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GAFFNEY v. UNITED STATES

August 9, 1993

JEROME GAFFNEY, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 This matter is before the Court on plaintiffs' motion for class certification, plaintiffs' motion for partial summary judgment, and defendant's motion for summary judgment. Plaintiffs are four retired federal employees who claim that they are owed backpay under employee leave statutes. For the reasons stated below, the parties' motions for summary judgment will be granted in part and denied in part, and plaintiffs' motion for class certification will be denied.

 I.

 Plaintiffs assert two discrete claims. Count I involves the calculation of the "lump sum" payment that plaintiffs received upon their separation from service as compensation for accumulated but unused annual leave. Count II relates to plaintiffs' entitlement to "premium pay" for Sundays on which they were regularly scheduled to work but took paid leave instead.

 Plaintiffs move for certification of two plaintiff classes consisting essentially of all present and former federal employees who are entitled to additional pay, both prospectively and retroactively (limited only by the six-year statute of limitations), under these two theories. Plaintiffs have also moved for partial summary judgment on the issue of liability. Defendant has opposed class certification and has filed a motion to dismiss or for summary judgment.

  A.

 Federal employees are entitled to annual leave with pay under 5 U.S.C. § 6303. The statute sets forth the formula by which such leave is accrued. Generally, employees with less than three years of service accrue one-half day of leave for each biweekly pay period; employees with three or more but less than 15 years accrue three-fourths of a day for each pay period; and employees with 15 or more years of service accrue one full day for each biweekly pay period. 5 U.S.C. § 6303(a).

 Under 5 U.S.C. § 5551(a), federal employees who are separated from service are entitled to receive a lump sum payment for the annual leave that they have accrued but not taken. The statute provides that this payment "shall equal the pay . . . the employee or individual would have received had he remained in the service until expiration of the period" of the accumulated leave. 5 U.S.C. § 5551(a). Each of the named plaintiffs, prior to their retirement, had accumulated several hundred hours of unused annual leave.

 Federal employees receive a base salary that is determined by their "GS" grade and step. There are also several different statutes that entitle employees to "premium pay" in addition to the base salary in certain circumstances. First, employees are entitled to premium pay of 25 percent of their base salary when they are regularly scheduled to work on Sunday. 5 U.S.C. § 5546(a). Second, they are entitled to premium pay of ten percent of when they are regularly scheduled to work nights. 5 U.S.C. § 5545(a). Third, they are entitled to premium pay when their work involves certain "hazardous duties." 5 U.S.C. § 5545(d). In addition, federal employees are entitled to overtime pay of time-and-a-half for work performed in excess of 40 hours per week or eight hours per workday. 5 U.S.C. § 5542. During their federal employment, the named plaintiffs regularly received such premium or overtime pay in addition to their base salaries.

 The government's policy is not to include such premium or overtime pay in the computation of an employee's lump sum payment under 5 U.S.C. § 5551(a). Instead, the defendant calculates the lump sum using only an employee's base pay rate. In Count I, plaintiffs claim that this practice violates the statutory directive that the lump sum equal "the pay . . . the employee or individual would have received had he remained in the service." 5 U.S.C. § 5551(a). Plaintiffs argue that the defendant must examine employees' pay records upon retirement and identify those employees who, it can reasonably be assumed, "would have received" premium pay had they remained in the service.

 Recognizing that some essentially arbitrary test would be required to identify those employees who qualify, plaintiffs propose that all employees who were regularly scheduled to receive premium or overtime pay for each of the four consecutive pay periods (i.e., eight consecutive weeks) prior to their separation from service should be entitled to have such pay included in their lump sum payment.

 B.

 In addition to the annual leave provided for in 5 U.S.C. § 6303 and described above, federal employees are entitled to three other types of leave with pay under provisions of Title 5 of the United States Code. Employees are also entitled to sick leave, 5 U.S.C. § 6307, court leave, 5 U.S.C. § 9322, and military leave, 5 U.S.C. § 6323. Each of those statutes provides (in slightly different language) that the employee is entitled to such leave "without reduction in pay."

 As explained above, federal employees are entitled to "premium pay" when they are regularly scheduled to work on Sundays. 5 U.S.C. § 5546(a). When a federal employee is regularly scheduled to work on Sunday but instead takes leave under one of the leave-with-pay statutes, the defendant's policy is to pay the employee only his or her basic pay, not the Sunday premium. In Count II, plaintiffs claim that defendant's failure to include the Sunday premium in these circumstances violates the command in the leave-with-pay statutes that such leave be without reduction in pay.

 Each of plaintiffs' two claims will be addressed first, followed by the issue of class certification. Because its resolution is relatively ...


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