Claimant(s):

Organization:

Claim:

Agency decision:

OPM decision:

OPM decision number:

The claimant is employed in a Forestry Technician (Fire Suppression Specialist), GS-462-07, position in the Upper Yukon Fire Management Zone Staff, Division of Fire and Aviation, Alaska Fire Service (AFS), of the Alaska State Office, Bureau of Land Management (BLM), U.S. Department of the Interior (DOI), in Fairbanks, Alaska.  In a letter to the agency from the claimant’s duly appointed representative dated June 10, 2008, the claimant seeks “a Back Pay Claim, based upon the miscalculation of overtime pay due [the claimant] between June 3, 2002 and the present.”  The claimant’s representative included with the claim a copy of the legal analysis he had prepared and submitted in similar, related claims.  As stated in the representative’s letters to the claimant’s employing agency on these claims, the claimant seeks:

[t]he differential owed him based upon the failure of the government to include the appropriate non-foreign cost of living allowance (“COLA”) in the straight-time portion of his compensation, for the purposes of calculating overtime pay for non-exempt employees such as [the claimant].

The requested period of the claim is June 3, 2002, through the present.  However, the agency stated in its March 3, 2009, administrative report to OPM that the claimant “received back pay with interest that was allowable under [the Fair Labor Standards Act] for a period of two (2) years (April 4, 2004 through April 4, 2006).”  As cited on page 8 of this decision, in a May 5, 2008, letter on behalf of three similarly situated claimants,  the claimant's representative acknowledged the claimants have been properly compensated by BLM since April 4, 2006, and that "[i]n response we have asserted a Back Pay claim for those additional monies due from... June 3, 2002 to April 4, 2006."

The claimant has provided calculations for what he believes to be correctly computed overtime work hours for the 2002 and 2003 fire seasons which reflect a total of $7,815.65.  During this period, the claimant performed work the agency classified variously as Fair Labor Standards Act (FLSA) nonexempt or exempt.  The claimant did not question these determinations during the claim adjudication process.  Subsequent to OPM accepting the case and asking the agency for documentation of the claimant’s exemption status, the agency advised it had erred in determining the FLSA exemptions of the claimant’s positions.  Therefore, we must determine the claimant’s FLSA exemption status during the claim period as part of the claim adjudication process.

As specified in 591.239(a) and (b) of title 5, Code of Federal Regulations (CFR), agencies are required to calculate COLAs and post differentials in an employee’s regular rate of pay for computing overtime pay entitlements only for FLSA nonexempt employees.  The claimant requests compensation for overtime work performed since June 3, 2002.  He has occupied several GS-462 Forestry Technician positions within BLM’s AFS since 2002.  Therefore, we must determine whether the positions occupied by the claimant are appropriately covered by the FLSA.

Under 5 CFR 551.201 and 551.202 as in effect during the claim period,  an agency may designate an employee FLSA exempt only when the agency correctly determines the employee meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  each employee is presumed to be FLSA nonexempt; exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption; the burden of proof rests with the agency asserting the exemption; and the employee should be designated FLSA nonexempt if there is a reasonable doubt as to whether the employee meets the criteria for exemption.  There are three primary exemption categories applied to Federal employees:  executive, administrative, and professional.

During the claim period requested, the claimant occupied a series of GS-462 positions, with a “Fire” parenthetical title unless otherwise noted, and was assigned to the below official position descriptions (PD) as follows:

06/03/2002 to 08/24/2002 Lead Forestry Technician, GS-462-6, #0F192AG

08/25/2002 to 09/21/2002 Supervisory Forestry Technician, GS-462-6, #0F194AC

09/22/2002 to 03/08/2003 Supervisory Forestry Technician, GS-462-7, #0F194AC

03/09/2003 to 09/20/2003 Supervisory Forestry Technician, GS-462-7, #0F191AA

09/21/2003 to 01/22/2005 Supervisory Forestry Technician, GS-462-8, #0F191AA

01/23/2005 to 03/19/2005 Supervisory Forestry Technician, GS-462-8, #0DOI017

03/20/2005 to 03/01/2008 Supervisory Forestry Technician, GS-462-9, #0DOI016

03/02/2008 to 05/09/2008 Forestry Technician (Fire Suppression Specialist), GS-462-9, #0F144AA (temporary)

05/10/2008 to 05/10/2008 Supervisory Forestry Technician, GS-462-9, #0DOI016

05/11/2008 to present Forestry Technician (Fire Suppression Specialist), GS-462-7,      

#0F144AA

We considered the work performed by the claimant in each of the positions listed above, as described by the PD of record, and whether the work performed was exempt or nonexempt from FLSA provisions.  The agency determined the work performed by the claimant while assigned to PD numbers 0F192AG and 0F144AA was nonexempt.  The claimant does not contest his agency’s FLSA determinations regarding these two positions and, based on careful review of the record, we concur.  Consequently, we will not discuss this work further.

PD numbers 0F194AC, 0F191AA, 0DOI017, and 0DOI016 describe positions assigned to the AFS’s Interagency Hotshot Crews (IHC).  The AFS is home to the Midnight Sun and the Chena IHCs, which are highly trained and organized fire suppression crews, each of which is staffed with a superintendent, an assistant superintendent, squad leaders, and crewmember positions filled at the GS-3, GS-4, and GS-5 grade levels.  When assigned to PD number 0F194AC, the claimant served as a squad leader at the Midnight Sun IHC.  He was then promoted and assigned to PD numbers 0F191AA and 0DOI017, which describe the assistant superintendent position for the Chena IHC.  The claimant was then promoted to the superintendent position for the Chena IHC and assigned to PD number 0DOI016.  Hereafter, our evaluation will refer to the claimant’s positions by organizational title rather than PD number (i.e., 0F194AC as squad leader, 0F191AA and 0DOI017 as assistant superintendent, and 0DOI016 as superintendent).

The claimant served as a squad leader at the GS-6 level from August 25, 2002, to September 21, 2002, and at the GS-7 level from September 22, 2002, to March 8, 2003.  The record shows the position was restructured to the lower grade to permit planned training and progression in the duties and responsibilities set forth in the full performance level PD.  The Statement of Difference states:

The supervisor is responsible to provide the necessary guidance, preparation, and coverage for those duties that cannot yet be assigned to the incumbent to assure not only effective work accomplishment, safety, and security, but also the preparation of the incumbent for promotion to this positions full performance level of GS-07.

The claimant also served as assistant superintendent at the GS-7 level from March 9, 2003, to September 20, 2003, and at the GS-8 level from September 21, 2003, to January 22, 2005.  The record shows this position was also restructured to the lower grade to permit training and progression in the duties and responsibilities set forth in the full performance level PD.

In a July 25, 2008, letter to OPM, staff from the Alaska Combined Services Center for DOI’s Human Resources Management state the FLSA determinations for the positions were previously incorrect.  Specifically, they state:

The initial FLSA determinations were made on July 5, 2001 as Exempt (Atch 1).  However, our HR Specialist, [name], after attending a FLSA workshop in October 2001 hosted by OPM made the determination that the positions should be Non-exempt.  That determination was based on the fact that the Supervisory Firefighters did not spend 80 percent or more of their work time on supervisory or closely related work (Atch 2).

They further state:

Another review of those FLSA determinations was accomplished this year in conjunction with the outstanding FLSA/Back pay claims that have been submitted to your office.  It has been determined that our office incorrectly changed the exemption status of those positions in 2001.  The reason for reversing our earlier determination was that we made an incorrect determination to include our firefighters when we should not have (Atch 3).

Thus, the agency concluded the squad leader, assistant superintendent, and superintendent positions were supervisory and restored their initial designation as FLSA exempt.  However, while collecting additional position information at our request to assist in our adjudication of this claim, the agency discovered the actual duties assigned to the squad leader and assistant superintendent positions were inconsistent with the supervisory PDs to which the claimant was assigned.  Specifically, they discovered that the superintendent position, during the claim period, directly supervised the approximately 19 employees assigned to the IHC.  They also discovered that at that time, the squad leader and assistant superintendent positions did not perform supervisory duties and were not delegated authority to hire, fire, advance, promote, or make recommendations for such actions.  As a result, the agency has reclassified the squad leader position as nonsupervisory.  Although the assistant superintendent position did not perform supervisory duties during the claim period, that position now shares IHC’s supervisory responsibilities with the superintendent, fully participates in the hiring process, and takes an active role in other human resources decisions, and has been redescribed in a new PD.  Based on this new information, the agency has concluded that the squad leader and assistant superintendent positions did not perform supervisory duties during the claim period and should have been designated as FLSA nonexempt.  Our review of the information provided supports this determination.  Consequently, we will not discuss this work further.  

Our evaluation will focus on the supervisory work performed by the claimant as the superintendent for the Chena IHC.  The agency does not address the administrative and professional exemption criteria and, based on careful review of the record, we also find these criteria inapplicable to the claimant’s work.  Our comparison of the claimant’s duties and responsibilities to the executive exemption criteria follows.  The claimant did not provide specific position-related information and our conclusions, as a result, are based primarily on the PDs of record and information provided by the AFS’s chief smokejumper and the servicing human resources (HR) office.

Executive Exemption Criteria

The regulations applicable during the claim period are found in 5 CFR part 551 (1998).   Under the executive exemption criteria in 5 CFR 551.205 (1998), an executive employee is a supervisor or manager who manages a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and customarily and regularly directs the work of subordinate employees and meets both of the following criteria:

(a) The employee:

1)  Has authority to make personnel changes including, but not limited to, selecting, removing, advancing in pay, or promoting subordinate employees, or has authority to suggest or recommend such actions with particular consideration given to these suggestions and recommendations; and

2)  Customarily and regularly exercises discretion and independent judgment in such activities as work planning and organization; work assignment, direction, review, and evaluation; and other aspects of management of subordinates, including personnel administration.

(b) In addition to the primary duty criterion applying to all employees, the following employees must spend 80 percent or more of the work time in a representative work week on supervisory and closely related work to meet the 80 percent test:  (1) employees in positions properly classified in the General Schedule at GS-5 or GS-6 (or the equivalent in other white collar systems); (2) firefighting or law enforcement employees in positions properly classified in the General Schedule at GS-7, GS-8, or GS-9 who are subject to section 207(k) of title 29, United States Code; and (3) supervisors in positions properly classified in the Federal Wage System below situation 3 of Factor 1 of the Federal Wage System Job Grading Standard for Supervisors (or the equivalent level in other comparable wage systems).

The IHCs’ primary mission is to provide wildland fire suppression.  The crews are trained in wildland fire suppression tactics, respond to large and high-priority fires, and are trained and equipped to work in remote areas.  As an interagency resource, they can respond to wildland fire incidents in any jurisdiction and provide fire management services to the BLM, State of Alaska, Bureau of Indian Affairs, Fish and Wildlife Service, and National Park Service.  When not fighting fires, the IHC’s work includes meeting resource goals such as prescribed fire operations, hazardous fuel mitigation plans, building maintenance, and other land management projects.

As superintendent, the claimant was responsible for overseeing the day-to-day work of the IHC.  He assisted the Fire Management Officer in planning, developing, and implementing a complex fire management program involving prescribed fire projects, hazardous fuel mitigation plans, and other land management projects.  He spent approximately 30 percent of his time performing technical and administrative supervisory duties, including planning and directing the overall work to be accomplished by subordinate employees; setting and adjusting priorities; preparing schedules for completing work; assigning work to subordinates based on consideration of priorities, the difficulty and requirements of assignments, and individual capabilities; developing performance standards and evaluating work performance of subordinates; advising, counseling, or instructing employees on work and administrative matters; maintaining records on individual career development; identifying developmental and training needs of employees; ensuring an adequate number of personnel were trained and qualified for fire operation assignments; providing input on promotions, awards, and other HR-related actions; and conducting interviews with prospective employees.

As described in the superintendent PD, the claimant’s position involved planning and executing HR management actions to accomplish the objectives and strategies outlined by upper management.  The PD describes the supervisory duties and responsibilities, along with the HR management authorities, delegated to the position.  Considering the overall number and range of HR management authorities delegated to the claimant, we find criterion (a)(1) was met.

Under 5 CFR 551.104 (1998), the exercise of discretion and independent judgment involves comparing and evaluating possible courses of conduct, interpreting results or implications, and independently taking action or making a decision after considering the various possibilities.  Firm commitments or final decisions are not necessary to support exemption.  The “decisions” made as a result of the exercise of independent judgment may consist of recommendations for action rather than the actual taking of action.  There are three elements involved in the evaluation of this factor:

1) The work must involve sufficient variables as to regularly require discretion and independent judgment in determining the approaches and techniques to be used, and in evaluating results.  Employees whose work primarily requires skill and the application of standardized techniques, precedents, or other guidelines are excluded.

2) The employee must have authority to make such determinations during the course of assignments.

3) The decisions made independently must be significant.  The term “significant” is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority; however, it does not extend to the kinds of decisions affecting only the procedural details of the employee’s own work, or to such matters as deciding whether a situation does or does not conform to clearly applicable criteria.

While occupying the superintendent position, the claimant performed supervisory duties regularly requiring independent judgment and discretion in making recommendations and decisions affecting the safety and security of the IHS crews and the general public.  His supervisory responsibilities included planning work, setting schedules, assigning priorities, giving instructions to employees, training employees, and evaluating performance.  These and other supervisory duties required exercising discretion and independent judgment as his actions were not specifically governed by established policies and procedures; the claimant was delegated authority to make these determinations; and the decisions made were significant, extending beyond procedural details and directly impacting the quality and efficiency of the wildland fire suppression services provided.

As superintendent, the claimant was responsible at incidents and prescribed fire projects for being aware of environmental influences and fire behavior, and making necessary adjustments as conditions changed.  Complex variables (e.g., weather, fuels, topography, fire behavior, management objectives and resource protection concerns, strategies and tactics, resource availability and capability, and employee and public safety) had to be considered when making critical decisions under pressure.  When combating fires, the claimant acted independently to evaluate the situation, plan the operation, determine personnel needs, evaluate the effectiveness of the crew, and adjust strategies and tactics when necessary while directing, supervising, and evaluating the work of the GS-462 crewmembers.  His work required discretion and independent judgment to make decisions; e.g., in reacting to and communicating changes in weather and fire behavior, topography, and fuel types.  The claimant then planned, prioritized, and assigned work to his subordinate employees accordingly.

We find the primary duty of the claimant’s superintendent position consisted of supervisory responsibilities which required exercising discretion and independent judgment, and met criterion (a)(2).

The agency previously determined the claimant’s supervisory positions failed to meet criterion (b) and were therefore nonexempt from FLSA provisions, as the claimant did not spend the 80 percent minimum on supervisory or related work as cited in the criterion.  While the claimant’s GS-462 Forestry Technician work includes forest or range fire control, prevention, and suppression, it is not subject to 29 U.S.C. § 207(k).  5 CFR 551.501(a)(5).  Therefore, we find criterion (b) did not apply.

As discussed above, the claimant’s work while assigned to the superintendent position met criteria (a)(1) and (a)(2).  Therefore, the position was properly exempt from the FLSA under the executive exemption.

Applicability of the Back Pay Act (BPA)

In the legal analysis accompanying his June 10, 2008, letter to the agency, the claimant’s representative asserts the agency has incorrectly characterized this matter as an FLSA claim and, therefore, incorrectly invoked the two- or three-year statute of limitations set out at 29 U.S.C. 

§ 255(a) and 5 CFR 551.101, et. seq.  He asserts the six-year limitation period set out at 5 U.S.C. § 5596(b)(4) and 5 CFR 550.801, et. seq.:

I say this because OPM has already resolved the FLSA issues by regulation.  (5 CFR 591.239)Thus, from my perspective, [the claimant is] due the incremental compensation contemplated by OPM in its 2002 final regulation.  This is clearly a Back Pay Act claim and the Back Pay Act limitations period should apply; not that which governs in FLSA matters.

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The claiming employee should receive the full effect of 5 CFR 591.239 and receive all Back Pay due, as of June 3, 2002.  That is, the claiming employee should be made whole as regard the compensation differential not paid between June 3, 2002 and the present.

In his May 5, 2008, letter on behalf of other similarly situated claimants, the claimant’s representative stated:

The BLM only recomputed and paid my clients corrected overtime as of April 4, 2006.  In response we have asserted the Back Pay claim for those additional monies due from the effective date of OPM’s regulation, June 3, 2002 to April 4, 2006.  By its reliance on the two year limitation provision of the FLSA, the BLM has failed to meet its regulatory duty and now would deprive my clients of the money owed them in reliance on its own inaction.

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The fact that the BLM failed or neglected to comply in a timely fashion with OPM’s June 3, 2002 regulation governing the proper calculation of overtime compensation does not, in and of itself, convert these claims from BPA claims to FLSA claims.  The six year statute of limitation applicable to Back Pay Act claims should be applied in this case.

The claimant’s representative appears to misinterpret the BPA as requiring the application of a six-year statute of limitations in all situations.  The BPA’s language makes clear the six-year statute of limitations is the maximum period allowed with respect to amounts payable under its provisions.  5 U.S.C. § 5596(b)(4).  However, for back pay claims dealing with payments under the FLSA, an agency must apply the two-year statute of limitations, or three-year statute of limitations for willful violations, in 29 U.S.C. § 255a.  5 CFR 550.804(e)(3). 

OPM settles Federal civilian employee compensation and leave claims under the provisions of 31 U.S.C. § 3702(a)(2) and 5 CFR part 178, and FLSA claims under the provisions of 29 U.S.C. § 204(f) and 5 CFR part 551, subpart G.  We construe the claimant’s representative’s assertion seeking settlement of this claim under the provisions of 31 U.S.C. § 3702(a)(2) to be based on his citation of 5 CFR 591.239, which regulates the treatment of non-foreign COLA and post allowance for the purpose of overtime pay and other entitlements.

Under 5 CFR 591.239(a), COLA is included in total remuneration for computing an FLSA nonexempt employee’s hourly regular rate of pay and in the employee’s straight time rate of pay when the employee is entitled to overtime pay under the FLSA.  Further, 5 CFR 591.239(b) makes clear that COLA is not to be included “as part of an employee’s rate of basic pay for purposes of computing entitlements for overtime pay, retirement, life insurance, or any other additional pay, COLA, or post differential under title 5, United States Code.”  Thus, 5 CFR 591.239(a) applies exclusively for the purpose of calculating overtime pay for employees covered by the overtime pay provisions of the FLSA.

Employees who are nonexempt under the FLSA always receive overtime pay under the FLSA as provided in 5 CFR part 551.  Because FLSA nonexempt employees are not paid overtime under the provisions of the Federal Employees Pay Act (FEPA) of 1945, as amended, codified at 5 U.S.C. § 5542, 5544, the statute of limitations provided by FEPA cannot be applied to a nonexempt employee’s overtime pay claim under the FLSA.  See Gary Aaron, et al. v. United States, 56 Fed. Cl. 98 (2003).  Thus, the claimant’s representative’s assertion of jurisdiction under 31 U.S.C. 3702(a)(2) is misplaced; the claim is properly treated as an FLSA claim. 

In his May 5, 2008, letter the claimant’s representative states:

…even assuming, arguendo, that the BLM is correct in applying the FLSA limitation period…a proposition which we do not concede in this matter - it fails to address the liquidated damages provisions of the FLSA….That is, if OPM determines that the claims of my clients are to be treated under the FLSA rather than the BPA, the conduct of the government is clearly so willful as to invoke the three year limitation period, rather than the two year limitation period the Agency would apply.  This, in turn, serves to entitle the claiming employees here to additional, unpaid, overtime compensation and an equal amount as liquidated damages.  Similarly, given the willful conduct of the Agency in this matter, my clients are entitled to an award of reasonable attorney fees and costs necessarily incurred in this matter. Id.

Under 5 CFR 551.104, “willful violation” is specifically defined as follows:

Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act.  All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.

Clearly, not all violations of the FLSA are willful as this term is defined in the regulations.  There is no question that the agency erred in determining the claimant’s straight time rate of pay for calculating FLSA overtime pay.  However, error alone does not reach the level of willful violation as defined in the regulations.  A finding of willful violation requires that either the agency knew its conduct was prohibited or showed reckless disregard of the requirements of the FLSA.  The regulation further instructs that the full circumstances surrounding the violation must be taken into account.

In evaluating the circumstances surrounding the violation, it is important to consider the origin of this error and the actions taken by the agency subsequent to its discovery.  It is instructive to consider how the agency reacted when it discovered it was not calculating FLSA overtime pay properly for nonexempt employees receiving non-foreign COLA.  The agency administrative report (AAR) includes a June 8, 2006, memorandum from the Chief, Payroll Operations Division, of DOI’s National Business Center:

The National Business Center (NBC) recently became aware of a change in the calculation methodology for overtime pay for employees who are non-exempt from the Fair Labor Standards Act and who are receiving a non-foreign allowance (COLA).  Although this change occurred in 2002, none of the four major payroll providers, including NBC, had been notified.  As a result, on April 4, 2006, the Office of Personnel Management notified each of the payroll providers that we are required to process back pay plus interest for affected employees for a period of two years.

The memorandum, in itself, is evidence that the agency was making an honest attempt to correct erroneous overtime pay calculations:

System changes are in the process of being made to FPPS.  Once the system changes are made, recomp will be triggered for the prior 26 pay periods.  Shortly after that, the Payroll Operations Division will begin making manual adjustments for the interest and for periods prior to recomp.  We will make every effort to process the retroactive payments as quickly as possible, and hope to have them completed in six months or less.

The agency reported in the AAR that "[a]ll affected employees were identified and paid back pay with interest as of February 2007 for the 2-year period April 2004-April 2006." The claimant's representative was mailed a copy of the AAR on March 3, 2009.  

Based on all of the above, we find the agency erred in not implementing the FLSA overtime pay calculation provisions of 5 CFR 591.239(a), initially issued in 67 FR 22339 (May 3, 2002).  However, we also find the agency acted in good faith by making a full and adequate inquiry once their attention was focused on the issue, and they took action to resolve the matter.  In doing so, the agency did not recklessly disregard the requirements of the FLSA.  In its administrative report, the agency acknowledged it made errors in payroll processing.  However, such technical errors also do not rise to the level of willful violation.  The claimant’s representative’s assertions in his May 5, 2008, letter would require us to conclude the agency engaged in a series of actions based on animus and willful avoidance of its responsibilities which, as discussed previously, we find was not the case.  In summary, we find the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104.

Under 29 U.S.C. §§ 216 and 260, Federal courts have substantial discretion in fashioning remedies for violations of the FLSA, including liquidated damages.  The authority of the court to grant liquidated damages does not extend to administrative claim decisions issued by OPM. Unlike the courts, OPM’s administrative claims process derives its remedial authority from the BPA, codified at 5 U.S.C. § 5596.  Under the BPA, a claimant can receive back pay and interest for FLSA overtime performed within the claim period, but an agency must apply the two-year statute of limitations (three-years for willful violations) in 29 U.S.C. 255a.  5 CFR 550.804(e)(3).  See also 5 CFR part 550, subpart H.  There is no provision in the BPA for liquidated damages.  Therefore, we conclude the claimant’s rationale with regard to liquidated damages is misplaced in that the FLSA administrative claims process does not provide for the awarding of liquidated damages.  

The regulations governing the filing of an administrative claim (5 CFR 551.702(c)) also state in pertinent part:  “If a claim for back pay [emphasis added] is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation ) back from the date the claim was received.”

The claim period is June 3, 2002, to April 4, 2006.  The record shows the claimant preserved his claim with his agency on June 11, 2008, when his claim dated June 10, 2008, was received.  Since we find the agency did not willfully violate the FLSA, the claimant would have been eligible for back pay two years prior to that date in connection with the filing of this claim.  Therefore, the claim is time barred for the period before June 11, 2006, and must be denied. 

As provided in 5 CFR 551.708, this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which OPM administers the FLSA.  There is no further right of administrative appeal.  This decision is subject to discretionary review only under conditions specified in 5 CFR 551.708.

Those aspects of this decision reviewed under the authority of 31 U.S.C. § 3702(a)(2) and 5 CFR part 178 regarding the Back Pay Act and COLA are not subject to further administrative review.  Nothing in this settlement limits the employee’s right to bring an action in an appropriate United States court.