In the Matter of the Petition by:                                )
                                                                                )
DORETHA CAPERS                                                 )
880 Colgate Avenue                                               )
                                                                                )
at                                                                             )
                                                                                )
Bronx, NY 10473-4814                                           )  P. S. Docket No. DCA-144

APPEARANCE FOR PETITIONER:                            Johnny W. McQuilla
                                                                                President of NAPS Branch #459
                                                                                P. O. Box 459
                                                                                Bronx, NY 10451-0459

APPEARANCE FOR RESPONDENT:                        Victor L. Olmo
                                                                               Labor Relations Representative
                                                                               United States Postal Service
                                                                               590 Grand Concourse
                                                                               Bronx, NY 10451-9401

DECISION ON MOTION TO DISMISS
UNDER THE DEBT COLLECTION ACT OF 1982

By timely filed Petition, on July 16, 1992, Petitioner, Doretha Capers, requested an oral hearing on a Notice of Involuntary Administrative Salary Offsets Under the Debt Collection Act. The notice advised Petitioner that she was indebted to the Postal Service, Respondent, in the amount of $2,760.74, representing the total amount of checks received in the Parkchester Station, Bronx, New York, on June 8, 199l. Petitioner was the close-out supervisor at the station on that day, and as such was involved in the process of remitting all funds and checks received to the appropriate bank for deposit.

The bank received the station's cash deposit ($33,769) for that day, but did not receive the checks.

At the commencement of the hearing on this matter Petitioner's representative moved that the Notice of Involuntary Setoff be dismissed due to Respondent's failure to provide certain documents previously ordered produced by the Chief Administrative Law Judge and failure to have present at the hearing witnesses previously requested who were necessary for the defense of this action. Oral argument was held on the Motion, and limited evidentiary testimony was taken. At the conclusion of argument and testimony the undersigned advised the parties that the Motion to Dismiss would be granted and a written decision would be issued.

The documents in issue were the checklist for June 8, 199l, and the daily worksheet for that day prepared by Petitioner, as well as a Form 3458. Information contained in the first two items would allow Respondent to contact the makers of the checks for reissuance. The Form 3458 would have shown the route taken by the registered mail sack which allegedly contained the lost checks. Respondent represented that a search had been made for the documents but that they could not be located. Respondent contended that Petitioner did not prepare a checklist or worksheet for June 8, 1991.

In regard to the witnesses requested Respondent contended either that their testimony was not relevant or that it was Petitioner's responsibility to arrange for their presence prior to Respondent giving them permission to appear. Respondent was unable to produce one witness who it agreed to produce, Ms. Nieves, the dispatcher of the registered mail sack. Respondent did not ask for a continuance until Ms. Nieves could appear.

Oral testimony was taken from Petitioner pertaining to the preparation of the checklist and Ms. Nieves' participation in the process of closing-out the receivables on June 8, 199l. Petitioner testified under direct and cross-examination that she in fact prepared both a checklist and a worksheet on June 8 and placed them with her other records for that day which were filed away by another supervisor. She further testified on cross-examination that the checks in question were placed in the appropriate jacket (envelope) and sealed in Ms. Nieves' presence. It was then Ms. Nieves' responsibility to place the jacket in a registered mail pouch and lock the pouch.

Upon observation of Petitioner's demeanor and hearing her testimony she is found to be a credible witness. Thus, for the purpose of ruling on the Motion to Dismiss it is found that a checklist and daily worksheet for June 8, 1991, were prepared by Petitioner, placed with her other records for that day, and filed in the ordinary course of business by another Postal Service supervisor. Respondent thereafter, inexplicably, has been unable to locate these documents which could be utilized to minimize its loss or even recoup the complete loss. Respondent's failure to produce the missing documents is thus prejudicial to Petitioner. Further, Ms. Nieves' testimony would be relevant and necessary for the defense of this matter.

Accordingly, the Motion to Dismiss is granted. The matter is dismissed with prejudice.

James D. Finn, Jr.
Administrative Judge