Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

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Filed 06/11/2008

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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

AMENDED MOTION FOR LEAVE TO FILE A SECOND AMENDED THE COMPLAINT BEFORE THE HONORABLE COURT: COMES NOW plaintiffs in the above captioned complaint and as further detailed, through undersigning counsel, respectfully STATE and PRAY: 1. On May 8, 2008, Defendant filed a motion to strike

plaintiffs' request to amend the complaint.

The request

to strike rests primarily on the claim that he request purportedly 7(b). 2. Though plaintiffs amended understand complaint that the motion and the the lacks the information required under RCFC

proposed

sufficiently

communicate

purpose of the request, plaintiffs have decided to file an amended request in order to further enlighten the Court on why the leave to file the Second Amended Complaint should be granted. 3. Moreover, the matters pleaded herein also show why this case should be disposed of as a result of a motion for

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summary judgment as to liability to be opportunely filed by plaintiffs. 4. It is undisputed that Defendant has a legal obligation to pay overtime to postal employees at 1 ½ the Regular Rate. Besides the clear language of FLSA cited in the complaint, the Postal Service published its Employee Labor Manual

("ELM") which in Article 444.10 states as follows: "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 in any FLSA work week." 5. As of the date of this to motion the and pursuant in to the the in

discovery Postal dispute.

conducted

date, the

manner

which is not

Service

computes

Regular

Rate

Accordingly, it is quite surprising to see the

Postal Service attempting to divert the attention of this case from how the Postal Service computes overtime to how it computes the Regular Rate. 6. To compute the correct overtime pay, all the Postal

Service has to do is follow the clear wording of the law and multiply the Regular by Rate the by 1 ½ times, and then hours

multiply

that

number

total

overtime

worked(Regular Rate x 1 ½ x Overtime Hours) to obtain the amount of compensation payable to the postal employees who has worked overtime.

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7.

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Again, we emphasize that all Defendant has to do is refer to FLSA and to the ELM it publishes. simple. It should be that

8.

During Defendant's deposition, taken on March 21, 2008, the parties referred to one pay period for plaintiff Jorge Rosario. The parties agreed to review this pay period

because it was the same pay period used by the parties' expert witnesses to evaluate the manner in which the

Postal Service computes overtime (not the Regular Rate). 9. While reviewing this pay period there was no dispute For this that the

whatsoever about the amount of the Regular Rate. period the Regular expert, Rate the was $23.545 Service

noting and

plaintiffs'

Postal

expert

Postal Service witness, Ms. Joan Mitchell, agreed to this amount. 10. In this regards, the witness for the Postal Service, Mrs. Joan Mitchell, at some point in the deposition stated as follows: At Page 113 4 5 6 7 8 11. A Could I ask that we stipulate to the regular rate? I don't think anybody is arguing that the regular rate is 23.545. Q I'll agree with that. MR. DIERBERG: That is fine.

Moreover, for this pay period there was not dispute that this plaintiff had worked 8 hours of overtime.

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12.

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When the formula mandated by Congress for the computation of overtime pay of 1 1/2 times the Regular Rate is applied to this period, the result is unequivocal. The amount of

overtime the Postal Service owed this employee was $282.54 (the Regular Rate of $23.545 x 1 ½ x 8 hours = $282.54). 13. Nevertheless, the formula actually used by the Postal

Service resulted in a payment of $263.04 for the same pay period. 14. Hence, it is with mathematical certainty that plaintiffs can establish that the Postal Service ½ is not the paying Regular

overtime to postal Rate. 15.

employees

at 1

times

During her deposition, plaintiffs asked Ms. Mitchell if the formula used by the Postal Service to compute overtime in Puerto Rico is the same formula used in Alaska and for all the employees in the Postal Service. answered in the affirmative as follows: At Page 118 15 16 17 18 19 20 Q Okay. Is this the same formula used in Alaska? A Yes, it is. Q Is it the same formula used across the United States? A Yes, it is. Ms. Mitchell

16.

Ms. Mitchell testimony established that the Postal Service is in violation as of FLSA in and its of its own She regulation also or

policy

established

ELM.

clearly 4

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established that the violation is not limited to Postal Employees in Puerto Rico, but that the Postal Service is not paying 1 ½ times the Regular Rate to all postal

employees system wide. 17. The Second Amended Complaint clearly shows that the

Defendant is not paying overtime at 1 ½ times the Regular Rate. Moreover, it also clearly reflects that the

violation affects all employees within the Postal Service who work overtime regardless of location. 18. Defendant is only trying to divert this Court's attention from the simple facts as pleaded in this motion and in the Second Amended Complaint. What it fails to see or to

admit and hence it is trying to win time, is that it is in violation of FLSA's mandate to pay postal employees'

overtime at 1 ½ times the Regular Rate. 19. We honestly believe that the and Second fairly Amended describes Complaint what the

sufficiently,

succinctly

Defendant is NOT doing, which is paying overtime to postal employees 1 ½ times the Regular Rate. Moreover, by know

Defendant should also be sufficiently advised what are the issues in this case as they have been carefully laid our on the record. 20. We will like to mention that there is in fact a pending request for the certification of a class. Defendant's

claim that the lack of a reply to their opposition should 5

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be interpreted as acquiescence by plaintiff is meritless, since it is well known that replies are not mandated as a matter of procedural rules. 21. We respectfully inform the Court that plaintiffs will move the Court to amend the request for class certification if and when the Court grants leave to file the Second Amended Complaint as pleaded herein. WHERETOFORE plaintiffs move this Honorable Court to grant leave to file an amended complaint for the purposes stated in this motion. attachment to The amended complaint is filed on record as an Document 97, with the request that, if this

Honorable Court approves the filing, it be filed as such in the docket of this matter. Respectfully submitted, S/ Santiago F. Lampón

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

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May 20, 2008

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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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