July 12, 2005

In the Matter of the Petition by

 

FRANCES ROBINSON

P.O. Box 504

at

Pleasant Garden, NC 27313-0504

P.S. Docket No. DCA 05-79

 

APPEARANCE FOR PETITIONER:

Brenda L. Haney

P.O. Box 1236

Salisbury, NC  28145-1236

 

APPEARANCE FOR RESPONDENT:

Jeanette O. Runyan

Labor Relations Specialist

United States Postal Service

2901 Scott Futrell Drive

Charlotte, NC  28228-9961

 

DECISION ON MOTION TO DISMISS

 

            Along with the Answer to the Petition, Respondent, the United States Postal Service, filed a motion to dismiss this Petition because it was not timely filed, i.e., that it was not filed within fifteen (15) days of Petitioner's receipt of a Notice of Involuntary Administrative Salary Offsets.

            Petitioner did not reply to the motion, but addressed the timeliness issue in an earlier reply to documents filed by Petitioner’s supervisor.  The following findings of fact are based on all the material filed by the parties.

FINDINGS OF FACT

            1.  On November 8, 1996, Petitioner, a window clerk in the Salisbury, North Carolina Post Office, was issued a Letter of Demand for $3,330.03, based on a shortage in her flexible credit account found in an audit conducted on November 8, 1996.  (Answer, Exs. 4 and 5).

            2.  A grievance under the union/management labor agreement was filed but never resolved, and the matter apparently lay dormant for many years.  (Answer, Exs. 8 and 14-16).

            3.  When Ms. Funderburk became the Officer-in-Charge of the Salisbury office in July 2004, she researched the status of this case and was instructed by her finance office to initiate debt collection procedures.  (Funderburk May 24, 2005 letter, filed separately from Answer).

            4.  On September 20, 2004, Ms. Funderburk issued Petitioner a new Letter of Demand for $3,330.03.  (Answer, Ex. 17).

            5.  Petitioner took no action in response to the Letter of Demand and, on October 28, 2004, Ms. Funderburk issued a Notice of Involuntary Administrative Salary Offsets.  Petitioner received a copy of this Notice by certified mail on November 10, 2004.  (Answer, Ex. 18).

            6.  Enclosed with the Notice was a Statement of Debtor’s Rights and Responsibilities, consisting of two pages.  Paragraph 1 of the Statement listed five options available to the employee: a. Request postal records pertaining to the alleged debt; b. Pay the debt in full; c. Agree to voluntary salary offsets each pay period; d. Propose an alternative payment schedule; and e. Request that the Postal Service reconsider its determination of the existence or the amount of the debt.  In Paragraphs 2 through 6, each of these options was discussed in more detail.  Under Paragraph 5, Alternative Offset Schedule, subparagraph “d” states: “If it becomes necessary to submit your case to the involuntary salary offset process, you may be entitled to a hearing before an impartial hearing official.”  Later in this subparagraph, the employee is told, “Your hearing petition must be filed, . . . on or before the fifteenth calendar day following your receipt of this notice.”  (Answer, Ex. 19).

            7.  Petitioner requested reconsideration of the alleged debt, but did not file her Petition for Hearing until May 4, 2005.[1]  (Brenda Haney memorandum, June 2, 2005).

DECISION

            The Debt Collection Act and Respondent’s implementing regulations require that a petition for a hearing be filed within 15 days after receipt of a Notice of Involuntary Administrative Salary Offsets.  5 U.S.C. §5514(a)(2); Employee and Labor Relations Manual §452.331; 39 C.F.R. §961.4.  An employee may be deemed to have waived the right to a hearing, and Respondent authorized to implement the proposed offset from the employee’s pay, if the petition is filed after the 15-day period and the employee “fails to demonstrate to the satisfaction of the Hearing Official good cause for the delay.”  39 C.F.R. §961.10(a).

            There is no dispute that Petitioner received the Notice of Involuntary Administrative Salary Offsets on November 10, 2004, and did not file her Petition until May 4, 2005.  Respondent argues simply that this Petition is six months late and, therefore, should be dismissed.  Petitioner, through her representative, claims that she requested reconsideration, in accordance with the statement of rights she received in November 2004 and eventually filed the Petition when she became aware of her right to do so.

            The issue here is whether Petitioner was given adequate information about the requirement to file a Petition within fifteen days of receipt of the Notice of Involuntary Administrative Salary Offsets.  The sample Notice contained in the Employee and Labor Relations Manual (ELM)(Exhibit 452.332) lists the right to file a Petition for Hearing as one of the options available to employees and highlights each of those options as a separate paragraph headed in italics.  It also highlights the requirement to file the Petition within fifteen days even if the employee also pursues one of the other options.  The Statement of Rights included in this case file does not list filing a petition as one of the options, and buries the only reference to it in a paragraph dealing with the right to propose an alternate offset schedule.[2]  Also, it does not appear that Petitioner was given a copy of the Rules of Procedures pertaining to Debt Collection Act hearings as is required by the ELM, §462.32.  Those Rules also make clear the requirement to file within fifteen days.

            Because Petitioner was not given adequate notice of the requirement to file a petition within fifteen days, the motion to dismiss is denied.

            We will hold a telephone conference at 10:00 a.m. on July 22, 2005 to discuss further proceedings in this case.  In the meantime, the parties are encouraged to discuss settlement.  It is noted that Respondent has determined that the alleged debt is reduced to $1,717.29, from the $3,330.03 alleged in the Notice of Involuntary Administrative Salary Offsets.

                                                                                    Bruce R. Houston

                                                                                    Chief Administrative Law Judge


[1] A Petition is deemed to be “filed” when it is placed in the mail.

[2] The Statement of Rights used in this case appears to be taken from the sample Letter of Debt Determination in the ELM, with the one added sentence making reference to a Petition for Hearing.  The Letter of Debt Determination is the initial step in asserting a debt against a non-bargaining unit employee.  It is not the same as a Notice of Involuntary Administrative Salary Offsets.  Using these two documents in combination is confusing at best.