Brooks v. Weinberger

• Decision Date: 20 December 1989
• Docket Number: Civ. A. No. 85-0016.
• Citation: 730 F. Supp. 1132
• Parties: John W. BROOKS, et al., Plaintiffs, v. Caspar W. WEINBERGER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

730 F. Supp. 1132

John W. BROOKS, et al., Plaintiffs, v. Caspar W. WEINBERGER, et al., Defendants.

Civ. A. No. 85-0016.

United States District Court, District of Columbia.

December 20, 1989.

Gregory K. McGillivary, Mulholland & Hickey, Washington, D.C., for plaintiffs.

Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM OPINION

FLANNERY, District Judge.

The court must decide the correct way to figure overtime pay for certain security guards who work for the federal government's General Services Administration (GSA). The issue arises on cross motions for summary judgment on stipulated facts. For the reasons stated below, the court grants defendants' motion.

I.

These cross motions for summary judgment are really a sideshow to an action to collect overtime pay under the Fair Labor Standards Act (FLSA) and Title 5 of the U.S.Code.¹ In the main ring, the parties are contesting whether defendant GSA owes plaintiff security guards overtime pay for hours when the guards were scheduled to work overtime but instead served on a jury, performed military service, took sick time, or used annual leave.²

As part of settlement talks, GSA reviewed past overtime payments to plaintiffs. By March 1989, GSA "discovered" it had been paying plaintiffs based upon a formula to figure overtime that differs from the one set out in 5 C.F.R. § 551.512.³ The "old" formula resulted in more money being paid for overtime than would be due under the § 551.512 method of figuring overtime pay. Arguing that § 551.512 states the law for figuring plaintiffs' overtime pay entitlement, defendants counterclaimed for the difference between the overtime paid under the "old" formula and an amount that would have been paid under § 551.512. Plaintiffs contend that they are entitled to overtime payments in the amount based on the "old" formula, because that "old" formula is mandated by FLSA. To the extent that § 551.512 would yield less overtime pay than the "old" FLSA formula, plaintiffs argue that FLSA takes precedence over Title 5 regulations.

The court must rule on this subsidiary issue to get the parties back in the center ring.

II.

On July 6, 1989, the parties filed a stipulation stating how GSA has calculated plaintiffs' overtime in the past under the "old" formula. The parties also stipulated to the mechanics of the method spelled out in 5 C.F.R. § 551.512. The stipulation is based upon the pay for Federal Protective Officer (FPO) Vernal Gabriel for the two-week pay period ending March 29, 1989. The relevant part of the stipulation is set out in the margin.⁴

The parties stipulated as follows: Gabriel's base pay for the two-week period was $720 for 80 hours of work. His hourly rate of basic pay was $9.00. For each hour Gabriel worked on a Sunday, he earned an add-on of 25% of his hourly rate of basic pay. That works out to a $2.25 per hour differential or premium for Sunday work. Similarly, he also got a 10% add-on for each hour worked at night, or an additional $0.90 per hour as night differential. Stip. at 3-4.

During the two-week period stipulated to, Gabriel worked a total of 160 hours. Of these, 32 hours were on Sundays, and 109 hours were at night. As a result, Gabriel earned a total of $170.10 in differential or premium pay. Thus, Gabriel earned the following nonovertime pay in the stipulated period:

                  1.   160 total hours   @  base wage of  $9.00 per hour =   $1,440.00 +
                  2.    32 Sunday hours  @  an additional $2.25 per hour =   $   72.00 +
                  3.   109 night hours   @  an additional $0.90 per hour =   $   98.10 +
                                                                             __________
                  TOTAL NONOVERTIME PAY (Total remuneration):                $1,610.10
                

Both FLSA's § 7 overtime provision and 5 C.F.R. § 551.512 state an employee's overtime entitlement in terms of his regular rate of pay.⁵ This is distinguished from the "hourly rate of basic pay" or "straight time rate of pay" of $9.00 per hour.⁶

Gabriel's hourly regular rate of pay is computed by dividing his "total remuneration" for a pay period by the total number of hours worked in the period to earn the total remuneration. 5 C.F.R. § 551.511.⁷ In this instance, Gabriel's total remuneration is the $1610.10 that he received as his total nonovertime pay. He worked 160 hours to earn this remuneration. Therefore, his hourly regular rate of pay is $10.06, which is the quotient of $1610.10 in total remuneration divided by 160 hours.

The court can now state what each party contends. Citing 5 C.F.R. § 551.512, defendants argue that Gabriel's overtime pay entitlement for the stipulated period is the following:

(1) straight time rate of pay for all hours in excess of 80 hours; plus

(2) one-half times the hourly regular rate of pay for all hours in excess of 85.5 hours, that is for 74.5 hours.

According to plaintiffs, Gabriel is entitled to:

(1) one and one-half times the hourly regular rate of pay for all hours in excess of 85.5 hours, or, for 74.5 hours.⁸

While plaintiffs' formula seems to reflect FLSA's overtime entitlement, when added to nonovertime pay, it leads to overtime payments that exceed what the act requires. When overtime pay computed by the § 551.512 formula is added to nonovertime pay, plaintiffs get the full overtime pay that FLSA Section 7 mandates.

III.

At the outset, the court is not certain that the many pleadings in this case clearly explain what is disputed. The stipulation suggests that there is no genuine issue as to any material fact, the prerequisite for summary judgment under Rule 56(c), Fed. R.Civ.P., and the court so finds. Penetrating the seven veils of pleadings, the court does not believe that there is a genuine issue of law either. What issue there is, is one of mathematics.⁹ The court will explain why this is so.

Although the parties have argued as if they dispute the law, a close reading of their pleadings indicates that they do not. Both parties accept that plaintiffs' overtime entitlement is governed by FLSA § 7(k), 29 U.S.C.A. § 207(k). As stated earlier, § 7(k) is a partial exception to § 7(a)'s requirement that employers covered by the act must pay an employee "compensation ... at a rate not less than one and one-half times the regular rate at which he is employed" for hours worked in excess of 40 hours per week. Section 7(k)'s exception applies to "employment by public agency engaged in fire protection or law enforcement activities." 29 U.S.C.A. § 207(k).¹⁰ What is excepted, however, is not the rate at which overtime must be paid but when it must begin to be paid. Thus, § 7(k) retains § 7(a)'s requirement for compensation at one and one-half times the regular rate.

Unfortunately, defendants' memorandum in support of their motion leaves the impression that § 551.512 states a different entitlement to overtime than FLSA's one and one-half times regular rate, when what § 551.512 really states is a formula for paying the FLSA overtime entitlement. Moreover, plaintiffs seem to adopt this impression and then attack it sword to shield. They assert that they "are entitled to compensation for overtime pay in an amount not less than one and one half times their regular rates of pay." Pltfs' Mem. in Supp. at 2, citing FLSA Section 7¹¹. Plaintiffs' add that "one of the most fundamental and long established principles of the overtime requirements of FLSA is that an employee is entitled to receive one and one-half times his regular rate of pay for each overtime hour the employee works." Pltfs' Reply at 1. Plaintiffs then argue that FLSA takes precedence over any OPM regulations under Title 5 that vary from FLSA. This could well be true, but it does not matter because there is no variance between FLSA and the OPM rules, as will be shown. Plaintiffs' assertions are not relevant because the government agrees with them.

Defendants would have been well-advised simply to have responded that they agree with plaintiffs about FLSA. They could then have concentrated on demonstrating arithmetically that everything Gabriel is entitled to under FLSA § 7 is given to him by § 551.512. Instead, defendants repeat that Congress delegated to OPM the responsibility to administer FLSA for federal employees and analyze cases in support. This not only implies that § 551.512 differs from FLSA, but also carries the implication further by suggesting that OPM's overtime entitlement represents a reasonable exercise of the authority to choose another entitlement.

This, however, is just precisely not the point. The point is that there is no variance between what FLSA dictates an employee must receive as his overtime dues and what the rules under Title 5 C.F.R. Subpart 551 state the worker is entitled to.

To explain this, the court notes that 5 C.F.R. § 551.501(a) restates for federal employees the general rule established in FLSA § 7(a). That is, subject to certain later stated exceptions, overtime is due at not less than one and one-half times the regular rate for more than 40 hours work per week.

Just as FLSA § 7(k) provides an exception to § 7(a), so 5 C.F.R. § 551.541(a) embodies the same FLSA exception to 5 C.F.R. § 551.501. That is, firefighters and law enforcement officers do not get overtime after working 40 hours in a week. They begin to get overtime when they have worked more than a certain number of hours in a pay period. That number is based on an administratively determined average. For plaintiffs this is after 85.5 hours worked in a two-week work period. Just as § 7(k) states the same overtime entitlement of one and one-half times regular rate as does § 7(a), so, too, does § 551.541.

Plaintiffs' point to § 551.541 as if it vindicates the view that they are entitled to overtime at one and one-half times their regular rate of pay, rather than the "entitlement" stated in § 551.512. They suggest that the court should adopt § 551.541 as stating the true rule and reject defendants' supposed preference for a "lesser" amount as...