Shea v. United States, No. 16-793C

CourtCourt of Federal Claims
Writing for the CourtLETTOW, Senior Judge.
PartiesJOHN A. SHEA, Plaintiff, v. UNITED STATES, Defendant.
Decision Date31 May 2019
Docket NumberNo. 16-793C

JOHN A. SHEA, Plaintiff,

No. 16-793C

United States Court of Federal Claims

May 31, 2019

Post-trial decision on claim by federal employee for unpaid overtime and premium pay pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b); primary duty test for exempt employees; 5 C.F.R. § 551.202(e); alternate test based on combination of functions; 5 C.F.R. § 551.202(h); measure of back pay; liquidated damages

Linda Lipsett, Bernstein & Lipsett, P.C., Washington, D.C., for plaintiff. With her on the briefs and at trial were Daniel M. Rosenthal and Nari E. Ely, James & Hoffman, P.C., Washington, D.C.

David M. Kerr, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him at trial was Mariana Acevedo, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Civil Division and Robert E. Kirschman, Jr., Director, and Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel were Henry Karp, Senior Trial Attorney, Naval Litigation Office, and S. Christopher Mullins, Jr., Assistant Counsel, Civilian Personnel Law, Naval Criminal Investigative Service, Quantico, Virginia.


LETTOW, Senior Judge.

This post-trial decision addresses a claim by plaintiff John A. Shea for damages attributable to alleged violations of the Fair Labor Standards Act of 1938 ("Fair Labor Standards Act" or "FLSA"), as amended, 29 U.S.C. §§ 201-19, particularly 29 U.S.C. § 216(b), and premium and back pay provisions applicable to federal government employees, 5 U.S.C. §§ 5541-50b, 5596. Compl. ¶¶ 1, 2, 9. Mr. Shea alleges that the United States, acting through the Naval Criminal Investigative Service ("NCIS"), erroneously classified him as exempt from the FLSA, and thus "wrongfully and willfully denied" Mr. Shea overtime compensation for hours worked in excess of forty hours each week and premium pay for scheduled overtime and hours worked at night. Compl. ¶¶ 14, 16; see also Shea v. United States, 136 Fed. Cl. 95 (2018)

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(resolving and largely denying competing cross-motions for summary judgment). Mr. Shea seeks a declaration that NCIS should not have designated him as exempt from the Fair Labor Standards Act, compensatory damages of up to $73,139.41 in back pay from July 2014 through September 2018, unspecified back-pay at a similar rate from October 2018 until NCIS classifies Mr. Shea as non-exempt, liquidated damages equal to compensatory damages, and attorneys' fees and costs. [Pl.'s] Post-Trial Br. ("Pl.'s Br.") at 22-34, ECF No. 55; see also Compl. at 5.

A two-day trial commencing on December 17, 2018 was held in Washington, D.C. to resolve the factual disputes regarding Mr. Shea's primary duty and the basis for NCIS's classification decision. Following post-trial briefing, the court heard closing arguments on March 20, 2019, and the case is now ready for disposition.

The court finds that NCIS erred by classifying Mr. Shea as exempt from the FLSA. NCIS's erroneous classification decision nevertheless evidenced a reasonable basis and occured in good faith, precluding liquidated damages. The measure of compensatory damages should reflect the Office of Personnel Management's ("OPM's") procedure for calculating overtime pay for an employee receiving premium pay. Accordingly, Mr. Shea is awarded $42,750.84 in back pay for the period of July 2014 through September 2018, and an amount to be calculated using the same methodology for subsequent overtime hours until such a time as NCIS has started to pay Mr. Shea overtime that reflects his non-exempt status.

A. The Naval Criminal Investigative Service's Special Surveillance Team

NCIS, popularized by a long-running television drama of the same name, is a federal law enforcement agency existing within the Department of the Navy. Joint Ex. ("JX") 1 at 1 (position description for Mr. Shea); see also About NCIS, (last visited May 28, 2019). NCIS "investigate[s] felony federal crimes, prevent[s] terrorism[,] and protect[s] secrets for the Navy and Marine Corps," and "defeat[s] threats from across the foreign intelligence, terrorist[,] and criminal spectrum." About NCIS; see also JX 1 at 1; Joint Stipulations of Fact ("Joint Stip.") ¶ 1, ECF No. 46. Reporting to the Navy, the organization is managed and staffed by civilian government employees. See About NCIS.

Mr. Shea has worked as a GS-12 Investigations Specialist for NCIS's Special Surveillance Team ("Surveillance Team") since 2010 and has worked overtime hours since July 2014. JX 1 at 1, 2; Joint Stip. ¶¶ 2-4.2 NCIS has classified the GS-12 Investigations Specialist position, and thus Mr. Shea, as exempt from the overtime provisions of the Fair Labor Standards

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Act since 2007. Joint Stip. ¶ 6. See also JX 1 at 1. Since at least July 2014, Mr. Shea has received Administratively Uncontrollable Overtime ("AUO") pay, equal to 25% of his base salary, in lieu of overtime pay at the rate of one-and-one-half base pay under the Fair Labor Standards Act. Joint Stip. ¶ 5. Mr. Shea maintains that NCIS erred when it classified him as exempt. Pl.'s Br. at 1. The government argues that Mr. Shea meets the criteria for the administrative exemption to the overtime provisions of the FLSA. Def.'s Resp. to Pl.'s Post-Trial Br. ("Def.'s Br."), at 5, ECF No. 57.

The Surveillance Team exists within NCIS's Office of Special Projects. Pl.'s Ex. ("PX") 1; Tr. 296:3-4 (Test. of Dennis T. Freeman). The Surveillance Team supports criminal and counterintelligence investigations by conducting surveillance operations worldwide. Tr. 47:12-22 (Test. of Mr. Shea). As of October 2018, the Surveillance Team consisted of 13 employees to include a Surveillance Team supervisor ("Supervisor"), 10 surveillance specialists, and two pilots. PX 1; Tr. 305:4-17 (Freeman). From February 2015 to June 2018, which encompasses much of the relevant period for this litigation, Mr. Dennis Freeman served as the Supervisor. Tr. 296:5-7 (Freeman). Ms. Nanette Sevigny, another Surveillance Team member, served as the Acting Supervisor from June 2018 until October 2018. Tr. 459:8-15 (Test. of Nanette Sevigny). Mr. Cooper became the Supervisor in October 2018. Tr. at 50:5-7; 333:4-10; PX 1.

Between January 2015 and June 2018, the Surveillance Team conducted 59 surveillance operations for more than three dozen different missions. PX 25.3 Between October 2013 and September 2014, Mr. Freeman estimated that 22 operations occurred. Tr. 336:12-14.4 Although the Special Surveillance Team is based in Washington, D.C., Tr. 490:1-6 (Sevigny), most operations occur outside of the D.C. area and require extended travel, Tr. 48:4-11 (Shea) (estimating 80% require travel); PX 25 (indicating that of 59 operations between February 2015 and June 2018, 15 occured locally, i.e., in the National Capital Region). Operations vary in length, though the typical operation lasts several weeks. Tr. 48:4-11; see also PX 25 (showing 59 operations between January 22, 2015, and June 27, 2018, with durations ranging between 1 and 78 days). Between 2014 and 2016, the Surveillance Team spent a majority of its time in the field conducting operations. Tr. 170:8 to 171:4 (Shea) (estimating 80% in 2014, 2015, and 2016), 332:4-12 (Freeman) (estimating 70% in 2015 and 50%-60% in 2016). In 2017, field time dropped to an estimated 40% to 50%. Tr. 171:10-14 (Shea), 332:13-16 (Freeman). Prior to June 2018, the Supervisor would often not accompany the Surveillance Team on operations. See Tr. 50:2-23 (Shea) (estimating the times a supervisor accompanied the team between February 2015 and June 2018); 354:11-16 (Freeman) (stating he accompanied the team on 10 to 12 operations of 59 between February 2015 and June 2018).

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B. The Work of Investigations Specialists on the Special Surveillance Team

The position of Investigations Specialist is structured with a career progression ladder that encompasses GS grades 7, 9, 11, and 12. Tr. 278:16-19 (Test. of Stacy Cruz). All Investigations Specialists on the Surveillance Team are currently GS-12s and operate under the same position description. Tr. 35:17-19, 87:10-11 (Shea) (same grade); Tr. at 348:17 to 349:5 (Freeman) (same position description). Surveillance Team Investigations Specialists are classified under occupational code 1801. Joint Stip. ¶ 2; JX 1 at 1.

NCIS documented the duties of and requirements for a GS-12 Surveillance Team Investigations Specialist in a position description dating from 2009. JX 1 at 2. This position description does not distinguish responsibilities or performance levels based on GS grade. See JX 1; Tr. 348:17-24 (Freeman).5

According to the 2009 position description, NCIS considers the GS-12 Investigations Specialist to be "Critical-Sensitive," JX 1 at 1, and requires an Investigations Specialist to be eligible for a Top-Secret security clearance and pass a polygraph examination, JX 1 at 2. There is no formal educational prerequisite. See JX 1 at 1. An Investigations Specialist must possess knowledge of investigative techniques and procedures, investigative surveillance equipment such as cameras and radios, federal criminal statutes, executive branch policies relating to counterintelligence investigations, and the structure and functions of agencies within the intelligence community. JX 1 at 2. An Investigations Specialist must also communicate effectively orally and in writing. JX 1 at 2. Investigations Specialists do not carry firearms, JX 1 at 1, and are not considered law enforcement officers, e.g., Tr. 109:12-19 (Shea).

Duties of a GS-12 Investigations Specialist per the 2009 position description focus on counterintelligence operations. JX 1 at 1, 3. For example, an...

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