Abbey v. United States, 07-272 C

CourtCourt of Federal Claims
PartiesMARK G. ABBEY, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant.
Docket NumberNo. 07-272 C,07-272 C
Decision Date12 June 2012

MARK G. ABBEY, ET AL., Plaintiffs,

No. 07-272 C

United States Court of Federal Claims

E-Filed: June 12, 2012

Fair Labor Standards Act;
Willful Violations; Statute of
Limitations; Liquidated
Damages; Good Faith; Calculation
of Damages

Gregory K. McGillivary, Washington, DC, for plaintiffs. Sara L. Faulman, Washington, DC, of counsel.

Hillary A. Stern, with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Brett Daee, Attorney, Office of Chief Counsel, Federal Aviation Administration, Washington, DC, of counsel.


HEWITT, Chief Judge

This is an action brought by Mark G. Abbey, et al. (plaintiffs) to recover overtime pay as provided for by the Fair Labor Standards Act (the FLSA), 29 U.S.C. §§ 201-19 (2006).

Before the court are Plaintiffs' Memorandum of Contentions of Fact and Law (Pls.' Mem.), Docket Number (Dkt. No.) 210, filed January 6, 2012; Defendant's Memorandum of Contentions of Fact and Law (Def.'s Mem.), Dkt. No. 232, filed February 6, 2012; Defendant's Post-Trial Brief (Def.'s Br.), Dkt. No. 268, filed April 20,

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2012; Plaintiffs' Post Trial Brief (Pls.' Br.), Dkt. No. 269, filed April 20, 2012; Plaintiffs' Post Trial Reply Brief (Pls.' Reply), Dkt. No. 270, filed May 4, 2012; and Defendant's Reply to Plaintiff[s'] Post-Trial Brief (Def.'s Reply), Dkt. No. 271, filed May 4, 2012.

I. Background

A. Procedural Background

Plaintiffs are traffic management coordinators and air traffic control specialists, currently or formerly employed by the Federal Aviation Administration (FAA, defendant or the Agency). Abbey v. United States (Abbey II), 99 Fed. Cl. 430, 434 (2011). Plaintiffs brought four claims alleging violations of the FLSA. Id. In Count I, plaintiffs claimed that defendant failed properly to compute their rate of overtime pay by excluding Organizational Success Increase, Retention Incentive, Superior Contribution Increase, Controller Incentive Pay, and Sunday premium pay payments from the computation of plaintiffs' regular rate of pay. Id. at 439. In Count II, plaintiffs claimed that defendant violated the FLSA by compensating plaintiffs with compensatory time or credit hours instead of paying them overtime compensation as required by the FLSA. Id. at 435. In Count III, plaintiffs claimed that defendant failed to compensate them for pre- and post-shift activities. Id. In Count IV, plaintiffs contended that defendant failed to compensate them for off-duty time they spent bidding on work schedules and leave. Id.

In Abbey v. United States (Abbey I), 82 Fed. Cl. 722 (2008), the court granted summary judgment to plaintiffs on Count II of the Complaint "[b]ecause defendant's payment of hour-for-hour compensatory time and credit hours violates the FLSA requirement that overtime compensation be paid at 'one and one-half times' the employee's regular rate of pay," id. at 745 (quoting 29 U.S.C. § 207(a)(1)). In Abbey II, the court granted partial summary judgment to plaintiffs on Count I of the Complaint, concluding that Organizational Success Increase, Retention Incentive and Superior Contribution Increase payments must be included in computing the regular rate of pay. Abbey II, 99 Fed. Cl. at 449-50, 452-54, 461. The court also granted summary judgment to defendant in Abbey II with respect to Count IV of the Complaint, concluding that the time that controllers spend bidding on work schedules and vacation leave while off-duty did not constitute "work" under the FLSA. Id. at 458-61. The court held that genuine issues of material fact prevented the resolution of Count III on summary judgment because it was unclear from the record whether plaintiffs spent more than a de minimis amount of time on uncompensated pre- and post-shift activities.2 Id. at 458. The parties

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have agreed to pursue settlement of Count III, see Joint Mot. for Leave to File Status Report, Dkt. No. 208, at 1, and of Count I, see Order of Mar. 1, 2012, Dkt. No. 251, at 1.

The only remaining issues for the court to determine are with respect to damages for Count II, in particular:

(1) How the back pay owed to plaintiffs should be calculated and what is the quantum of damages with respect to each individual plaintiff;
(2) Whether defendant's violation of the FLSA was willful such that plaintiffs are entitled to a third year of damages; and
(3) Whether defendant acted in good faith even if it violated the FLSA such that plaintiffs are not entitled to liquidated damages.

See Order of Feb. 23, 2012, Dkt. No. 242, at 3.

The court held a trial of damages from March 5-7, 2012 in Washington, DC at the Howard T. Markey National Courts Building.3 Factual findings from the trial upon

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Mr. Andrew LeBovidge is a fact witness called by plaintiffs. Mr. LeBovidge has been an air traffic control specialist with the FAA at the Houston Air Group Traffic Control Center for twenty years. Tr. 173:17-174:7 (LeBovidge).

Mr. Michael Masson is a fact witness called by both plaintiffs and defendant. Mr. Masson is an air traffic control specialist, serving as a support specialist for the headquarters unit with the FAA. Tr. 125:10-12 (Masson). Mr. Masson began working at the FAA in 1982. Id. at 298:13-14. He served as an air traffic control specialist at the Lake Charles, Louisiana air traffic control tower and the New Orleans International Tower and TRACON in New Orleans, Moissant Field. Id. at 298:15-17, 299:20-24. He has also served as an automation specialist ("in the automation that runs on the radar scope to track the targets"), id. at 300:8-11; a facility manager at both Houma, Louisiana and Lakefront Tower in New Orleans, id. at 300:18-25, 301:9-11, and "worked in the IT department in the headquarters office for the air traffic organization" in Washington, DC, id. at 301:18-23. Mr. Masson has experience supervising payroll systems, id. at 301:24-302:3, and has also served as a time-and-attendance clerk, id. at 298:23-25.

Mr. Lawrence Markel is a fact witness called by plaintiffs. Mr. Markel was employed as an air traffic controller specialist by the FAA for twenty-three years before his retirement two years ago. Tr. 206:9-21 (Markel). Mr. Markel worked at several facilities during his employment by the FAA, including Jacksonville International Airport, Craig Municipal Airport, Standiford Approach Control in Louisville, Kentucky, and West Palm Beach Approach Control. Id. at 206:19-207:6.

Mr. Larry Staley is a fact witness called by plaintiffs and serves both as defendant's Rule 30(b)(6) designee under the RCFC and as defendant's designated representative under Federal Rule of Evidence 615(b). See Order of Feb. 23, 2012, Dkt. No. 242, at 2. Mr. Staley is a human resources specialist with the FAA's Policy Management Division under the assistant administrator for human resource management. Tr. 537:4-11, 21-25 (Staley). Mr. Staley has worked for the FAA since October 2005 and has been responsible for FAA policy with respect to compliance with the Fair Labor Standards Act (FLSA) since approximately August 2008. Id. at 49:4-14.

Ms. Paula Thomas is a fact witness called by defendant. Ms. Thomas is a controlled correspondence specialist with the FAA and, as part of her duties, logs, assigns and tracks correspondence that is assigned to the chief counsel's office. Tr. 285:19-24, 286:11-13 (Thomas).

Mr. James Whitlow is a fact witness called by both plaintiffs and defendant. Mr. Whitlow worked for the FAA for thirty-three years before retiring on January 1, 2011. Tr. 85:7-16 (Whitlow). In 1996, as the assistant chief counsel for the General Legal Services Division, id. at 85:23-86:1, Mr. Whitlow was the primary legal resource for the FAA with respect to personnel reform, id. at 87:2-19. Mr. Whitlow crafted a first draft of the FAA's personnel management system document in response to section 347 of the Department of Transportation and Related Agencies Appropriations Act of 1996. See id. at 424:17-425:2, 435:13-16. A revised version of that document subsequently became effective when signed by the FAA administrator. See id. at 457:23-25.

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which the court will rely in rendering its decision follow. Particularly relevant to the issues of willfulness and good faith was testimony related to the development of the FAA's personnel management system.

In 1995, Congress directed the FAA to develop a new personnel management system, while simultaneously directing that the provisions of Title 5--which provides that, in some cases, a government employer may provide compensatory hours to employees as an alternative to cash overtime compensation, see Abbey I, 82 Fed. Cl. at 730-31--would no longer apply to the FAA, see infra Part I.B.1. In developing its personnel management system, the FAA interpreted the language of Congress's directive to mean that the FAA could choose which provisions of Title 5 would continue to apply to the FAA. See infra Part I.B.1. This interpretation resulted in a decision to maintain the FAA's practice of awarding compensatory time and credit hours to employees in lieu of the cash overtime compensation required by the FLSA. See infra Part I.B.1. Also relevant was testimony concerning the...

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