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Morgan v. Federal Aviation Administration

August 25, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 12



This matter is before the court on the defendants' motion for leave to file an amended answer. The pro se plaintiff is a former employee of the Federal Aviation Administration ("FAA"), an agency housed within the Department of Transportation ("DOT"). The defendants are the FAA and Susan Marmet, a former co-worker of the plaintiff. The plaintiff brought this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 et seq., alleging nonpayment of overtime and unlawful discharge and retaliation. The defendants seek leave to file an amended answer to include the affirmative defense of res judicata. Because the factors weigh in favor of allowing the defendants to amend their answer, the court grants their motion.


On September 30, 2005, the FAA terminated the plaintiff's employment. See Compl., Ex. 6 ("Morgan Decl.") ¶ 8. Prior to his termination, the plaintiff worked as an Air Traffic Control Specialist ("ATCS") at High Desert Terminal Radar Approach Control ("High Desert TRACON") facility located at Edwards Air Force Base in California. See Compl. ¶ 1. Since being terminated, the plaintiff has commenced three separate actions in three distinct venues regarding his employment at and termination from High Desert TRACON. Because all three impact the court's disposition of the instant motion, they are described below.

A. The Merit Systems Protection Board Action

On October 31, 2005, the plaintiff appealed his termination to the Merit Systems Protection Board ("MSPB"), which affirmed the DOT's removal action. See Morgan v. Dep't of Transp., 105 M.S.P.R. 647 (2007) (unpublished table decision); No. SF-0752-06-0090-I-1 at 1, slip op. (M.S.P.B. July 14, 2006). The plaintiff withdrew his request for an MSPB hearing; consequently, the administrative judge made findings based on the documents submitted by the parties. Id. at 1. In affirming the DOT's decision to remove the plaintiff, the MSPB made the following determinations regarding the circumstances leading to his termination: on February 16, 2005, the plaintiff was scheduled to work until 1:45 p.m., but asked his supervisor if he could leave an hour early to "'gather information' from his physician for his 'medical clearance' forms." Id. at 18-19. The plaintiff recalls that he was informed by Marmet that he had to have his medical forms in order by the end of the day or his clearance would expire and he would be ineligible to work as an ATCS. Morgan Decl. ¶ 5. The supervisor denied this request because of a "staffing consideration." Id. at 19. At the end of his shift, the plaintiff failed to sign out, and the supervisor of the following shift indicated that the plaintiff had worked until 1:45 p.m. Id. But when the plaintiff returned for his next shift later that evening, he altered the sign-out time to indicate that he had worked until 2:30 p.m. that afternoon, and claimed 45 minutes of overtime. Id.; Compl., Ex. 1.

The MSPB concluded that the plaintiff had violated agency policy by claiming overtime on February 16, 2005. See 105 18-22. Specifically, the MSPB credited the statements of the Operations Supervisor for High Desert TRACON, Richard Contatore, who maintained that the plaintiff was not authorized to take overtime that day. Id. at 19. Contatore also stated that he would have notified the plaintiff had the plaintiff's medical clearance been due to expire. Id. Additionally, the MSPB concluded that the plaintiff was aware of the overtime policy at High Desert TRACON: two months earlier, on December 17, 2004, Contatore had counseled the plaintiff on "overtime and shift changing approval policies." Id. Moreover, Marmet, a defendant in the instant case and the Operations Manager for High Desert TRACON, stated in a declaration filed in the MSPB action that "she did not tell the [plaintiff] that he needed to have his 'medical documents in order' before he could work" his later shift on February 16.

Id. Obtaining medical records is ordinarily considered compensable work under the collective bargaining agreement between the National Air Traffic Controllers Association and the DOT. Id. at 20. But to obtain pay for more than eight hours of work per day, the plaintiff was required to receive prior authorization to work overtime. Id. at 21. The MSPB ultimately found that the DOT "proved by preponderant evidence that... the [plaintiff] worked beyond the scheduled end of his shift without authorization, and then claimed 45 minutes overtime." Id. at 21-22.

In the MSPB action, the plaintiff contested his removal on several grounds, including procedural errors, id. at 22, and retaliation for whistleblowing, id. at 24. While the administrative judge determined that the plaintiff had made two protected disclosures*fn1 during his employment at High Desert TRACON, the judge also concluded that those disclosures were not related to his removal. Id. at 27. The MSPB decision became final on March 22, 2007. See Morgan v. Dep't of Transp., 300 F. App'x 923, 926 (Fed. Cir. 2008). The plaintiff then appealed to the Federal Circuit, which affirmed the MSPB's ruling in a decision dated November 24, 2008. Id. at 928.

B. The Instant Action

On September 28, 2007, the plaintiff filed the instant action, alleging twoFLSA claims for failure to pay overtime and unlawful discharge and retaliation and one FEHA claim for unlawful discharge, harassment and retaliation. See generally Compl. The facts that the plaintiff now alleges regarding the events surrounding his termination contradict the factual findings of the administrative judge in the MSPB action. Specifically, the plaintiff states in the declaration in support of his complaint that on February 16, 2005, Marmet instructed him to obtain medical documents before his next shift, which was to begin later that evening, or he would be "sent home" and have to work an "administrative day" the following day. Morgan Decl. ¶ 5. By contrast, the administrative judge concluded that Marmet was not at work that day, see Morgan, 105 19-20, that the plaintiff's medical clearance would not expire until February 20, 2005, id. at 20, and that Contatore, not Marmet, would have informed him of any pending expiration of his medical clearance, id. at 19.

On February 9, 2009, almost three months after the Federal Circuit issued its opinion affirming the MSPB's decision, the defendants in this action moved to dismiss the plaintiff's complaint pursuant to Rule 12(b)(6) or, in the alternative, for summary judgment, on the grounds of claim preclusion and issue preclusion. See generally Defs.' Mot. to Dismiss. On March 5, 2009, the defendants filed a motion for leave to file an amended answer to include the affirmative defenses of claim preclusion and issue preclusion, and lodged a proposed amended answer. See Defs.' Mot. for Leave to File Am. Answer ("Defs.' Mot."). In response, the plaintiff filed an opposition, arguing, inter alia, that the defendants have forfeited ...

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