Appeal of ALFRED J. SISTO -- P.S. Docket No. DCA 99-17

In the Matter of the Petition by  	)  April 8, 1999
					)
ALFRED J. SISTO    			)
1300 20th Avenue    			)
					)
at     					)
					)
Altoona, PA 16601-3035   		)  P.S. Docket No. DCA 99-17

APPEARANCE FOR PETITIONER: 		Alfred J. Sisto
      					1300 20th Avenue
      					Altoona, PA  16601-3035

APPEARANCE FOR RESPONDENT: 		Anthony J. Bernat
      					Labor Relations Specialist
      					United States Postal Service
      					717 State Street, Suite 300
      					Erie, PA  16515-9400

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Petitioner, Alfred J. Sisto, filed a petition for a hearing on written submissions after receiving a Notice of Involuntary Administrative Salary Offsets on January 4, 1999. The notice alleged Petitioner was indebted to the Postal Service in the amount of $2,686.46. The record consists of the Petition (and documents accompanying the Petition), Respondent’s Answer and Respondent’s Written Submission and Argument.⁽¹⁾ The following findings of fact are based on this record.

FINDINGS OF FACT

1. Petitioner is a Supervisor of Customer Services in the Tyrone, PA Post Office. This is a FLSA special exempt position. In a FLSA special exempt position, the employee is not eligible for postal or FLSA overtime, but is paid additional straight time for hours worked in excess of 40 hours in a work week. (Petition; Harrington Declaration).

2. In 1995, Petitioner accepted a detail to a higher level position at the Altoona, PA Post Office. Initially in this detail, Petitioner was paid at the EAS-19 level but was subsequently changed to receive pay at the EAS-21 level. Both EAS-19 and EAS-21 are FLSA exempt and are considered salaried positions. (Harrington Declaration; Respondent’s Answer, Exhibit 1; Petition).

3. While receiving pay at the EAS-19 and EAS-21 positions, Petitioner was not eligible for postal overtime, FLSA overtime, or additional straight time hours (Harrington Declaration; Respondent’s Answer, Exhibit 1).

4. Respondent inadvertently did not complete a personnel action concerning Petitioner’s detail. Because of this error, the proper FLSA coding did not appear on Petitioner’s payroll records and Petitioner continued to be paid additional straight time for the hours he claimed for work in excess of forty hours in a week. (Harrington Declaration; Petition).

5. When Respondent became aware of the fact that Petitioner had received additional payments amounting to $2,686.32, for hours worked in excess of forty hours a week, an account receivable was established for those payments and, eventually, Respondent issued a Notice of Involuntary Administrative Salary Offsets that led to this Petition⁽²⁾ (Harrington Declaration; Petition).

DECISION

Petitioner argues that he was led to believe that additional pay would be available to FLSA exempt employees for extra hours worked during the holiday season and that he submitted time records for his actual hours worked and received payment for the extra hours worked. Petitioner further argues that the Postal Service did not follow its own regulations and process a Higher Level Assignment Order for his detail. Respondent argues that Petitioner never challenged the higher level pay he received during his detail, and that, having accepted the detail as a "salaried employee" at the higher level, he was no longer entitled to receive payment for hours worked in excess of forty hours in a week⁽³⁾.

The EAS-19 and EAS-21 positions of Petitioner’s detail were classified by the Postal Service as FLSA exempt positions. In these positions, a Postal Service employee is considered a "salaried" employee and is not entitled to receive postal overtime, FLSA overtime, or additional straight time for hours worked in excess of forty hours in a week. (Finding of Fact Nos. (FOF) 2, 3). Nevertheless, Petitioner continued to submit claims for payment for the hours he worked in excess of forty hours in a week and because of a payroll coding error, he was erroneously paid $2,686.46 for those hours (FOF 5). As a consequence, Petitioner received extra pay that he was not entitled to receive while on this detail.

Petitioner failed to furnish any evidence to support his allegation that he was led to believe he would receive additional pay for extra hours worked during the holiday period. To the contrary, the June 24, 1996 Postal Service Policy statement concerning FLSA exempt employees (which was submitted by Petitioner with his Petition), clearly indicated that the EAS-19 and EAS-21 FLSA exempt positions of Petitioner’s detail were not entitled to extra pay.

Furthermore, Respondent’s procedural error in failing to initially process Petitioner’s higher level pay while on detail does not exonerate Petitioner from repaying the erroneous payments he received during the detail.

Accordingly, Petitioner is indebted to the Postal Service in the amount of $2,646.46 for extra payments he received during his detail for hours worked in excess of forty hours in a week. This Petition is denied.

					William K. Mahn
					Administrative Judge

1. Although afforded the opportunity to supplement his Petition with further evidence and arguments, Petitioner did not make any submissions after filing his Petition.
2. Although Respondent failed to submit any evidence in this proceeding as to how it determined the amount of alleged indebtedness, Petitioner has not challenged the amount.
3. Respondent has also argued that the Petition should be dismissed because Petitioner failed to file his Petition within fifteen days of receiving the Notice of Involuntary Administrative Salary Offsets. However, the record of this Petition indicates that Petitioner received the Notice on January 4, 1999, and, although the Petition was not docketed until January 20, 1999, Petitioner mailed the Petition by Priority Mail on January 15, 1999. Accordingly, the Petition was timely submitted.