June 3, 2008 

 

In the Matter of the Petitions by                                

                                                                                                                                  

MICHELLE CAMPBELL                                                                               

 

P.S. Docket Nos. DCA 07-218 - 222

 

APPEARANCE FOR PETITIONER:         

Michelle Campbell
                                                                       

APPEARANCES FOR RESPONDENT:  

Toby L. Lowe

Maria Villar-Avery
Labor Relations Specialists
United States Postal Service

INITIAL DECISION

            Petitioner, Michelle Campbell, filed five separate Petitions on July 14, 2007, in response to five separate letters from the Department of Treasury, all dated June 23, 2007.  The letters allege debts in various amounts, ranging from $124.44 to $1,252.93, for a total of $2,312.48.  The cases were consolidated for further processing, but will be dealt with separately in the Findings of Fact and Decisions.

            At the outset, it was not clear that Petitioner was no longer a Postal Service employee.  Therefore, these cases were all docketed as Debt Collection Act cases under 39 C.F.R. Part 961.  It is now known that Petitioner is a former employee and the cases are appropriately processed as Administrative Offset cases under 39 C.F.R. Part 966.  The significant procedural difference is that, under 39 C.F.R. Part 966, a dissatisfied party has a right to appeal.  It is not necessary to re-docket the cases, but a Notice of Right to Appeal is included with this decision.

After several delays and telephone conferences, it was determined that the cases would be decided on written submissions.  The parties were then given a schedule for filing additional evidence and argument, and both parties did so.  The findings of fact are based on all the material submitted by the parties.

 DCA 07-218

            Respondent, the Postal Service, alleges a debt of $136.00 for unpaid health benefits premiums under the Federal Employees Health Benefits Program (FEHBP) in December 2004 and January 2005.  Respondent filed a Motion to Dismiss on the ground that the Petition was not timely filed.  By Order dated September 20, 2007, Petitioner was given an opportunity to reply to the motion.  Although Petitioner filed several other documents in these cases, she did not reply to the motion.

FINDINGS OF FACT

            1.  On December 9, 2005, Petitioner was issued a Notice of Involuntary Administrative Salary Offsets by her supervisor, stating the Postal Service’s intention to withhold $136.00 from her salary to collect unpaid FEHBP premiums.  (Copies of the Notice are found at several places in the record).

            2.  The Petition was filed on July 14, 2007

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, 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).

Petitioner has not disputed the fact that she received the Notice of Involuntary Administrative Salary Offsets on or about December 9, 2005, or that he did not file her Petition until July 14, 2007.  Nor has Petitioner made any claim that she did not understand the requirement for filing the Petition within fifteen days, that she was misled or confused in any way by any action of Respondent, or that she was unable for any reason to file a timely Petition.

            The Petition was filed approximately eighteen months late, and Petitioner has not shown that the late filing should be excused.  Petitioner is deemed to have waived her right to a hearing under the Debt Collection Act.  39 C.F.R. §961.10.  Respondent may collect $136.00 from Petitioner.[1]

 

DCA 07-219 and 07-220

            These two cases are essentially the same.  In DCA 07-219, Respondent alleges a debt of $124.44 for unpaid FEHBP health benefits premiums in pay periods 8-11 of 2005.[2]  In DCA 07-220, Respondent alleges a debt of $207.40 for unpaid FEHBP health benefits premiums in pay periods 3-7 of 2005.

FINDINGS OF FACT

            3.  Following an injury to her back and neck in May 1999, Petitioner was absent from work for several years.  Her claim to the Department of Labor, Office of Workers Compensation Programs (OWCP), for workers compensation benefits proceeded through a lengthy series of applications, decisions, appeals, and reversals of decisions.  The final decision was issued on September 26, 2007.  (Campbell statement, and several documents included in Petitioner’s second supplement).  

            4.  Before her injury, Petitioner was enrolled in the FEHBP.  Regulations governing the FEHBP are found in 5 C.F.R. Part 890.  Part of the cost of an employee’s health insurance is paid by the employing agency and the remainder of the premiums is paid by the employee through payroll deductions each pay period.  An employee is deemed to incur an indebtedness to the United States in any pay period during which enrollment in the FEHBP continues but a deduction for, or direct payment of, the employee's share of the premium is not made.[3] 

            5.  In accordance with applicable FEHBP rules, when an employee is receiving workers compensation benefits, the administration of the employee’s health benefits is transferred to the OWCP.  If an employee returns to work, the administration of the employee’s health benefits is transferred back to the employing agency.  (Fondon February 7, 2008 memo, included in Petitioner’s second supplement).

            6.  On September 8, 2000, Petitioner was issued a Standard Form 2810, Notice of Change in Health Benefits Enrollment, by the Postal Service Accounting Service Center, noting that her health benefits coverage was terminated, effective September 8, 2000, because she had been in a nonpay status for more than one year.  The form also stated that, upon return to pay status, Petitioner would have 60 days to apply for re-enrollment.  (Petitioner’s supplement, p.1).

            7.  Although another Standard Form 2810 was issued on November 30, 2004, stating that Petitioner returned to the Postal Service effective that date, in fact Petitioner never returned to work for the Postal Service.  The form was apparently issued because the OWCP made a ruling that Petitioner’s workers compensation benefits were terminated as of November 30, 2004.  That decision was later reversed.  (PS Supplement 1, pp.1-2).

DECISION

            Petitioner contends that she was not covered by FEHBP during the pay periods alleged and, therefore, should not have to pay for insurance coverage that she did not have.  Respondent’s burden of proof for debts of this nature is to demonstrate (1) that Petitioner was covered under FEHBP, and (2) that she did not pay her share of the premiums, either by payroll deduction or otherwise.  Respondent has proved the second part, but not the first.

            Respondent’s witness states that Petitioner was covered during the pay periods in question and that the Postal Service paid its share of the premiums, but Respondent presented no documents that show this, and the witness statement does not explain what her conclusion is based on.  This is not sufficient to overcome the document submitted by Petitioner, showing that her FEHBP coverage was terminated (see Finding #6), and Petitioner’s statement that she never re-enrolled in FEHBP.

            The Petitions in DCA 07-219 and 07-220 are granted.  Respondent may not collect $124.44 and $207.40 from Petitioner.

DCA 07-221

            Respondent alleges a debt of $1,252.93 for overdrawn leave in 1999 and 2000.

FINDINGS OF FACT

            8.  Petitioner’s employment status changed from part-time to full-time in pay period 6 of 1999.  At that time, she was granted 102 hours of annual leave, that being the amount of annual leave she was expected to earn through the end of 1999.  (Viola statement, March 6, 2008).

            9.  Because Petitioner was injured and placed in a leave without pay status sometime after May 1999, she did not actually earn the full 102 hours granted to her, and 54 hours of that were taken back.  Taking into account the number of hours of annual leave that Petitioner used during 1999, and the amount of annual leave she carried over from the previous year, this left her with a negative balance of -29.13 hours for 1999.  (Viola statement, March 6, 2008, and attached pay journals for pay periods 14/99 through 2/00).

            10.  In 2000, Petitioner used 64 hours of annual leave, but earned only 10 hours, thus increasing her negative leave balance to -83.13 hours.  (Viola statement, March 6, 2008, and attached pay journals for pay periods 14/99 through 2/00).

            11.  On November 1, 2006, the Postal Service Accounting Service Center issued Petitioner an invoice for $1,252.93, citing her negative leave balance.  The invoice did not identify the pay periods or the years on which this was based.  (Invoice attached to Respondent’s Answer).

DECISION

            Once again, Respondent has proved part of its case but not all.  The evidence is sufficient to demonstrate that Petitioner used more leave than she earned in 1999 and 2000, but there is no evidence to show how the alleged debt was calculated.

            When an employee contests an alleged debt, the fact that an invoice was issued proves very little, and this particular invoice contains no useful information.  What is missing is an explanation from someone with expertise in reading pay records to show how 83.13 hours equates to $1,252.93.

            We can make some assumptions and reach an approximation, however.  The pay journals cited in Findings #9 and 10 show that Petitioner was paid through pay period 17 of 1999.  Her leave record shows that she used approximately 124 hours of leave during the first ten pay periods of 1999, and that 29.13 hours of this was overdrawn once the adjustment to her leave was made (see Finding #9).  Likewise, the pay journal for pay period 2 of 2000 shows that she received pay for that pay period and that she used 64 hours of annual leave during the first two pay periods of 2000.

            Calculating an hourly pay rate for 1999 and 2000, based on the information in the pay journals and using net pay figures, for the overdrawn leave in 1999 Petitioner would owe approximately $298.00, and for 2000 she would owe approximately $518.00.  This Petition is granted in part and denied in part.  Respondent may collect a total of $816.00 from Petitioner.

DCA 07-222

            Respondent alleges a debt of $876.18 for a salary advance in July 1999.  Since the outset of this case, Petitioner has acknowledged that she received a salary advance and is required to repay it.  However, she disputes Respondent’s right to add interest charges to the debt.   

FINDINGS OF FACT

            12.  Petitioner was issued a salary advance on July 16, 1999.  There are no documents in the file that provide a record of this advance, but Petitioner was issued an invoice for $876.18 on February 1, 2000.  (Answer, Ex. 6; Petitioner’s March 10, 2008 submission).

            13.  Sixteen additional invoices issued from July 2001 through October 2006 continue to show this alleged $876.18 debt, but also show that Petitioner made four payments that reduced the debt to $591.71.  There are no interest charges listed on these invoices.  (Invoices attached to Petitioner’s Supplement, pp. 3-9, 12-21).

DECISION

            Because of the meager amount of information submitted, it is again necessary to make some assumptions.  It is assumed that the salary advance given to Petitioner in July 1999 was in the amount of $876.18.  Petitioner acknowledges a current debt of $591.71, which is consistent with what is shown on the many invoices.

            The only reference to interest is in the June 23, 2007 Department of Treasury letter that triggered the Petition.  Respondent filed a one-page excerpt from a “Civil Resource Manual” that appears to assert that the Government may collect interest in some cases, but Respondent has not identified any amount of interest that it claims is owed in this case and has not articulated any argument that Petitioner owes anything more than $591.71.

            Accordingly, Respondent may collect $591.71, but may not collect any interest on this amount.

SUMMARY

            Respondent is entitled to collect the following amounts: $136.00 (DCA 07-218); $816.00 (DCA 07-221); and $591.71 (DCA 07-222); for a total of $1,543.71.  Petitioner asserts that money to which she was otherwise entitled was deducted from her Federal income tax refund in February 2008.  She must be credited with any amounts involuntarily withheld from her for these debts. 

 

 

Bruce R. Houston

Chief Administrative Law Judge


[1] Respondent also filed motions to dismiss the Petitions in DCA 07-219 and 07-220, on the ground that they were not timely filed.  Because there was no evidence that Petitioner was ever issued a Notice of Involuntary Administrative Salary Offsets for the debts alleged in those cases, those motions were denied in the September 20, 2007 Order.

[2] Respondent originally alleged that this debt was $207.40, as shown on an invoice dated July 13, 2005, but later concluded that Petitioner did not owe for unpaid premiums in pay periods 12 and 13 of 2005.  (Fondon Declaration, March 6, 2008).

[3] 5 C.F.R. §890.501 and §890.502.