Worthington v. United States

50 Fed. Cl. 712, 2001 U.S. Claims LEXIS 211, 2001 WL 1455949
CourtUnited States Court of Federal Claims
DecidedNovember 5, 2001
DocketNo. 96-61C
StatusPublished
Cited by4 cases

This text of 50 Fed. Cl. 712 (Worthington v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Worthington v. United States, 50 Fed. Cl. 712, 2001 U.S. Claims LEXIS 211, 2001 WL 1455949 (uscfc 2001).

Opinion

OPINION

SMITH, Senior District Judge.

This case returns to this court on remand of the Federal Circuit after reversal of the initial decision on jurisdiction in Worthington v. United States, 41 Fed.Cl. 181 (1998). Plaintiff seeks overtime pay under the Back Pay Act, 5 U.S.C. § 5596 (1988 & Supp.2001), based upon his reassignment by the United States Forest Service to a compressed work schedule. Plaintiffs claim is before the court on cross motions for summary judgment. Because plaintiff failed to show that working the compressed schedule resulted in a loss of “pay, allowances or differentials,” in addition to the fact that the claim is barred by the doctrine of res judicata and in large part by the statute of limitations, plaintiffs motion is DENIED and the government’s cross motion is GRANTED.

The court’s jurisdiction in such matters under the Tucker Act, 28 U.S.C. 1491(a)(1) (1988 & Supp.2001), remained in place after the enactment of the Civil Service Reform Act (CSRA), except where the underlying personnel action is covered by the CSRA. The Federal Circuit has determined that plaintiffs claim is not within the coverage of CSRA and that it falls instead within this court’s Tucker Act jurisdiction. Worthington v. United States, 168 F.3d 24 (Fed.Cir.1999).

FACTS1

Plaintiff was employed by the United States Forest Service as a Civil Engineering Technician for approximately 15 years. In 1986, plaintiff was informed that his position at Tahoe National Forest was unfunded. He was then transferred to Angeles National Forest. Following the transfer, plaintiff received poor performance ratings, was denied a within-grade increase, and was ultimately removed from his position in August 1990 because of unacceptable performance.

In a March 23 1988 letter of instruction, plaintiffs supervisor directed him to begin working a compressed work schedule, also called a “5-4-9” work schedule. Plaintiffs new schedule required him to work 80 hours every two weeks as he had previously done. Under the “5-4-9” schedule, however, plaintiff worked one eight-hour day and eight nine-hour days during each two week period. Every other Monday plaintiff would work eight hours. Every other Friday plaintiff would not work. Plaintiff worked nine hours on all other weekdays.

In her letter of instruction, plaintiffs supervisor indicated that she was placing him on the compressed work schedule because of her need to “have confidence in your being on the job when needed.” Her letter noted plaintiffs “pattern of taking sick and annual leave without prior approval.”

Plaintiff claims that he initiated a verbal complaint on March 24, 1988. He then filed an “informal EEO complaint,” a grievance letter, with Don Garwood, his Equal Employment Opportunity Counselor at Angeles National Forest, on March 28, 1988. In his grievance letter plaintiff requested that he be paid for “overtime that [my supervisor] specifically prohibited me from working.” He stated that he believed he had been unlawfully placed on a compressed work schedule in violation of the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6127 (1988), and requested that the letter of instructions be withdrawn. He also requested overtime for 16 hours spent preparing the grievance letter. In his grievance letter plaintiff complained that his supervisor treated “white males differently (unfairly) than the way she treats the minorities that [714]*714work for her.” Plaintiff filed a formal discrimination complaint with the Department of Agriculture’s Equal Employment Office (“EEO”) on May 2, 1988, in which he requested a hearing before an Administrative Judge appointed by the U.S. Equal Employment Opportunity Commission (EEOC).

On April 2, 1990, pursuant to plaintiffs discrimination complaint, the Forest Service rescinded and canceled the letter of instruction, relieved plaintiff from the compressed work schedule, apologized, and allowed him to choose his own work schedule. The April 2 letter used the term “unwarranted action,” possibly with reference to having placed plaintiff on a compressed work schedule. Nevertheless, plaintiff chose to continue to work the compressed “5-4-9” work schedule until his removal in July 1990. The final decision on plaintiffs discrimination complaint, issued by Deputy Secretary of Agriculture Jack Parnell on March 29, 1990, found no evidence of discrimination or reprisal by the agency when it denied plaintiffs overtime request.

Plaintiff did not file an appeal of the final decision on his discrimination claim with the EEOC nor did he file a civil action in federal district court although Mr. Parnell’s letter advised plaintiff that these avenues for appeal were open to him. Instead, on April 27, 1990, he wrote to Mr. Thomas Brown, Forest Service Regional Personnel Officer, to request additional relief including overtime for his nine hour days and payment for his Fridays off. Thomas Beaumont, Supervisory Equal Employment Specialist, responded to plaintiffs request for additional relief on August 02, 1990. Mr. Beaumont noted that,

Deputy Secretary Parnell’s decision on your complaint found that rescission of the March 23, 1988 letter of instruction, apology for the letter, and future approval of your request for alternate work schedules, constituted full relief for the stated issues. You had the right to contest the decision by filing an appeal as stated in the decision. While the letter of instructions did establish a specific tour of duty, it did not instruct you to work any overtime hours or create any overtime hours. It was a 5-1-9 work schedule, and your work requirement continued to be 80 hours per pay period. Your overtime entitlement was contingent on the tour of duty to which you were assigned.

Establishment of a particular tour of duty did not deprive you of any hours of work; it merely placed them at different points in the pay period.

The April 11, 1988 letter to you does not prohibit you from working overtime, but defines a requirement that all overtime must be approved and ordered in advance.

Plaintiff appealed the agency’s denial of overtime pay for working a compressed work schedule to the Office of Special Counsel and to the Merit Systems Protection Board (MSPB or “the board”). On June 11, 1991, MSPB Administrative Judge Liggett found that “[placing appellant on a compressed work schedule, allegedly against his wishes, was error, but under all the circumstances of this case it was harmless. As noted above, when provided an opportunity to choose his own work schedule, appellant chose the identical ‘compressed’ work schedule.” Plaintiff appealed to the Federal Circuit which, on February 10, 1992, affirmed the decisions of the MSPB and the Forest Service. With respect to plaintiffs compressed work schedule, the Federal Circuit agreed with the MSPB that plaintiff “cannot show that this error was harmful.” Worthington v. Department of Agriculture, 956 F.2d 1172, 1992 WL 20819 at *2 (Fed.Cir.1992) (unpublished table decision).

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50 Fed. Cl. 712, 2001 U.S. Claims LEXIS 211, 2001 WL 1455949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worthington-v-united-states-uscfc-2001.