Abbey v. United States
99 Fed. Cl. 430
| Fed. Cl. | 2011Background
- Plaintiffs Abbey and others are FAA Traffic Management Coordinators/ATCs asserting FLSA overtime claims.
- This is a motion for summary judgment by FAA and cross-motions by plaintiffs on Count I (regular rate), II (OT pay methods), III (pre-/post-shift work), IV (off-duty bidding).
- FAA uses 5 C.F.R. § 551.512 and § 551.511 to calculate overtime; CIP and Sunday premiums are excluded from straight time in that method.
- OSI, SCI, and RTI were previously included in regular rate but plaintiffs argue they are non-discretionary or mandatory; FAA argues they are discretionary or gifts.
- Court must determine whether these payments are properly included or excluded from the regular rate under 29 U.S.C. § 207(e) and 5 C.F.R. § 551.511(b).
- There is a dispute of material facts on the de minimis analysis for pre-/post-shift activities, affecting Count III and potential liquidated damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CIP and Sunday premium pay are included in the straight-time portion of overtime | Abbey argues CIP and Sunday pay are included | FAA says they are premiums/differentials excluded | CIP and Sunday pay are excluded from straight-time portion |
| Whether OSI, SCI, RTI must be included in the regular rate | OSI/SCI/RTI cannot be excluded given CBA/HRPM | They are discretionary or gifts under 207(e) or 551.511(b) | OSI and SCI not excluded; RTI excluded? (see below) |
| Whether RTI is excludable as a gift under 207(e)(1) and 551.511(b)(1) | RTI should be excluded as a gift | RTI is discretionary and not given at Christmas; potential exclusion | RTI not excludable as a gift; included in regular rate |
| How regular rate is calculated for FAA employees (551.511(a) vs 778.113) | Argues for salaried-like method (778.113) | 551.511(a) controls; use total remuneration divided by hours | Regular rate computed under 5 C.F.R. § 551.511(a) by total remuneration divided by hours actually worked |
| Whether pre-/post-shift activities are compensable (Count III) | Time spent pre-/post-shift is non-de minimis | Time is de minimis or not compensable | Material fact dispute on de minimis threshold; damages TBD |
| Whether off-duty bidding for schedules is compensable work (Count IV) | Bidding benefits FAA and affects scheduling | Bidding is a voluntary accommodation, not work | FAA entitled to summary judgment that off-duty bidding is not compensable work |
Key Cases Cited
- Bull v. United States, 68 Fed.Cl. 212 (2005) (integral-and-indispensable test for work; non-de minimis analysis)
- Brooks v. Weinberger, 730 F.Supp. 1132 (D.D.C. 1989) (OPM rules guide FLSA application to federal employees)
- Featsent v. City of Youngstown, 859 F.Supp. 1134 (N.D. Ohio 1993) (collective-bargaining bonuses included in regular rate)