Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
U.S. Department of Agriculture
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/16/2016
Date
Introduction
On January 12, 2011, the U.S. Office of Personnel Management (OPM) received a letter dated January 12, 2011, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards (FLSA) claim they had initially filed on the claimant's behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on April 28, 1994, and subsequently with OPM on or about September 9, 1999. The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO. Based on information provided by B & L, claimant was awarded back pay under a settlement agreement signed on November 22, 2006, subject to the two-year statute of limitations for FLSA claims under 29 U.S.C. § 255(a).
B & L has requested OPM adjudicate the administrative claim filed with OPM, and asserts that, because claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. § 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act. See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. § 255(a). B & L states the claimant was called to active duty with the United States Army Reserve from approximately September 14, 1990, to April 15, 1991, in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), states: “It is our view that this provision entitles [our client] to recover on his FLSA administrative claim for the period retroactive to five years prior to the commencement of the Gulf War and thereafter.”
Background
We previously accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.). Our November 2, 2012, denial found the claim, for the period October 13, 1985, to April 18, 1992, was time barred. Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. § 706(2)(A)) in the United States District Court for the District of Columbia which, in its Opinion and Memorandum rendered on December 30, 2014 (Civil Action No. 13-392(RMC)), found in the claimant’s favor. The Opinion states, in relevant part,
IV. CONCLUSION
All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs Armstrong, Baldwin, Dillow, Gellick, Johnson and Grundberg can recover for the entire claim period under the five-year statute of limitations-that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990-minus monies paid under their DOJ Settlements.
Accordingly, the Court will deny Defendants' Motion to Dismiss [Dkt. 14] and grant Plaintiffs' Cross-Motion for Summary Judgment [Dkt. 19]. Therefore, judgment on liability will be entered in favor of Plaintiffs and the case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs' respective employing agencies are directed to compensate them in accordance with OPM's determinations. A memorializing Order accompanies this Opinion.
Analysis
Applicability of the FLSA
Under the provisions of 5
During the time period covered by Mr. Grundberg's claim, he was a Special Agent at the GS-7 through GS-12 levels, and the agency designated him as FLSA exempt. Mr. Grundberg performed the traditional duties of a criminal investigator and would not have had any management responsibilities within the agency. Therefore, we think that Mr. Grundberg should have been designated nonexempt during the period in question.
Based on careful review of the record, we concur with the agency’s determination. The claimant is requesting compensation for work performed from October 13, 1985, to April 18, 1992, less his active duty military service time “from approximately September 14, 1990, to April 15, 1991,” when the record shows he was properly classified as FLSA nonexempt. Therefore, USDA would have been required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period as directed by the Court; i.e., five years prior to the commencement of the Gulf War and forward, which encompasses the entire period of the asserted claim.
Computation of Back Pay
In their letter dated January 21, 2016, responding to the AAR in which the agency states the “records necessary to calculate the FLSA overtime pay that Mr. Grundberg is entitled to received [sic] have been destroyed or lost,” claimant’s representative cites Anderson v. Mt. Clemons Pottery Co., 328 U.S. 680 (1946), which states, in relevant part:
In such a situation, we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.
Claimant’s representative further states:
In the instant case, there is more than a "reasonable inference" regarding the amount of back wages that Mr. Grundberg is owed. In 2006, on behalf of approximately 5,934 federal criminal investigators who sought FLSA overtime compensation in the United States Court of Federal Claims as GS-13s, undersigned counsel entered into a Settlement Agreement with the United States compensating those plaintiffs for their FLSA back pay going back to at least February 16, 1988 and forward to October 29, 1994.
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Counsel for plaintiffs believe that the resolution achieved in Court in the above-described settlement provides an appropriate basis for a pay period by pay period settlement covered by Mr.Grundberg’s FLSA claim before OPM. We have adjusted the back pay due based upon the historic relationships between GS-13 compensation and lesser grades down to GS-7, as well as the relationships between employee pay at the various "steps." A schedule of such proposed back pay for Mr. Grundberg is attached as Grundberg Exhibit 3. An overall schedule for grades GS-7 through GS-13 from step 1 through step 10 is enclosed as well. It is designated as Grundberg Exhibit 4.
As for the interest owed on Mr. Grundberg's back pay, we believe that it should be determined in accordance with the conventional OPM and National Finance Center back pay interest rate calculations and programs in accordance with the Back Pay Act, 5 U.S.C. § 5596.
* * * * * *
We stand ready to discuss the implementation of the foregoing back pay and interest calculations and payments with OPM as soon as you deem it possible and appropriate.
We also believe that we are entitled to appropriate attorneys [sic] fees and expenses.
As an initial matter, claimant’s reliance on the aforementioned Settlement Agreement is contrary to the provisions of tha Agreement which states, in relevant part:
Q. This agreement is made solely for the purpose of settling the claims that it covers and for no other purpose except as provided for otherwise herein. The parties agree that this Agreement shall not be cited as precedent or referred to in this or any other proceeding for any purpose except to enforce the terms of this Agreement.
Therefore, the Agreement may not serve as a basis for reasonable inference both by its very terms and its lack of evidence the claimant performed “work for which he was improperly compensated” during the period of this administrative claim.
Once a determination of nonexemption has been made, the FLSA claims adjudication process set forth in subpart G of part 551 of title 5, CFR, requires that the claimant provide evidence of the liability of the agency and the claimant’s right to payment. See 5 CFR 551.705(c)(5) and 706(a). However, several Comptroller General decisions, including ones concerning Christine D. Taliaferro (B-199783, March 9, 1981) and Paul Spurr (60 Comp. Gen. 354), indicate where the agency has failed to record overtime hours as required by the FLSA but the supervisor acknowledges overtime work was performed, the claimant may prevail in his or her claim for overtime compensation on the basis of evidence other than official agency records if the following two criteria are met:
(1) the claimant shows he or she performed overtime work under the FLSA for which he or she was not paid; and
(2) the claimant produces enough evidence to show the amount and extent of that work as a matter of reasonable inference.
If the criteria are met, the burden of proof shifts to the employing agency to show the precise amount of work performed or to rebut the employee’s evidence. See B-208268, Jon Clifford, et al, November 16, 1982. In the absence of official records, a list of hours worked submitted by the claimant, based on the claimant’s personal records, may be sufficient to establish the amount of hours worked in the absence of contradictory evidence presented by the agency to rebut the claimant’s evidence. See B-208203, Matter of Frances W. Arnold, February 3, 1983; OPM Decision No. F-7404-08-01, August 22, 1996. [1]
Decision
The claimant’s work is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim, i.e., October 13, 1985, to April 18, 1992, less his active duty military service time “from approximately September 14, 1990, to April 15, 1991.” The agency must follow the compliance requirements on page ii of this decision.
Based on the evidence to be submitted to the agency by or on behalf of the claimant showing the amount and extent of overtime that was performed, the agency must examine these assertions using any other sources of information available, including witnesses, and if valid determine whether he is entitled to any back pay under the FLSA and interest as required under 5 CFR 550.804 through 550.806. Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose. If the claimant believes the agency incorrectly computes the amount, he may file a new FLSA claim with this office.
[1] These procedures track the requirements of Anderson v. Mt. Clemons Pottery Co., 328 U.S. 680 (1946), cited by claimant’s representative.