In the Matter of the Petition by ) July 5, 1996
)
LOUIS G. BECKER )
224 S. Main Street )
P.O. Box 676 )
)
at )
)
Lewisburg, OH 45338-0676 ) P.S. Docket No. DCA 96-159
APPEARANCE FOR PETITIONER: Louis G. Becker
224 S. Main Street
P. O. Box 676
Lewisburg, OH 45338-0676
APPEARANCE FOR RESPONDENT: Jennifer Laible
United States Postal Service
1111 East 5th Street, Room 204
Dayton, OH 45401-8905
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Louis G. Becker, filed a petition requesting an oral hearing under the Debt Collection Act of 1982, as amended, 5 U.S.C. §5514(a), when Respondent, United States Postal Service, notified him of its intention to collect from his salary to recover what Respondent considered erroneous overpayments of pay it made to Petitioner.
An oral hearing was held in Dayton, Ohio, and the parties made closing arguments at the conclusion of the hearing.
FINDINGS OF FACT
1. Petitioner has worked for Respondent as a rural carrier since June 1987 and has delivered rural route K004 from the Brookville, Ohio Post Office since at least 1993. Petitioner’s duties include sorting and casing the mail for his route at the post office and then delivering the route using a Postal Service vehicle. (Transcript Pages ("Tr.") 61, 71, 74, 118).
2. Petitioner’s salary includes a component identified as "evaluated compensation", which is in addition to the salary guaranteed under the Rural Carrier Schedule. Evaluated compensation is determined by two- or four-week mail counts during which the mail delivered and collected by Petitioner is counted and the tasks and time required to perform the route are measured. The results of the mail count are used to establish total time standards for the route.1 The standard time is then converted, through a chart contained in the National Agreement,2 to "evaluated hours" for calculating the compensation to which Petitioner is entitled. Each additional evaluated hour on his route increases Petitioner’s compensation. On a "K" route (one which has a relief day each week), such as Petitioner’s, the evaluated hours may range from 40 to 48 per week (referred to as K40 through K48). Standard time of 52 hours 12 minutes (52:12) to 53:23 per week equals a K44 route; 57:00 to 57:36 is a K48 route. (Tr. 16-17, 20-22, 33, 36, 39, 68-69, 82-83; National Agreement, Article 9.2.C.; Handbook PO-603, Rural Carrier Duties and Responsibilities, Chapter 5).
3. Routes at the K47 and K48 level are considered overburdened and are discouraged due to the heavy workload. It is Respondent’s practice to target overburdened routes for adjustment to reduce the carrier’s workload to a more manageable level. (Tr. 37; National Agreement, Article 9.2.C.7 note).
4. In June of 1994, Petitioner complained that his route, then a K48, was overburdened. The route was adjusted by reassigning a number of Petitioner’s deliveries to others, and the route was thereafter evaluated at K40. (Tr. 61-62, 72, 74, 83, 90, 119; Respondent’s Exhibit ("RX") 7).
5. In September 1994, the Brookville Postmaster conducted a two-week count of Petitioner’s route. The number of mail pieces and transactions and the time Petitioner utilized for performing specific tasks were recorded each day. The results of each day’s count were transferred to PS Form 4241, Rural Delivery Statistics Report (August 1988), a day-by-day listing of the itemized results of the mail count, and totaled for the count period. (Tr. 17-19, 52, 63, 72; RX 8, 9; Handbook PO-603, section 535).
6. On October 5, 1994, after the conclusion of the count, the postmaster discussed the results and the Form 4241 with Petitioner. Petitioner closely reviewed the 4241 and compared for accuracy the entries on that form with those on the daily worksheets and checked the addition of the daily entries (Tr. 111-114). The postmaster signed the form verifying its accuracy, but Petitioner did not sign in the block designated for the carrier to certify that the form was correct. However, Petitioner did not submit written objections identifying the exact nature of any errors or omissions, which is the procedure to be followed if a carrier disagrees with the 4241. (Tr. 38, 40, 63-63, 85-86; Handbook PO-603, sections 533.12, 533.13, 535.24; contra Tr. 98).
7. In the next step in evaluation of the route, the two-week totals for each category on the 4241 were entered into Respondent’s computer system which applies a formula to the data and generates PS Form 4241-A, Rural Route Evaluation. The 4241-A lists a number of the categories from the 4241 (on a one-week basis, however, so the entries from the 4241 are halved) and states the calculated time standards. The form also shows the evaluated hours for the route and the annual pay the carrier is entitled to based on the evaluation of the route. (Tr. 19-20, 64-65, 72; Handbook PO-603, section 535.3, Exhibit 535.31; RX 10, 12).
8. The 4241-A generated from the results of the count of Petitioner’s route, which was processed October 23, 1994, to be effective October 29, 1994, showed the standard time to be 59:56 (59 hours 56 minutes for one week), a figure well above the highest figures on the chart in the National Agreement. Petitioner’s route was shown to be a K48 and Petitioner’s annual salary to be $41,627, based on the K48 evaluation. However, those figures were inflated by erroneous entries of information from the 4241: loading time, listed as 220 minutes per week on the 4241-A, should have been 72 minutes; other allowable time was shown as 220 minutes per week on the 4241-A, and it should have been 22 minutes; stamp stock purchases were shown as 25 minutes but should have been 2.5 minutes; time for acceptance of certified and registered mail was shown as 81 minutes per week but should have been 0. (Tr. 20-26, 66-67; RX 9, 10, 12; Petitioner’s Exhibit ("PX") 8).
9. As soon as the 4241-A was generated, two copies were returned to the postmaster who filed one copy and gave the other to Petitioner.3 The postmaster did not compare the 4241-A to the 4241 and did not discover the erroneous entries at that time. As of pay period 23/94, Petitioner began receiving pay at the K48 rate of pay shown on the 4241-A, which was substantially higher than the approximately $32-33,000 he was receiving before the count. (Tr. 41, 58, 65, 72-73, 90; RX 10, 12).
10. Petitioner had an option to have another count in September 1995, but he chose not to have his route counted at that time (RX 11).
11. In March 1996, the postmaster noticed the error in the evaluation of Petitioner’s route. Respondent generated a new 4241-A, effective retroactively to October 29, 1994, this time entering the correct information from the October 5, 1994 Form 4241. The result was standard time of 52:53, evaluated hours of K44 and salary of $37,513.4 (Tr. 26-28, 49-51, 55, 65-68, 73, 74; RX 12; PX 8).
12. Petitioner’s pay was adjusted to the K44 rate effective pay period 06/96 (RX 5; PX 4).
13. In April 1996, the Minneapolis Postal Data Center ("PDC") issued an invoice (PS Form 1903-DZ) seeking collection of $4,632.17 from Petitioner. The invoice reflected that Petitioner was erroneously paid at the K48 level for pay periods 23/94 through 05/96 when he should have been paid at the K44 rate. The gross salary for the period of overpayment was shown to be $6,293.88, which, after payroll deductions for social security, retirement, Medicare, taxes, and thrift savings contributions were made, resulted in a net debt claimed by Respondent of $4,632.17. (Tr. 70; RX 4, 5).
14. On April 26, 1996, the Brookville Postmaster issued Petitioner a Notice of Involuntary Administrative Salary Offset seeking payment of $4,632.17 (Tr. 70-71; RX 1), and Petitioner timely filed his petition for hearing.
15. After receiving the Notice, Petitioner requested information from the PDC, including a pay-period-by-pay-period itemization of the alleged debt, his pay records, time cards and trip reports from 1987 to present, and all employment contracts or personnel forms that Petitioner had ever signed (Tr. 96-97; PX 5). Respondent did not supply the information requested.
DECISION
Respondent argues that petitioner was overpaid due to the errors made in 1994 when entering the mail count results into the computer for generation of the PS Form 4241-A and calculation of Petitioner’s pay. It argues that the amount of the overpayment from late 1994 through early 1996 is the $6,293.88 shown on the invoice issued by the PDC and that it is entitled to recover the net amount, $4,632.17, from Petitioner’s salary.
Petitioner asserts that he never agreed to the count results shown on the 4241 for the October 1994 count and that the route was a K48 route and was properly so evaluated 1994. Consequently, he argues, he was not overpaid. He also argues that the Notice of Involuntary Administrative Salary Offsets was invalid because it was issued by the postmaster when it should have been issued by the manager at the PDC who issued the original invoice for the debt. Petitioner seeks to bar the collection of any overpayment because Respondent failed to provide Petitioner with documents he requested, including an itemization of Respondent’s calculation of the alleged debt. Finally, Petitioner asserts that the route evaluation creates a binding contract between Respondent and him and that Respondent may not now go back and change its terms.
Respondent has demonstrated that the October 1994 evaluation of Petitioner’s route as a K48 was erroneous. Even though Petitioner did not signify his agreement with the count by signing the Form 4241, he carefully reviewed the form and did not, at the time or at the hearing, present evidence of errors of any significance (Finding 6). The errors in entering the time for loading, other allowed time, stamp purchases and acceptance of certified and registered mail were obvious, and Respondent has demonstrated their inflationary effect on the route’s evaluated hours (Finding 8). The route should have been evaluated as a K44, which was the evaluation warranted under the National Agreement by Petitioner’s workload. Accordingly, Petitioner should have been paid the lower K44 salary for pay periods 23/94 through 05/96, when the error was finally caught and his pay corrected. Petitioner was overpaid, and Respondent is entitled to recover the amount of the overpayment.
It is Respondent’s burden to prove the amount of the debt. The only direct evidence of the amount of the debt is the invoice from the Minneapolis PDC (Finding 13), and that shows the bottom-line figure only. It does not explain how the PDC determined Petitioner was overpaid by exactly $6,293.88 in gross salary and $4,632.17 in net. Respondent’s witnesses at the hearing could not explain the method used by the PDC to develop the amount that Respondent claims Petitioner owes. Nor did Respondent offer any other evidence that would prove that $6,293.88 is exactly the amount of the salary overpayment, and, consequently, Respondent has not demonstrated that Petitioner’s debt is $4,632.17.
However, there is evidence in the record from which a reasonable figure for the debt can be ascertained. Although the salary figures are uncertain (Finding 11, n. 4), the annual salary Petitioner earned for the period in question appears to have been $41,627 (Findings 8, 9, 11), the annual salary for a K48 route, while he should have been earning the salary for a K44 route, which is shown on his PS Form 50 as $37,984 annually (Finding 11, n. 4). The difference between the two is $3,638 per year. Dividing that by 26 (the number of pay periods in a year) results in an overpayment of $139.92 per pay period over 35 pay periods for a gross overpayment of $4,897.31. Respondent seeks recovery only of the net overpayment after certain deductions have been made (Finding 13). Applying to $4,897.31 the same ratio of net to gross pay shown on Respondent’s invoice (net equals $4,632.17/$6,293.88 (=0.73598) of gross) results in a calculated net debt of $3,604.32 ($4,897.31 x 0.73598). Respondent may collect this amount by offset from Petitioner’s current pay.
In reaching the above conclusion regarding the amount of the debt, I have had to rely on evidence that left much to be desired. If Respondent had provided evidence of Petitioner’s exact salary progression or of the method used by the PDC to calculate the claim, the amount of the debt could have been determined with more assurance. In view of the meager evidence on this point and the ease with which Respondent could have provided the information from its records to meet its burden of proving the amount of the debt, Petitioner has been given the benefit of the doubt regarding his past salary figures and calculation of the debt. Another reason for resolving close questions regarding the amount of the debt in Petitioner’s favor is Respondent’s failure to provide Petitioner with the detailed information regarding calculation of the debt that he requested well in advance of the hearing. This failure obviously would have made it more difficult for Petitioner to challenge Respondent’s claim.
None of Petitioner’s other arguments provide a basis for avoidance of the collection. The postmaster is the proper official to issue the Notice of Involuntary Administrative Salary Offsets, Employee and Labor Relations Manual 462.32; 39 C.F.R. §961.3(f), and, thus, Petitioner’s challenge to collection on that basis is without merit. Except as noted above for the documents related to calculation of the debt, Petitioner has not shown the relevance of the documents requested or any prejudice resulting from Respondent’s failure to provide them. Therefore, the failure to provide the documents does not warrant denying Respondent’s collection of the debt.5 Finally, Petitioner is Respondent’s employee, and the evaluation of his route does not create a contract between him and Respondent. He has pointed to no principle of contract or other law that would prevent Respondent from correcting an error made in paying one of its employees and recovering the amount of overpayment from the employee’s current salary. In his argument, testimony and correspondence, Petitioner suggested Respondent made other procedural errors. Although not discussed individually here, they were considered and found not to provide a basis for denying Respondent’s collection of the overpayments as discussed above.
In conclusion, Respondent may recover $3,604.32 by offset from Petitioner’s salary based on the overpayment of pay. The petition is granted with respect to amounts claimed in excess of $3,604.32 based on the erroneous October 1994 evaluation of Petitioner’s route.
Norman D. Menegat Administrative Judge