In the Matter of the Petition by

MICHAEL J. ZENK
39225 23rd Street West

at

Palmdale, CA 93551-4158

P.S. Docket No. DCA 96-177

APPEARANCE FOR PETITIONER:
Michael J. Zenk, Pro Se
39225 23rd Street W
Palmdale, CA 93551-4158

APPEARANCE FOR RESPONDENT:
Tom Thomas
Labor Relations Specialist
United States Postal Service
28201 Franklin Parkway
Santa Clarita, CA 91383-9401

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Petitioner, Michael J. Zenk, has filed a petition as a result of a Notice of Involuntary Administrative Salary Offsets issued to him on or about May 7, 1996. The Notice was based on the alleged overpayment to him of holiday leave by Respondent, United States Postal Service, for the 1995 Thanksgiving holiday. Although given the opportunity to do so, neither party filed any additional evidence or arguments, beyond those found in the Petition and Answer. Accordingly, this decision is based on those documents and the attachments thereto.

FINDINGS OF FACT

1. Petitioner was absent from work, due to injury, from October 11, 1995, through January 24, 1996. Petitioner's claim for benefits under the Federal Employees Compensation Act was denied. He was, therefore, required to use his sick and annual leave to the extent available to cover his absence.

2. As of the close of pay period 23 for 1995, Petitioner had a balance of 8.17 hours of annual leave and 6.14 hours of sick leave available to him. During the first week of pay period 24, which began on November 11, 1995, Petitioner was charged with the full remaining amounts of his annual and sick leave (totaling 14.31 hours) and was in a leave without pay (LWOP) status the rest of that week. In the second week of pay period 24, Petitioner was charged with 32 hours of LWOP, but was paid for the Thanksgiving holiday.

3. Upon his return to duty in January 1996, Petitioner filled out Forms 3971, "Request for or Notification of Absence," retroactively requesting a combination of annual leave, sick leave and LWOP to cover the period of his absence. The Form 3971 for the second week of pay period 24, approved by Petitioner's supervisor, requested 32 hours of sick leave for Monday, Tuesday, Wednesday and Friday of that week -- i.e., for the days other than Thanksgiving, which fell on November 23.

4. On or about March 6, 1996, the Postal Data Center issued Petitioner an invoice in the amount of $128.74 to recover the holiday pay for November 23, 1995.¹ On or about March 28, 1996, Petitioner was notified by letter of the alleged debt, but took no action to repay it. On or about April 25, 1996, Respondent issued the Notice that is the subject of this action.

5. Article 11, Section 2 of the applicable collective bargaining agreement and §371.33 of Handbook F-22, "PSDS Time and Attendance," provide that in order to be eligible for holiday pay, an employee must be in a pay status (via actual work hours or paid leave) for the last hour of the employee's scheduled workday prior to, or the first hour of the employee's scheduled workday after, the holiday.

6. Handbook F-22 (§§333.1, 336) provides that sick leave cannot be granted until it is earned, except that advanced sick leave may be granted if applied for by the employee and properly documented. The Handbook also provides that advanced sick leave may be granted by "officials in charge of installations" without reference to higher authority.

7. Section 513.62 of the Employee and Labor Relations Manual (ELM) provides that if sick leave is approved for employees who have no annual or sick leave balance, the leave may be charged to LWOP unless sick leave is advanced.

DECISION

In his petition, Petitioner argues that at the time of his injury, he had no idea how long he would take to recover and that, under the rules of the Family and Medical Leave Act, he had worked out an arrangement with his supervisor to use his remaining sick and annual leave "in increments that would keep me in a pay status for as long as possible." He argues further that his supervisor incorrectly submitted his request for leave during his absence and that had the supervisor not made what Petitioner characterizes as a clerical error, his leave would have been handled in such a manner that he would have been in a pay status and would have properly been paid for the Thanksgiving holiday.

Respondent argues that Petitioner had exhausted both his sick and annual leave prior to the week containing Thanksgiving and that, since he had not requested or been approved for advanced sick leave, he was not in a pay status during either of the periods (finding 5) that would have made him eligible to receive holiday pay. Therefore, Respondent contends that Petitioner was mistakenly paid for the Thanksgiving holiday and that the pay may be recovered by the Postal Service.

The documents supplied by Respondent with its Answer establish a prima facie case supporting its position. They establish that Petitioner had exhausted his annual and sick leave prior to the beginning of the week containing Thanksgiving and that, accordingly, he would not have been in a pay status during either of the periods necessary to make him eligible for holiday pay.

Petitioner states that he had made arrangements with his supervisor to use his remaining leave in such a way as to keep him in a pay status "as long as possible." However, he has not explained those arrangements or how they would have placed him in a pay status on the day (or hour) prior to or after Thanksgiving, a necessary prerequisite to his recovery here. There is some suggestion in the Answer that the arrangements might have involved the selective use of leave without pay (perhaps to preserve his sick or annual leave for use at the time necessary to establish his eligibility for holiday pay). However, without further evidence from Petitioner it is not possible to understand the substance of, or to evaluate the propriety of, the arrangements he has alleged were made.

Similarly, without some evidence regarding the authority of Petitioner's supervisor (e.g., with regard to approving advanced sick leave), I cannot conclude that her approval of Petitioner's Form 3971 requesting sick leave for Thanksgiving week had any effect on his pay status at the crucial time(s). This is particularly true in view of the ELM language providing that sick leave approved for an employee without a sick leave balance is converted to LWOP.

Finally, Petitioner has not shown that any provisions of the Family and Medical Leave Act, 5 U.S.C. §6381 et seq., which he mentioned in his petition, have any applicability to this matter. The Act allows employees to take leave (including unpaid leave) under certain circumstances, but deals primarily with the right of an employee to maintain benefits during a period of leave and to return to a job thereafter.

Accordingly, I conclude that Petitioner has failed to overcome Respondent's prima facie case, and the petition is denied. Respondent may recover $128.74 from Petitioner by administrative offset.

                                                                                       David I. Brochstein
                                                                                       Administrative Judge

¹ The amount of $128.74 represented Petitioner's gross salary for that date, less deductions for retirement and Medicare that had already been taken.