October 24, 2003
In the Matter of the Petition by
ERNESTO J. TIJERINA
1409 South 14th Avenue
at
Edinburg, TX 78539-5637
P.S. Docket No. DCA 03-242
APPEARANCE FOR PETITIONER:
William Brown
12 Mount Run
Tinton Falls, NJ 07753-7674
APPEARANCE FOR RESPONDENT:
Louis R. Bazaldua
Labor Relations Specialist
United States Postal Service
809 Nueces Bay Boulevard
Corpus Christi,
TX 78469-0404
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Ernesto Tijerina, filed a timely Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets from his supervisor, dated May 28, 2003. This Notice stated the Postal Service's intention to withhold $4,588.70 from Petitioner's salary to recover a shortage in an account for which Petitioner was responsible.
A hearing was held in McAllen, Texas on September 11, 2003.[1] The Postal Service presented testimony from Miguel De La Rosa and Rudy Ruiz, two employees under Petitioner’s supervision, Emilio Torres, officer-in-charge of the Edinburg Post Office at the time of the shortage in issue, and Robert Weigold, a financial specialist who performed an audit at Edinburg. Petitioner testified in his own behalf and also presented testimony from Daniel Garcia, a fellow supervisor. Both parties also relied on documents that had previously been filed. The following findings of fact are based on the entire record.
FINDINGS OF FACT
1. At the time pertinent to this case, Petitioner was a Customer Services Supervisor at the Edinburg, Texas Post Office. He had also been the custodian of the unit reserve stock at Edinburg for approximately six years. (Tr. 24, 26, 83).[2]
2. For a period of about eight to ten weeks in June through August of 2002, Petitioner was on a detail away from the Edinburg Post Office. The unit reserve stock was not transferred to another supervisor, and Petitioner would come in on Saturdays to issue stock from the unit reserve to the retail floor stock. (Tr. 27-28, 36, 73-77).
3. In November 2002, Petitioner went on sick leave that turned into an extended absence lasting nearly five months. On some occasions after November 2002, the Edinburg office borrowed stock from other post offices to replenish supplies in the retail floor stock, and some stock was also shipped directly into the retail floor stock from the stamp distribution office, rather than having the stock shipped into the unit reserve and then issued to the floor stock, as is the normal practice. (Tr. 44, 66, 69-70, 77; PS Exs. 2 and 3).
4. The actions noted in Finding #3 did not affect the unit reserve stock, because no one other than Petitioner had access to the unit reserve. (Tr. 15, 21, 55-56, 69-70).
5. In January 2003, Mr. Weigold visited the Edinburg office to look into some discrepancies in receipt of stamp stock shipments to Edinburg that had been noted in the District Accounting Office in San Antonio, Texas. At some point Mr. Weigold and Postmaster Torres determined that, because of Petitioner’s extended absence and his return date being unknown, the unit reserve should be transferred to another supervisor. They went to Petitioner’s home to pick up the key to the vault where the unit reserve was stored. Petitioner was aware that an audit was going to be conducted. He did not ask that the audit be delayed until he could be present, or that some other person be present as his representative. (Tr. 55-56, 70-71, 83; PS Ex. 2).
6. On January 10, 2003, Mr. Weigold and Anita Chapa audited the unit reserve for the purpose of turning the unit reserve over to Ms. Chapa. Their count revealed an apparent shortage of $56,997.99. (Tr. 49, 53, 64; PS Ex. 3).
7. Further review by Mr. Weigold and Mr. Torres revealed a counting error on one specific stamp stock item, amounting to $12,016.25, and Mr. Weigold also discovered a $20,520 error resulting from a “miscommunication” between him and the accounting office regarding a shipment from the stamp distribution office. A count of the retail floor stock at Edinburg on January 9, 2003 showed an overage of $1,603.43, and an audit of a vending account on January 16, 2003 showed an overage of $18,269.61. (Tr. 50-55; PS Exs. 2, 4, and 7).
8. The four items listed in Finding #7 were deducted from the initial unit reserve shortage ($56,997.99) and Petitioner was issued a Letter of Debt Determination on April 3, 2003, for the remainder - $4,588.70. (Tr. 50, 55; PS Ex. 1).
9. In issuing stamp stock from a unit reserve account to retail floor stock or to a vending machine account, proper procedure calls for the unit reserve custodian and a designated retail clerk to count and verify the amount being issued, or “shipped,” in the presence of a third witness, and for the amount to be immediately entered into the computerized stock management system, POS-ONE, to reduce the accountability of the unit reserve and increase the accountability of the retail floor stock or the vending account. In actual practice at Edinburg, Petitioner did not always use a witness and did not always make the system entries contemporaneously with issuing the stock, but would sometimes do this later when he had more time. (Tr. 8-9, 17-19, 34-35, 57, 79).
DECISION
The standard for determining an employee’s liability in a case such as this provides that employees to whom postal funds and accountable paper are consigned “are held strictly accountable for any loss unless evidence establishes that they followed the postal procedures established when performing their duties.” Handbook F‑1, Post Office Accounting Procedures (November 1996), §141.
Respondent’s burden of proof in a case of unexplained shortage is to show that a loss occurred from an account for which the employee is accountable. Respondent is not required to prove any specific dereliction, or act of negligence, by Petitioner. When a properly conducted inventory, or audit, shows a stock shortage relative to a previously established balance, this constitutes proof of loss unless other evidence raises sufficient doubt about the accuracy of the inventory or the previously established balance, or otherwise suggests that there may have been no actual loss. If Respondent proves a loss, the burden then shifts to the employee to show that he or she followed established procedures, or to present other evidence that would warrant relieving the employee of liability.
Petitioner raises several issues. First, he argues that Mr. Torres acted contrary to postal regulations when he did not transfer the unit reserve accountability from Petitioner to another supervisor in June 2002, knowing that Petitioner was going on a detail away from the office for several weeks. Mr. Torres testified that he and Petitioner “agreed” that Petitioner would be able to handle both jobs by coming to Edinburg on Saturdays to issue stock. Petitioner testified that he would have preferred the unit reserve be transferred, but believed he had no choice in the matter. It is not necessary to resolve these differing versions of events. The fact is that the account was not transferred, and Petitioner knew he was still accountable. I also find no absolute requirement that a postmaster transfer accountability under the circumstances presented here, and the failure to do so is not a basis for relieving Petitioner of liability for a loss.
Next, Petitioner contends that the audit was not proper because he was not present, and that the audit is unreliable because of mistakes that Mr. Weigold admitted were made. As to the latter point, it is true that Mr. Weigold acknowledged that two significant errors were made during the initial count (see finding #7). It is also true, however, that the audit was reviewed and that these errors were found and corrected. To assume that other errors may have been made is speculation not supported by any evidence.
As to the matter of Petitioner not being present, Mr. Torres and Mr. Weigold acted reasonably under the circumstances. In Petitioner’s absence, there had been no access to the unit reserve for several weeks, there were some accounting issues regarding receipt of stamp stock into the Edinburg office that needed to be resolved (see Findings #3 and #5), and it was not known when Petitioner would be able to return. The evidence showed that it was important that the audit be conducted expeditiously so that another supervisor could take control of the unit reserve. In the absence of any objection from Petitioner at the time, and in the absence of any evidence that Mr. Weigold and Ms. Chapa did not conduct the audit properly, I find that the Postal Service did not breach any duty owed to Petitioner by conducting the audit without his being present.
Next, Petitioner argues that it is likely there is no real loss because a PS Form 17 (Pet. Ex. 1) shows some $20,000 in stamp stock issued from the unit reserve to the retail floor stock in November 2002, which neither Petitioner nor his retail clerk, Mr. De La Rosa, can recall ever entering into the POS system (Tr. 11, 79-80). The flaw in this argument is that it is by no means certain that the POS entry was not made. An accountable employee cannot prevail in a case such as this by claiming that he may not have followed proper procedure and then speculating that his failure to do so explains away an apparent shortage. Further doubt on Petitioner’s theory is cast by the fact that the audit of the retail floor stock on January 9, 2003 showed an overage of only $1,603.43, not an overage of more than $20,000 (see Finding #7).
Finally, Petitioner argues that security was lax in the Edinburg office. Even if this were true of the retail floor stock, as some witnesses testified, there is no evidence that any unauthorized person ever had access to Petitioner’s unit reserve.
Respondent’s evidence is sufficient to prove a loss of $4,588.70, and Petitioner has not shown a basis for relief from liability. The Petition is denied. Respondent may collect $4,588.70 from Petitioner’s salary.
Bruce R. Houston
Chief Administrative Law Judge