In the Matter of the Complaint Against

SHEILA MARTIN UNDERWOOD
1035 Comanchee Trail, K-4
at
West Columbia, SC 29169-7010


P. S. Docket No. PF-34

APPEARANCE FOR RESPONDENT:
Sheila Martin Underwood
1035 Comanchee Trail, Apt. K-4
West Columbia, SC 29169-7010

APPEARANCE FOR COMPLAINANT:
Geoffrey A. Drucker, Esq.
Enforcement Division
United States Postal Service
Washington, DC 20260-1144

POSTAL SERVICE DECISION

Sheila Martin Underwood (Respondent) has filed an appeal from the Initial Decision of an Administrative Law Judge in which it was concluded that Respondent is liable to the United States Postal Service under the Program Fraud Civil Remedies Act (PFCRA), 39 U.S.C. §§3801-3812, for a civil penalty in the amount of $1,000.

The General Counsel, United States Postal Service (Complainant), initiated this proceeding by filing a Complaint alleging that Respondent submitted to the Department of Labor, Office of Workers’ Compensation Programs (OWCP), a false statement in support of a disability claim for a condition sustained while an employee of the Postal Service. The false statement referred to in the Complaint is a Form CA-20, "Attending Physician’s Report," which Respondent’s physician completed, and which Complainant alleges Respondent altered¹  in an attempt to recover disability payments for one additional day, May 4, 1991.²  The Complaint requested that Respondent be held liable for a civil penalty of $5,000 for the false statement. Respondent timely filed a Petition for Hearing in which she denied the allegations in the Complaint.

At a hearing before the Administrative Law Judge, Complainant presented witness testimony and introduced documentary evidence, and Respondent testified on her own behalf. Following the hearing and Complainant’s submission of proposed findings of fact and conclusions of law,³  the Administrative Law Judge issued an Initial Decision in which he concluded that Respondent submitted the false statement to OWCP as alleged in the Complaint, and that she was liable to the Postal Service for a civil penalty of $1,000⁴  (I.D., Conclusions of Law (COL) ¶¶8-9). Thereafter, Respondent filed this appeal taking exception to the findings and conclusions of the Initial Decision. Complainant filed a timely reply in which it opposes Respondent’s appeal and requests that the Initial Decision be affirmed.

Respondent contends that 1) the Postal Service does not have jurisdiction to adjudicate or investigate this matter; 2) the Administrative Law Judge erred in failing to dismiss this proceeding; 3) the investigation conducted by Postal Inspectors was performed in a discriminatory and retaliatory manner;⁵  and 4) postal employees conducted themselves in an improper manner. Respondent also contends she did not make the false statement alleged in the Complaint and that she was denied due process and a fair hearing. Complainant argues that all of Respondent’s contentions on appeal are without merit.

Contrary to Respondent’s contentions, the Postal Service does have authority under the PFCRA to investigate, initiate, and adjudicate actions involving false claims and statements submitted by Postal Service employees.⁶  While the Department of Labor may have similar statutory authority, its authority is not exclusive⁷  and it has not exercised its authority nor otherwise initiated an action against Respondent for the false statement submitted to OWCP which is the subject of this proceeding. Thus, this action may be brought by the Postal Service under the PFCRA. Cf. Neldie E. Nelson, P.S. Docket No. PF-3 at 16 (P.S.D. Aug. 19, 1992).

The Administrative Law Judge did not err in refusing to dismiss this proceeding because of the pendency of another action involving Respondent. As Respondent contends, the Attorney General has authority to disapprove the filing of a PFCRA proceeding and to order that such a proceeding be stayed if it adversely affects a pending action concerning the same false statement.⁸  Respondent, however, has not shown that the Attorney General exercised this authority or that the action initiated by Respondent disposed of the issue of her liability to the Postal Service for submission of a false statement. Thus, the Administrative Law Judge properly denied Respondent’s motion to dismiss the Complaint.

Equally unpersuasive are Respondent’s allegations of impropriety on the part of Postal Inspectors assigned to investigate the allegations of Respondent’s misconduct, the postal employees involved in processing Respondent’s disability forms, and the Administrative Law Judge. Nothing in the record establishes that the investigation conducted by the Postal Inspectors was done in a discriminatory or retaliatory manner or was otherwise racially or improperly motivated. The Postal Inspectors’ failure to interview other physicians who had treated Respondent was not unreasonable since they were not responsible for completing the Form CA-20 in issue in this proceeding (Tr. 79). Moreover, Respondent has not shown any reason why polygraphs or sworn statements should have been obtained from the postal employees responsible for processing Respondent’s disability forms since these employees testified under oath at the hearing (I.D., at 3; Tr. 8-17, 31-64, 64-88), and nothing in the record establishes that their testimony was not credible. In addition, Respondent has not established that the Postal Service concealed the medical statement which she submitted on May 6 or 7, 1991,⁹  or that this statement is otherwise material to the issues in this proceeding¹⁰  (Tr. 48-49, 53-54 & 70-71). Finally, there is no support for Respondent’s allegation that the Administrative Law Judge did not act independently and impartially in deciding this case. The Administrative Law Judge’s findings and conclusions have been reviewed and found to be supported by a preponderance of the evidence and by applicable regulations, statutes and case law. Thus, there is no merit to Respondent’s allegations of improper conduct or bias on the part of the presiding Administrative Law Judge, the Postal Inspectors, or any other Postal Service officials.

Respondent’s claim that she was somehow denied due process and a fair hearing is also without merit. Respondent was notified of the allegations against her and given a full opportunity to present evidence on her own behalf and to object to, and rebut, the testimony and evidence introduced by Complainant. See Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042, 1048-50 (6th Cir. 1990); Ralpho v. Bell, 569 F.2d 607, 628-29 (D.C. Cir. 1977). The decision issued by the Administrative Law Judge which is being reviewed on appeal is fully supported by the evidence presented. Thus, there was no violation of Respondent’s constitutional or statutory rights in this proceeding.

Finally, Respondent’s primary contention on appeal that she did not alter the Form CA-20 is not supported by the record. The evidence presented substantiated the Postal Service’s allegation that the Form CA-20 was altered after it was released to Respondent (Compare CX-8 with CX-9; Tr. 25-27 & 42-43). Even if, as Respondent alleges, she did not herself physically alter the Form CA-20, she is still liable for a statement she filed with OWCP which she knew or had reason to know contained materially false information (I.D., COL ¶2). See 31 U.S.C. §3802(a)(2)(A). Respondent’s contention that she did not make a false statement since her claim was accepted by OWCP is also unpersuasive. Regardless of OWCP’s acceptance of her claim for disability, the Form CA-20 submitted in support of that claim contained false statements for which Respondent is liable under 31 U.S.C. §3802(a)(2). See Neldie E. Nelson, at 17 (P.S.D. Aug. 19, 1992).

After hearing the testimony presented by both parties and evaluating the credibility of the witnesses and reviewing the documentary evidence, the Administrative Law Judge concluded that Respondent altered the physician’s statement on the Form CA-20 and such alteration constituted a materially false statement. Despite Respondent’s contentions to the contrary, the record fully supports the Administrative Law Judge’s conclusion.

After consideration of the entire record and Respondent’s exceptions on appeal, it is concluded that Respondent is liable to the Postal Service under the PFCRA, 31 U.S.C. §§3801-3812, for a civil penalty in the amount of $1,000. Accordingly, Respondent’s appeal is denied and the Initial Decision is affirmed.

James A. Cohen
Judicial Officer

¹ Specifically, the Complaint alleges that Respondent changed the date her total disability ended, from May 3 to May 6, 1991; added May 6, 1991, as the last date of treatment and discharge; and provided false information to her physician concerning her work schedule, which caused the date Respondent was advised she could resume her regular work schedule to be changed from May 4 to May 6, 1991 (See also I.D., Findings of Fact (FOF) ¶¶9-14; Compare CX 8 with CX 9 (CA-20, Items 15-17).

² On May 2, 1991, Respondent sought treatment for a moderate cervical muscle spasm caused by ceiling fans blowing cold air on her neck. While her physician excused her from work for the period May 1 to 3, 1991, Respondent did not return to work on her next regularly scheduled workday, Saturday, May 4, 1991 (I.D., FOF ¶¶1 & 3-4).

³ Respondent, although given the opportunity, did not file proposed findings of fact and conclusions of law (I.D., at 2).

⁴ Although Complainant sought a total penalty of $5,000, the Administrative Law Judge reduced the penalty to $1,000 after considering both aggravating and mitigating factors (I.D., COL ¶¶3-8).

⁵ Respondent contends that her complaint about poor working conditions caused by the ceiling fans is a protected activity against which the Postal Service, under various statutes, is prevented from taking retaliatory action. However, there has been no showing that this proceeding was initiated as a retaliatory measure or that her claim of a protected activity is a defense to a PFCRA action for making a false statement.

⁶ See 31 U.S.C. §§3801(a)(4)(A) & 3803(a)(1); 39 C.F.R. §§273.5-.7 (investigative authority); 31 U.S.C. §§3801(a)(1), (2) & (8), 3803(d)(1) & (2); 39 C.F.R. §273.8 (authority to initiate action); 31 U.S.C. §§3801(a)(1)(D) & (a)(7)(A) & 3803(d)(2)(A), (f), (g) & (h); 39 C.F.R. Part 962 (adjudicative authority).

⁷ The regulations cited by Respondent do not support her contention that the Department of Labor has exclusive jurisdiction over this matter. 20 C.F.R. §10.10 pertains to the custody of records and 20 C.F.R. §10.140 discusses agency participation in the claims process, but neither deprives the Postal Service or any other agency of jurisdiction under the PFCRA.

⁸ See 31 U.S.C. §§3803(b)(1), (2) & (3); 39 C.F.R. §§273.6 (b)-(c) & 273.7.

⁹ The medical statement in issue was forwarded by the Postal Service to OWCP, made a part of the medical documentation attached to the investigation memo, and discussed at the hearing (Tr. 48-50, 52-54, 70-71, 92-93, 99-100 & 102).

¹⁰ The fact that Respondent was seen by a second physician on May 6, 1991, as reflected by her medical statement (I.D., FOF ¶6; Tr. 92-93), does not justify Respondent's changing the entries on the Form CA-20 to include disability coverage through May 6, 1991.