B-182180, JAN 6, 1982
Highlights
THAT PORTION OF THE CLAIM ACCRUING MORE THAN 10 YEARS PRIOR TO THE DATE IT WAS RECEIVED AT GAO. IS BARRED. 2. OVERTIME WORK PERFORMED BY EMPLOYEE WAS NOT ORDERED OR APPROVED OR ACTIVELY INDUCED BY THE WARDEN AT THE FEDERAL CORRECTIONAL INSTITUTION. THE DISALLOWANCE WAS BASED ON THE GROUNDS THAT HE HAD NOT PRESENTED SUFFICIENT EVIDENCE THAT THE OVERTIME WAS ORDERED OR APPROVED BY AN APPROPRIATE INDIVIDUAL. AS IT WAS IN EFFECT AT THE TIME MR. HUDSON'S CLAIM WAS INITIALLY RECEIVED IN GAO ON APRIL 9. IS BARRED BY 31 U.S.C. THE MAIN ISSUE PRESENTED IS WHETHER THE OVERTIME ALLEGEDLY WORKED BY MR. HUDSON IN PERFORMING HIS REGULARLY ASSIGNED DUTIES AS A CASE MANAGER WAS OFFICIALLY ORDERED OR APPROVED BY AN OFFICIAL AT TERMINAL ISLAND WITH AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK.
B-182180, JAN 6, 1982
DIGEST: 1. FORMER EMPLOYEE OF THE BUREAU OF PRISONS ALLEGES THAT HE PERFORMED HIS REGULARLY ASSIGNED DUTIES AS A CASE MANAGER AT FEDERAL CORRECTIONAL INSTITUTION, TERMINAL ISLAND, CALIFORNIA, FOR PERIODS IN EXCESS OF HIS 40- HOUR ADMINISTRATIVE WORKWEEK. HE CLAIMS 3,443.75 HOURS OF OVERTIME FROM 1958 UNTIL 1973. UNDER 31 U.S.C. SEC. 71A (1970), THAT PORTION OF THE CLAIM ACCRUING MORE THAN 10 YEARS PRIOR TO THE DATE IT WAS RECEIVED AT GAO, APRIL 9, 1973, IS BARRED. 2. OVERTIME WORK PERFORMED BY EMPLOYEE WAS NOT ORDERED OR APPROVED OR ACTIVELY INDUCED BY THE WARDEN AT THE FEDERAL CORRECTIONAL INSTITUTION, TERMINAL ISLAND, CALIFORNIA, THE OFFICIAL WITH AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK; THEREFORE, OVERTIME COMPENSATION MAY NOT BE PAID. SEE 5 U.S.C. SEC. 5542 (1976); BAYLOR V. UNITED STATES, 198 CT.CL. 331 (1972).
JIM L. HUDSON - OVERTIME COMPENSATION:
MR. JIM L. HUDSON, A FORMER CASE MANAGER AT THE FEDERAL CORRECTIONAL INSTITUTION, BUREAU OF PRISONS, TERMINAL ISLAND, CALIFORNIA, HAS APPEALED THAT PORTION OF SETTLEMENT CERTIFICATE Z-2509071 ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON JANUARY 3, 1977, WHICH DISALLOWED HIS CLAIM FOR 3,443.75 HOURS OF OVERTIME WORK ALLEGEDLY PERFORMED BY HIM DURING THE PERIOD 1958 UNTIL 1973. THE DISALLOWANCE WAS BASED ON THE GROUNDS THAT HE HAD NOT PRESENTED SUFFICIENT EVIDENCE THAT THE OVERTIME WAS ORDERED OR APPROVED BY AN APPROPRIATE INDIVIDUAL. FOR THE REASONS SET FORTH BELOW, WE SUSTAIN THE DISALLOWANCE OF MR. HUDSON'S CLAIM BY THE TRANSPORTATION AND CLAIMS DIVISION.
UNDER 31 U.S.C. SEC. 71A (1970), AS IT WAS IN EFFECT AT THE TIME MR. HUDSON ORIGINALLY FILED HIS CLAIM HERE, CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (GAO) MUST BE RECEIVED IN GAO WITHIN 10 YEARS AFTER THE DATE SUCH CLAIMS FIRST ACCRUED OR BE FOREVER BARRED. MR. HUDSON'S CLAIM WAS INITIALLY RECEIVED IN GAO ON APRIL 9, 1973. THEREFORE, THE PORTION OF THE CLAIM COVERING OVERTIME WORK ALLEGEDLY PERFORMED PRIOR TO APRIL 9, 1963, IS BARRED BY 31 U.S.C. SEC. 71A, AND MAY NOT BE CONSIDERED ON THE MERITS.
THUS, THE MAIN ISSUE PRESENTED IS WHETHER THE OVERTIME ALLEGEDLY WORKED BY MR. HUDSON IN PERFORMING HIS REGULARLY ASSIGNED DUTIES AS A CASE MANAGER WAS OFFICIALLY ORDERED OR APPROVED BY AN OFFICIAL AT TERMINAL ISLAND WITH AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK, SO AS TO BE COMPENSABLE UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5542(A).
FACTS
MR. HUDSON'S CLAIM FOR OVERTIME COMPENSATION FOR REGULARLY ASSIGNED DUTIES IS SUPPORTED BY THE EMPLOYEE'S OWN RECORDS, CONSISTING PRIMARILY OF ANNOTATED CALENDARS COVERING THE PERIOD IN QUESTION, AND ALSO VOLUMINOUS DOCUMENTS DESCRIBING THE VOLUME AND NATURE OF THE WORK HE PERFORMED AS A CASE MANAGER AT TERMINAL ISLAND.
MR. HUDSON CONCEDES THAT HE WAS NEVER SPECIFICALLY ORDERED OR DIRECTED TO WORK OVERTIME, BUT HE CLAIMS THAT THE VOLUME OF WORK ASSIGNED, MUCH OF IT WITH DEADLINES, NECESSITATED WORK IN EXCESS OF 40 HOURS PER WEEK AND THAT THE PROPER PERFORMANCE OF HIS JOB REQUIRED OVERTIME WORK, NOTWITHSTANDING THE ABSENCE OF EXPRESS DIRECTION. MR. HUDSON'S ARGUMENT IS BEST EXPRESSED IN HIS OWN WORDS IN A GRIEVANCE HE SUBMITTED, BUT DID NOT PURSUE TO COMPLETION:
"LET US FIRST DISPEL THE MYTH OF 'VOLUNTARY OVERTIME.' THERE IS NO SUCH THING. *** EMPLOYEES IN OUR DEPARTMENT HAVE BEEN SYSTEMATICALLY VICTIMIZED FOR THE PAST 17 YEARS BY A SIMPLE PROCEDURE ... THE WORK IS VERY MUCH 'OFFICIALLY ORDERED OR APPROVED' BUT THE TIME NEEDED TO DO THE WORK IS NOT. THE WORK IS NOT ONLY 'OFFICIALLY ORDERED OR APPROVED' BUT SCHEDULED, MUCH OF IT WITH DEADLINES. IT IS NECESSARY THAT THESE DEADLINES BE MET. THIS LEAVES THE EMPLOYEE TO GET THE WORK DONE THE BEST WAY HE CAN, WHICH USUALLY MEANS ON HIS OWN TIME."
IN SUPPORT OF HIS CONTENTION, MR. HUDSON HAS SUBMITTED A STATEMENT DATED JANUARY 19, 1973, AND SIGNED BY FOUR OTHER CASE MANAGERS AT TERMINAL ISLAND, WHICH STATES THAT CASEWORK CONDITIONS "ARE SUCH THAT CASE MANAGERS CANNOT PROPERLY PERFORM THEIR ASSIGNED DUTIES WITHIN A 40 HOUR WEEK." FURTHER SUPPORT OF HIS CLAIM, HE POINTS OUT THAT DUE TO THE HEAVY WORKLOAD, TERMINAL ISLAND HAD REQUESTED ADDITIONAL PERSONNEL FOR THE CLASSIFICATION AND PAROLE DEPARTMENT.
THE BUREAU OF PRISONS, IN A LETTER OF MAY 2, 1973, INDICATES THAT IT HAS ADMINISTRATIVELY DENIED THE CLAIM ON THE GROUNDS THAT THE OVERTIME WORKED BY MR. HUDSON WAS NOT ORDERED OR APPROVED. THE BUREAU ALSO STATES THAT ITS REQUEST FOR ADDITIONAL PERSONNEL WAS NOT DUE TO A CRITICAL SHORTAGE, BUT WAS AN ATTEMPT TO REDUCE CASE LOADS NATIONWIDE SO THAT THE OFFENDER COULD GET MORE INDIVIDUALIZED TREATMENT. THE BUREAU ALSO STATES THAT POSITIONS ARE STRUCTURED SO THAT AN EMPLOYEE SHOULD BE ABLE TO ACCOMPLISH HIS ASSIGNED WORK WITHIN HIS 40-HOUR ADMINISTRATIVE WORKWEEK.
IN A MEMORANDUM DATED DECEMBER 21, 1972 - THE WRITTEN RESPONSE OF MANAGEMENT IN STEP 2 OF A GRIEVANCE FILED BY MR. HUDSON - J. R. JOHNSON, CHIEF, CASE MANAGEMENT DEPARTMENT, STATED IN PERTINENT PART, THAT:
"IN RECOGNITION OF THE HEAVY WORKLOAD OF THE CASE MANAGEMENT DEPT., MD, OF TERMINAL ISLAND, I HAVE REQUESTED THE FOLLOWING POSITIONS: ONE CASE MANAGEMENT COORDINATOR (GS-11 OR 12), TWO CASE MANAGERS (GS-9 OR 11), TWO CLERK-TYPIST TRANSCRIBERS (GS-5), AND TWO RECORD OFFICE ADMINISTRATIVE CLERKS (GS-4 OR 5).
"AS A SUPERVISOR, I MUST AND I WILL REQUIRE THOSE I SUPERVISE TO MEET ESSENTIAL DEADLINES. *** I HAVE NOT AND DO NOT INTEND TO ORDER OR SCHEDULE OVERTIME WORK EXCEPT UNDER THE TYPES OF SITUATIONS I HAVE DESCRIBED IN THE SECOND PARAGRAPH ABOVE. ONLY THE WORKER CAN ESTABLISH MEANINGFUL WORK PRIORITIES AND THEN SCHEDULE HIS WORK ACCORDINGLY."
IN A WRITTEN RESPONSE DATED JANUARY 10, 1973, TO STEP 3 OF MR. HUDSON'S GRIEVANCE PROCEEDING, THE WARDEN OF TERMINAL ISLAND STATED:
"MANAGEMENT'S REQUEST FOR ADDITIONAL POSITIONS IS BASED ON OUR DESIRE TO CHANGE THE CASE MANAGEMENT ORGANIZATION. IT DOES NOT TAKE AWAY FROM THE FACT THAT YOU ARE REQUIRED TO COMPLETE TASKS ASSIGNED BY CASE LOAD. CASE MANAGERS WILL ALWAYS BE OBLIGATED TO MEET DEADLINES BY THE NATURE OF THEIR POSITIONS. ESTABLISHING MEANINGFUL WORK PRIORITIES AND SCHEDULING WORK ACCORDINGLY IS ESSENTIAL IF DEADLINES ARE TO BE MET. THE FACT THAT OTHER CASE MANAGERS HAVE MET THEIR OBLIGATIONS WITHIN A NORMAL WORKWEEK INDICATES THAT THEY HAVE BEEN ABLE TO ORGANIZE THEIR WORK EFFICIENTLY TO MEET THEIR DEADLINES. INDIVIDUAL DIFFERENCES IN WORK PERFORMANCE AND EFFICIENCY CAN BE DOCUMENTED."
HENCE, THERE IS AN OBVIOUS CONFLICT IN THE FACTUAL BACKGROUND OF THE CLAIM BETWEEN THE CASE MANAGERS AND THE WARDEN AS TO THE VOLUME OF THE WORK OF THE CASE MANAGERS AND THE MANNER AND LENGTH OF TIME REQUIRED BY EACH TO COMPLETE THEIR ASSIGNMENTS.
IN HIS APPEAL OF OCTOBER 8, 1980, FROM THE SETTLEMENT ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION, MR. HUDSON HAS INTRODUCED ADDITIONAL DOCUMENTATION FROM A UNION GRIEVANCE ACTION THAT HE PREPARED IN 1975 BUT DID NOT PURSUE SINCE HE RETIRED FROM TERMINAL ISLAND. HE CONTENDS THAT THE DOCUMENTS SHOW WHY CASE MANAGERS AT TERMINAL ISLAND HAD TO WORK OVERTIME. IN THOSE DOCUMENTS, MR. HUDSON ARGUES THAT THERE WAS MORE CASEWORK ASSIGNED THAN COULD BE COMPLETED IN A 40-HOUR WEEK; THAT THE WORK WAS OF SUCH A NATURE THAT IT HAD TO BE COMPLETED REGARDLESS OF THE 40-HOUR WEEK; AND THAT MANAGEMENT AT TERMINAL ISLAND KNOWINGLY PROVIDED MORE WORK THAN IT HAD WORKERS TO COMPLETE THE WORK.
MR. HUDSON REPORTS THAT HE AND OTHER CASEWORKERS BROUGHT THE EXISTENCE OF THEIR EXCESSIVE WORKLOAD TO THE ATTENTION OF EVERY CHIEF OF CLASSIFICATION AND PAROLE WHO HAS WORKED AT TERMINAL ISLAND AND THAT THOSE OFFICIALS SO INFORMED THE BUREAU OF PRISONS. HE STATES THAT, THEREFORE, THE LOCAL ADMINISTRATION AND THE BUREAU OF PRISONS WERE AWARE OF THE EXCESSIVE WORKLOAD OF THE CASE MANAGERS AT TERMINAL ISLAND FOR MANY YEARS.
MR. HUDSON ALSO STATES THAT HE REMAINED AT TERMINAL ISLAND BECAUSE, AT THE TIME, HE WAS 40 YEARS OF AGE WITH 15 YEARS OF FEDERAL SERVICE AND COULD NOT AFFORD TO QUIT. FURTHER, HE SAYS THAT HE HAD FAMILY TIES AND RESPONSIBILITIES IN CALIFORNIA AND COULD NOT TRANSFER AS MANY OTHER CASEWORKERS AT TERMINAL ISLAND WHO DID IN FACT TRANSFER.
DECISION
THE BASIC STATUTORY PROVISIONS REGARDING THE PAYMENT OF OVERTIME COMPENSATION FOR GENERAL SCHEDULE EMPLOYEES ARE CODIFIED IN 5 U.S.C. SEC. 5542 (1976). UNDER THESE PROVISIONS, WHEN AN OFFICIAL WITH COMPETENT AUTHORITY ORDERS OR APPROVES HOURS OF WORK IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK OR IN EXCESS OF 8 HOURS IN A DAY, OVERTIME SHALL BE PAID.
THE DETERMINATIVE ISSUE HERE, AS STATED EARLIER, IS WHETHER THE OVERTIME WORK PERFORMED BY MR. HUDSON WAS "WORK OFFICIALLY ORDERED OR APPROVED," WITHIN THE MEANING OF SECTION 5542. WITH RESPECT TO THE FACTS AND CIRCUMSTANCES HEREIN INVOLVED, THE SPECIFIC QUESTIONS ARE WHETHER THE WARDEN AT TERMINAL ISLAND, WHO WAS THE OFFICIAL WITH THE AUTHORITY TO ORDER OR APPROVE OVERTIME WORK BY THE CLAIMANT, KNEW OR SHOULD HAVE KNOWN OF THE HEAVY WORKLOAD OF THE CASE MANAGERS AND THAT SUCH WORKLOAD REQUIRED THE PERFORMANCE OF OVERTIME, AND WHETHER THE WARDEN HAD MORE THAN A "TACIT EXPECTATION" THAT THE OVERTIME WORK WOULD BE PERFORMED. THUS, AN ASSESSMENT OF THE KNOWLEDGE AND ENDORSEMENT BY THE WARDEN OF THE CONTINUED PERFORMANCE OF OVERTIME WORK BY MR. HUDSON IS REQUIRED. SEE ROBERT C. AUSTIN, B-188686, MAY 11, 1978.
IN BAYLOR V. UNITED STATES, 198 CT.CL. 331 (1972), WHICH INVOLVED CLAIMS BY UNIFORMED GUARDS OF THE GENERAL SERVICES ADMINISTRATION FOR OVERTIME COMPENSATION FOR VARIOUS PRELIMINARY AND POSTLIMINARY DUTIES, THE COURT OF CLAIMS STATED THE STANDARDS FOR DETERMINING WHETHER OVERTIME WAS PROPERLY "ORDERED OR APPROVED." THE COURT EXPLAINED ITS HOLDING AS FOLLOWS:
"*** IF THERE IS A REGULATION SPECIFICALLY REQUIRING OVERTIME PROMULGATED BY A RESPONSIBLE OFFICIAL, THEN THIS CONSTITUTES 'OFFICIALLY ORDERED OR APPROVED' BUT, AT THE OTHER EXTREME, IF THERE IS ONLY A 'TACIT EXPECTATION' THAT OVERTIME IS TO BE PERFORMED, THIS DOES NOT CONSTITUTE OFFICIAL ORDER OR APPROVAL.
"IN BETWEEN 'TACIT EXPECTATION' AND A SPECIFIC REGULATION REQUIRING A CERTAIN NUMBER OF MINUTES OF OVERTIME THERE EXISTS A BROAD RANGE OF FACTUAL POSSIBILITIES, WHICH IS BEST CHARACTERIZED AS 'MORE THAN A TACIT EXPECTATION.' WHERE THE FACTS SHOW THAT THERE IS MORE THAN ONLY A 'TACIT EXPECTATION' THAT OVERTIME BE PERFORMED, SUCH OVERTIME HAS BEEN FOUND TO BE COMPENSABLE AS HAVING BEEN 'OFFICIALLY ORDERED OR APPROVED,' EVEN IN THE ABSENCE OF A REGULATION SPECIFICALLY REQUIRING A CERTAIN NUMBER OF MINUTES OF OVERTIME. WHERE EMPLOYEES HAVE BEEN 'INDUCED' BY THEIR SUPERIORS TO PERFORM OVERTIME IN ORDER TO EFFECTIVELY COMPLETE THEIR ASSIGNMENTS AND DUE TO THE NATURE OF THEIR EMPLOYMENT, THIS OVERTIME HAS BEEN HELD TO HAVE BEEN 'OFFICIALLY ORDERED OR APPROVED' AND THEREFORE COMPENSABLE."
198 CT.CL. AT 359. IN OUR DECISION 53 COMP.GEN. 489 (1974), WE INDICATED THAT WE WOULD FOLLOW THE PRINCIPLES OF LAW SET FORTH IN THE BAYLOR CASE.
IN B-179908, DECEMBER 20, 1973, AFFIRMED UPON RECONSIDERATION ON JANUARY 16, 1975, THIS OFFICE CONSIDERED A CLAIM VERY SIMILAR TO MR. HUDSON'S. IN THAT CASE, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY HAD WORKED SUBSTANTIAL OVERTIME, AVERAGING A 14- TO 16-HOUR WORKDAY OVER A PERIOD OF 3 YEARS IN ORDER TO ACCOMPLISH HIS WORKLOAD. ALTHOUGH NEVER EXPRESSLY ORDERED TO WORK OVERTIME, THE CLAIMANT CONTENDED THAT THE VERY HEAVY WORKLOAD, THE SHORTAGE OF PERSONNEL, AND THE EXTREME PRESSURE OF THE WORK NECESSITATED OVERTIME WORK IN ORDER TO ADEQUATELY ACCOMPLISH THE ORGANIZATION'S MISSION. A MANPOWER UTILIZATION SURVEY REPORT SPECIFICALLY STATED THAT THE DIVISION'S PRIMARY MISSION WAS ACCOMPLISHED ONLY BECAUSE OF THE MANY HOURS OF OVERTIME WORKED BY THE EMPLOYEE. IN THIS REPORT, THE DIVISION CHIEF RECOMMENDED THAT THE DIVISION BE AUTHORIZED AN ADDITIONAL CIVILIAN EMPLOYEE, GRADE GS-12, TO REDUCE THE AMOUNT OF OVERTIME BEING PERFORMED BY THE CLAIMANT. THE DIVISION CHIEF ALSO STATED THAT HE AND ANOTHER OFFICIAL WORKED CONSIDERABLE AMOUNTS OF OVERTIME. THE EMPLOYEE'S EFFORTS HAD BEEN REPEATEDLY RECOGNIZED IN MANPOWER SURVEYS AND IN PROMOTION CITATIONS. NEVERTHELESS, IN REVIEWING THE RECORD, WE WERE UNABLE TO CONCLUDE THAT THE OVERTIME HAD BEEN OFFICIALLY ORDERED OR APPROVED OR THAT THERE HAD BEEN ACTIVE INDUCEMENT BY AN OFFICIAL WITH AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK. HENCE, WE DISALLOWED THE CLAIM.
IN MR. HUDSON'S CASE, WE HAVE CAREFULLY REVIEWED THE MATERIAL SUBMITTED BY HIM AND BY OFFICIALS OF THE BUREAU OF PRISONS IN LIGHT OF THE STANDARD ELUCIDATED IN BAYLOR, SUPRA, AND OUR CASES. AS STATED EARLIER, THE EVIDENCE SUBMITTED IS CONFLICTING. OUR REVIEW IS RESTRICTED TO THE WRITTEN RECORD BEFORE US AND WE DO NOT HOLD ADVERSARY PROCEEDINGS WITH THE EXAMINATION AND CROSS-EXAMINATION OF WITNESSES. THE BURDEN IS ON THE CLAIMANT TO ESTABLISH THE ELEMENTS OF HIS CLAIM AND THE LIABILITY OF THE UNITED STATES IN THE WRITTEN RECORD BEFORE US. 4 C.F.R. SEC. 31.7 (1981).
IN APPLYING THE BAYLOR STANDARD TO THE FACTS BEFORE US, IT APPEARS THAT THE WARDEN WAS OR SHOULD HAVE BEEN AWARE THAT MR. HUDSON WAS PERFORMING OVERTIME WORK AND THAT A "TACIT EXPECTATION" EXISTED ON HIS PART THAT SUCH WORK WOULD BE ACCOMPLISHED. WAS THERE MORE THAN A "TACIT EXPECTATION" BY THE WARDEN THAT THE OVERTIME WORK BE PERFORMED? WAS MR. HUDSON "INDUCED" OR ENCOURAGED TO PERFORM OVERTIME WORK DUE TO THE NATURE AND VOLUME OF HIS CASEWORK AND IN ORDER TO EFFECTIVELY COMPLETE HIS WORK ASSIGNMENTS? BELIEVE THESE QUESTIONS MUST BE ANSWERED IN THE NEGATIVE. THIS OFFICE HAS LONG HELD THAT MERE KNOWLEDGE THAT OVERTIME WORK IS BEING PERFORMED BY AN EMPLOYEE, WITHOUT OFFICIAL INDUCEMENT, IS NOT SUFFICIENT TO SUPPORT PAYMENT OF OVERTIME COMPENSATION IN THE ABSENCE OF AN ORDER AUTHORIZING OR APPROVING OVERTIME WORK BY AN OFFICIAL WITH COMPETENT AUTHORITY TO DO SO. W. S. BRANDENBURG, ET AL., B-156407, APRIL 25, 1977; DONALD W. PLASKETT, B-183916, MARCH 8, 1976; B-179908, SUPRA.
THE MEMORANDUM DATED DECEMBER 21, 1972, WRITTEN BY THE CHIEF OF THE CASE MANAGEMENT DEPARTMENT AND THE WRITTEN RESPONSE DATED JANUARY 10, 1973, BY THE WARDEN, EXPRESSLY DENY THAT ANY OVERTIME WORK THAT MAY HAVE BEEN PERFORMED BY MR. HUDSON WAS OFFICIALLY ORDERED OR APPROVED BY AN OFFICIAL WITH AUTHORITY TO DO SO. THE WARDEN POINTS OUT THAT CASE MANAGERS WILL ALWAYS BE OBLIGATED TO MEET DEADLINES BY THE VERY NATURE OF THEIR WORK AND THAT CASE MANAGERS MUST, OF NECESSITY, ESTABLISH MEANINGFUL WORK PRIORITIES AND SCHEDULING OF THEIR WORK. HE STATES THAT OTHER CASE MANAGERS AT TERMINAL ISLAND WERE ABLE TO PERFORM THEIR WORK WITHIN A NORMAL ADMINISTRATIVE WORKWEEK BY ORGANIZING THEIR WORK EFFICIENTLY TO MEET THEIR DEADLINES. MR. HUDSON ADMITS THAT HE WAS NEVER SPECIFICALLY ORDERED OR DIRECTED TO PERFORM OVERTIME WORK.
OUR REVIEW OF THE ENTIRE RECORD SUBMITTED WITH THIS CLAIM SHOWS THAT WHILE THE WARDEN MAY HAVE HAD KNOWLEDGE OF MR. HUDSON'S SCHEDULE, AND MAY HAVE TACITLY EXPECTED THAT OVERTIME WORK WOULD BE PERFORMED BY MR. HUDSON, HE DID NOT ORDER OR APPROVE OR ACTIVELY INDUCE THE CLAIMANT TO PERFORM OVERTIME WORK IN ORDER TO EFFECTIVELY COMPLETE HIS WORK ASSIGNMENTS. THE POSITION OF THIS OFFICE, IN THE CIRCUMSTANCES OF THIS CASE, IS AS STATED IN B-179908, SUPRA:
"IN COMPARISON YOU APPARENTLY DETERMINED THAT MASSIVE AMOUNTS OF OVERTIME - 3,532 HOURS IN LESS THAN 3 YEARS - WERE NEEDED TO ACHIEVE SATISFACTORY PERFORMANCE AND SINCE MANAGEMENT WAS AWARE OF YOUR EFFORT AND FAILED TO STOP IT, YOU URGE YOU WERE INDUCED TO WORK OVERTIME. SO HOLD WOULD REQUIRE MANAGEMENT TO DEVISE A SYSTEM WHICH WOULD PRECLUDE EMPLOYEES WORKING OUTSIDE SCHEDULED HOURS. WE DO NOT BELIEVE THE LAW REQUIRES SUCH A CONCLUSION. WE AGREE WITH THE VIEW THAT MERE KNOWLEDGE OF OVERTIME BY AN OFFICIAL WITHOUT AFFIRMATIVE INDUCEMENT IS NOT SUFFICIENT TO SUPPORT RECOVERY BY AN EMPLOYEE IN THE ABSENCE OF AN ORDER AUTHORIZING OR APPROVING OVERTIME BY A COMPETENT OFFICIAL. SEE BILELLO V. UNITED STATES, 174 C.CLS. 1253, 1257 (1966)."
ACCORDINGLY, BECAUSE OF THE ABSENCE OF SUFFICIENT EVIDENCE TO SHOW THAT THE OVERTIME WORK PERFORMED BY MR. HUDSON WAS ORDERED OR APPROVED OR ACTIVELY INDUCED BY THE WARDEN, TERMINAL ISLAND, THE OFFICIAL WITH THE AUTHORITY TO ORDER OR APPROVE OVERTIME WORK, OVERTIME COMPENSATION MAY NOT BE PAID.