Commercial Litigation and Arbitration

Email from Senior Agency Executive Admissible as Admission by a Party Opponent in Action against the Government

From Moreno v. United States, 2009 U.S. Claims LEXIS 266 (Cl. Ct. July 27, 2009):

The plaintiffs, current and former employees of the United States Department of Homeland Security ("DHS") and one former employee of the United States Immigration and Naturalization Service ("INS") (Arturo Moreno ("Mr. Moreno"), the named plaintiff in the case), brought this suit under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (2000), to recover unpaid overtime wages, liquidated damages, costs and attorneys' fees. The plaintiffs allege that they are entitled to liquidated damages as a result of the failure of the defendant, the United States ("government" or "defendant"), to pay them overtime wages for the hours they worked while attending a scheduled sixth day of training at the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. The government does not dispute that it violated the FLSA when it failed to pay the plaintiffs overtime wages. Nonetheless, the government argues that the plaintiffs' claims were not filed within the two-year statute of limitations set forth in 29 U.S.C. § 255(a) (2000) of the FLSA, and therefore they are time-barred. The government contends that the plaintiffs cannot demonstrate that the government's FLSA violations were "willful," such that they would be entitled to an extended, three-year statute of limitations under 29 U.S.C. § 255(a). The government also argues that, even if the plaintiffs' claims are found to be timely, the plaintiffs are not entitled to liquidated damages in any event, on the grounds that the government acted in "good faith" and based on "reasonable grounds" within the meaning of 29 U.S.C. § 260 of the FLSA. ***

Under the Office of Personnel Management ("OPM") regulations implementing the FLSA, 6 5 C.F.R. § 551.501 (a) (2000), "[a]n agency shall compensate [a nonexempt] employee . . . for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee's hourly regular rate of pay." (emphasis added). ***

[O]n March 21, 2003, in response to an internal e-mail chain, Mr. Cohen e-mailed two OPM employees, Don Winstead ("Mr. Winstead"), a senior pay executive at OPM who was Mr. Cohen's and Mr. Mikowicz's boss, and Jo Ann Perrini ("Ms. Perrini"), stating that "Melissa [Allen] . . . claims our [OPM's] change in position is going to cost them [DHS] millions. I need to know if this is true." PX 119 (emphasis added). ***

Before OPM released the Q&A, Mr. Winstead apparently met again with Ms. Allen and Ms. Dolan, as he explained in a June 24, 2003 e-mail***.

[Footnote 15] Mr. Winstead did not testify at the trial. However, his e-mails are admissible as admissions by a party-opponent. See Fed. R. Evid. 801(d)(2)(D); Globe Sav. Bank v. United States, 61 Fed. Cl. 91, 97 (2004) ("The Rule expressly concerns the declarant's relationship with the party-opponent, which in this case is the United States, not a particular agency.").

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