In the Matter of the Petition by ) August 14, 1998
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CHENELLE M. MEDINA )
1100 Broadway )
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at )
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Redwood City, CA 94063-9998 ) P.S. Docket No. DCA 98-164
APPEARANCE FOR PETITIONER: Henry Saitta
3932 Pasadena Drive
San Mateo, CA 94403-3643
APPEARANCE FOR RESPONDENT: Terry Beckstead
Labor Relations Specialist
United States Postal Service
1300 Evans Avenue
San Francisco, CA 94188-2290
Petitioner, Chenelle Medina, filed a timely Motion for Reconsideration, under 39 C.F.R. §961.9, of the June 26, 1998 Decision in this case. Respondent sought to collect $33,976.86 from Petitioner's salary to recover for shortages in three unit reserve accounts assigned to Petitioner. The Decision held that Petitioner was liable for a total of $22,518.16.
The shortages were disclosed by two separate audits of Petitioner's three accounts. The Decision concluded that a shortage of $22,057.02 was established by an audit in December 1997, and that a shortage of $11,572.84 was established by an audit in January 1998. Against these, Petitioner was credited with $11,111.70 in overages, most of which were related to the January 1998 shortages.
Petitioner raises several issues in her request for reconsideration, most of which were dealt with in the Decision, but some merit additional comment.
The Procedural Issues
Petitioner cites several paragraphs of the Employee and Labor Relations Manual and re-argues the point that Postal Service officials did not follow, to the letter, all the prescribed procedures in establishing the alleged debt and notifying her of her rights under the Debt Collection Act. Petitioner argues that this amounts to a denial of due process. The due process to which Petitioner, or any person in a matter such as this, is entitled is (1) to be given clear notice of the allegations against her, (2) to be provided the information on which the allegations are based, and (3) to be given a full opportunity to be heard and to present a response to the allegations. See 5 U.S.C. §5514(a)(2). Petitioner was not denied any of these things. The fact that she may have discovered some of the information about her procedural rights on her own, rather than from her superiors as should have been done, does not invalidate the process. Had Petitioner failed to exercise her rights because she was not properly informed of them, she would have been protected, but there was no need for such protection here. Contrary to her assertion, she has not been "penalized" for her diligence in doing her own research, and there has been no denial of due process.
The December 1997 Shortages
As she did at the hearing, Petitioner agrees that the December audit was accurate and that these shortages existed. As a possible explanation for what caused the shortages, she raises again the matter of two employees who were involved in some "illegal activity." At the hearing, Petitioner offered no evidence at all about these employees, only a passing reference to them. In her Motion for Reconsideration, she argues some facts that are not in evidence, i.e., she says these people "admitted to stealing from the Postal Service," she identifies one person by name and job description, and names a postal inspector she talked to about him. Even considering these assertions, however, there is still no evidence that this person, or any other unauthorized person, had access to her stamp stock.
The January 1998 Shortages
Petitioner reiterates her arguments about the failure of the January audit team to count and record the stock accurately. She presents no new argument as to why she signed each of the Forms 3294 indicating agreement with the counts if she did not believe they were accurate at the time. In any event, much of this issue is rendered moot by the fact that overages for which Petitioner was given credit offset approximately 95% of the January 1998 shortages.
The Security Issues
Petitioner presents no new arguments here, and in fact agrees that she did have adequate lockable storage space for her stamp stock. She incorporates the matter of the two suspected employees as part of the security issue, however, and faults the postal inspectors for not following this lead. I have no information as to how much, or how little, the inspectors did to determine whether any former employee might have stolen from Petitioner's stamp stock, but as noted earlier, there is no evidence in the record to connect any such person with the shortages in Petitioner's accounts.
Reasonable Care
The only point Petitioner makes here is that she did not discard Form 17s, contrary to an entry in an inspectors' memorandum that said she told them she did. In support of this, she attaches copies of some Form 17s to her motion. Suffice it to say that I made no finding in the Decision that Petitioner discarded Form 17s and no conclusion in the Decision was based on any belief that she did.
Credit for Overages
Petitioner presents an analysis of the many documents purporting to reflect shortages and overages in the three Redwood City accounts during the time in question. As a "bottom line," she adds the total shortages to be $44,792.48, and the total overages to be $22,736.23, for a net shortage of $22,056.22. As was noted in the Decision, the origin of some of the amounts listed as overages on various "Trust and Suspense" lists was "uncertain," and it was not possible to be absolutely precise as to how much credit for overages Petitioner was entitled to. The net shortage she now proposes, $22,056.22, differs by only two percent from the amount, $22,518.16, for which she was held liable in the Decision. I find it appropriate to give her the benefit of the doubt. The total liability will be reduced to the lesser amount.
Three other matters raised in Petitioner's motion require comment. First, while acknowledging that these were not matters on which the Decision was based, she challenges the accuracy, or veracity, of Postmaster Stevens' testimony on several points. It may well be that Ms. Stevens' recollection of certain events was inaccurate, or even that some of her testimony was designed to deflect criticism from herself, but as these are all peripheral matters, not affecting Petitioner's responsibility for the shortages, there is no need to discuss them. Second, Petitioner suggests that she alone should not be responsible for the shortages, because the postmaster and other managers failed to investigate a previous large shortage "to determine if any action was necessary in managing of the unit reserve stock." Unfortunately, the regulations clearly place accountability on the custodian of the unit reserve stock, in this case Petitioner. There is nothing in the record to support a finding that anything the postmaster did, or did not do, caused these shortages, or that would provide a basis for relieving Petitioner from liability for a portion of the loss.
Finally, Petitioner has submitted some documents with the Motion for Reconsideration that were not put in evidence at the hearing, and has made some statements in the text of the motion that amount to testimony not given at the hearing. A Motion for Reconsideration is not a vehicle for a party to present new evidence. If a party believes there is new, relevant evidence that should be considered, and that there is a legitimate reason that such evidence was not presented at the hearing, the proper action is to request that the record be re-opened. The opposing party would then have an opportunity to address the issue, and to present other evidence in rebuttal, if appropriate. In this case, I have examined the new matters submitted by Petitioner and have determined that there is no need to re-open the record. None of the new matters submitted by Petitioner gives cause to change the result.
The Motion for Reconsideration is granted in part. Petitioner's
liability is reduced from $22,518.16 to $22,056.22. Respondent
may collect the latter amount from Petitioner's salary.
Bruce R. Houston
Chief Administrative Law Judge