3 and 4, the amount of overtime pay reflected in line item number 53 is the result of Defendant multiplying Mr. Rosario's Rosario's overtime Basic hours for for the the pay period The basis times for Mr. this

Rate

period.

information is the payroll journal itself. 14. In each of Mr. Rosario's Payroll Journals presented as

Exhibits 3 and 4, the Defendant includes its computation of the Regular Rate. In these journals, the Defendant identifies

this item or amount with the capital letter "R" placed to the left of the amount so computed. 15. The formula used by the Defendant to compute overtime pay

as reflected in Mr. Rosario's Payroll Journals, is the same formula used by the Defendant for every postal employee that labors with the United States Postal Service. See Ms. Jo Ann Mitchells' hereto. Deposition at page 118, lines 15-20, Exhibit 2

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Ms. Mitchell identified the Regular Rate in reference to

Exhibit 3 of this statement at being the amount of $23.54. See Ms. Jo Ann Mitchells' Deposition at page 87, line 16 Exhibit 2 hereto and Exhibit 7-A to the deposition transcript. 17. Referring to Exhibit 3 and the first week reflected in said

exhibit, following the definition stated in section 444.10 of the ELM published by the Defendant (see Plaintiffs' Undisputed Fact #5) Mr. Rosario's overtime pay for that week should have been the result of multiplying 8 overtime hours times 1 ½ times the Regular Rate of $23.54 for a total overtime pay of $282.48. 18. For pay period number 6 of the year 2000, Mr. Rosario See

received the amount of $263.04 for total overtime pay.

Ms. Jo Ann Mitchells' Deposition at page 109, line 4 through page 110, line 4, Exhibit 2 hereto. 19. During the course of the captioned litigation, Dr. Jaime L.

del Valle on behalf of plaintiffs prepared an expert report, an exact copy of which is attached as Exhibit 5 of this

statement. 20. During the course of the captioned litigation, Mr. James

Valin on behalf of the Defendant prepared an expert report, an exact copy of which is attached as Exhibit 6 of this

statement. Respectfully submitted, S/
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Santiago F. Lampón

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SANTIAGO F. LAMPÓN LAMPÓN & ASSOCIATES PO BOX 363641 SAN JUAN, PR 00936-3641

Tel: (787) 273-6767 Fax: (787) 395-7060 Attorney for Plaintiffs September 15, 2008 CERTIFICATE OF SERVICE I hereby certify that on this same date, a copy of the foregoing motion has been filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

S/ Santiago F. Lampón

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