Free Motion for Summary Judgment - District Court of Federal Claims - federal

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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' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE THE HONORABLE COURT: COMES NOW plaintiffs in the above captioned complaint and as further detailed, through undersigning counsel, respectfully STATE and PRAY: Pursuant to Rule 56 of the United States Court of Federal Claims, plaintiffs respectfully request the Court enters partial summary judgment against the defendant, the Unites States of America, stating that the Defendant is not in compliance with the Fair Labor Standards Act of 1938, 29 U.S.C., Ch 8, section 201 et. seq. (hereinafter referred to as "FLSA" or "the Act"), since it fails to compute and pay employees in Puerto Rico

overtime at 1 ½ times the regular rate of pay as mandated in the Act. In support of this claim, plaintiffs presented on this same date Plaintiffs' Proposed Findings of Uncontroverted Facts

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(hereinafter

referred

to

as

"Plaintiffs

Proposed

Findings...

#

__") together with support documentation attached thereto. BRIEF INTRODUCTION AND STATEMENT OF THE ISSUE The essential elements of the captioned case and the subject of this motion for summary judgment can be found in the answer to two very simple questions: 1. What is mandated as a matter of law regarding the payment of overtime to employees within the United States Postal Service in Puerto Rico? 2. Is the Defendant, the United States Postal Service, paying overtime to postal employees in Puerto Rico in accordance with this mandate? Plaintiffs truly believe that this case can be reduced to these two items as far as liability is concerned. Accordingly,

plaintiffs present this Honorable Court with this motion for partial summary judgment and on the aspect of liability, Findings

establishing

herein

through

Plaintiffs

Proposed

that the Unites States Postal Service is not paying overtime to postal employees in Puerto Rico in accordance with applicable law. Before moving forward, plaintiffs want to respectfully

communicate their point of view about the presentation of their
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case for summary judgment.

In our view, the simplicity of the

argument mandates a simple presentation of the information for subsequent evaluation by this Honorable Court. Arguments could

or will be made that the presentation in this motion is too simple, but it is a completely intentional presentation merely because we believe, with all due respect, that the controversy and its resolution are simple in nature. STATEMENT OF THE CASE The Defendant employs thousands on individuals across the continental Though the Unites Postal States System and seems beyond, to be including a strange Puerto and Rico.

complex

apparatus and it may as well is in fact complex, plaintiffs believe that it should not be complicated at all to abide by applicable law when the computation of postal pay is at hand. After all, employees within the system are entitled to certain specific benefits mandates as a matter of law, like the overtime pay subject of the captioned case. When we read the mandate for the payment of overtime and the unequivocal meaning of the words and the sentence as a whole (yes, only one sentence), we fail to see why the Defendant has to go into all this mechanical complexities to determine

overtime.

The presentation of plaintiffs' claim in this motion

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will show that this is a simple matter, a simple case, a simple controversy. Plaintiffs believe that the ultimate test is very simple: are they being paid overtime hours at not less 1 ½ times the regular rate. If whichever formula the Defendant uses results

in overtime pay of not less than 1 ½ times the regular rate, then this case should be dismissed. Conversely, if the end

result is less than 1 ½ times the regular rate, it really does not matter the justifications, the rationalities, the complexity or lack thereof of the computation system, the Defendant is not paying what the law says it has to pay plaintiffs when overtime is incurred. To make it simpler for presentation purposes at this stage of this motion, let's take a regular rate of $20.00. If we

multiply the regular rate of $20.00 by 1 ½ times as mandate by FLSA, we get an overtime rate of $30.00 per overtime hour. If a

given employee works 8 hours of overtime, he/she is entitled to the following pay: 8 hours x $30.00 = $240.00 of overtime pay. Further expanding on this example, we can also present it like this: 8 hours of overtime x ($20 regular rate x 1 ½) = $240.00.

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Hence,

the

Defendant

can

call

it

"mathematically If the

equivalent" or any other description it wishes to use.

pay received by the employees is not less than 1 ½ times the regular rate, the captioned case should be thrown out of Court. Conversely, if the overtime pay to postal employees is less than 1 ½ times the regular rate of pay, then we need to have the situation corrected and plaintiffs damages and back pay

calculated and compensated, together with any other remedy under applicable law. ARGUMENT Plaintiffs States This Postal case is in in this matter the the are employees in the of the United case. the the

Service, about the

defendant

captioned among

relationship case and

existing its

plaintiffs Defendant.

captioned

employer,

The controversy is simple: is the Defendant paying

overtime at the rate mandated as a matter of law, or is it calculating and paying overtime at less than the rate so ordered by the United States Congress. All employees engaged in interstate commerce or employed by an entity engaged in interstate commerce, with certain specific exceptions or exclusions, are covered under the FLSA. undisputed that FLSA applies to postal employees, It is

including

plaintiffs in this case.
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FLSA covered by

establishes the Act,

certain including

guarantees the right

to to

the

employees pay as

overtime

mandated under the Act. reads as follows: § 207. Maximum hours (a)

Specifically, section 207 of the Act

Employees engaged in interstate commerce; additional applicability to employees pursuant to subsequent amendatory provisions (1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. . . 207 of the Act, then, if an employee section

. Following

works in excess of 40 hours in any given week, FLSA mandates that the amount of excess hours be compensated at "at a rate not less than one and one-half times the regular rate at which he is employed." See Ante. This text is clear and frankly requires

no interpretation--with all due respect to the Court's role in this case. "Not less than one and one-half times the regular

rate" means exactly that, and all an employer has to do is take the "regular rate" of pay for any given employee and multiply it by "one and one-half times" in order to reach the compensation
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owed for overtime hours worked by an employee covered under the Act. If the language of a statute is open or ambiguous, that is, if Congress left a "gap" for the agency to fill, then court must uphold the agency's interpretation as long as it is reasonable. If the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of a court's interpretive analysis. Zuni Public Schools Dist. No. 89 v. Department of Education, 127 S. Ct. 1534 U.S. 2007. The Defendant agrees with section 207 of the Act, though throughout Fortunately this for case it may and appear for the that Court, it the does not.

plaintiffs

Defendant

publishes the Employee and Labor Relations Manual (hereinafter the "ELM"). See Plaintiffs' Proposed Finding # 3. Therein, the

Defendant states the following with regards to overtime pay as follows: 444 444.1 Overtime Pay Policy

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. See 445 for special provision covering rural letter carriers. Plaintiffs' Proposed Finding # 5

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Undoubtedly, section 444.1 of the ELM is in agreement with FLSA, except for the omission of the phrase "not less than" included in the Act. It also leaves no doubt that the Defendant

accepts that it is obligated to pay overtime to postal employees at least at one and one-half times the regular rate of pay. Accordingly, up to this point we have an undisputed record with regards to the calculation of overtime pay. Moreover, the

parties also do not dispute the meaning of section 207 of the Act, since we are in agreement that it wording clearly states that overtime is to be paid at not less than 1 ½ times the regular rate of pay. Now we need It is that simple. to look at the "regular rate" and its

components before we move away from the applicable law and into the realm of what is really happening within the Postal Service with the overtime pay. To begin, plaintiffs present that this case is not about the way the Defendant computes the regular rate of pay. Plaintiffs' Proposed Findings # 7. The regular rate See is

determined by dividing the employee's total remuneration before he/she receives the overtime premium in a workweek, by the total number of hours actually worked in that workweek. section 778.109. See 29 C.F.R.

On this regards, the Defendant again provides

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us with a practicable solution that facilitates where we have to go from this point on. In Section 207, Subsection (e) of FLSA, Congress included a definition of the "regular rate" with a long list of exclusions. Defendant published or the ELM of and its provided us with with its own

interpretation

policy

relationship

employees

within the postal system as it relates to the regular rate: 444.2 Explanation of Terms 444.21 Regular Rate 444.211 Definition An employee's regular rate of pay is defined as all remuneration for employment received during an FLSA workweek divided by the hours that the employee actually worked. Plaintiffs Proposed Finding # 6 Granted that the Act provides for certain inclusions and certain (Section exclusions 207(e)), for and the computation that the of ELM the regular rate

granted

includes

certain

inclusions and exclusions as well purportedly in accordance with FLSA. Nevertheless, at this point plaintiffs will not be

discussing the computation of the regular rate by the Defendant. Once the Defendant computes the regular rate, plaintiffs do contest that the manner in which it computes overtime pay is "one and one-half times the regular rate" of pay for the postal

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employees included in this complaint, as well as other postal employees within the system. In other words, whichever formula

the Postal Service is using does not result in overtime pay of not less than 1 ½ the regular rate of pay. On this regards, as cited in Zuni Ante, we emphasize that we are merely following Congress' clear letter of the law, which in our humble we opinion can does not require to the interpretation application of and, the

accordingly,

move

directly

clear and specific language of the statute. In the normal course of business, the Defendant creates a document named "Payroll Journal." Within this journal we find

the essential payroll information for any given period for a given postal employee, particularly the information pertinent to the captioned case. Plaintiffs' Proposed Finding # 7. For purposes of this motion, we will begin with a

particular pay period for co-plaintiff Jorge Rosario, a long term employee of the Postal Service. Mr. Rosario's pay period

number 6 for the year 2000, has been used as a reference by both experts in this case, Dr. Jaime del Valle for plaintiffs and Mr. James Valin for the Defendant. Attached to Plaintiffs' Proposed

Finding # 7 as Exhibit 3, is Mr. Rosario's pay period number 6 for the year 2000. The expert reports by Mr. Del Valle for

plaintiffs and Mr. Valin for Defendant are attached as Exhibits
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5

and

6

of

Plaintiffs'

Proposed

Findings

#19

and

#20,

respectively. This pay period for Mr. Rosario, number 6 of the year 2000, was the one at pages covered the of during the by taking Ms. Joan of Defendant's, The as

represented pertinent

deposition Defendant's

Mitchell. are attached

deposition

Exhibit 2 of Plaintiffs' Proposed Findings. The method of pay used for Mr. Rosario is the same method used for all postal employees involved in the captioned case. See Plaintiffs' Proposed Finding # 16. For purposes of this motion, we will begin with the pay period mentioned before for Mr. Jorge Rosario, Exhibit 3, and use it to present the information plaintiffs understand reflect the violation being committed by the Defendant. journal can be found in Exhibit this 3 of This particular Proposed we the will same

Plaintiffs' period, reflect

Findings. review a

After series

reviewing of payroll

particular which

journals

violation being committed over and over again since the year 2000 to the present, hence dispending with any possible doubt that the Defendant is not committing the same violation over and over again.

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AS a normal practice, Defendant includes its computation of the regular rate within the employees' Payroll Journal. This

amount is normally located and easily identifiable on the left hand side of the journal, and the amount is clearly identified with the capital letter "R". 14. Focusing now on Exhibit 3 which is the pay period used by the expert witnesses and covered during the Defendant's See Plaintiffs' Proposed Finding #

deposition, the Court will note that that Mr. Rosario worked a total of 8 overtime hours for that workweek. It is also

reflected within the Payroll Journal, that the regular rate for that period as computed by the Defendant was $23.545. The

computation of the regular rate was the result of dividing the total remuneration to Mr. Rosario for that workweek ($1,130.18) by the total number of hours worked by Mr. Rosario for that period (48 hours) ($1,130.18 / 48 = $23.545). Mitchells' Deposition at page 100, lines 5-8, See Ms. Jo Ann Exhibit 2 to

Plaintiffs' Proposed Findings. Plaintiffs want to clarify at this point, that at this

stage of the computation of Mr. Rosario's pay, the 8 hours of overtime included in this segment of the formula were computed at the Basic Rate of pay and not at the Regular Rate of pay. That is why line 53 of this payroll journal reflects the total
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overtime

hours

pay

to

have

been

$233.81

which

results

from

multiplying 8 hours times 1 ½ times the Basic Rate of pay (8 x (1 ½ x $19.484)= $233.808). As covered before in reference to section 207 of FLSA,

which is confirmed by the ELM as quoted before in this motion, overtime pay is to be computed at not less than one and one-half times the regular rate of pay. to the letter, Mr. Rosario's Accordingly and following FLSA overtime pay for this period

(Exhibit 3) should have been computed as follows:

8 overtime

hours x (regular rate of pay of $23.545 x 1 ½ times mandated by FLSA) = $282.54. It is a simple arithmetic excercise.

Now, taking the different items included in the payroll journal (Exhibit 3) and applying FLSA's overtime pay requirement as per section 207, we can revise if for pay period number 6 of the year 2000 Exhibit 3) the Defendant in fact paid Mr. Rosario in accordance with the Act: 1. FLSA OT owed to Mr. Rosario (@ 1 ½ the Regular Rate): 2. Actual OT pay to Mr. Rosario (Mitchell's Depo page 108, line 10 through page 110, line 4): 3. Underpayment to Mr. Rosario (FLSA calculation less the actual amount Defendant paid to Mr. Rosario)

$282.54 $263.04 $(19.50) Mr.

Plaintiffs submit that this information is undisputed.

Rosario was not paid overtime at a rate not less than 1 ½ times

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the regular rate of pay as mandated by FLSA.

Had Mr. Rosario

been paid at one and one-half times the regular rate of pay, he would have been paid a total of $282.54 for overtime, which as Ms. Mitchell clearly admitted during her deposition, he did not receive that amount and, instead, received a lesser amount of $263.04. See page 100 of Ms. Mitchell's deposition transcript,

line 4, Exhibit 2 to Plaintiffs' Proposed Findings. It is noteworthy before we proceed, that Ms. Joan Mitchell clearly testified that the formula used for the computation of Mr. Rosario's overtime pay for this period is the same formula used by the Defendant for every employee in Puerto Rico and every employee within the postal service system. See page 118

of Ms. Mitchell's deposition transcript, lines 8-20, Exhibit 2 to Plaintiffs' Proposed Findings. We now want to review other payroll journals for subsequent years, and again we will refer to co-plaintiff Mr. Rosario. The

purpose of this review is to show the Honorable Court, that Defendant's failure to pay overtime at rate not less than one and one-half times the regular rate of pay has been systematic. In order to perform this exercise, we will refer to the USPS Bates numbered used by the Defendant during the course of

discovery, all of which are incorporated hereby through Exhibit 4 of Plaintiffs' Proposed Finding #7.
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USPS 002619 shows 8 hours of overtime. shown to be $31.76.

The Regular Rate is

Applying the FLSA overtime formula we get:

8 hours x (1 ½ x Regular Rate of $31.76) = $381.12 owed to Mr. Rosario for this pay period. Mr. Rosario was paid as shown in

line item 53, which is $308.83, plus the FLSA adjustment of $42.11 for a total of actual overtime pay to Mr. Rosario of $350.94. The amount paid to Mr. Rosario was $30.18 less than

the amount mandated by FLSA. USPS 002628 shows 16 hours of overtime for this Payroll Journal. The Regular Rate is shown to be $31.41. Applying the

FLSA overtime formula we get: 16 hours x (1 ½ x Regular Rate of $31.41) = $753.84 owed to Mr. Rosario for this pay period. Rosario was paid adding the two line items 53, which Mr. total

$609.74 plus the FLSA adjustment of $32.73 for a total of actual overtime pay to Mr. Rosario of $642.47. The amount paid to Mr.

Rosario was $111.37 less than the amount mandated by FLSA. USPS 002630 show two weeks with overtime pay within this Payroll Journal. The first week on USPS 002630 shows 8 hours of overtime. The Regular Rate is shown to be $31.28. overtime formula we get: 8 hours x (1 ½ Applying the FLSA x Regular Rate of Mr.

$31.28) = $375.36 owed to Mr. Rosario for this pay period.

Rosario was paid following line item 53 a total of $304.11 plus
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the FLSA adjustment of $25.76 for a total of actual overtime pay to Mr. Rosario for this week of $329.87. The amount paid to Mr.

Rosario was $45.49 less than the amount mandated by FLSA. The second week in USPS 002630 shows 8 hours of overtime. The Regular Rate is shown to be $31.32. overtime formula we get: 8 hours x (1 ½ Applying the FLSA x Regular Rate of Mr.

$31.32) = $375.84 owed to Mr. Rosario for this pay period.

Rosario was paid following line item 53 a total of $317.45 plus the FLSA adjustment of $42.86 for a total of actual overtime pay to Mr. Rosario for this week of $360.31. The amount paid to Mr.

Rosario was $15.53 less than the amount mandated by FLSA. USPS 002631 shows 8 hours of overtime. shown to be $30.91. The Regular Rate is

Applying the FLSA overtime formula we get:

8 hours x (1 ½ x Regular Rate of $30.91) = $370.92 owed to Mr. Rosario for this pay period. Mr. Rosario was paid as shown in

line item 53, which is $304.87, plus the FLSA adjustment of $36.07 for a total of actual overtime pay to Mr. Rosario of $340.94. The amount paid to Mr. Rosario was $29.98 less than

the amount mandated by FLSA. USPS 002632 show two weeks with overtime pay within this Payroll Journal.

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The first week on USPS 002632 shows 1.99 hours of overtime. The Regular Rate is shown to be $31.99. Applying the FLSA

overtime formula we get: 1.99 hours x (1 ½ x Regular Rate of $31.99) = $95.49 owed to Mr. Rosario for this pay period. Mr.

Rosario was paid following line item 53 a total of $75.84 plus the FLSA adjustment of $11.61 for a total of actual overtime pay to Mr. Rosario for this week of $87.45. The amount paid to Mr.

Rosario was $8.04 less than the amount mandated by FLSA. The overtime. second week in USPS 002632 shows 1.96 hours of

The Regular Rate is shown to be $31.32.

Applying the

FLSA overtime formula we get: 1.96 hours x (1 ½ x Regular Rate of $31.32) = $92.08 owed to Mr. Rosario for this pay period. Mr. Rosario was paid following line item 53 a total of $74.69 plus the FLSA adjustment of $11.37 for a total of actual

overtime pay to Mr. Rosario for this week of $86.06.

The amount

paid to Mr. Rosario was $6.02 less than the amount mandated by FLSA. At this juncture, we will like the Court to note the

following particularities reflected by this exercise as follows: (1) the regular rate varies from period to period (in these examples); and, (2) notwithstanding the amount of overtime

hours, the Defendant paid Mr. Rosario an amount less than the one mandated under FLSA.
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Moreover, we would like the Court to take notice that we are simple abiding by Ms. Mitchell's testimony claiming that the "FLSA adjustment" is in response to or Defendant's attempt at complying with FLSA and, accordingly, are adding said amount to the overtime pay actually delivered to Mr. Rosario for these periods. USPS 002635 show two weeks with overtime pay within this Payroll Journal. The first week on USPS 002635 shows 8 hours of overtime. The Regular Rate is shown to be $31.35. overtime formula we get: 8 hours x (1 ½ Applying the FLSA x Regular Rate of Mr.

$31.35) = $376.20 owed to Mr. Rosario for this pay period.

Rosario was paid following line item 53 a total of $304.87 plus the FLSA adjustment of $41.56 for a total of actual overtime pay to Mr. Rosario for this week of $346.43. The amount paid to Mr.

Rosario was $29.77 less than the amount mandated by FLSA. The overtime. second week in USPS 002635 shows 8.00 hours of

The Regular Rate is shown to be $31.37.

Applying the

FLSA overtime formula we get: 8 hours x (1 ½ x Regular Rate of $31.37) = $376.44 owed to Mr. Rosario for this pay period. Mr.

Rosario was paid following line item 53 a total of $304.87 plus the FLSA adjustment of $41.64 for a total of actual overtime pay

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to Mr. Rosario for this week of $346.51.

The amount paid to Mr.

Rosario was $29.93 less than the amount mandated by FLSA. USPS 002661 show two weeks with overtime pay within this Payroll Journal. The first week on USPS 002635 shows 8 hours of overtime. The Regular Rate is shown to be $30.27. overtime formula we get: 8 hours x (1 ½ Applying the FLSA x Regular Rate of Mr.

$30.27) = $363.24 owed to Mr. Rosario for this pay period.

Rosario was paid following line item 53 a total of $296.27 plus the FLSA adjustment of $37.46 for a total of actual overtime pay to Mr. Rosario for this week of $333.73. The amount paid to Mr.

Rosario was $29.51 less than the amount mandated by FLSA. The overtime. second week in USPS 002635 shows 8.00 hours of

The Regular Rate is shown to be $29.71.

Applying the

FLSA overtime formula we get: 8 hours x (1 ½ x Regular Rate of $29.71) = $356.52 owed to Mr. Rosario for this pay period. Mr.

Rosario was paid following line item 53 a total of $296.27 plus the FLSA adjustment of $39.01 for a total of actual overtime pay to Mr. Rosario for this week of $335.28. The amount paid to Mr.

Rosario was $21.24 less than the amount mandated by FLSA. USPS 002662 show two weeks with overtime pay within this Payroll Journal.

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The first week on USPS 002662 shows 8 hours of overtime. The Regular Rate is shown to be $31.05. overtime formula we get: 8 hours x (1 ½ Applying the FLSA x Regular Rate of Mr.

$31.05) = $372.60 owed to Mr. Rosario for this pay period.

Rosario was paid following line item 53 a total of $296.27 plus the FLSA adjustment of $00.00 for a total of actual overtime pay to Mr. Rosario for this week of $296.27. The amount paid to Mr.

Rosario was $76.33 less than the amount mandated by FLSA. The overtime. second week in USPS 002662 shows 10.00 hours of

The Regular Rate is shown to be $31.05.

Applying the

FLSA overtime formula we get: 10 hours x (1 ½ x Regular Rate of $31.05) = $461.25 owed to Mr. Rosario for this pay period. Mr.

Rosario was paid following line item 53 a total of $370.34 plus the FLSA adjustment of $00.00 for a total of actual overtime pay to Mr. Rosario for this week of $370.34. The amount paid to Mr.

Rosario was $90.91 less than the amount mandated by FLSA. USPS 002663 shows two weeks with 16 hours of overtime which we will incorporate into one for purposes of this presentation. The Regular Rate is shown to be $30.30. Applying the FLSA

overtime formula we get: 16 hours x (1 ½ x Regular Rate of $30.30) = $727.20 owed to Mr. Rosario for this pay period. Mr.

Rosario was paid as shown in lines item 53, which add up to $592.54, plus the FLSA adjustment of $9.25 for a total of actual
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overtime pay to Mr. Rosario of $601.79.

The amount paid to Mr.

Rosario was $125.41 less than the amount mandated by FLSA. USPS 002675 show two weeks with overtime pay within this Payroll Journal. The first week on USPS 002675 shows 7.22 hours of overtime. The Regular Rate is shown to be $29.64. Applying the FLSA

overtime formula we get: 7.22 hours x (1 ½ x Regular Rate of $29.64) = $321.000 owed to Mr. Rosario for this pay period. Mr.

Rosario was paid following line item 53 a total of $257.64 plus the FLSA adjustment of $22.72 for a total of actual overtime pay to Mr. Rosario for this week of $280.36. The amount paid to Mr.

Rosario was $40.64 less than the amount mandated by FLSA. The overtime. second week in USPS 002675 shows 5.97 hours of

The Regular Rate is shown to be $29.64.

Applying the

FLSA overtime formula we get: 5.97 hours x (1 ½ x Regular Rate of $29.64) = $265.43 owed to Mr. Rosario for this pay period. Mr. Rosario was paid following line item 53 a total of $213.03 plus the FLSA adjustment of $31.68 for a total of actual The amount

overtime pay to Mr. Rosario for this week of $244.71. amount paid to Mr. Rosario was $20.72 less than the

mandated by FLSA.

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USPS 002676 show two weeks with overtime pay within this Payroll Journal. The overtime. first week on USPS 002676 shows 27.38 hours of

The Regular Rate is shown to be $28.13.

Applying the

FLSA overtime formula we get: 27.38 hours x (1 ½ x Regular Rate of $28.13) = $1,155.30 owed to Mr. Rosario for this pay period. Mr. Rosario was paid following line item 53 a total of $869.98 plus the FLSA adjustment of $94.35 for a total of actual The

overtime pay to Mr. Rosario for this week of $964.33.

amount paid to Mr. Rosario was $190.97 less than the amount mandated by FLSA. The overtime. second week in USPS 002676 shows 15.99 hours of

The Regular Rate is shown to be $28.82.

Applying the

FLSA overtime formula we get: 15.99 hours x (1 ½ x Regular Rate of $28.82) = $691.25 owed to Mr. Rosario for this pay period. Mr. Rosario was paid following line item 53 a total of $570.59 plus the FLSA adjustment of $71.47 for a total of actual The amount

overtime pay to Mr. Rosario for this week of $642.06. amount paid to Mr. Rosario was $49.19 less than the

mandated by FLSA. Thus far, we have covered 11 payroll journals for Mr.

Rosario, all of which have shown an undisputable deficiency in the amount of overtime pay when comparing the FLSA formula of
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not less than 1 ½ times the regular rate of pay with the payment actually made by the Defendant. We will present the remaining 6

payroll journals in the form of a table as follows: Payroll Journal # 2677 2677 2678 2678 2712 2713 2740 2758 USPS OT FLSA Paid Adjustment 568.80 00.00 570.59 71.23 285.47 19.67 52.81 8.70 517.51 00.00 648.43 00.00 253.06 00.00 496.58 00.00

Ovetime Hours 15.94 15.99 8.00 1.48 15.97 20.01 8.00 16.00

Regular Rate 28.94 28.82 28.98 30.27 25.79 25.96 25.50 24.96

FLSA Pay 691.96 691.25 347.76 67.20 617.80 779.19 306.00 599.04

Tot USPS Pay 568.80 641.82 305.14 61.51 517.51 648.43 253.06 496.58

Net Deficiency 123.16 49.43 42.62 5.69 100.29 130.76 52.94 102.46

In sum, this Honorable Court can see the logic and the undisputed truth about the manner in which the Defendant pays overtime in comparison with FLSA's mandate of not less than 1 ½ times the regular rate of pay. Following the plain language of Rule 56, plaintiffs

respectfully submit that under the circumstances pleaded in this motion and based on the uncontroverted facts presented to this Court, entering summary judgment in this matter would be proper. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). CONCLUSION Through respectfully this motion is and a in what yet undersigning strong and counsel clear

believes

simple
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presentation of the law and of the undisputed facts, plaintiffs have presented to this Honorable Court sufficient information to find that the Defendant is not paying postal employees in Puerto Rico overtime at the FLSA mandated rate of not less than 1 ½ times their regular rate of pay. Accordingly, plaintiffs

respectfully move the Court to enter partial summary judgment on their behalf and on the behalf of thousands of postal employees in Puerto Rico who are identically situated. WHERETOFORE, plaintiffs move this Honorable Court to enter partial summary judgment on behalf of plaintiffs as to

Defendant's liability for failing to pay overtime at not less than 1 ½ times the postal employees' regular rate of pay, and accordingly also order the Defendant to immediately begin paying postal employees overtime at 1 ½ times the regular rate while the proceedings before this Court continue as to other remedies regarding amounts owed to plaintiffs. Respectfully submitted, S/ Santiago F. Lampón

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

Tel: (787) 273-6767

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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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