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In This Section

Pay & Leave Claim Decisions

Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

Pamela M. Cypher
Secretary (Office Automation)
YB-318-1
90th Mission Support Group
90th Missile Wing
Department of the Air Force
F.E. Warren Air Force Base, Wyoming
Received no overtime pay for suffered or permitted work
Willful violation
Denied
F-0318-01-01

Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance

11/18/2011


Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, ensure that they are treated in a manner consistent with this decision, and inform them in writing of their right to file an FLSA claim with the agency or OPM.  There is no further right of administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with this decision.

Introduction

The claimant asserts she worked overtime for which she should have been paid under the Fair Labor Standards Act (FLSA).  During the claim period, she was employed by the 90th Mission Support Group (MSG) as a Secretary (Office Automation), YB-318-1.  There is no dispute that the appellant’s work was nonexempt from the overtime pay provisions of the FLSA.  We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

We received the claim on July 16, 2009, and the agency’s administrative report on August 20, 2009.  In reaching our decision, we have carefully reviewed all information furnished by the claimant and her agency and conducted independent fact-finding through telephone and e-mail interviews with the claimant and other individuals affiliated with the 90th MSG identified by the claimant as able to provide corroborating information in support of her claim, including the following:

Kathleen Cook – Claimant’s first-line supervisor during the second part of the claim period (transferred)

Kathy Coomes – 90th Civil Engineering Squadron Flight Secretary currently and during the claim period

Shelley Haskett – 90th Mission Support Squadron First Sergeant during the claim period (transferred)

Carleton Hirschel –90th Services and Force Support Squadron Commander during the claim period (transferred)

Ronald Jenkins – Claimant’s first-line supervisor during the first part of the claim period (transferred)

Shirley Kelley – 90th Environmental Engineering Squadron Secretary during the claim period (retired)

Derick Price – 90th MSG Executive Officer during the claim period (transferred)

Erin Robinson – 90th MSG Administrative Support during part of the claim period

Tommy Rutherford – 90th MSG Executive Officer during part of the claim period (transferred)

Amy Scottini – 90th Civil Engineering Squadron, Operations Section Secretary currently and during the claim period

Carolyn Simoneaux – 90th Services Squadron Commander's Secretary during the claim period (transferred)

Elizabeth Sydow – 90th MSG Deputy Commander (temporarily) during the claim period (transferred)

We also interviewed four additional individuals affiliated with the 90th MSG who were unable to provide corroborating information:

David Frederick – 90th Mission Support Group employee during the claim period

Dan Fraser – Civilian Deputy 90th Logistics Readiness Squadron during the claim period

Randy Shircel – Deputy Chief 90th Force Support Squadron

Scott Angerman – 90th Communications Squadron Commander during the claim period (transferred)

Nature of Claim

The claimant asserts she often arrived at work early, worked through her lunch breaks, stayed late, and took work home to complete over the weekends during the period of June 6, 2007, to November 8, 2008, and requests payment for 233 hours of unpaid overtime for the additional hours worked.  None of the overtime hours claimed were documented in official agency records.

Claim Period

Section 551.702 of title 5, Code of Federal Regulations (CFR), provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement.  Since the claimant’s request was received by OPM on July 16, 2009, the claim period is preserved as of that date and the claim period of this claim commences on July 16, 2007.  The time period of June 6, 2007, to July 15, 2007, is not preserved and cannot be considered.  Based on our case findings as discussed in this decision, we need not address whether willful violation attaches to this claim.[1]

The claimant had two supervisors during the claim period.  The first supervisor covered the July 2007 to July 2008 time frame.  The second supervisor took over in July 2008 and remained the claimant’s supervisor until November 2008, when the claimant was selected for another position.  These two separate time frames are referred to as the first and second parts of the claim period within this decision. 

Position information

During the claim period, the claimant served as the Secretary (Office Automation) for the 90th MSG Commander and Deputy Commander.  Her primary duties were to prepare a variety of correspondence, reports, and other documents and review and finalize correspondence/ documents prepared by others in draft; compose non-technical correspondence, such as instructions on office procedures, requests for information, and letters of acknowledgement or notification; proofread/edit correspondence and documents for correct grammar, spelling, capitalization, punctuation, and format; review and process incoming and outgoing correspondence, materials, publications, regulations, and directives; receive telephone calls, greet visitors, and ascertain the nature of the call or visit; and maintain the Commander’s and Deputy Commander’s calendars, coordinate meeting arrangements, and schedule meetings and/or conferences.  The claimant asserts the workload associated with these primary duties during her tenure in the position was high with short suspense dates such that she was unable to complete her work within her scheduled tour of duty, as discussed below.  The claimant states her first supervisor during the claim period was aware of the additional hours she worked based on statements he included in her 2008 performance appraisal, such as: “[g]oes well above and beyond to ensure I am where I’m needed whether she is on or off duty” and “[s]elfless dedication\[claimant’ first name] spent hundreds of hours editing documents and correspondence at home; well above and beyond.”

The claimant asserts a large portion of her duty time was consumed with proofreading documents for the MSG Squadrons (Contracting, Communications, Services, Mission Support, Civil Engineering, and Logistics Readiness).  She would proofread submissions for military member decorations, Enlisted Performance Reviews (EPR), Officer Performance Reviews (OPR), and Squadron plans and publications.  The claimant states she would proofread the submitted documents (approximately 25 percent of them were 50 pages or longer), return them to the Squadron point-of-contact for corrections, and proofread the corrections for accuracy prior to the MSG Commander signing off.  The document would then be forwarded to the 90th Missile Wing Commander for approval.  The claimant states she had to track when EPRs and OPRs were due for approximately one thousand military members throughout the MSG.  She ensured they were received in the MSG and proofread prior to the due date for the Wing Commander’s approval.  The claimant states that, based on records she maintained on an electronic spreadsheet (which is no longer available), from October 2007 to July 2008 she proofread over one thousand documents submitted by the various MSG Squadrons. 

The claimant kept the calendars for the MSG Commander, Deputy Commander, and MSG Chief by making additions and updates as needed.  Whenever she would add an appointment to one of the calendars, she included a point-of-contact along with pertinent information regarding the meeting including the subject to be discussed.  The claimant would check with the 90th Missile Wing Commander’s secretary to see if there were events or meetings with Wing-level personnel the MSG Command Group needed to attend.  She also re-scheduled meetings as necessary, often on short notice such as when the Wing Commander needed to meet the MSG Commander on an urgent or high profile matter.

The claimant completed temporary travel orders for the MSG Commander and Deputy Commander.  She put together the initial orders requesting approval for travel and completed and submitted vouchers when the travel was completed.  She also put together a “book” for the traveler containing train or airplane tickets, hotel reservation confirmation information, rental car information if needed, any “upgrades” information if applicable, as well as information on the conference being attended. 

The claimant held a meeting once a month with the MSG Squadron secretaries to go over any policy changes they needed to be aware of and patterns of errors found in documents received from the Squadrons.  These monthly meetings lasted approximately one hour.  The claimant also taught a bi-weekly class over a 4-6 month period on effective writing of EPRs, OPRs, and decorations for military and civilian supervisors of military members.  The class covered a 2-3 hour time frame with 20-40 class participants. 

Evaluation

The FLSA provides that a nonexempt employee shall not be employed for a work week in excess of 40 hours unless the employee received compensation for the excess hours at a rate not less than 1½ times the regular rate.  See 29 U.S.C. § 207(a)(1).  The FLSA defines “employ” as including “to suffer or permit to work.”  See 29 U.S.C. § 203(g).  Work is “suffered or permitted” if it is performed for the benefit of an agency, whether requested or not, provided the employee’s supervisor knows or has reason to believe the work is being performed and has an opportunity to prevent the work from being performed.  See 5 CFR 551.104. 

In the case of an FLSA claim, it is the claimant’s responsibility to provide evidence of the liability of the agency and the claimant’s right to payment.  See 5 CFR 551.706(a).  However, several Comptroller General decisions including ones concerning Christine D. Taliaferro (B-199783, March 9, 1981) and Paul Spurr (60 Comp. Gen. 354) indicate where the agency has failed to record overtime hours as required by the FLSA but the supervisor acknowledges overtime work was performed, the claimant may prevail in his or her claim for overtime compensation on the basis of evidence other than official agency records if the following two criteria are met:

(1)   the claimant shows he or she performed overtime work under the FLSA for which he or she was not paid; and

(2)   the claimant produces enough evidence to show the amount and extent of that work as a matter of reasonable inference.

If the criteria are met, the burden of proof shifts to the employing agency to show the precise amount of work performed or to rebut the employee’s evidence.  See B-208268, Jon Clifford, et al, November 16, 1982.  In the absence of official records, a list of hours worked submitted by the claimant, based on the claimant’s personal records, may be sufficient to establish the amount of hours worked in the absence of contradictory evidence presented by the agency to rebut the claimant’s evidence.  See B-208203, Matter of Frances W. Arnold, February 3, 1983; OPM Decision No. F-7404-08-01, August 22, 1996.

I.                   Work performed before and after scheduled duty hours

To decide if the claimant performed unpaid overtime work under the FLSA, we must determine whether she performed any work before or after her scheduled duty hours that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104, she performed “suffered or permitted” work if:

a. she performed work, whether requested or not, before or after her scheduled duty hours;

b. her supervisors knew or had reason to believe the work was being performed; and

c. her supervisors had the opportunity to prevent the work from being performed.

1.  Did the claimant show that she performed unpaid FLSA overtime work?

The claimant asserts there was at least one other person in the office (such as the MSG Commander, Deputy Commander, Executive Officer, or other administrative military personnel) when she arrived early or stayed late.  She states she began performing work immediately when she arrived in the morning prior to her scheduled start time.  She usually took only a half-hour of her one-hour lunch break before continuing to work until she left the office, normally at least 30 minutes past her scheduled duty hours.  She states she felt pressure to get each day’s work done that day.  The claimant bases this on the volume of work coming in from the Wing and Squadron levels, with tracking sheets attached to each document which needed to be annotated and initialed.  She acknowledges her supervisor during the first part of the claim period repeatedly told her to complete an Air Force (AF) Form 428, Request for Overtime, Holiday Premium Pay, and Compensatory Time, when she told him she had worked overtime.  The claimant states she did not submit any requests for overtime since she was unsure how many hours would be needed in advance and felt the overtime requests were being scrutinized at the Wing and Mission Support Command levels. 

a.  Did the claimant perform work before or after her scheduled duty hours?

The claimant’s work schedule during the claim period as documented on her time and attendance records was as follows:

            July 16, 2007-November 8, 2008:  Monday-Friday, 8:00 a.m.-5:00 p.m. (which includes a one-hour lunch break)

F.E. Warren Air Force Base is a five-square-mile base located west of Cheyenne, Wyoming, and is one of three strategic missile bases in the United States.  The claimant worked in the MSG Commander’s Office.  Seven other staff members had office space in the Commander’s Office, some of whom had enclosed offices and two of whom were able to provide information relevant to the claim.  One of these staff members who worked with the claimant during the months of July 2007 to October 2007 provided this commentary:  “[the claimant] stayed late approximately once a week but my estimate may not be accurate because I was not her timekeeper.”  The other staff member who worked with the claimant during the months of August 2007 to February 2008 provided this commentary:  “[the claimant] was working on her computer when I arrived at 7:45 a.m.” approximately once a week. 

Four employees affiliated with the 90th MSG also provided information relevant to the claim.  One (who had interactions with the claimant during the months of July 2007 to June 2008) stated she saw the claimant’s car in the parking lot prior to her 8:00 a.m. start time about 3-4 times a month.  The second (who had interactions with the claimant during the months of July 2007 to August 2007) stated she met with the MSG Commander 2-3 times a week after 5:00 p.m. and saw the claimant in the office after her scheduled duty hours.  The claimant told this employee she was working late because she had suspenses to meet and things to do.  This employee also stated the claimant was in the office prior to her supervisor but does not recall when or how often this occurred or if work was performed.  The third (who had interactions with the claimant during the months of July 2007 to November 2008) stated she saw the claimant’s car in the parking lot after 5:00 p.m. but was unsure how long after the claimant’s scheduled duty hours she stayed or if she was performing work.  The fourth (who had interactions with the claimant during the months of July 2007 to June 2008) stated he saw the claimant stay late and perform work about twice a week based on meetings he attended with the MSG Commander but was uncertain whether or how often this may have occurred after 5:00 p.m. 

There were no sign-in/sign-out sheets in use within the MSG.  Therefore there is no official record of the actual times the claimant arrived and departed from the work site.  However, the claimant maintained one contemporaneous calendar of her hours worked for a thirteen-month period from September 2007 through October 2008 (claimant states the calendars for July and August 2007 were accidentally shredded), wherein she recorded the amount of overtime she worked.  However, the calendar does not indicate arrival or departure times from the work site, when the overtime work was performed, or the work performed during those additional hours.  When questioned about the actual times the overtime was worked, the claimant stated that where she indicated on her contemporaneous calendar that she worked one-half hour of overtime, she had arrived a half hour early; where she indicated that she worked one hour overtime, she had arrived a half-hour early and either took a half-hour lunch break or stayed a half-hour after the end of her scheduled duty hours; where she indicated that she worked one and one-half hours overtime, she had arrived a half-hour early and took no lunch break; and where she indicated that she worked two hours overtime, she had arrived a half-hour early, took no lunch break, and stayed a half-hour after the end of her scheduled duty hours. 

The claimant also transposed the amounts of overtime work performed from her personal calendars to copies of her time cards.  She then transposed the amounts of overtime work performed from the time cards to Air Force (AF) Form 428.  The claimant states she worked 233 uncompensated hours, but her personal calendar (which has two months missing) shows 204 hours worked and her copies of AF Form 428 show 203 hours worked.  Certain discrepancies were also found in the record.  Specifically, on March 10, 2008, the claimant was on approved sick leave all day but her personal calendar shows she worked a half-hour overtime that day.  In addition, the claimant submitted a leave request for four hours of annual leave for Saturday, (a non-work day) October 4, 2008 (the claimant’s supervisor signed the leave form but did not indicate approval or disapproval of the leave), but her personal calendar shows she worked six hours overtime that day.

The FLSA requires employers to “make, keep, and preserve all records of the wages, hours and other conditions and practices of employment.”  See 29 U.S.C. § 211(c) and 5 CFR 551.402(b).  An agency cannot deny an employee’s overtime claim on the basis of incomplete or unavailable records.  Under the procedures in place at the MSG during the claim period, only overtime which was officially requested or approved in advance could be recorded on the official time and attendance report.  There was no procedure by which an employee could officially record on the time and attendance report, or any other Government document, unrequested or unapproved overtime which was suffered or permitted.  Therefore, the agency has failed to discharge its statutory duty to keep complete and accurate records of all hours worked.

Finding

Our interviews with two staff members and four employees affiliated with the 90th MSG who worked with the claimant during the claim period provide varying information.  Several observed the claimant or her car on the premises outside her regular working hours, but this does not establish that the claimant was performing work during those times.  However, several staff members indicated they observed the claimant working early or late anywhere from 1-3 times a week.  Therefore, there is independent corroborating evidence to conclude that the claimant performed work before or after her scheduled duty hours at least occasionally. 

b. Did the claimant’s supervisor know or have reason to believe the work was being performed?

The claimant’s supervisor was the MSG Commander (a military position) and they shared the same office space.  However, the layout of the office was such that the Commander did not have a direct view of the claimant and her work station. 

The claimant’s first supervisor stated he never saw her in the office prior to the start of her tour of duty and saw her working after her scheduled duty hours no more than six times over the course of the two years he was her supervisor.  The Commander also stated he would tell the claimant to go home when he saw her working late, after which she sometimes left the office and other times remained.  The Commander stated that to compensate the claimant for the times he saw her work late, he let her leave early or not request and use leave for an appointment she needed to attend.  The claimant acknowledges the Commander made the offer of compensation, but states she still submitted a leave form for her absences.  The Commander’s statement is credible because a review of the claimant’s time and attendance records shows the claimant took sick leave in increments of one-half hour or one hour for medical appointments for herself and family members at various times during the work day on multiple occasions.  This is not plausible unless the sick leave was taken in conjunction with the claimant’s lunch hour or with unrecorded compensatory time off. 

The Commander stated he often did not know the claimant worked outside her scheduled hours until afterwards when she told him.  He stated that each time the claimant told him she had worked overtime, he instructed her to fill out and submit an AF Form 428, but the claimant never did.  He made it clear to the claimant that the overtime would be approved, money was available, and she should be paid for the hours she worked.  The Commander stated he did not keep track of how many hours or when the claimant stated she worked outside her scheduled duty hours but thought that 233 hours seemed too high for the number of hours she may have worked.  He also stated there was no expectation that the claimant work outside her scheduled duty hours, she could have requested assistance from the MSG military administrative staff if needed to complete the work, and she was told that work annotated as “time sensitive” was to be given to him. 

The claimant’s second supervisor stated she never saw the claimant work anytime outside her scheduled duty hours.  The claimant acknowledges she did not tell this supervisor she was arriving early or staying beyond her scheduled duty hours but would enter the supervisor's office and give a greeting upon her arrival and departure. 

Finding

OPM’s position is that a supervisor has reason to believe overtime work is being performed if a responsible person in the supervisor’s position would find reason to believe that was the case.  This is met if the supervisor has direct evidence (e.g., through observation) or indirect evidence (e.g., through the employee’s work products or being so informed by other employees). 

There is evidence showing the claimant’s first supervisor was aware of her working outside her scheduled duty hours.  The Commander even stated he sometimes saw the claimant at her desk after her scheduled duty hours ended.  Therefore, the claimant’s first supervisor knew or had reason to believe the claimant was performing overtime work after her scheduled duty hours. 

The claimant’s second supervisor stated she never saw the claimant work anytime outside her scheduled duty hours.  Although the claimant states she entered the Commander’s office and gave a greeting when she arrived and before leaving, this was neither independently corroborated nor would it serve to establish that the supervisor would have been aware the claimant had been performing work outside her scheduled duty hours.  Therefore, there is no evidence on which to conclude that the claimant’s second supervisor knew or had reason to believe the claimant was performing overtime work before or after her scheduled duty hours. 

c. Did the claimant’s supervisor have the opportunity to prevent the work from being performed?

The FLSA defines “hours worked” as all hours which the employer “suffers or permits” the employee to work.  See 29 U.S.C. § 203(g).  Work is “suffered or permitted” if it is performed for the benefit of an agency, whether requested or not, provided that the employee’s supervisor knows or has reason to believe that the work is being performed.  See 5 CFR 551.104.  Under the FLSA, employers have a continuing responsibility to ensure that work is not performed when they do not want it to be performed.  Under 5 CFR 551.402, “[a]n agency is responsible for exercising appropriate controls to assure that only that work for which it intends to make payment is performed." 

OPM’s position is that a claimant’s supervisor had the opportunity to prevent the work from being performed unless:

(1)    he or she did not know or have reason to believe the work was being performed; or

(2)    the work occurred so seldom that it was impossible to prevent; and

(3)    he or she tried by every reasonable means to prevent the work from being performed, including counseling the claimant, controlling his or her work hours more strictly, and if necessary, taking escalating formal disciplinary actions.

The claimant’s first supervisor indicated that he did not try to prevent the claimant from working overtime, but intended to compensate her for the work she performed outside her tour of duty.  He repeatedly instructed the claimant to fill out and submit an AF Form 428 and made it clear to her that the overtime would be approved and the money was available. 

The claimant acknowledges she did not inform her second supervisor that she was working before or after her scheduled tour of duty and there is no independent corroboration that the supervisor was so informed or had reason to believe this was occurring. 

Finding

The claimant’s first supervisor had the opportunity to prevent the overtime work from being performed but did not do so because he intended to compensate the claimant for work she performed before and after her scheduled duty hours.  Since it cannot be established that the claimant’s second supervisor was aware that she was working before or after her scheduled duty hours, it cannot be concluded the second supervisor had the opportunity to prevent the claimant from doing so. 

2.  Has the claimant produced enough evidence to show the amount and extent of work performed as a matter of reasonable inference?

The claimant’s contemporaneous calendar does not indicate the times at which the claimed overtime work was performed; i.e., before or after her scheduled duty hours, during her lunch break, or at home.  It also does not identify the work that was performed during the overtime hours claimed.  Therefore, the claimant has produced no evidence of the amount and extent of work performed before and after her scheduled duty hours as a matter of reasonable inference. 

Finding

There is some corroborating evidence that the claimant worked an unspecified number of hours either before or after her scheduled tour of duty.  Both the claimant and her first supervisor agree that the claimant periodically informed him that she had worked late after the fact.  However, her first supervisor recalled this as having occurred no more than half a dozen times and stated that he compensated her for those times by allowing her to leave early or not take leave for medical appointments.  This is credible based on her pattern of leave usage on days when she took sick leave for medical appointments and the fact that the first supervisor had clearly communicated to the claimant that he was willing to compensate her for any overtime she worked. 

The claimant acknowledges she never told her second supervisor she was working before or after her scheduled duty hours, and there is no independent corroborating evidence that the supervisor did in fact know this was occurring. 

The claimant’s contemporaneous calendar cannot be relied on to determine any hours she may have worked before or after her scheduled duty hours.  First, the calendar does not indicate the times the claimant was at the work site or separately identify the overtime hours claimed before or after her scheduled duty hours, during lunch breaks, or at home.  Rather, it indicates only the total overtime hours worked in exact increments of one-half, one, one-and-a-half, or two hours.  The claimant’s recollection of when these indicated overtime hours may have been worked more than two years after the fact may not be considered reliable.  Second, since the claimant did not record the work she completed during the overtime hours claimed, no reconstruction can be made as to whether the number of hours claimed is reasonable.  Third, there are discrepancies between the calendar and the claimant’s official time and leave records.  Fourth, the calendar cannot be reconciled with her pattern of leave usage as coupled with the first supervisor's credible assertion that he granted her unrecorded compensatory time off for overtime hours worked. 

II.                   Work performed during lunch periods

1.  Did the claimant show that she performed unpaid FLSA overtime work?

To decide if the claimant performed unpaid overtime work under the FLSA, we must determine whether she performed any work during her lunch periods that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104 she performed “suffered or permitted” work if:

a. she performed work, whether requested or not, during her lunch periods;

b. her supervisors knew or had reason to believe the work was being performed; and

c. her supervisors had the opportunity to prevent the work from being performed. 

The claimant asserts she sometimes took only a half-hour lunch break even though her work schedule included a one-hour lunch break.  The claimant confirmed she had no set lunch break and its timing and length varied each day.  A lunch or other meal period is an approved period of time in a nonpay and nonwork status that interrupts a basic workday or a period of overtime work for the purpose of permitting employees to eat or engage in permitted personal activities.  Unpaid meal periods must provide bona fide breaks in the workday. If an employee is not excused from job duties, he or she is entitled to pay for compensable work.

a. Did the claimant perform work during her lunch periods?

One staff member who shared office space with the claimant and worked with her during the months of July 2007 to October 2007 stated the claimant worked through her lunch break approximately twice a week but did not recall when or how often this occurred.  Five employees affiliated with the 90th MSG provided more limited information.  One (who had interactions with the claimant during the months of July 2007 to November 2008) stated she ran her errands delivering and picking up mail during the “normal lunch period” twice a week and saw the claimant working at her desk.  The second (who had interactions with the claimant during the months of July 2007 to November 2008) stated she asked the claimant to go out to lunch approximately four or five times a month and the claimant declined due to her workload.  The third (who had interactions with the claimant during the months of July 2007 to November 2008) stated she spoke to the claimant most days and was told by the claimant she did not take many lunch breaks due to her workload.  The fourth (who had interactions with the claimant during the months of July 2007 to June 2008) stated he saw the claimant working during lunch at times but did not recall how often or when this occurred.  The fifth (who had interactions with the claimant during the months of July 2007 to June 2008) stated she called the claimant approximately three or four times a month to ask her work related questions between 11:00 a. m. to 1:00 p.m.

Finding

Since the timing of the claimant’s lunch break varied each day, anecdotal accounts by co-workers who reported observing her working during what they assumed to be her lunch break cannot be regarded as reliable.  Thus, the claimant has not met the burden of proof that she performed work during her lunch breaks.

b. Did the claimant’s supervisor know or have reason to believe the work was being performed?

The claimant shared the same office space with both her first and second supervisors.  However, the layout of the office was such that the supervisors did not have a direct view of the claimant and her work station.

Interviews with the claimant’s first and second supervisors indicate they were not aware of the claimant working through any portion of her lunch break, and neither supervisor stated they were informed by the claimant that she had worked through any portion of her lunch break.  The claimant acknowledged she did not tell either supervisor she had been working through her lunch break. 

Finding

There is no evidence that the claimant’s first or second supervisor either saw or were informed by the claimant of her working through any portion of her lunch break.

c. Did the claimant’s supervisor have the opportunity to prevent the work from being performed?

In the absence of either supervisor knowing or having reason to believe that work was being performed, we cannot consider that there was any such opportunity. 

2.  Has the claimant produced enough evidence to show the amount and extent of work performed as a matter of reasonable inference?

The claimant’s contemporaneous calendar does not indicate when she performed work during any portion of her lunch breaks or what work was performed.  Thus, the claimant has produced no evidence of the amount and extent of work performed during her lunch breaks as a matter of reasonable inference. 

Finding

There is no independent corroboration that the claimant worked through her lunch breaks.  The claimant acknowledges she did not inform either her first or second supervisors that she was doing so.  Because she was free to choose the timing of her lunch break, coupled with her desk not being within her supervisors’ line-of-sight, any choice on her part to work through her lunch break would not have been readily evident to her supervisors. Her contemporaneous calendar cannot be relied on to determine any hours she may have worked during her lunch breaks because it neither separately indicates the days on which she worked through lunch or the work she performed during those times. 

III.                   Work taken home to complete

1.  Did the claimant show that she performed unpaid FLSA overtime work?

To decide if the claimant performed unpaid overtime work under the FLSA, we must determine whether she performed any work she took home to complete that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104 she performed “suffered or permitted” work if:

a. she performed work, whether requested or not, which she took home to complete;

b. her supervisors knew or had reason to believe the work was being performed; and

c. her supervisors had the opportunity to prevent the work from being performed. 

a. Did the claimant take work home with her to complete?

One staff member who shared office space with the claimant and worked with her during the months of July 2007 to October 2007 stated that about twice a month the claimant returned to work on Mondays with official work correspondence but did not recall when this occurred.  Three employees affiliated with the 90th MSG provided limited information.  One (who had interactions with the claimant during the months of July 2007 to November 2008) stated she submitted Squadron level reports for review by the claimant on a Thursday or Friday and they were returned with corrections annotated the following Monday but did not recall when or how often this occurred.  The second (who had interactions with the claimant during the months of July 2007 to November 2008) stated the claimant often told this employee she took work home with her to complete during weeknights and weekends but did not recall when or how often this occurred.  The third (who had interactions with the claimant during the months of July 2007 to August 2007) stated he saw the claimant occasionally take military-style folders to her car but did not know if they contained work or when or how often this occurred. 

Finding

That the claimant was observed transporting work to or from the office or that she asserted to co-workers she was performing work at home does not serve to establish that she actually performed work at home.  She has provided no evidence to support that she performed unpaid overtime work at home.  Thus, the claimant has not met the burden of proof that she performed unpaid overtime work at home. 

b. Did the claimant’s supervisor know or have reason to believe the work was being performed?

The claimant's first supervisor indicated in her 2008 performance appraisal his belief that she had spent "hundreds of hours editing documents and correspondence at home." 

The claimant’s second supervisor stated that when the claimant indicated she had been taking work home, she immediately notified the claimant to discontinue removing work from the office and the claimant, to her knowledge complied. 

Finding

There is evidence the claimant’s first supervisor was aware of her taking work home to complete.  However, the second supervisor instructed the claimant to discontinue this practice and believed the claimant had complied.  The claimant does not dispute this account.

c. Did the claimant’s supervisor have the opportunity to prevent the work from being performed?

Since the claimant told the first supervisor she was regularly taking work home to complete, it can be reasonably concluded he had the opportunity to prevent this work from being performed.

The claimant states she informed her second supervisor she was working hours in excess of her scheduled tour of duty but stopped taking work home when so instructed in August 2008.  She further states she removed no work from the office until a week before starting a new position when she received a large binder from one of the MSG Squadrons for proofreading.  The claimant stated: “I did not want to leave a mess for the new person taking my job so I took that binder home to work on to make sure the office would run as smooth as possible until a replacement was brought on board.”  She did not, however, inform the second supervisor she had done so.  Therefore, we may conclude that the second supervisor did not have the opportunity to prevent this work from being performed.

Finding

The claimant’s first supervisor had the opportunity to prevent the overtime work from being performed but did not do so because he intended to compensate the claimant for work she performed at home. 

The claimant’s second supervisor did not have the opportunity to prevent the claimant from taking work home to complete on the one occasion she did so addressed above. 

2.  Has the claimant produced enough evidence to show the amount and extent of work performed as a matter of reasonable inference?

Although the first supervisor believed the claimant had worked "hundreds" of overtime hours at home, presumably based on what he had been led to believe by the claimant, this is not supported by the claimant's contemporaneous calendar.  This calendar indicates only about 37 overtime hours (some calendar notations are unclear) worked on weekends.  (As previously discussed, the claimant states that overtime hours indicated as having been worked during the work week occurred at the work site.)

The claimant’s contemporaneous calendar does not indicate what work was performed at home.  Therefore, the claimant has produced no evidence of the amount and extent of work performed at home as a matter of reasonable inference. 

Finding

There is no independent corroboration that the claimant performed overtime work at home.  Although she had informed her first supervisor she was taking work home to complete, there is a wide discrepancy between how many hours she led him to believe she had worked and the hours she recorded on her contemporaneous calendar.  She acknowledges she discontinued taking work home when so instructed by her second supervisor, except for one occasion during her last week in the position of which the second supervisor was unaware.  Her contemporaneous calendar cannot be relied on to determine any hours she may have worked at home because it does not record the work she performed during those times.  Thus, no reconstruction can be made as to whether the number of hours claimed is reasonable.  

Decision

The claimant has failed to show she performed overtime work under the FLSA for which she was not paid before or after her scheduled duty hours.  Our interviews with her co-workers and other individuals affiliated with the 90th MSG indicate the claimant was observed working before or after her scheduled duty hours at least occasionally, and her first supervisor was aware that she at times worked beyond her scheduled duty hours.  However, he states and there is evidence to support that she received compensatory time off for at least some portion of these hours.  There is no indication the second supervisor was aware the claimant was working beyond her scheduled duty hours.  The claimant's contemporaneous calendar may not be treated as a reliable record of overtime hours she may have worked before or after her scheduled duty hours as it neither indicates the times she was at the work site and therefore when the overtime may have been performed, or the actual work she performed during the overtime hours claimed.  Thus, the claimant has not produced enough evidence to show the amount and extent of work that may have been performed before or after her scheduled duty hours as a matter of reasonable inference, and this portion of the claim is therefore denied.

The claimant has failed to show she performed overtime work under the FLSA for which she was not paid during her lunch breaks.  Our interviews with her co-workers and other individuals affiliated with the 90th MSG failed to establish that she in fact performed work during her lunch breaks.  Neither her first nor her second supervisor was aware she had been working through her lunch breaks.  Her contemporaneous calendar does not separately indicate which days she performed overtime work during her lunch breaks or the actual work she performed during the overtime hours claimed.  Thus, the claimant has not produced enough evidence to show the amount and extent of work that may have been performed during her lunch breaks as a matter of reasonable inference, and this portion of the claim is therefore denied.

The claimant has failed to show she performed overtime work under the FLSA for which she was not paid at home.  Our interviews with her co-workers and other individuals affiliated with the 90th MSG failed to establish that she in fact performed work at home.  She had informed her first supervisor she had been completing work at home, but there is a large divergence between the hours he had been led to believe she had worked and the hours she recorded on her contemporaneous calendar.  Her second supervisor had instructed her to discontinue taking work home and to her knowledge the claimant had complied.   Her contemporaneous calendar does not indicate the actual work she performed during the overtime hours claimed. Thus, the claimant has not produced enough evidence to show the amount and extent of work that may have been performed at home as a matter of reasonable inference, and this portion of the claim is therefore denied.

The claimant has not provided evidence of the liability of the agency and her right to payment for work performed before and after her scheduled duty hours, during her scheduled lunch breaks, or for work completed at home, and her claim is denied.


[1] A finding of willful violation extends the two-year statute of limitations to three years.  However, since our adjudication of this claim denies payment, any discussion of willful violation would be moot. 

 

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