Barajas v. United States

In the United States Court of Federal Claims

No. 16-1629 C

(Filed: July 8, 2021)

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PEDRO BARAJAS, et al., *

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Plaintiffs, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Molly A. Elkin, McGillivary Steele Elkin LLP, of Washington, D.C., for plaintiffs.

Tanya B. Koenig, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of

Justice, with whom were, Reginald T. Blades, Jr., Assistant Director, Robert E. Kirschman, Jr.,

Director, and Chad A. Readler, Principal Deputy Assistant Attorney General, all of Washington,

D.C., for defendant.

MEMORANDUM OPINION

SOMERS, Judge.

On December 9, 2016, Pedro Barajas and other plaintiffs (“Plaintiffs”), all of whom are

current or former employees at the Federal Correctional Complex in Lompoc, California (“FCC

Lompoc”), filed this action alleging violations of the Federal Employees Pay Act (“FEPA” or

“Title 5”) and the Fair Labor Standards Act (“FLSA”), over a period spanning six years prior to

the filing of the complaint and on an ongoing basis, related to an uncompensated night shift pay

differential. 1 ECF No. 7 (“Am. Compl.”). On December 5, 2017, the government filed a motion

for partial summary judgment, asserting that all of Plaintiffs’ FEPA and FLSA claims for the

period prior to February 20, 2015, are barred by res judicata. ECF No. 15 (“Def.’s Mot. for

Partial Summ. J.”).

The motion has been fully briefed, and the Court held oral argument on the motion on

April 19, 2018. The case was reassigned to the undersigned judge on January 4, 2021, and re-

argument of the government’s motion was scheduled for May 18, 2021. ECF No. 32. On May

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Plaintiffs filed an amended complaint on March 8, 2017.

13, 2021, the parties jointly moved the Court to postpone the re-argument and stay further

proceedings to allow for settlement negotiations. ECF No. 33. After further review of the

briefing, relevant caselaw, and the transcript of the previous oral argument, the Court concurred

with the parties that re-argument was unnecessary and, in addition, on May 14, 2021, denied the

government’s motion for partial summary judgment. 2 ECF No. 34. This memorandum opinion

sets forth the Court’s reasons for denying the government’s motion.

BACKGROUND AND PROCEDURAL HISTORY

The relevant background is restated here from the government’s proposed findings of

uncontroverted facts, Def.’s Mot. for Partial Summ. J. at 4-7, and Plaintiffs’ responses,

objections, or clarifications thereto, ECF No. 19 (“Pls.’ Resp. to Def.’s Proposed Facts”)

Plaintiffs are current and former employees of the Bureau of Prisons (“BOP”), each of whom is

or was a correctional officer or correctional worker at FCC Lompoc assigned to work overtime

shifts. Id. at 1-2. The Council of Prison Locals, American Federation of Government

Employees (“AFGE” or “union”) was the national union and exclusive representative for all

bargaining unit employees of FCC Lompoc. 3 Id. at 2. A “Master Agreement” constituted the

collective bargaining agreement between FCC Lompoc and the union. 4 Id. Relevant to the

instant matter, a night shift differential is a Title 5 premium pay paid to those eligible employees

who work between 6:00 p.m. and 6:00 a.m. Id. at 3; see also 5 U.S.C. § 5545(a).

On September 10, 2012, the union filed a grievance. Pls.’ Resp. to Def.’s Proposed

Facts at 3. According to Plaintiffs, the grievance was limited to an unpaid work time claim, also

known as a Portal-to-Portal claim, that was brought to recover backpay and other damages for

uncompensated work performed before and after some officers’ shifts. Id. It included claims

brought under the FLSA but “did not address payment for work performed during a scheduled

shift or premium payments, such as a night shift differential, for work performed during those

scheduled shifts.” Id. Plaintiffs particularly stress the “off-the-clock” scope of the grievance, as

opposed to the instant action covering work “on-the-clock and during” a scheduled shift. Id. at

5. According to Plaintiffs, the union “sought a remedy only for the specific violations outlined in

the body of the grievance, and also requested that the ‘Agency correct its practices so as to be

compliant with applicable law.’” Id. at 6 (quoting ECF No. 15-1 at Appx15). In other words,

Plaintiffs assert that “the issues in the Portal-to-Portal grievance for which the Union sought

relief . . . are not at issue in the instant case.” Id.

Plaintiffs further argue that the terms of the settlement agreement that resolved the

grievance confirm this. On November 7, 2012, the union invoked arbitration, during which it

entered into a settlement agreement with the Justice Department, BOP, and FCC Lompoc

(“agreement”). Id. Plaintiffs emphasize that the opening paragraph of the agreement provides

2

The Court also denied the government’s motion to suspend discovery, as the denial of partial summary

judgment rendered the proposed stay of discovery moot. ECF No. 34.

3

There are two AFGE Locals that represent bargaining unit employees at FCC Lompoc, AFGE 3048 and 4048.

Pls.’ Resp. to Def.’s Proposed Facts at 2. For purposes of this opinion, they are collectively referred to as the

“union.” All correctional officers, including Plaintiffs, who are working or worked in bargaining unit job positions

during the relevant times, are bargaining unit employees represented by the union. Id. at 3.

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The briefings indicate the original Master Agreement was signed in 1998 and replaced in July 2014 by a

“substantially identical” agreement for all relevant sections. Pls.’ Resp. to Def.’s Proposed Facts at 2.

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that it was made “in resolution of the grievance . . . alleging that [FCC Lompoc] failed to pay

overtime compensation pursuant to the [FLSA] . . . for time spent by bargaining unit employees

performing work before and/or after their scheduled shifts . . . .” Id. at 7 (quoting ECF No. 15-1

at Appx1). The terms of the agreement provide that the federal government would pay

“$4,000,000.00 to resolve all claims for unpaid FLSA overtime for work performed before

and/or after scheduled shifts by . . . bargaining unit employees at FCC Lompoc” through

February 20, 2015. Def.’s Mot. for Partial Summ. J. at 6-7 (quoting ECF No. 15-1 at Appx2).

The agreement’s release of claims further provides:

The Unions and the Agency understand and agree that in consideration for the

payment made by the Agency and the Agency’s compliance with the terms of this

Agreement, the Grievants remise, release and forever irrevocably discharge the

United States government, the Bureau of Prisons, the Agency and their officers,

agents and employees, and each of them, separately and collectively, from the

claims asserted in the grievance covered by this Settlement Agreement for the

time period October 9, 2009 through the date this agreement is fully executed.

ECF No. 15-1 at Appx4. Plaintiffs point out that while the agreement “on pre-shift and post-shift

uncompensated work was executed on February 20, 2015, the agreement did not provide for or

contemplate Title 5 or FLSA backpay for work performed during a scheduled shift or for

premium payments, such as night shift differentials, on that work.” Pls.’ Resp. to Def.’s

Proposed Facts at 8.

Plaintiffs filed the instant action on December 9, 2016, and assert that the claims here

“are limited to the defendant’s failure to pay the night shift differential under Title 5, and the

defendant’s failure to properly calculate plaintiffs’ regular rate of pay because it excludes the

night shift differential under the FLSA for scheduled on the clock work.” Id. at 9. Moreover,

according to Plaintiffs, their amended complaint “does not include any claims related to off-the-

clock pre-shift or post-shift uncompensated work.” Id. Stated differently, in the instant case,

Plaintiffs allege “that they were not provided with a premium night shift differential for work

performed during shifts between the hours of 6 p.m. and 6 a.m., even though they were already

provided regular compensation for these shifts” and “also claim that they were not compensated

at the proper overtime rate for overtime hours in workweeks in which they should have earned a

night shift differential for work performed during shifts between the hours of 6 p.m. and 6 a.m.”

Id. at 11.

The government moved for partial summary judgment on the theory that Plaintiffs’ FLSA

and FEPA claims for the period prior to February 20, 2015, “should have or could have been

brought in their prior grievance” and, therefore, are barred by res judicata. Def.’s Mot. for

Partial Summ. J. at 2, 8-14. As discussed more fully below, the motion turns on whether the

current suit involves the same transactional facts as the grievance and settlement agreement. The

government argues they do; Plaintiffs disagree.

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DISCUSSION

A. Legal Standard

1. Summary Judgment

Rule 56 of the Rules of the Court of Federal Claims (“RCFC”) provides that the Court

“shall grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a). The party

moving for summary judgment “always bears the initial responsibility of informing the . . . court

of the basis for its motion” and must identify the portions of the record “which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (citing former version of Fed.R.Civ.P. 56(c)). Material facts are those that

“might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). For a dispute over a material fact to be genuine, thus precluding

summary judgment, the evidence must be “such that a reasonable jury could return a verdict for

the nonmoving party.” Id. “A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by . . . citing to particular parts of materials in the record” or “showing that

the materials cited do not establish the absence or presence of a genuine dispute . . . .” RCFC

56(c)(1)(A)-(B).

Importantly, the judge’s function at the summary judgment stage “is not himself to weigh

the evidence and determine the truth of the matter but to determine whether there is a genuine

issue for trial.” Anderson, 477 U.S at 249. Moreover, in considering a motion for summary

judgment, “the inferences to be drawn from the underlying facts . . . must be viewed in the light

most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654,

655 (1962). “Summary judgment is properly granted only where there is no genuine issue of

material fact . . . .” Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir.

1987).

2. Res Judicata

Res judicata, or claim preclusion, “applies when ‘(1) the parties are identical or in privity;

(2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on

the same set of transactional facts as the first.’” Phillips/May Corp. v. United States, 524 F.3d

1264, 1268 (Fed. Cir. 2008) (quoting Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.

Cir. 2003)). Under res judicata, “a final judgment on the merits of an action precludes the parties

from relitigating issues that were or could have been raised in that action.” Stearn v. Dep’t of

Navy, 280 F.3d 1376, 1380 (Fed. Cir. 2002) (citing Federated Dep’t Stores, Inc. v. Moitie, 452

U.S. 394, 398 (1981)). It “serves to ‘relieve parties of the cost and vexation of multiple lawsuits,

conserve judicial resources, and . . . encourage reliance on adjudication.’” Id. (quoting Allen v.

McCurry, 449 U.S. 90, 94 (1980)).

In applying res judicata, the Federal Circuit “is guided by the Restatement (Second) of

Judgments,” wherein “a claim is defined by the transactional facts from which it arises.”

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Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1323-24 (Fed. Cir. 2008) (citation omitted). The

Restatement provides:

(1) When a valid and final judgment rendered in an action extinguishes the

plaintiff’s claim pursuant to the rules of merger or bar . . . , the claim extinguished

includes all rights of the plaintiff to remedies against the defendant with respect to

all or any part of the transaction, or series of connected transactions, out of which

the action arose.

(2) What factual grouping constitutes a “transaction”, and what groupings

constitute a “series”, are to be determined pragmatically, giving weight to such

considerations as whether the facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and whether their treatment

as a unit conforms to the parties’ expectations or business understanding or usage.

RESTATEMENT (SECOND) OF JUDGMENTS § 24. The Federal Circuit has observed that a common

set of transactional facts is to be identified “pragmatically.” Jet, Inc. v. Sewage Aeration Sys.,

223 F.3d 1360, 1363 (Fed. Cir. 2000) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 24(2)).

In identifying which facts constitute transactional facts, courts “have defined ‘transaction’ in

terms of a ‘core of operative facts,’ the ‘same operative facts,’ or the ‘same nucleus of operative

facts,’ and ‘based on the same, or nearly the same, factual allegations.’” Id. (citations omitted).

Relatedly, the Supreme Court long ago observed that “[o]ne of the tests laid down for the

purpose of determining whether or not the causes of action should have been joined in one suit is

whether the evidence necessary to prove one cause of action would establish the other.” United

States v. Haytian Rep., 154 U.S. 118, 125 (1894).

In addition, the Federal Circuit—in reversing a district court’s finding of claim

preclusion—cited the Supreme Court for the proposition that “claim preclusion does not bar a

claim merely because it could have been raised in a prior action between the parties that was

resolved by a final judgment on the merits . . . .” Acumed LLC, 525 F.3d at 1326 (citing

Cromwell v. County of Sac, 94 U.S. 351, 356 (1876) (“On principle, a point not in litigation in

one action cannot be received as conclusively settled in any subsequent action upon a different

cause, because it might have been determined in the first action.”).

In reviewing the instant case, the Court is also mindful that “res judicata is not readily

extended to claims that were not before the court, and precedent weighs heavily against denying

litigants a day in court unless there is a clear and persuasive basis for that denial.” Kearns v.

Gen. Motors Corp., 94 F.3d 1553, 1557 (Fed. Cir. 1996); see also Brown v. Felsen, 442 U.S.

127, 132 (1979) (“Because res judicata may govern grounds and defenses not previously

litigated, however, it blockades unexplored paths that may lead to truth. For the sake of repose,

res judicata shields the fraud and the cheat as well as the honest person. It is therefore invoked

only after careful inquiry.”).

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B. Analysis

The briefing, as well as the transcript from oral argument, 5 makes clear that this motion

for partial summary judgment comes down to a single question: whether the instant case is based

on the same set of transactional facts as the grievance. With relative ease, the Court answers this

question in the negative.

It should be noted at the outset that the government rests nearly its entire claim preclusion

argument on this Court’s reasoning in Allensworth v. United States, 122 Fed. Cl. 45 (2015). At

first glance, Allensworth may seem to be an appropriate guidepost—albeit, not binding—in the

instant matter. The case concerned current and former correctional officers employed by BOP at

the Federal Correctional Institution in Texarkana, Texas, who sought a declaratory judgment,

back pay, and other relief for the government’s alleged violations of the FLSA by failing to pay

overtime for work performed during daily, uncompensated fifteen-minute rest breaks, as well as

its alleged violations of Title 5 for failing to pay Sunday premium pay. Allensworth, 122 Fed.

Cl. at 46-47. Similar to the case at bar, in Allensworth, the employees’ union filed a grievance

and, thereafter, invoked arbitration. Id. at 48. The grievance in Allensworth “addressed

continuing violations of the overtime laws pursuant to FLSA and premium pay under Title 5”

and “primarily complained of the BOP improperly requiring employees ‘to perform work prior

to and after the completion of their shifts,’ otherwise known as ‘Portal–to–Portal’ issues.” Id.

(citations omitted). Before arbitration commenced, the parties executed a settlement agreement

in which the union agreed that “no other action or suit with respect to the claims that are set forth

in the grievance . . . will be filed in, or submitted to, any court or any administrative forum.” Id.

(citations omitted). When the Allensworth plaintiffs filed suit in this Court for uncompensated

work performed during their off-the-clock, fifteen-minute rest breaks, the government moved for

summary judgment invoking res judicata.

Like the instant matter, Allensworth turned on an analysis of the third prong of the res

judicata analysis. But while the government here views Allensworth as safe harbor, the Court

finds it clearly distinguishable. Reviewing the transactional facts, the Allensworth court took

issue with the plaintiffs’ attempt to bring one claim for FLSA overtime violations that occurred

before the beginning and after the end of a shift via grievance and a completely separate claim in

this Court for FLSA overtime violations that occurred during an unpaid break in the middle of

the shift. Id. at 50. From a pragmatic standpoint, it made sense to avoid “defin[ing] the scope of

these new claims so narrowly as to allow multiple legal proceedings to adjudicate FLSA

overtime claims for different times of day.” Id. at 50–51. Both the grievance and the litigation

sought compensation for work performed during periods of time for which the union and BOP

had collectively bargained that corrections officers would not have to perform work. But that is

not the case here.

Unlike in Allensworth, in the case at bar, Plaintiffs are not splitting the same type of claim

across different times of day in some artificial or arbitrary manner. Rather, Plaintiffs—in the

government’s own words—“allege that they have worked overtime shifts . . . for which they

have not been paid night shift differential under FEPA.” Def.’s Mot. for Summ. J. at 1. The

5

See ECF No. 25 at 45 (Plaintiffs’ counsel acknowledging that the “main concern here, and where the

Government loses, is on the third prong, the transactional facts.”).

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settlement agreement in the grievance, by contrast, resolved claims for “overtime compensation

pursuant to the [FLSA] for time spent by bargaining unit employees performing work before

and/or after their scheduled shifts at FCC Lompoc.” ECF No. 15-1 at Appx1 (emphasis added).

In other words, the grievance resolved FLSA claims related to uncompensated off-the-clock

work, while the instant case covers FEPA claims related to compensated on-the-clock work that

was allegedly paid at the wrong rate. 6 Thus, the claims brought in this Court, unlike those

brought at the grievance stage, do not turn on whether Plaintiffs performed uncompensated work

before their shift, after their shift, or during any breaks within their shift. What matters is

whether FCC Lompoc paid the correct amount of compensation to those employees who were

scheduled to work the night shift. As Plaintiffs correctly observe, the settlement agreement

“does not discuss or apply to premium payments on work performed during scheduled shifts.”

ECF No. 18 at 8 (“Pls.’ Resp.”).

Moreover, it cannot be said that the same or similar evidence that was necessary to

succeed in the grievance would be offered to prove the claims asserted here (or vice versa).

Nevertheless, the government argues just that: “[i]ndeed, ‘[t]he evidence necessary to prove the

claims would be similar, and bringing the claims together would have been of desirable

efficiency.’” Def.’s Mot. for Summ. J. at 13 (quoting Allensworth, 122 Fed. Cl. at 51).

Although the Court does not doubt the government’s preference for efficiently disposing of

Plaintiffs’ claims, the evidence offered in the grievance to demonstrate that employees at FCC

Lompoc were performing work-specific tasks without compensation while off-the-clock would

not, in any way, prove Plaintiffs’ allegations here that scheduled night shift employees were not

receiving the premium pay they are entitled to under Title 5. Nor would the grievance evidence

of off-the-clock work prove that night shift employees working more than 40 hours a week were

being shorted in the calculation of their overtime pay under the FLSA. The Restatement may

indeed encourage a pragmatic view of transactional facts but that “pragmatism” does not stretch

far enough to require employees to bring nearly every possible pay related claim (no matter how

unrelated) in a grievance in order to later avoid the preclusion bar.

Finally, to any extent that the government may be correct in its argument that this case

presents a straightforward application of res judicata, the Court will not employ the blunt

instrument of res judicata—absent “a clear and persuasive basis,” Kearns, 94 F.3d at 1557—to

frustrate Plaintiffs’ opportunity to litigate their claims. The Court simply does not see a clear

and persuasive basis to preclude Plaintiffs’ claims, to the extent there is any basis at all.

It should be noted that the Court does not take issue with the outcome in Allensworth, nor

does it need to. If Plaintiffs, for example, brought (and resolved) one Portal-to-Portal claim via

grievance and another Portal-to-Portal claim here, Allensworth would hinder their case. Had

Plaintiffs asserted (and resolved) an incorrect overtime calculation claim in the grievance for on-

the-clock work, prior to the instant action, Allensworth (although not dispositive) once again

might prove an obstacle. But those are not the facts of this case. Therefore, partial summary

judgment in favor of the government was denied.

6

To the extent the FLSA is relevant in the instant case, it is only with regards to the alleged incorrect

calculation of overtime following the alleged failure to pay the 10% night shift premium to the subset of employees

who worked night shifts at FCC Lompoc.

7

CONCLUSION

Consistent with the foregoing reasons, the Court concluded that the government failed to

meet its burden of establishing that Plaintiffs’ claims for the period before February 20, 2015, are

barred by res judicata. Accordingly, the government’s motion for partial summary judgment was

denied on May 14, 2021. ECF No. 34.

s/ Zachary N. Somers

ZACHARY N. SOMERS

Judge

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