In the Matter of the Petition by ) August 12, 1999 ) THOMAS MITCHELL ) 11245 La Tonka Trail ) ) at ) ) Florissant, MO 63033-1534 ) P.S. Docket No. DCA 99-280 APPEARANCE FOR PETITIONER: Charles Scialla Scialla Associates, Inc. 453 Preakness Avenue, #5 Paterson, NJ 07502-1121 APPEARANCE FOR RESPONDENT: Tommy J. Tabb Susan Anderson Labor Relations Specialists United States Postal Service 1720 Market Street St. Louis, MO 63155-9401
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Thomas Mitchell, filed this Petition after receiving a Notice of Involuntary Administrative Salary Offsets, dated June 7, 1999, from James Hobbs, Supervisor of Accounting Services. This Notice stated the Postal Service's intention to withhold $6,479 from Petitioner's salary to recover an overpayment made to Petitioner for a period in May-July 1998.
A hearing was held in St. Louis, Missouri on July 29, 1999. The Postal Service presented testimony from Ann Havens, Petitioner's supervisor; L. D. Magee and Richard Black, the next two supervisors up the line; and Ms. Johnson, an accounting technician. Mr. Mitchell testified in his own behalf, and also called Mr. Hobbs, the accounting supervisor. Respondent presented several documents, in addition to those already in the case file, and both sides relied on all the documents that are part of the record.(1)
At the opening of the hearing Respondent's representative announced that the amount of the claim against Mr. Mitchell had been reduced to $2,407.68. This amount is equal to Mr. Mitchell's salary for the period of time that he was originally carried on sick leave. The following findings of fact are based on the entire record, including observation of the witnesses and their demeanor.
FINDINGS OF FACT
1. Petitioner has been a postal employee for 25 years. He was placed in a supervisory position, in charge of mail delivery service at the Giles Station in St. Louis, in 1993. In April 1998, based on an allegation of unsatisfactory job performance, the Postal Service demoted Petitioner to a mail carrier position at the Chambers Station, effective April 11, 1998. He occupied that position at the times pertinent to this case. (Tr. 24, 95, 102; Answer, Tab 1 and Tab 2).
2. Petitioner appealed his demotion to the Merit Systems Protection Board (MSPB) and, on October 26, 1998, an Administrative Judge ruled that, although the evidence supported the charge of poor job performance, the penalty was unduly severe. He directed that Mr. Mitchell be placed in a higher graded position. He also awarded Mr. Mitchell some back pay. (Answer, Tab 2; Tr. 99-100).
3. For several months while his appeal was pending, beginning on or about May 4, 1998, Petitioner was absent from work (Ps Ex. 1). Ms. Havens was his immediate supervisor. Based on information provided to her by Petitioner, some on the telephone and some in writing, Ms. Havens carried him in sick leave status until he had used up all his accumulated sick leave. Thereafter, she carried him in an annual leave status. (Tr. 13-14, 21, 27). On two occasions, Ms. Havens had first placed Petitioner in a leave without pay (LWOP) status, and later converted it to approved leave after Petitioner presented medical documentation that was acceptable to her. (Ps Ex. 4 and 5; Tr. 10-12, 19, 26, 29).
4. Sometime thereafter, in about August 1998, because Petitioner continued to be absent from work, Mr. Magee looked into Petitioner's status. Mr. Magee was then the Manager of Customer Service at the Chambers Station, and was Ms. Havens' supervisor. He told Petitioner on more than one occasion that Petitioner needed to bring in some medical documentation to support his sick leave. Although Ms. Havens told Mr. Magee that Petitioner had provided some documentation in the past, she did not have it and it was not in Petitioner's file. Petitioner did not bring in any additional documents. On October 26, 1998, Mr. Magee gave Petitioner a letter advising him that his sick leave beginning in pay period 11 (May 1998) had been disapproved because of lack of acceptable proof of incapacitation for work. At about that same time, Mr. Magee instructed the accounting office to take the action necessary to change Petitioner's status from sick leave to LWOP for the pay periods in question. (Tr. 37-39, 53-59, 120-21; Answer, Tab 6; PS Ex. 6).
5. Sometime after Mr. Magee had directed that Petitioner's sick leave be changed to LWOP, Petitioner called Mr. Black, who is Mr. Magee's supervisor. Mr. Black told Petitioner that what he should do to "get off the AWOL status" is return to work and bring documentation to support his sick leave. (Tr. 118-19).
6. The file contains one form from a medical facility pertaining to the time period that is involved in this case. It is a printed form with the heading BJC Health Center, dated June 15, 1998, and names Thomas Mitchell as the patient. It contains the apparent signature of a physician, and states that Petitioner was seen on June 15, 1998. Following the printed words, "Patient named above states that he has been ill/disabled on or through the following dates:" the dates "6-9-98 through 6-20-98," are filled in. In the comments section, the words, "stress and tension headaches" are written. There is no statement from the doctor that Mr. Mitchell was unable to work, how long he should remain away from work, or when he would be able to return. (Answer, Tab 4).
7. In his testimony, Petitioner stated that he did not know what happened to the other medical documents he gave to Ms. Havens. He also testified that he had copies at home of all the doctors' statements that he had turned in, but that no one had told him to bring them to the hearing. (Tr. 108-09, 114).
8. Of the total time Petitioner was absent from work during the general time frame pertinent to this case, 128 hours were paid as sick leave. The dates were between May 4, 1998 and May 29, 1998. Two days in May and all the time after May were paid as annual leave, once all accrued sick leave had been used. It is only the 128 hours of sick leave that Respondent is attempting to collect back in this case. (Tr. 13-14, 111; Ps Ex. 1, PS Ex. 6, Answer, Tab 7).
9. The following provisions of the Employee and Labor Relations Manual (ELM) pertaining to sick leave are applicable:
513.342 Approval or Disapproval. The supervisor is responsible for approving or disapproving applications for sick leave by signing Form 3971, a copy of which is given to the employee. * * *
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DECISION
Petitioner argues that Ms. Havens was the supervisor authorized by the regulation (§513.342) to approve leave for him and that she did so. Petitioner argues that the regulation says nothing about a higher level supervisor also having to approve leave once the immediate supervisor has done so. Petitioner also contends that there is nothing to contradict Ms. Havens' testimony that medical documentation was presented to her and that it was acceptable to her.
Respondent argues that a higher level supervisor has authority to take back leave that was not properly granted, and that Petitioner never submitted any documentation to support sick leave that meets the requirements of §513.364.
Respondent's arguments are supported by a preponderance of the evidence, and are more persuasive. A higher level supervisor has not only the authority, but also a duty, to insure that the rules pertaining to sick leave are properly followed. Therefore, the fact that Ms. Havens approved sick leave for Petitioner does not end the inquiry. And contrary to Petitioner's argument, there is evidence to contradict Ms. Havens' testimony that acceptable medical documentation was presented to her. First, there are no documents in the file that cover the period for which Petitioner was carried on sick leave. Second, the one medical document in the file, dated June 15, 1998, does not satisfy the requirement of §513.364, because it does not explain why, or for what period of time, Petitioner was unable to perform work. Therefore, even if one were to assume that Ms. Havens saw similar documents for the dates in May 1998, they would not be sufficient for approval of sick leave. Finally, the fact that Petitioner produced no medical documents in response to directions from Mr. Magee and Mr. Black, even after he knew that they intended to take back his leave, leads to the conclusion that he did not have adequate justification for sick leave. In light of this failure to produce documents, and his failure to present them at the hearing, knowing that this was the issue to be litigated, his testimony that he has copies of supporting medical documents at home is not credible.
Respondent's action in converting Petitioner's sick leave to LWOP was proper. The Petition is denied, and Respondent may collect $2,407.68 from Petitioner's salary.