September 28, 2006
In the Matter of the Petition
by
MICHAEL MAGLIANO
P.S. Docket No. DCA 06-53
APPEARANCE FOR PETITIONER:
Sheila Hunter
APPEARANCE FOR RESPONDENT:
Michael Fuechtmann
Labor Relations Specialist
United States Postal Service
FINAL DECISION ON MOTION FOR RECONSIDERATION
UNDER THE DEBT COLLECTION ACT OF 1982
Respondent, United States Postal Service, filed a timely Motion for Reconsideration, under 39 C.F.R. §961.9, of the June 23, 2006 Final Decision in this case. Respondent sought to collect $7,823.98 from Petitioner's salary to recover a salary payment mistakenly made to another employee after employment had been terminated. The Decision held that Respondent had failed to prove that Petitioner was negligent in causing the other employee to be improperly paid, and the Petition was granted.
This case was decided on written submissions, without an oral hearing. Because of a mailing error, Respondent’s representative did not receive a May 17, 2006 Order setting the timetable for filing evidence and argument. As part of the Motion for Reconsideration, therefore, Respondent asked for the opportunity to supplement the record. That request was granted, Respondent filed additional documents, including two witness statements, and Petitioner has replied to Respondent’s additional evidence.
Respondent’s theory of liability is that the Manager of Post Office Operations, Petitioner’s immediate supervisor, formally upheld the removal for cause of one of Petitioner’s subordinates, effective October 29, 2005, and that Petitioner, as postmaster, failed to take timely actions to process the employee’s removal, thereby causing the employee to continue to be paid after employment was terminated. Therefore, Respondent contends, Petitioner is liable for the amount of pay the terminated employee improperly received.
The Final Decision was based on Respondent’s failure to prove that Petitioner was negligent in causing the employee to continue to be paid after employment was terminated. Further, the Decision noted that, even though the Postal Service initiated action to collect the overpayment from the employee, the Postal Service eventually entered into a settlement agreement in an MSPB case filed by the employee. One of the terms of that agreement was that the employee’s “removal, effective October 29, 2005, shall be changed to a resignation for personal reasons effective December 16, 2005.” As a result, the collection action was terminated. Respondent implied that Petitioner improperly notified the employee about the collection action and that the employee’s attorney used that information to negotiate the settlement agreement. The settlement itself raised some doubt as to whether the Postal Service suffered a “loss” that it is entitled to recover, but the Decision also concluded that Respondent failed to prove that Petitioner acted improperly or that Petitioner’s action forced the Postal Service into an unfavorable settlement.
The additional material filed by Respondent is not sufficient to change the result. Much of what Respondent submitted deals with the merits of the case against the terminated employee, a matter not relevant here. Respondent argues that Petitioner was aware of the subject matter of that case and, being an experienced postmaster, he knew what should have been done to stop the employee’s pay. The only specific evidence Respondent provided was a witness statement that no one told Petitioner he did not have to take action to stop the employee’s pay. Respondent has not contradicted Petitioner’s contention that it was his superiors, not he, who initiated the employee’s removal and who took all the required actions to remove the employee. Therefore, even assuming that what Respondent presented is true, Respondent has not established sufficient facts to prove that Petitioner caused a loss to the Postal Service.
Respondent also repeats the argument that Petitioner acted improperly in telling the removed employee that the Postal Service was going to initiate action to collect back the overpayment, and that the former employee’s attorney used this information to negotiate a favorable settlement. Respondent has not provided any new facts on this point and has not demonstrated that it was improper for Petitioner to give that information to the former employee, or that Petitioner’s conduct affected the settlement in any way that would make Petitioner liable for the money mistakenly paid to the other employee after October 29, 2005.
The Motion for Reconsideration is denied.
Bruce R.
Chief Administrative Law Judge