May 16, 2008
In the Matter of the Petition
by
BRUCE K. FULLER
501 Columbia Drive
Tampa, FL 33606-3910
P.S. Docket No. DCA 07-431
APPEARANCE FOR PETITIONER:
Bruce K. Fuller
APPEARANCE FOR RESPONDENT:
Lynn M. Chiocchi
Manager, Labor Relations
United States Postal Service
FINAL DECISION UNDER THE DEBT COLLECTION
ACT OF 1982
Petitioner, Bruce Fuller, filed his Petition after receiving a Letter of Debt Determination, asserting that he owed the Postal Service $755.81 for a salary overpayment. Because it appeared that no Notice of Involuntary Administrative Salary Offsets had been issued, a question was raised over whether the Petition had been filed prematurely. Generally, until that Notice is issued, the Postal Service may not collect a debt by offset from an employee’s pay, and the employee is not entitled to a Debt Collection Act hearing under 39 C.F.R. Part 961. (39 C.F.R. §§961.3(e), 961.4; Employee and Labor Relations Manual (ELM), sections 452.22, 452.26, 452.32).
As its Answer to the Petition, Respondent filed a Motion to Dismiss, stating that no Notice of Involuntary Administrative Salary Offsets had been issued. Based on Petitioner’s reply, with attached documents showing that the $755.81 had already been collected from him, the motion was denied. Based on Petitioner’s original request for a hearing on written submissions, the parties were directed to file additional evidence and argument, including sworn written statements from witnesses with relevant knowledge.
Respondent filed a declaration under penalty of perjury from Petitioner’s supervisor and some other documents. Petitioner filed nothing further. 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 Supervisor of Customer Services at the Ybor City Station in Tampa, Florida. On September 27, 2007, Petitioner began a period of absence from work that continued until his resignation from the Postal Service, effective December 22, 2007. On or about September 27, Petitioner told his supervisor, via telephone, that his physician had instructed him not to return to work for at least thirty days. He did not return to work thereafter. (Petition; Answer, Ex. 4; Barnes Declaration (Answer, Ex. 2)).
2. At some time on, or shortly after, September 27, 2007, Petitioner requested 160 hours of FMLA (Family and Medical Leave Act) sick leave. On October 15, 2007, the FMLA office sent Petitioner a letter describing the provisions of the FMLA and the documentation required for approval. (Petition; Attachment 2 to Petition).
3. On October 22, 2007, Petitioner’s supervisor sent Petitioner a letter, noting that Petitioner had not provided any medical documentation to support his sick leave. The letter notified Petitioner that he was in a non-pay status as of September 29, and that he would remain in that status until acceptable medical documentation was provided. (Petition; Attachments 3, 4, 6 and 7 to Petition).
4. On October 25, 2007, Petitioner was seen by his physician and hand-carried some documents from his physician to the FMLA office.[1] (Petition).
5. On October 25, 2007, the FMLA office sent Petitioner a letter stating that, “Your FMLA has been approved through 10/25/07,” and also describing additional information that was needed regarding the estimated duration of his incapacity. (Petition; Attachment 5 to Petition).
6. Due to automatic clock rings for EAS employees, the payroll system reflected that Petitioner worked 40 hours in the first week of pay period 21 of 2007, even though he did not. Petitioner was paid a net of $775.81 for that week. (Barnes Declaration).
7.
On
8. On November 5, 2007, Petitioner hand-carried updated paperwork from his physician to the FMLA office, and faxed a copy on November 7 to the Postal Service Medical Unit in Tampa.[2] (Petition).
9. On November 16, 2007, Petitioner’s physician wrote to Petitioner’s supervisor, stating:
“Over the past year Mr. Bruce Fuller has been under my treatment. As of September 25th 2007 I did not consider him to be capable of maintaining his normal work routine.
At that time I considered Mr. Fuller’s medical condition to be chronic with a three month duration to be evaluated on a monthly basis. Mr. Fuller’s last evaluation was on November 16th 2007. In one month I will reevaluate his condition and his ability to return to work.”
10. This letter was deemed sufficient to approve Petitioner’s sick leave from November 16 forward. Therefore, Petitioner was paid his regular pay for pay periods 24-26 of 2007. (Barnes Declaration).
11. When Petitioner resigned from the Postal Service, pay periods 22 and 23, and the second week of pay period 21, were converted from LWOP to FMLA Sick Leave, and Petitioner was paid his salary for that time, by check dated January 25, 2008. (Answer, Exs. 5 and 6).
12.
The pay adjustment described in Finding #11 did not apply to the first
week of pay period 21, 2007, and it is this week for which Petitioner is
alleged to owe $755.81. That amount was
withheld from the January 25, 2008 check.
(Answer; copy of check and “Remittance Advice” attached to Petitioner’s
DECISION
Petitioner contends that he provided sufficient medical documentation to support sick leave for the entire period of absence, beginning on September 27, 2007. He argues that he was entitled to be paid for the entire time and asks that the $755.81 that was withheld be paid to him.
Although it is not entirely clear, Respondent’s position seems to be that Petitioner’s medical documentation only supports sick leave after November 16, 2007, and that the Postal Service changed the LWOP in pay periods 22 and 23, and the second week of pay period 21, (see Finding #11) only as an incentive for Petitioner to resign.
Respondent has not articulated the rationale for its conclusion that the physician’s November 16 letter justifies sick leave after that date but not before that date. I do not read the physician’s November 16 letter that narrowly. His statement that Petitioner was not then capable of returning to work and that this condition had existed “as of September 25th,” is sufficient to support sick leave beginning on September 27, 2007.
Further, the FMLA office approved Petitioner’s FMLA leave through October 25, 2007 (see Finding #5). While the record does not contain the medical documentation Petitioner claims to have delivered to that office, Respondent has not directly contradicted that claim, and it is unlikely that the FMLA office would have given its approval without supporting documents.
Finally, Respondent’s argument that Petitioner was given credit for sick leave in pay periods 22 and 23 and the second week of pay period 21 only as a negotiating tactic is not evidence. It is argument, not supported by any facts.[3] There is nothing in the record to show why those five weeks should be treated differently than week one of pay period 21, for which Petitioner is being charged $755.81.
The Petition is granted. The $755.81 withheld from Petitioner must be returned to him.
Bruce R. Houston
Chief Administrative Law Judge