June 5, 2003
In the Matter of the Petition by
JAMES PALAGANO
815 Sycamore Court
at
Toms River, NJ 08753-3731
P.S. Docket No. DCA 03-82
APPEARANCE FOR PETITIONER:
Sheila Hunter
NAPUS Representative
Postmaster
PO Box 232
Everette, PA 15537-0232
APPEARANCE FOR RESPONDENT:
Jim Davidson
Labor Relations Specialist
United States Postal Service
21 Kilmer Road
Edison, NJ 06899-9401
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, James Palagano, filed a Petition for Hearing after his request for reconsideration of a Letter of Demand dated January 30, 2003, was denied by his supervisor on February 10, 2003. The Letter of Demand stated the Postal Service’s intention to withhold $6,000 from Petitioner’s salary to recover the amount of an award the Postal Service was required to pay under a settlement agreement to resolve an EEO complaint filed by an employee under Petitioner’s supervision.
Petitioner requested a hearing on written submissions. The parties were given time to submit additional evidence and argument, beyond that filed with the Petition and the Answer. Both parties filed additional material. The following findings of fact are based on all the material submitted by the parties.
FINDINGS OF FACT
1. During the time pertinent to this case Petitioner was the postmaster at Point Pleasant, New Jersey (Palagano, April 25, 2003 statement).
2. Frank Lopano is a handicapped person who is employed as a clerk in Petitioner’s post office. In May 2001, Petitioner converted two other part-time clerks to full-time regular status even though Mr. Lopano had greater seniority as a part-time clerk. Mr. Lopano’s union filed a grievance on his behalf. (Answer, Ex. 1).
3. The grievance apparently proceeded through the required steps and, on August 3, 2001, Mr. Keenan, a Labor Relations Specialist, denied the grievance at Step 3 (Petitioner’s April 11, 2003 submission, Exs. F-1 and F-2; Petitioner’s April 25, 2003 submission, Ex. 2).
4. An arbitration hearing was held on June 18, 2002. On August 14, 2002, the arbitrator ruled in favor of Mr. Lopano. The arbitrator found that the Postal Service had not demonstrated that Mr. Lopano was unqualified for the job he sought, and that the Postal Service had not demonstrated that it had made an effort to accommodate Mr. Lopano’s disability as required by law and the collective bargaining agreement. The arbitrator directed the Postal Service to “upgrade Frank Lopano to a full-time regular clerk position with reasonable accommodations for his disabilities.” He also stated that he would retain jurisdiction for sixty days “in order to resolve any problems resulting from the remedy in the award.” (Answer, Ex. 1).
5. After receiving the arbitrator’s decision Petitioner sent Mr. Lopano a letter on September 25, 2002, informing him that he would be converted to full-time regular status, effective October 5, 2002 (Petitioner’s April 11, 2003 submission, Ex. G-2).
6. Soon after October 5, 2002, Mr. Lopano filed another grievance, complaining about his work schedule and that other employees with less seniority were converted to full-time before he was. On October 25, 2002, at Step 2 of the grievance process, Petitioner wrote to Mr. Lopano’s union representative, stating that management would make certain changes in Mr. Lopano’s work schedule. On January 15, 2003, a Labor Relations representative and a union representative signed a Pre-Arbitration Settlement of this grievance, agreeing to changes in Mr. Lopano’s work schedule. (Answer, Ex. 2; Petitioner’s April 25, 2003 submission, Exs. 6 and 7).
7. Apparently while the first grievance was in progress, on February 11, 2002, Mr. Lopano also filed an EEO (Equal Employment Opportunity) complaint over the same matter that was the subject of the grievance. He asked that he be given a full-time position and “appropriate monetary recompense.” (Answer, Ex. 3).
8. On January 23, 2003, Mr. Lopano and the Postal Service entered into a Settlement Agreement to resolve Mr. Lopano’s EEO complaint. The Postal Service agreed to pay Mr. Lopano $6,000, and Mr. Lopano agreed to waive and withdraw any other claims related to the subject matter of his EEO complaint. (Petitioner’s April 11, 2003 submission, Ex. L; also attached to Petition as Attachment E).
9. On January 30, 2003, Petitioner’s supervisor issued him a letter stating that Petitioner owed the Postal Service $6,000, resulting from the EEO settlement. The letter stated that “the United States Postal Service incurred this liability as a result of your failure to abide by the ADA [Americans with Disabilities Act] when making decisions regarding Mr. Lopano’s request for reasonable accommodations.” (Petition, Attachment C).
10. On February 7, 2003, Petitioner’s representative submitted a written request for reconsideration, arguing in general terms that Petitioner followed the advice of the Labor Relations Office in handling this matter. Petitioner’s supervisor denied this request on February 10, 2003. The supervisor responded to Petitioner’s argument by stating that Petitioner was advised to settle the grievance but refused, and that Petitioner, not Labor Relations personnel, was responsible for the actions taken. The supervisor then stated, however, that “the crux of the matter is his [Petitioner’s] failure to implement the arbitration award in a timely manner,” and that had he done so, “the agency would not have been liable for the $6,000 paid to the grievant.” (Answer, Attachments A and B).
DECISION
It is not altogether clear exactly what Respondent is basing the alleged liability on. In the supervisor’s letter denying reconsideration, and in part of the argument presented by Respondent’s representative, it appears that Respondent is asserting that delay by Petitioner in implementing the arbitrator’s decision caused a loss of $6,000, in the form of the settlement payment. In the original January 30, 2003 Letter of Demand, however, and in much of the material presented by Respondent, the argument seems to be that the $6,000 payment was based on Petitioner’s general mishandling of Mr. Lopano’s employment status back to 2001.
In either alternative, Respondent has failed to present sufficient evidence to demonstrate that Petitioner should be held liable for the $6,000 payment. If based on post-arbitration delay, Respondent has not shown that Petitioner unduly delayed implementation of the arbitrator’s decision, or even if he did, how this equates to a loss to the Postal Service of $6,000, or any other amount. The arbitrator’s decision was issued on August 14, 2002. Petitioner’s representative argues that Petitioner received the decision on August 21 and then sought advice from Labor Relations officials over some issues in implementing the decision. Petitioner’s representative asserts that Petitioner issued his September 25, 2002 letter to Mr. Lopano immediately upon receipt of direction from a Labor Relations official. In his sworn statement, Petitioner simply says that he did not delay implementing the arbitrator’s decision.
Respondent presented no evidence to contradict Petitioner’s assertions, or to demonstrate that the delay from August 14 to September 25, 2002 was due to some malfeasance by Petitioner, or to demonstrate how the figure $6,000 is related to the delay. Part of the difficulty in relating the $6,000 to the post-arbitration delay is that this money was paid to settle Mr. Lopano’s EEO complaint in which he asked for “appropriate monetary recompense.” This EEO complaint was filed long before the arbitration hearing and is obviously not based on any post-arbitration delay. The Settlement Agreement itself does not state what the $6,000 is for.
If the alleged debt is based on Petitioner’s overall handling of Mr. Lopano’s employment, there is still no evidence as to how anything Petitioner did equates to a $6000 loss to the Postal Service. Much of this case file is devoted to disagreements between Petitioner and Labor Relations personnel over how this entire matter was handled, who was calling the shots, and how the evidence was presented at the arbitration hearing. It is not necessary here to resolve the arguments over who could, or should, have settled the case earlier. Even if we were to assume that there might be circumstances in which a postmaster could be held personally, financially liable if an arbitration case is lost, the evidence presented here does not establish that this is such a case.
For the reasons stated above Respondent has not demonstrated that Petitioner is personally liable for the cost of settling the EEO complaint. The Petition is granted. Respondent may not collect $6,000 from Petitioner’s salary.
Bruce R. Houston
Chief Administrative Law Judge