Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance


01/10/2012

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Date

Introduction

The claimant asserts he is “entitled to receive compensation under [the] FLSA” (Fair Labor Standards Act) for travel outside of his normal duty hours on two separate occasions; i.e., FLSA overtime pay.  During the claim period, he was employed as a Supervisory Border Patrol Agent, GS-1896-13, with the U.S. Border Patrol, U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS).  The claimant does not question his agency’s FLSA exemption status determination that he is nonexempt consistent with the decision in Adams v. U.S., 350 F.3d 1216 (Fed. Cir. 2003), and we concur.  (Supervisory Border Patrol Agents, serving as first-line supervisors of Border Patrol Agents (BPA), were FLSA nonexempt because they failed the organizational unit test).  We have 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.).

We received the claim on April 12, 2011, and the agency administrative report on August 2, 2011.  In reaching our decision, we have carefully reviewed all the material of record, including information furnished by the claimant and his agency, and conducted independent fact-finding through telephone and e-mail interviews with the claimant and other individuals employed at CBP, including the following:

David Estevis – claimant’s first-level supervisor during the claim period

Randy Rigsby – claimant’s second-level supervisor during the claim period

James Van Gorkom – a higher-level manager during the claim period

Glenn Harris – claimant's coworker during the claim period

Ken Burton – claimant's coworker during the claim period

Nature of Claim

The claimant asserts he had to travel outside of his normal duty hours on two separate occasions:  March 7, 2008, for nine hours and March 23, 2011, for five and one-half hours.  He requests compensation under the FLSA for 14.5 hours spent traveling outside of normal duty hours.  While the claimant initially claimed some of the hours for the first incident on his time and attendance sheets, he later removed the claimed hours on his approved time and attendance sheets.  The claimant also stated he did not claim the hours for the second incident on his time sheet because he asserts his first-level supervisor told him he could not claim the hours. Therefore, none of the overtime hours claimed for either of the incidents were documented in official agency records.

Claim Period

Section 551.702 of title 5, Code of Federal Regulations (CFR), provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement.  The claimant is responsible for proving when the claim was received by the agency or OPM.  5 CFR 551.702(c).  The claimant has failed to provide evidence that he filed a signed, written claim with his agency prior to filing this claim with OPM.  Therefore, since the claim request was received by OPM on April 12, 2011, the claim period is preserved as of that date and the claim period of this claim commences on April 12, 2009, or April 12, 2008, if willful violation attached.  Therefore, any claim for FLSA overtime pay for work performed during the first claimed incident of travel outside of his normal duty hours, March 7, 2008, is barred from our consideration and may not be allowed.  The FLSA does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order to be considered on its merits.  OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes.

Position information

During the claim period, the claimant served as a Supervisory Border Patrol Agent and was responsible for preventing the entry of illegal aliens, narcotics, illicit contraband, terrorists, and weapons of terrorism into the United States.  The claimant served as a first-line supervisor of subordinate BPAs and directed their assignments, station operations, and specialized units.  He also set and adjusted priorities, prepared schedules for the completion of work, and reviewed active intelligence to deploy resources effectively to target the areas of greatest risk.  Additionally, the claimant performed basic border patrol functions, such as line watch, sign cutting, and traffic and transportation checks. 

Evaluation of Claimed Compensable Activity

The claimant states he should be compensated for time spent traveling outside of his normal duty hours on March 23, 2011, while he was on detail to a station in Ajo, Arizona, and was assigned to the 7:00 am to 3:00 pm shift.  While on duty on March 23, 2011, his ex-wife notified him of an emergency with his son.  In his claim letter to OPM, the claimant stated he called his supervisor at 11:00 am to notify him of the situation.  In an interview with OPM, the claimant stated that he requested approval to drive his assigned government owned vehicle (GOV) home, but his request to drive the GOV from Arizona to Texas was denied, and therefore, he traveled to Texas by a combination of driving and flying as discussed below.  In his interview with OPM, he also stated he called his first-level supervisor at 9:00 am.  When OPM interviewed the first-level supervisor, the first-level supervisor stated he received the claimant’s telephone call at around 12:45 pm.  No evidence was presented to resolve the time discrepancy.   However, both the claimant and his first-level supervisor stated his first-level supervisor was unavailable when the claimant called so he left a message and his first-level supervisor called him back an hour later.

The claimant’s first-level supervisor stated he made arrangements for the claimant to secure his vehicle and authorized him to fly home on March 24, 2011.  He stated he did not authorize the claimant to fly home on March 23, because the claimant was already midway through his shift and had to travel back to his hotel in Phoenix, Arizona, which was about a two-hour drive, in order to pack and check out of his room.  Both the claimant’s second-level supervisor and higher-level manager stated they heard the claimant’s first-level supervisor tell the claimant to fly home on March 24.  The claimant’s second-level supervisor stated he believed the claimant’s first-level supervisor did not authorize the claimant to fly on March 23, because he stated there are only two flights into the San Angelo, Texas, airport every day[1]; therefore, there was no way the claimant could get all the way to San Angelo, Texas that work day.  The claimant’s higher-level manager said he authorized travel on March 24, because while the situation was serious enough to warrant termination of the claimant’s detail, it was not a matter of life and death and, therefore, did not warrant traveling on March 23, which would have incurred greater travel costs.  In addition, he provided a copy of the travel authorization from the Customs Automated Travel System, which showed the claimant was authorized to complete travel on March 24, 2011.

The claimant states his first-level supervisor authorized him to fly home on March 23 and is now changing his story.  However, the claimant has no material evidence or witnesses to support this claim.  An interview with the BPA who secured his vehicle verifies that the claimant said he was authorized to travel on March 23.  However, the BPA did not hear the claimant’s first-level supervisor make this statement. 

The claimant made his own travel arrangements to fly to Dallas, Texas, on March 23, 2011.  His first-level supervisor stated he was not aware the claimant traveled on March 23 until the following day.  The claimant stated he took a 3:00 pm flight out of Phoenix, Arizona, and arrived at Dallas-Fort Worth International Airport (DFW) at 10:30 pm.  He was unable to fly to San Angelo, Texas, until the following day, because there were no flights to San Angelo when he arrived in Dallas. 

The claimant stated he was instructed by management that he could only claim his normal shift from 7:00 am to 3:00 pm plus his normal two hours of administratively uncontrollable overtime (AUO) for March 23, 2011.  He asserts he should be able to claim five and one-half hours from 5:00 pm to 10:30 pm (the time he landed at DFW) as FLSA travel time.  However, the claimant’s workday began in Ajo, Arizona, which is in the Mountain Time Zone, and his travel ended in Dallas, Texas, which is in the Central Time Zone.  Therefore, with the time difference, a total of 14.5 hours elapsed during the claimant’s workday and travels, not 15.5 hours as he claimed in his letter to OPM.  Since he was previously compensated for eight hours plus two hours of AUO, the overtime pay at issue is four and one-half hours of FLSA travel time. 

According to 5 CFR 551.422 (c), “an employee who travels at a time other than that selected by the agency, shall be credited with the lesser of:  (1) the actual travel time which is hours of work under this section; or (2) the estimated travel time which would have been considered hours of work under this section had the employee used the mode of transportation offered by the agency, or traveled at the time selected by the agency.”  The claimant has failed to establish that he was authorized to travel on March 23, 2011.  The record shows that if the claimant had traveled on March 24, 2011, he would have been able to get a connecting flight to San Angelo, Texas, from DFW that day and should have been able to complete all travel during normal duty hours.  Therefore, the lesser travel time would have been the estimated travel time had the claimant traveled at the time selected by the agency and thus, he would not have travelled outside his normal work shift. 

Decision

Based on the preceding analysis, the claimant is not eligible to receive overtime compensation under the FLSA for travel outside of his normal duty hours for March 23, 2011, and his claim is denied.

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