In the Matter of the Complaint Against ) January 15, 1999
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ROSE MARIE CAIN )
206 Park Avenue )
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at )
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Audubon, PA 19403-1769 ) P. S. Docket No. PF 96-316
APPEARANCE FOR RESPONDENT: Peter H. Thomas, Esq.
Fox & Fox
One Montgomery Plaza, Suite 706
Airy & Sweed Streets
Norristown, PA 19401-4842
APPEARANCE FOR POSTAL SERVICE: Harold E. Durham, Esq.
Civil Practice
United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC 20260-1127
POSTAL SERVICE DECISION
Respondent, Rose Marie Cain, has filed an appeal from an Initial Decision in which an Administrative Law Judge concluded that Respondent is liable to the United States Postal Service for an assessment and civil penalty in the total amount of $11,352 under the Program Fraud Civil Remedies Act, 31 U.S.C. §§3801, et seq. (PFCRA or the Act). The Postal Service opposes the appeal and argues that the Administrative Law Judge’s determination should be affirmed.
BACKGROUND
Complainant, the General Counsel of the United States Postal Service, initiated this proceeding by filing a Complaint alleging that Respondent was liable to the Postal Service under the PFCRA for the maximum civil penalty of $5,000, and an assessment equal to the amount of the claim, $6,352,1/ for her failure to report her employment at a day care center on a Form EN-10322/ submitted to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP)3/ for the period between October 13, 1994 and January 3, 1995. According to the Complaint, during the period Respondent was receiving disability benefits she was working as a substitute day care center employee and receiving credit towards her daughter's tuition pursuant to an agreement with the day care center's owner. Respondent filed a reply to the Complaint in which she denied she was employed at the day care center during the relevant period or that she had submitted a false claim to OWCP.
Following a hearing at which both parties were given a full opportunity to present evidence, the Administrative Law Judge issued an Initial Decision in which he concluded that Respondent had been employed at the day care center, that she had failed to report her employment to OWCP, and that she had submitted a false claim to OWCP for workers’ compensation benefits on a Form EN-1032. As a result, the Administrative Law Judge concluded that Respondent was liable for a total assessment and civil penalty of $11,352 under the PFCRA. Respondent filed a timely appeal from the Administrative Law Judge’s Initial Decision.
DECISION
On appeal, Respondent takes issue with various findings and conclusions of the Initial Decision. Respondent first argues that the Postal Service did not prove that Respondent had completed the OWCP form incorrectly or that she had entered into an employment agreement with the owner of the day care center. Respondent also contends that she did not intentionally submit false information on the OWCP form, that Complainant failed to meet its burden to prove its case, and that the Administrative Law Judge's findings and conclusions are not supported by substantial and competent evidence.
None of Respondent's contentions have merit. Respondent's assertions that she did not incorrectly complete the form and that she should not be held responsible for any false statements on the Form EN-1032 because she did not personally fill out the form or read it prior to signing it are not well taken.4/ Her failure to personally complete the form or read it does not relieve her of liability for the statements made on the form. Respondent signed the form and by so doing certified that all of the answers were true and correct.5/ She, therefore, is responsible for the accuracy of the answers provided to OWCP on the Form EN-1032 whether or not she filled them in herself.
Respondent's next contention, that the evidence does not support the Administrative Law Judge's conclusion that she entered into an agreement to work at the day care center in exchange for tuition credit, is also not persuasive. While conflicting evidence was presented, the Administrative Law Judge heard the testimony and observed the demeanor of the witnesses6/ and arrived at the conclusion that Respondent's testimony7/ was neither believable nor credible. Conversely, the Administrative Law Judge found the testimony of the day care center owner that Respondent was working as a substitute employee in exchange
for tuition deductions both straightforward and credible.8/ Accordingly, since the Administrative Law Judge’s credibility findings are accorded great weight and there is no compelling contrary evidence, his findings regarding the testimony of the witnesses will not be disturbed on appeal.
Respondent's final contention that the Postal Service did not show that her falsification of the forms was intentional is also without merit. The evidence clearly establishes that Respondent knew9/ that she had agreed to work as a substitute day care center employee and that she would receive tuition credit, but that she knowingly failed to furnish this information on the Form EN-1032. Thus, the record supports a finding that Respondent’s failure to report her employment was intentional.
CONCLUSION
After consideration of the entire record and Respondent’s exceptions, it is concluded that the Initial Decision is correct as a matter of fact and law and that
Respondent is liable to the Postal Service under the PFCRA for an assessment of $6,352 plus a civil penalty in the amount of $5,000 for a total liability of $11,352.
James A. Cohen Judicial Officer
2. The Form EN-1032 is used by the Department of Labor to determine whether an employee is receiving the correct amount of benefits in connection with a disability claim or whether the benefits should be adjusted. 20 C.F.R. §§10.303 and 10.124; ID Finding of Fact (FOF) 6.
3. The Postal Service annually reimburses the Federal Employees' Compensation Fund for payments made to postal employees by OWCP. 5 U.S.C. §§8147 (b) & (c); ID FOF 8.
4. Respondent and her husband, Jeffrey Cain, both testified at the hearing that Mr. Cain completed the form except for Mrs. Cain's signature. Tr. 93-94, 157-58 & 194.
5. Respondent testified that she had previously read the form and was aware of its contents. Tr. 161, 165.
6. The Administrative Law Judge's determinations of credibility are accorded great weight. Rockwell International Corp. v. NLRB, 814 F.2d 1530, 1532, n. 2 (11th Cir. 1987); Hambsch v. Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986); Griessenauer v. Dep't of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985); James M. Cox, P.S. Docket No. PF-18 (P.S.D. Sept. 30, 1993), at 6; Willie J. Blocker, P.S. Docket No. PF-14 (P.S.D. July 19, 1993), at 13.
7. Respondent estimated in her testimony that she donated 25 boxes of toys, or an entire basement of toys, to the day care center. Tr. 154. Respondent's estimate differed significantly from the testimony of Mr. Cain and John Black, the Cains' nephew, that they only delivered approximately seven boxes of toys to the center between them. Tr. 204-5, 212.
8. ID Conclusion of Law (COL) 1. The Administrative Law Judge also did not find credible Respondent's testimony regarding why she may have used different pens for writing notes on her tuition payment checks. ID COL 1 & n. 5.
9. According to the Act's legislative history, the "knows or has reason to know" standard of liability in 39 U.S.C. §3802 (a)(1) "is intended to capture those persons who recklessly disregard facts which are known or readily discoverable upon reasonable inquiry..." 86 U.S. Code Congressional and Administrative News 3902, at 3903-04. The testimony of the day care owner that Respondent specifically requested tuition deductions rather than a paycheck because it "might interfere with her benefits" clearly shows that Respondent was aware that she should have reported her employment at the day care center on the Form EN-1032. FOF 20; Tr. 14.