B-180139, OCT 8, 1974

B-180139, OCT 8, 1974

CIVILIAN EMPLOYEE OF DEPARTMENT OF ARMY WHO WAS DISALLOWED CLAIM FOR 88 HOURS OF OVERTIME COMPENSATION MAY BE PAID FOR 35 HOURS OVERTIME WORKED ON WEEKDAYS AND SATURDAYS AS EMPLOYEE'S SUPERVISOR THOUGHT HE COULD NOT AUTHORIZE MORE THAN 20 HOURS OF OVERTIME PER PAY PERIOD BUT WRITTEN DIRECTIVE AUTHORIZED SUPERVISOR TO APPROVE OVERTIME UP TO 2 HOURS PER WEEKDAY AND UP TO 10 HOURS PER SATURDAY AND THE 35 HOURS OF SATURDAY AND WEEKDAY OVERTIME WERE WITHIN THOSE LIMITS AND SUPERVISOR INDUCED PERFORMANCE OF OVERTIME. HOWEVER 53 HOURS OF OVERTIME PERFORMED ON SUNDAYS MAY NOT BE COMPENSATED SINCE DIRECTIVE LIMITED AUTHORITY TO APPROVE SUNDAY OVERTIME TO HIGHER OFFICIALS WHO HAD NO KNOWLEDGE OF OVERTIME WORKED.

CAMILLO J. ROSSI - OVERTIME COMPENSATION:

THIS ACTION IS AT THE REQUEST OF MR. CAMILLO J. ROSSI WHO IS APPEALING THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION OF HIS CLAIM FOR BACK PAY WHICH MR. ROSSI BELIEVES IS DUE HIM INCIDENT TO HIS EMPLOYMENT AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY FROM APRIL 18, 1971 TO JULY 10, 1971.

THE RECORD SHOWS THAT MR. ROSSI WORKED FOR THE DEPARTMENT OF THE ARMY AT THE QUI NHON AREA CIVILIAN PERSONNEL OFFICE IN VIETNAM AND PERFORMED 213 HOURS OF OVERTIME WORK BETWEEN APRIL 18, 1971 AND JULY 10, 1971. MR. ROSSI RECEIVED COMPENSATION FOR 125 HOURS OF THIS OVERTIME BUT WAS DENIED COMPENSATION FOR 88 HOURS BY THE DEPARTMENT OF THE ARMY. MR. ROSSI SUBMITTED A CLAIM TO OUR TRANSPORTATION AND CLAIMS DIVISION FOR $731.28 REPRESENTING 88 HOURS OF OVERTIME WORK NOT COMPENSATED FOR. OUR TRANSPORTATION AND CLAIMS DIVISION DENIED HIS CLAIM ON THE BASIS THAT SUCH OVERTIME WAS NOT ORDERED OR APPROVED AS THE LAW REQUIRES. THIS DECISION WAS APPARENTLY FOUNDED ON THE ASSERTION OF THE CIVILIAN PERSONNEL OFFICER, MR. ROBERT SMITH, WHO SUPERVISED MR. ROSSI, THAT IT WAS THE WRITTEN POLICY OF THE UNITED STATES ARMY IN VIETNAM THAT THE MAXIMUM AMOUNT OF PAID OVERTIME FOR ALL CIVILIAN EMPLOYEES WAS NOT TO EXCEED 20 HOURS PER PAY PERIOD AND THEREFORE MR. SMITH COULD NOT LEGALLY AUTHORIZE OR APPROVE MORE THAN 20 HOURS OF OVERTIME PER PAY PERIOD.

IN APPEALING THE DENIAL OF HIS CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION, MR. ROSSI ASSERTS THAT THERE WAS NO WRITTEN POLICY LIMITING OVERTIME WORK TO 20 HOURS PER PAY PERIOD NOR DID HE SIGN ANY AGREEMENT TO LIMIT HIS OVERTIME WORK TO 20 HOURS PER PAY PERIOD. MR. ROSSI ALSO CLAIMS THAT SINCE HE WAS INDEED PAID FOR MORE THAN 20 HOURS OF OVERTIME IN 3 SEPARATE PAY PERIODS, SUCH ACTION PROVES THAT THE OFFICIAL WITH AUTHORITY TO APPROVE HIS OVERTIME, MR. SMITH, DID HAVE THE AUTHORITY TO APPROVE MORE THAN 20 HOURS OF OVERTIME PER PAY PERIOD. MR. ROSSI FURTHER CLAIMS THAT APPROVAL OF THE OVERTIME WORK MUST BE IMPLIED FROM THE FACT THAT THE OVERTIME WORKED BUT NOT COMPENSATED FOR WAS RECORDED ON HIS TIME CARDS. LETTER OF APPRECIATION TO MR. ROSSI FROM MR. SMITH, DATED JULY 15, 1971, WHICH NOTES THE 88 HOURS OF OVERTIME WORKED, IS HELD BY MR. ROSSI TO BE VERIFICATION OF THE APPROVAL OF THE 88 HOURS OF OVERTIME WORKED BUT FOR WHICH NO COMPENSATION WAS MADE. FINALLY MR. ROSSI STATES THAT HE WAS OBLIGED TO SUPERVISE THE VIETNAMESE EMPLOYEES FOR THEIR STANDARD WORKWEEK OF 53 HOURS PER WEEK THUS IMPLYING THAT HIS BASIC WORKWEEK WAS 53 HOURS PER WEEK.

SECTION 5542(A) OF TITLE 5 OF THE U.S.C. PROVIDES THAT HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE COMPENSABLE. SECTION 550.111(C) OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS PROVIDES AS FOLLOWS:

"OVERTIME WORK IN EXCESS OF ANY INCLUDED IN A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK MAY BE ORDERED OR APPROVED ONLY IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM THIS AUTHORITY HAS BEEN SPECIFICALLY DELEGATED."

OFFICE MEMORANDUM NUMBER 33, CHANGE 1, ENTITLED "HOURS OF DUTY," DATED NOVEMBER 22, 1967, FROM THE OFFICE OF CIVILIAN PERSONNEL DIRECTOR, HEADQUARTERS UNITED STATES ARMY VIETNAM, WAS APPARENTLY THE DIRECTIVE IN EFFECT DURING THE TIME HERE INVOLVED WHICH SETS OUT THE REQUIREMENTS WITH RESPECT TO AUTHORIZING AND APPROVING OVERTIME WORK PERFORMED BY MR. ROSSI. THAT DIRECTIVE STATES IN PART:

"*** EACH ACPO AND THE DIRECTOR, CTI, IS DELEGATED AUTHORITY TO APPROVE OVERTIME WORK AND COMPENSATION FOR SUBORDINATE US CITIZEN EMPLOYEES NOT TO EXCEED TWO HOURS PER DAY MONDAY THROUGH FRIDAY, AND TEN HOURS ON SATURDAY *** ANY WORK OR OVERTIME COMPENSATION IN EXCESS OF THE HOURS SPECIFIED IN THIS DELEGATION OF AUTHORITY IS SUBJECT TO THE APPROVAL OF THE CPD OR DCPD PRIOR TO THE WORK BEING PERFORMED."

THEREFORE, CONTRARY TO MR. SMITH'S BELIEF, IT WAS POSSIBLE FOR MR. SMITH TO HAVE PROPERLY ALLOWED MR. ROSSI UP TO 40 HOURS OF OVERTIME WORK PER PAY PERIOD WITHIN THE LIMITATIONS OF 2 HOURS OVERTIME PER WEEKDAY AND 10 HOURS OVERTIME PER SATURDAY.

AN EXAMINATION OF MR. ROSSI'S PAY RECORDS FOR THE PERIOD IN QUESTION SHOWS THE FOLLOWING:

PAY HOURS

PERIOD ALLOWED HOURS UNPAID

ENDING HOURS OF OVERTIME WORKED BY ARMY AND CLAIMED

SUNDAYS SATURDAYS WEEKDAYS TOTAL MAY 1, 1971 16 17 10 43 20 23 MAY 15, 1971 7 18 10 35 20 15 MAY 29, 1971 517 10 32 24 8 JUNE 12, 1971 8 16 10 34 21 13 JUNE 26, 1971 9 16 10 35 20 15 JULY 10, 1971 8 16 10 34 20 14

53 100 60 213 125 88

IT IS CLEAR THAT UNDER THE ABOVE DIRECTIVE, MR. ROSSI COULD NOT BE REIMBURSED FOR ANY OVERTIME WORKED ON A SUNDAY UNLESS THE CIVILIAN PERSONNEL DIRECTOR OR HIS DEPUTY GAVE PRIOR APPROVAL TO SUCH WORK. MR. SMITH COULD NOT HAVE PROPERLY APPROVED THE SUNDAY OVERTIME AS HIS AUTHORITY TO APPROVE OVERTIME WAS SPECIFICALLY LIMITED BY THE ABOVE DIRECTIVE TO WEEKDAYS AND SATURDAYS. IT IS IMMATERIAL THAT MR. ROSSI DID NOT SIGN AN AGREEMENT TO LIMIT HIS HOURS OF WORK OR THAT THE SUNDAY WORK WAS RECORDED ON HIS TIME CARDS AS THE LIABILITY OF THE GOVERNMENT TO PAY FOR OVERTIME IS LIMITED TO THAT OVERTIME WHICH IS ORDERED OR APPROVED BY THE APPROPRIATELY AUTHORIZED OFFICIAL. BAYLOR V. UNITED STATES, 198 CT. CL. 331 (1972).

WITH RESPECT TO THE OVERTIME BEING ORDERED OR APPROVED, THE COURT IN BAYLOR, SUPRA, HELD THAT EVEN THOUGH OVERTIME MAY NOT HAVE BEEN SPECIFICALLY ORDERED, OVERTIME MAY STILL BE COMPENSABLE IF THE OVERTIME WORK WAS INDUCED BY THE APPROPRIATELY AUTHORIZED OFFICIAL. SUCH INDUCEMENT MAY BE FOUND IF THE APPROPRIATELY AUTHORIZED OFFICIAL KNEW OF OR SHOULD HAVE KNOWN OF PROCEDURES WHICH REQUIRED MR. ROSSI TO WORK OVERTIME. THE DIRECTIVE REFERRED TO ABOVE DESIGNATES THE CIVILIAN PERSONNEL DIRECTOR AND HIS DEPUTY AS THOSE WITH AUTHORITY TO APPROVE OR ORDER SUNDAY OVERTIME BUT THERE IS NO EVIDENCE THAT APPROVAL WAS GIVEN BY EITHER OF THESE TWO AUTHORIZED OFFICIALS. NEITHER IS THERE ANY EVIDENCE IN THE RECORD THAT THE CIVILIAN PERSONNEL DIRECTOR OR HIS DEPUTY KNEW OR SHOULD HAVE KNOWN OF PROCEDURES WHICH REQUIRED MR. ROSSI TO WORK ON SUNDAY AND THEREFORE THERE IS NO BASIS IN THE LAW BY WHICH MR. ROSSI MAY BE COMPENSATED FOR THE SUNDAY OVERTIME. ACCORDINGLY, PAYMENT MAY NOT BE MADE FOR THE 53 HOURS OF OVERTIME WHICH WERE WORKED ON SUNDAYS.

MR. ROSSI, HOWEVER, DID NOT EXCEED THE WEEKDAY OR SATURDAY OVERTIME LIMITATIONS IN THE ABOVE DIRECTIVE. IT WOULD APPEAR THEREFORE, THAT BY VIRTUE OF THE ABOVE DIRECTIVE, MR. SMITH WAS APPROPRIATELY AUTHORIZED TO APPROVE THE 35 HOURS OF OVERTIME WHICH MR. ROSSI WORKED ON WEEKDAYS AND SATURDAYS. THE RECORD IS CLEAR THAT MR. SMITH DID KNOW THAT MR. ROSSI WAS REQUIRED TO PERFORM OVERTIME WORK AT THE END OF HIS SCHEDULED WORKDAY AND ON SATURDAYS BUT HE DID NOT AUTHORIZE SUCH OVERTIME IN THE MISTAKEN BELIEF THAT THERE WAS A 20 HOUR PER PAY PERIOD MAXIMUM. IN A LETTER TO THE CLAIMS DIVISION UNITED STATES ARMY FINANCE CENTER, DATED JULY 5, 1973, MR. SMITH, REFERRING TO MR. ROSSI'S CLAIM, STATES THAT "*** EMPLOYEES 'CONTRIBUTED' TIME IN EXCESS OF THE 20 HOURS SINCE WE HAD A TREMENDOUS WORKLOAD ***." IT IS EVIDENT MR. ROSSI DID NOT PERFORM THIS OVERTIME VOLUNTARILY BUT RATHER HE WAS INDUCED TO WORK OVERTIME BY MR. SMITH. THEREFORE, ALTHOUGH MR. SMITH COULD NOT HAVE LEGALLY AUTHORIZED MR. ROSSI TO PERFORM SUNDAY OVERTIME DESPITE THE FACT THAT HE MAY HAVE INDUCED ITS PERFORMANCE, WITH RESPECT TO THE 35 HOURS OF WEEKDAY AND SATURDAY OVERTIME PERFORMED BY MR. ROSSI, WE FIND THAT SINCE MR. SMITH HAD AUTHORITY TO APPROVE SUCH OVERTIME ARE COMPENSABLE. THE 35 HOURS OF OVERTIME WORKED BY MR. ROSSI ON WEEKDAYS AND ON SATURDAYS ARE COMPENSABLE AT THE OVERTIME RATE OF $8.31 THEN APPLICABLE TO MR. ROSSI.

ACCORDINGLY, OUR TRANSPORTATION AND CLAIMS DIVISION IS BEING ADVISED TO ISSUE A SETTLEMENT IN MR. ROSSI'S FAVOR IN THE AMOUNT OF $290.85.