November 14, 2000 In the Matter of the Petition by RICHARD A. LUTZ 3194 Savage Hill Road SE at Lancaster, OH 43130-9091 P.S. Docket No. DCA 00-255 APPEARANCE FOR PETITIONER: Paula Lutz 3194 Savage Hill Road SE Lancaster, OH 43130-9091 APPEARANCE FOR RESPONDENT: Marvin B. Coleman Labor Relations Specialist United States Postal Service 850 Twin Rivers Drive Columbus, OH 43216-9401
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Richard Lutz, filed a timely Petition after receiving an invoice from the Postal Service Accounting Service Center on June 24, 2000. This invoice advised Petitioner that he owed the Postal Service $2,037.02 for a salary overpayment between pay period 7 of 1993 and pay period 20 of 1995.
A hearing was held in Columbus, Ohio on October 5, 2000. The Postal Service presented testimony from Matt Dry, a personnel and finance specialist. Petitioner testified in his own behalf. The Postal Service also presented three additional documents, and both parties relied on these documents, as well as the documents filed with the Petition and the Answer. The following findings of fact are based on the entire record, including observation of the witnesses and their demeanor.
FINDINGS OF FACT
1. Petitioner began working for the Postal Service in March 1985. In early 1993, the Postal Service had a shortage of mail handlers and solicited volunteers to switch from other craft positions. Petitioner was one who switched, effective March 20, 1993. He was told at the time by his supervisors that he would not lose money by switching to the lower grade. (Tr. 62-63, 66).1
2. Petitioner's pay grade at the time of the switch was Level 6, Step H. It is not clear precisely what his salary was at that grade and step. At Step G, which he was in as of July 6, 1992, his salary was $31,645. Records show that he moved to Step H on November 28, 1992.2 Because mail handlers were grade 4, those who switched had to accept the lower grade. When Petitioner switched, on March 20, 1993, his pay grade and salary were changed to Level 4, Step O - $32,492. (Tr. 10, 70-71; PS Ex. 1; Answer, Tab 4, p. 22; PS Form 50s (3/20/93 and 7/06/92), attached to Petitioner's July 25, 2000 supplement to Petition).
3. The section of the Employee and Labor Relations Manual (ELM) dealing with reductions in grade, effective June 11, 1992, states as follows:
422.251 General. Reductions in grade include
voluntary changes to lower level, management
initiated changes to lower level, and demotions.
422.252 Step and Step Date Assignment.
b. [To] New Lower Grade. The employee is
assigned (1) to the step in the lower grade as if all
postal service had been in the lower grade, or (2) to
any higher step in the lower grade which is less than
one full step above the basic salary the employee
held in the higher grade, provided compensation does
not exceed the maximum for the grade.3
4. When the terms of the union/management contract were settled in 1990, some pay "anomalies" were discovered. Because of the salaries that were established for certain steps (usually Steps A, B, and C), it was possible, for example, for an employee who was promoted to a higher grade to reach a point where he/she would be making less money than if the employee had remained at the lower grade. Because of this, and also because employees were sometimes placed at the incorrect pay step when a grade change occurred, the Postal Service created what was called the ABC Anomaly Task Group. This group of personnel and finance specialists examined the pay records of employees who had moved back and forth between pay grades and steps, in an effort to find and correct pay errors, both overpayments and underpayments. (Tr. 8, 15-16, 53).
5. The Task Group examined Petitioner's record in 1997 and concluded that when Petitioner moved to the lower grade, Level 4, in March 1993, he should have been placed at Step J, not Step O. This was because, under the provision of §422.252(b)(1), he would have been at Level 4, Step J on that date if all his service had been at Level 4. Had Petitioner always been a Level 4, he would not have reached Step O until September 30, 1995. He would have reached Step J, and the intervening steps on the following dates:
Therefore, the Task Group concluded that he had been overpaid from March 20, 1993, to September 30, 1995. (Tr. 10-14; PS Exs. 1 and 2).
6. The pay chart generated by the Task Group (PS Ex. 2) purports to show the salaries at each step of Levels 4, 5 and 6, for all relevant pay periods in Petitioner's Postal Service career. The record also contains "pay journals" for all the pay periods in which Petitioner is alleged to have been overpaid, i.e., pay period 7 of 1993 through pay period 20 of 1995 (Answer, Tab 4). These pay journals purport to show the annual salary at which Petitioner was actually paid for each of those pay periods (at Level 4, Step O), as well as the grade level, step and annual salary at which Respondent contends Petitioner should have been paid. The annual "should have been paid" salary figures on these two documents do not match. For example:
Grade Pay Period PS Ex. 2 Tab 4 4-J 7/93 $32,106 $31,253 4-K 20/93 $32,636 $31,772 4-L 9/94 $33,628 $32,760 4-M 22/94 $34,223 $33,365 4-N 9/95 $34,485 $33,617
DECISION
Respondent's position is that the Anomaly Task Group performed its function in accordance with the rules contained in the ELM (Finding of Fact #3) in reviewing hundreds of employee pay records, including Petitioner's. Respondent argues that it was clearly an error to have placed Petitioner at Level 4, Step O in March 1993, and that he was improperly paid at Step O until September 1995. Respondent argues that it is a purely mechanical application of the rules that his pay record be corrected by calculating what he should have been paid, beginning at Level 4, Step J and continuing through Steps K-N until he would have properly reached Step O in September 1995.
Petitioner argues that, because of the disparity in the salary figures on Respondent's two pieces of evidence, it is impossible to determine what Petitioner's salary should have been at any particular time. Therefore, Petitioner contends that Respondent has failed to prove that he was overpaid in any particular amount. Petitioner also argues that the long delays in discovering the alleged error, and in notifying him of it, should preclude Respondent from collecting. This latter argument might be given consideration by those acting on a request for waiver, but a Debt Collection Act Hearing Official has no authority to grant a waiver or to review Postal Service waiver decisions. Raymond J. Voisine, P.S. Docket No. DCA 95-22 (March 1, 1995); Karen Ennis, P.S. Docket No. DCA-33 (August 29, 1989). The length of the delay had no effect on the amount of the alleged debt, and Petitioner has made no showing that he has been harmed in any way by the delay.
Some aspects of Respondent's proof are troubling, however. First, the unexplained disparity between the salary figures on two primary pieces of Respondent's evidence casts doubt on the accuracy of the total alleged debt. Second, Respondent has not shown how the figure $2,037.02 was arrived at. It appears that this figure might be arrived at by using the comparative numbers on the pay journals (Answer, Tab 4), but this requires some assumptions not based on evidence in the record. Finally, although Mr. Dry appeared to be a knowledgeable witness, and his testimony as to how grade changes were implemented was uncontradicted, Respondent's evidence as a whole does not satisfactorily explain why subparagraph (2) of §422.252(b) should not have been applied to Petitioner's situation.
Because of these uncertainties, primarily the unexplained disparity between the "should have been paid" figures on PS Ex. 2 and Answer, Tab 4, it is not possible to conclude, with any confidence, what Petitioner's correct pay was during the disputed period. Respondent has not carried its burden of proof of showing that Petitioner was overpaid by $2,037.02, or any specific amount. The Petition is granted. Respondent may not collect money from Petitioner's salary on account of this alleged debt.
Bruce R. Houston Chief Administrative Law Judge
2 The pay chart submitted by Respondent, PS Ex. 2, shows that the salary for Level 6, Step H on March 20, 1993 was $33,070. That is probably correct, but the accuracy of all the salary numbers on that chart is uncertain (see Finding of Fact #6).
3 PS Ex. 3. Mr. Dry testified that when these rules were implemented, personnel offices were directed to use option (1), under §422.252(b). (Tr. 12-13, 60). The personnel official who placed Petitioner at Level 4, Step O on March 20, 1993 did not testify. Step O, the highest step, would have been consistent with §422.252(b)(2). (Tr. 10).