July 26, 2005
In the Matter of the Petition by
GLEN A. PATTERSON
600 NW 190th Street
at
Miami Gardens, FL 33169-3909
P.S. Docket No. AO 05-62
APPEARANCE FOR PETITIONER:
Glen A. Patterson
600 NW 190th Street
Miami Gardens, FL 33169-3909
APPEARANCE FOR RESPONDENT:
Rick H. Avery
Labor Relations Specialist
United States Postal Service
2200 NW 72nd Avenue
Miami, FL 33152-9401
INITIAL DECISION
Petitioner, Glen Patterson, filed a Petition for Hearing after receiving an invoice from the Postal Service Accounting Service Center, and after becoming aware that the Office of Personnel Management (OPM) had begun making deductions from his retirement annuity. The invoice alleged an indebtedness of $9,270.77.[1]
A hearing was held in Miami, Florida on June 21, 2005. The Postal Service presented testimony from an accounting manager, a human resources specialist, and a manager of injury compensation. Petitioner testified on his own behalf and also called a former supervisor as a witness. The following findings of fact are based on the entire record.
FINDINGS OF FACT
The $7,054.17 Debt
1. Petitioner, Glen Patterson, last performed work for the Postal Service on May 8, 2000. On that date, due to a medical condition, Petitioner’s management determined that he was no longer able to perform his job and issued him a letter placing him on “enforced leave,” until his condition changed or until his employment status was resolved. The letter informed Petitioner of his right to submit medical evidence and/or other material and stated that the enforced leave would begin no sooner than 30 days from his receipt of the letter. Petitioner received the letter on May 10, 2000. (Tr. 18-19, 36-37, 46, 59, 63, 117, 124-25; PS Supp. Exs. 11).[2]
2. On June 27, 2000, Petitioner was issued a Letter of Decision, noting that Petitioner had not replied to the May 8 letter, and stating that the enforced leave would be effective June 30, 2000. The letter also informed Petitioner that he would be in a leave without pay (LWOP) status, but that he could use any available annual leave or sick leave in lieu of LWOP. (PS Supp. Ex. 12).
3. On April 2, 2002, the United States Office of Personnel Management (OPM) notified Petitioner’s personnel office that OPM had approved Petitioner’s application for disability retirement. The personnel office was then required to report to OPM the date of Petitioner’s last day in pay status, so that OPM could determine the starting date of Petitioner’s retirement pay. (Tr. 45-46, 50-51; PS Supp. Ex. 2).
4. An employee in this situation may choose his last day in pay status to be either the last day of work or the last day he received pay. If the employee chooses the last day of work, he must agree to repay any pay he received for days after the last day of work. In a letter to the personnel office dated April 11, 2002, Petitioner stated:
I, Glen Patterson, am officially requesting that my last day in pay status be May 8, 2000. I will pay back any Monies or paid leave, which I may have received from May 8, 2000 to the present, and any other funds due to my employer, as to my disability retirement.
The personnel office then reported the May 8, 2000 date to OPM. (Tr. 46-47, 58, 65-68, 74; (PS Supp. Exs. 3-6).
5. OPM then paid Petitioner his retirement annuity retroactive to May 9, 2000, and has continued to pay since that time. (Tr. 21-22; PS Ex. 1; PS Supp. Ex. 7).
6. Petitioner was carried in “administrative leave” status immediately after May 8, 2000, and continued to receive his regular pay for some period of time. (Tr. 18, 59, 127-28).
7. An invoice issued by the Postal Service Accounting Service Center, based on information provided by the Miami, Florida Finance Office notes that Petitioner was paid for 280.47 hours of administrative leave, 24 hours of holiday leave, 132.22 hours of annual leave, and 31.09 hours of sick leave after May 8, 2000. The invoice notes that these payments were made in pay periods 11 through 15 of 2000, pay periods 4 and 7 of 2001, and pay period 5 of 2002. No record or testimony was presented to show why these pay periods are not consecutive, what specific amounts were paid in any particular pay period, or for what specific periods of time Petitioner had been paid. (Tr. 18-19, 40; PS Supp. Ex. 9).
8. Petitioner’s final PS Form 50, effective April 2, 2002, the date his retirement was approved by OPM, states “Employee is to be paid for all accumulated leave to which entitled.” No record or testimony was presented to show what leave Petitioner may have accumulated before May 8, 2000, or whether all the leave for which he was allegedly paid was accumulated after May 8, 2000. (PS Supp. Ex. 10).
The $1,817.24 Debt
9. From November 4, 1999 through December 17, 1999, Petitioner was absent from work due to an injury, but was paid continuation of pay (COP) for 135.09 hours, after filing a claim for workers compensation with the Department of Labor. The choice of collecting COP or using sick leave in such a situation is up to the employee. (Tr. 89, 100; PS Second Supp. Ex. 1).
10. When an employee files an injury compensation claim, the Office of Workers Compensation Programs (OWCP), U.S. Department of Labor, adjudicates the claim. The OWCP denied Petitioner’s claim for the above injury on January 10, 2000. On January 12, 2000, the Postal Service Injury Compensation Office at the South Florida District gave Petitioner a letter informing him that his claim had been denied and stating that he was not eligible for the 135.09 hours of COP that he had received. He was advised that he could charge the absence to annual leave or sick leave, or he could be charged leave without pay. On January 20, 2000, Petitioner elected to be charged leave without pay. The option that he checked on the form provided to him stated that he understood the amount paid to him during this period would be declared an overpayment and would be recovered. (Tr. 87-88, 91, 93-94; PS Second Supp. Exs. 1 and 2).
11. The invoice issued to Petitioner to collect back the 135.09 hours of COP indicates that Petitioner was paid $1,817.24 for those hours. (Tr. 19, 89-90; PS Supp. Exs. 8 and 9).
The $357.05 Debt
12. In pay period 6 of 2002, Petitioner received a net payment of $357.05. One document includes a handwritten note that refers to this as an “APWU lump sum,” and another refers to an “NALC Lump Sum.”[3] There is nothing in the record to show what the payment was for. (Tr. 19, 22-24; PS Exs. 2 and 3).
DECISION
The $7,054.17 Debt
Respondent’s evidence is sufficient to establish that Petitioner‘s retirement annuity was paid retroactive to May 9, 2000. There is no doubt that he also received some Postal Service pay after that date and, clearly, any double payments may be collected back. The issue here is over the sufficiency of Respondent’s evidence in establishing what Petitioner was actually paid after May 8, 2000, and exactly how much of that pay constitutes double pay.
In the absence of actual pay records, or testimony from anyone who had examined Petitioner’s pay records, Respondent relied on the invoice to prove that Petitioner was paid $7,054.17, arguing that this is reliable because no one would just make up numbers showing specific hours of various types of leave. Petitioner claims, however, that he does not know how much pay he actually received, that he did not receive as much as Respondent claims (Tr. 37-39, 61, 144-45), and that he has been asking for more than a year to be provided with documentation to show what he was paid.[4] The burden is on Respondent to prove what Petitioner was paid. It is not on Petitioner to prove that he was not paid what is alleged. Because Petitioner is disputing the amount he is alleged to have been paid, the mere invoices are not sufficient to prove the amount alleged.
We know that Petitioner received some pay after May 8, 2000, however, because he testified that he did (Tr. 37-38, 61, 144-45). If we take the total number of hours that Respondent alleges, 467 (rounded off)(see Finding #7), and divide that into the total pay alleged, $7,054.17, this equates to $15.10 per hour. Petitioner acknowledged that he was paid for some of the time he was on administrative leave after May 8, 2000, so I shall assume that he was paid for one-half of that time. At $15.10 per hour for 140 hours, this amounts to $2,114 that can be collected back.
Part of what Petitioner is being charged for in this segment was pay for annual leave and sick leave, a total of about twenty days. What is missing is any evidence to show that all of this is for leave that he accrued after May 8, 2000. He is entitled to pay for leave accrued before May 8, 2000. The numbers on the invoice, unsupported by any other documentation or testimony, are insufficient to prove that that this part of the alleged debt constitutes double payment.
The remaining part of this segment is the 24 hours of holiday leave. As with the administrative leave, I shall assume that Petitioner received one-half of the amount alleged. Therefore, 12 hours at $15.10 per hour equals $181.20 that can be collected back.
Petitioner makes an additional argument about the administrative leave and other leave that Respondent is attempting to collect back. He contends that the retired pay he received from OPM, retroactive to May 8, 2000, only equaled about 40% of what his regular Postal Service pay would have been. Therefore, if the Postal Service is allowed to collect back his full pay for the approximately two-month period, this amounts to a 60% loss to him. If Petitioner was misadvised about the effect of his election to have May 8, 2000 be his last day in pay status, or even if he just misunderstood, one may have some sympathy for this argument. There is no evidence that he was misadvised, however, and he clearly made the choice of that date (see Finding #4). Whether he might better have chosen a later date is only speculation at this point and does not provide a basis for relief.
The $1,817.24 Debt
Petitioner has not contested the fact that he received continuation of pay during pay periods 23-26 of 1999, and Respondent’s evidence establishes that the OWCP later denied his injury compensation claim for that period of time. Petitioner elected to be charged LWOP for this period (see Finding #10), and there is no basis for relieving him of the obligation to repay the COP.
The $357.05 Debt
As there is no evidence to show what this payment was for, Respondent has not proved that it is money that Petitioner is required to pay back. The mere fact that he received it after May 8, 2000 does not prove that it was pay for some period of employment after May 8, 2000.
CONCLUSION
The Petition is granted in part and denied in part. Respondent may collect a total of $4,112.44 ($2,114 + $181.20 + $1,817.24). Petitioner must be credited, however, for amounts that have already been withheld from his retirement annuity on account of this alleged debt.
Bruce R. Houston
Chief Administrative Law Judge
[1] The invoice alleged four separate debts. One small amount was later dropped. The amounts remaining in dispute are $7,054.17; $1,817.24; and $357.05.
[2] References to the hearing transcript are “Tr._.” Documents filed by Respondent with the Answer, and in a supplement to the Answer, are identified as “PS Ex._,” and “PS Supp. Ex._.”
[3] APWU is American Postal Workers Union, NALC is National Association of Letter Carriers.
[4] In a letter dated April 5, 2005, attached to Respondent’s Answer as Ex. 4, Petitioner asked for pay records so that he could “challenge this erroneous sum of money.”