Abou-El-Seoud v. United States, No. 15-1249C

CourtCourt of Federal Claims
Writing for the CourtBRADEN, Chief Judge.
PartiesNADIA ABOU-EL-SEOUD, Plaintiff, v. THE UNITED STATES, Defendant.
Docket NumberNo. 15-1249C
Decision Date28 February 2018

NADIA ABOU-EL-SEOUD, Plaintiff,
v.
THE UNITED STATES, Defendant.

No. 15-1249C

United States Court of Federal Claims

February 28, 2018


5 C.F.R. §§ 551.101(c) (General); 551.104 (Definitions); 551.202 (General Principles); 551.206 (Administrative Exemption Criteria); 551.401(a) (Basic Principles); 551.402(a) (Agency Responsibility);
Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (2012);
Portal-to-Portal Act of 1947, 29 U.S.C. § 255(a) (2012);
Rules of the United States Court of Federal Claims 8(c) (Affirmative Defense); 30(b)(6) (Notice or Subpoena Directed to an Organization); 56(c) (Summary Judgment);
Statute of Limitations, 28 U.S.C. § 2501 (2012).

Michal B. Shinnar, Gary M. Gilbert & Assocs., Silver Spring, Maryland, Counsel for Plaintiff.

Joseph Alan Pixley, United States Department of Justice, Washington, D.C., Counsel for the Government.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

BRADEN, Chief Judge.

This case concerns whether the Government, in failing to assert an affirmative defense under the Fair Labor Standards Act of 1938 ("FLSA"), waived that defense for the purposes of Plaintiff's Motion for Partial Summary Judgment, and whether Plaintiff has established the absence of a genuine issue of material fact as to whether she worked overtime hours, for which the Government willfully did not compensate her. For the reasons discussed herein, Plaintiff's Motion For Partial Summary Judgment is denied.

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To facilitate review of this Memorandum Opinion And Order, the court has provided the following outline:

I. RELEVANT BACKGROUND.

A. The Fair Labor Standards Act.

B. The United States Army Corps Of Engineers' Overtime Policy.

C. Plaintiff's Employment With The United States Army Corps Of Engineers.

II. PROCEDURAL HISTORY.

III. DISCUSSION.

A. Jurisdiction.

1. Governing Precedent.
2. Statute Of Limitations.
a. The Government's Argument.
b. Plaintiff's Response.
c. Plaintiff's Reply.
d. The Court's Resolution.

B. Standing.

C. Standard Of Review Under RCFC 56.

D. Plaintiff's Motion For Partial Summary Judgment.

1. Whether The Government Waived The Affirmative Defense Of Exemption From The Fair Labor Standards Act.
a. Plaintiff's Argument.
b. The Government's Response.
c. Plaintiff's Reply.
d. The Court's Resolution.

2. Whether Plaintiff's GS-11 Technical Writer Position Was Exempt From The Fair Labor Standards Act.
a. Plaintiff's Argument.
b. The Government's Response.
c. Plaintiff's Reply.
d. The Court's Resolution.
i. The Relevant Statutory And Regulatory Requirements Governing Whether An Employee's Duties Are Subject To The Fair Labor Standards Act Or Exempt.
ii. There Are Sufficient Facts Before The Court To Determine Whether Plaintiff Was Exempt From The Fair Labor Standards Act.
iii. Plaintiff Failed To Establish That She Is Entitled To Summary Judgment As To The Issue Of Exemption.

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3. Whether Plaintiff Is Entitled To Compensation For Alleged Overtime Hours.
a. Plaintiff's Argument.
i. Fort Worth.
ii. Lunch Breaks.
iii. Dinners And Travel In Washington, D.C.
iv. Conferences.
v. Vacation In France.
vi. Vacation In Greece.
b. The Government's Response.
i. Fort Worth.
ii. Lunch Breaks.
iii. Dinners And Travel In Washington, D.C.
iv. Conferences.
v. Vacation In France.
vi. Vacation In Greece.
c. Plaintiff's Reply.
d. The Court's Resolution.

IV. CONCLUSION.

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I. RELEVANT BACKGROUND.1

A. The Fair Labor Standards Act.

The Fair Labor Standards Act of 1938 ("FLSA") states that, unless otherwise provided,

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.

29 U.S.C. § 207(a)(1).

In 1974, Congress amended the FLSA to extend overtime provisions to federal employees. See 29 U.S.C. § 203(e)(2)(A).2 In addition, Congress authorized the Office of Personnel Management ("OPM") to issue any regulation required to implement this amendment. See 29 U.S.C. § 204(f). In lieu of overtime compensation, federal employees may receive compensatory time, at a rate of one and one-half hours per extra hour worked. 29 U.S.C. § 207(o)(1).3

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The FLSA, however, exempted certain employees from receiving overtime under Section 207(a)(1). See 29 U.S.C. § 213. Specifically, federal employees who are "employed in a bona fide executive, administrative, or professional capacity" are exempt from such overtime requirements. See 29 U.S.C. § 213(a)(1). Pursuant to OPM regulations, however, a federal employee is presumed not to be exempt from the requirements of the FLSA, but an employer may overcome that presumption by proffering evidence to establish the elements of a claimed exemption. See 5 C.F.R. § 551.202(a),4 (c).5

B. The United States Army Corps Of Engineers' Overtime Policy.

The United States Army Corps of Engineers' ("Army Corps") overtime policy6 provides that employees who are classified as exempt from the FLSA are paid "hour-for-hour overtime," since "[b]asically, an exempt employee is a salary employee." Pl. Mot. Ex. 10 at 16. Non-exempt employees receive "time and a half," but only if they request overtime. Pl. Mot. Ex. 10 at 16. To request overtime, employees "will put in documentation to request in advance overtime from their supervisor and get the signature to approve it." Pl. Mot. Ex. 10 at 17. The overtime documentation

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must "state why [the project for which overtime is requested] is 'mission critical,'7 why it cannot be done during normal business hours," and be submitted to the employee's supervisor. Pl. Mot. Ex. 10 at 17 (internal quotation marks added). A supervisor then reviews the employee's request and determines whether the overtime is necessary or whether work assigned can be done the following day or later. Pl. Mot. Ex. 10 at 17-18. If an overtime request is approved, the federal employee may perform the work and receive overtime; otherwise, the employee must wait until the following day or later to perform the work. Pl. Mot. Ex. 10 at 18.

Although the Army Corps requires overtime requests to be submitted in advance, on occasion, employees may submit requests within 24 hours after completing the work for the supervisor to review and determine whether the work was "mission critical." Pl. Mot. Ex. 10 at 26-27, 30.

But, even if an employee does not submit an overtime request within 24 hours, a supervisor has the discretion to approve a request, provided that: (1) the employee explains why the work was "mission critical;" (2) the explanation provides why the request is late; and (3) the employee notified a supervisor, prior to working the overtime. Pl. Mot. Ex. 10 at 31. Nevertheless, overtime requests are the employee's responsibility. Pl. Mot. Ex. 10 at 54. When employees request authorization to perform additional work, they must indicate whether they wish to be compensated with overtime pay or compensatory time, i.e., paid time off, but again, a supervisor has the discretion to determine whether the additional work will be compensated with overtime pay or compensatory time. Gov't App. at A77 ("[The employee] can state if they want to earn overtime or comp[ensatory] time[, but the supervisor has the final say]."); see also Gov't App. at A61 (3/20/17 first-line supervisor8 testifying that "GS-10s and under were supposed to take overtime unless they specifically [requested] comp[ensatory] time.").

C. Plaintiff's Employment With The United States Army Corps Of Engineers.

In May 2011, Nadia Abou-el-Seoud joined the Army Corps, as a full-time GS-9 Project Coordinator at the Forth Worth, Texas office to support the Combat Readiness Support Team ("CRST").9 Compl. ¶ 3. CRST employees are "individually selected to deliver[] time sensitive

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analyses, assessments, evaluations, and/or adjudication of issues" to the Secretary of the Army, Army staff, the Office of the Assistant Chief of Staff for Installation Management, and Army Corps Headquarters. Pl. Mot. Ex. 2 at 34. Ms. Abou-el-Seoud's co-worker testified that she was "hired on . . . as a member of our team to provide journalistic support." Pl. Mot. Ex. 1 at 29 (3/28/17 co-worker A testimony).

In March 2013, Ms. Abou-el-Seoud was promoted to a GS-9 Technical Writer position. Compl. ¶ 5. In May 2013, Ms. Abou-el-Seoud was promoted to a GS-11 Technical Writer position. Compl. ¶ 6. In August 2014, Ms. Abou-el-Seoud allegedly resigned from her Technical Writer position. Compl. ¶ 7.10

The Army Corps classified Ms. Abou-el-Seoud's GS-9 Project Coordinator and GS-9 Technical Writer positions as non-exempt from the requirements of the FLSA, but classified her GS-11 Technical Writer position as exempt. Compl. ¶¶ 9-11.

The Position Description ("PD") for Ms. Abou-el-Seoud's GS-11 Technical Writer position states:

Serves as a Technical Writer-Editor with responsibility for writing, editing reviewing, and publishing engineering documents. Publications include a variety of reports, assessments, proposals, memorandum, work plans, reconnaissance and feasibility reports, scopes of work, design documentation reports, environmental assessments and impact statements, general and limited reevaluation reports, fact sheets, operation-and-maintenance manuals, and brochures for proposed, current,

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and completed projects. The purpose of the documents is to present and interpret technical data, explain results and procedures, and provide rationale for recommended actions. The position requires general knowledge such as civil and military engineering, operations, hydrology, geology, environmental sciences, real property acceptance and excess procedures or other complex technical subject matters and an understanding of project-related social, environmental, and
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