In the Matter of the Petition by

ERIC M. BELL
2006 Strebor Road

            at

Durham, NC 27705-2790

P.S. Docket No. DCA 99-402

APPEARANCE FOR PETITIONER:     Eric M. Bell
                                                         2006 Strebor Road
                                                         Durham, NC 27705-2790

APPEARANCE FOR RESPONDENT: Jeffery F. Perrotta
                                                         Labor Relations Specialist
                                                         United States Postal Service
                                                         P. O. Box 27499
                                                         Greensboro, NC 27498-9401

Petitioner, Eric Bell, filed a timely Petition after receiving a Notice of Involuntary Administrative Salary Offsets, dated August 13, 1999, from his Installation Head. This Notice stated the Postal Service's intention to withhold $4,700.00 from Petitioner's salary to recover a salary advance.

Petitioner elected a hearing based on written submissions, and the parties were given the opportunity to submit additional evidence and argument, beyond that submitted with the Petition and the Answer. Petitioner filed a reply to Respondent's Answer and, following a telephone conference on October 25, 1999, both parties were given additional time to submit arguments and evidence. Neither party did so. In response to an Order dated December 16, 1999, asking for specific information, both parties submitted additional documents. Neither party has submitted any sworn statements from witnesses who have knowledge of the facts in this case. The following findings of fact are based on all the materials submitted by the parties.

1. On April 20, 1998, the Postal Service initiated a removal action against Petitioner, apparently based on his alleged violation of a settlement agreement that ended an earlier proposed removal. Petitioner appealed to the Merit Systems Protection Board (MSPB).

2. On July 10, 1998, the Postal Service informed the MSPB Administrative Judge that the removal action was rescinded, and that Petitioner would be compensated for all lost time between April 24, 1998, and June 5, 1998. Accordingly, the judge dismissed the appeal on July 15, 1998.

3. On January 25, 1999, Petitioner filed with the MSPB a petition for enforcement, alleging that the Postal Service had not compensated him for the lost time. On February 11, 1999, Petitioner was paid a salary advance of $4,700.00, recorded on a PS Form 1608, Emergency Salary Authorization and Receipt. (PS Ex. 1).⁽¹⁾ Attached to the Form 1608 are pay calculations done on February 11, 1999, by individuals named Mike Murphy and Cindy Greeson. These calculations show Petitioner's "Approx total gross," as $7,217.29 and the salary advance of $4,700.00 is listed as 65% of that total. The total is broken down into five components for regular hours and various types of overtime hours, with hourly rates for each, but the figures do not identify specific dates for these hours.

4. On March 26, 1999, the parties entered into a settlement agreement, on the record before the MSPB Administrative Judge, which was formalized in a March 29, 1999 Initial Decision (PS Ex. 4). This agreement did not determine the amount of back pay due to Petitioner, but provided, in pertinent part, "[T]he agency agrees to timely provide a corrected PS Form 8039 to the appellant which the appellant agrees to timely execute. The agency agrees to issue payment to the appellant for an additional eight (8) hours of penalty pay at the normal rate." PS Form 8039 is titled "Back Pay Decision/Settlement Worksheet," and is used to record work hours and other information so that Respondent's Accounting Service Center can process and pay a back pay claim. The Initial Decision also stated that "this agreement cannot be entered into the Board's record for enforcement purposes as there has been no determination on the underlying jurisdictional issue." This jurisdictional issue existed because the original appeal had been dismissed as moot (see Finding of Fact #2).⁽²⁾

5. The Postal Service gave Petitioner a new Form 8039, which he signed on March 30, 1999, adding the handwritten statement, "I understand that interest will be paid on this MSPB award." The form listed a total of 240 regular work hours, 8 holiday hours, 37.18 overtime hours, and the 8 other hours referred to in the agreement. Petitioner made no claim, at that time, that these hours were incorrect. A Postal Service official approved the form on April 6, 1999. (PS Ex. 5).

6. On May 6, 1999, the Postal Service issued Petitioner a check for $2,465.96 as his back pay payment. The stub attached to the check shows gross pay $4,335.51, with deductions of $1,869.55, leaving a net $2,465.96. (PS Ex. 6). The file contains no calculations showing precisely how $4,335.51 was arrived at.⁽³⁾ Petitioner returned this check on May 13, 1999, stating that the amount was not in accordance with the settlement agreement and that he was entitled to a larger amount. He asserted that he should have been paid for 264 base hours, 80 hours of overtime, and the 8 hours of penalty overtime. (PS Ex. 7).

7. On May 26, 1999, Petitioner was issued a check for $296.58, which represented interest on the back pay. (PS Ex. 9). The record is unclear whether Petitioner also returned this interest check. On May 27, 1999, Petitioner was told, in a letter from Mr. Perrotta, that he should accept the $2,465.96 check and sign it over to the postmaster to offset the salary advance, thereby reducing his liability to $2,234.04. Otherwise, he was told, the check would be returned to the Postal Data Center and he would be liable for the entire $4,700.00. Mr. Perotta's letter also stated that Petitioner was entitled to be paid for only 200 base hours because 40 hours had already been paid to Petitioner in the form of administrative leave. (PS Ex. 8).

8. On August 13, 1999, Petitioner was issued the Notice of Involuntary Administrative Salary Offsets, stating that he owed the Postal Service $4,700.00.

Petitioner argues that the calculations done by Mr. Murphy and Ms. Greeson (see Finding of Fact #3) are correct, i.e., that the $4,700.00 advance represents only about 65% of the back pay owed to him, and that he signed the Form 8039 on March 30, 1999 only because Mr. Perotta told him it was the "corrected" copy ordered by the judge. He now insists that the figures on that form are not correct.

Respondent argues that the Postal Service has complied with the terms of the MSPB settlement agreement, and that the amount of the May 6, 1999 check, along with the May 26, 1999 interest payment, was correct.

As is often the case in alleged salary overpayment cases, the record is not adequate to make a clear determination as to what the correct salary figures should be. In accordance with the settlement agreement, however, the Postal Service did provide Mr. Bell with a new Form 8039 and he did sign it. I find no compelling reason why he should not be bound by it. Likewise, the Postal Service must also be bound by it. The check stub indicates that Petitioner was paid for only 200 regular hours, although the Form 8039 on which Respondent relies lists 248 regular hours (including 8 holiday hours). Respondent argues that Petitioner had received some hours in the form of administrative leave, and that this is a fact "disclosed" by the check. Respondent's assertion might be correct, but the check is not sufficient to prove it. All the check proves is that the Accounting Service Center issued a check for a certain amount on a certain date. It does not prove that the amount was correctly calculated.

Using the settlement agreement recorded in the MSPB Administrative Judge's March 29, 1999 Initial Decision, and the PS Form 8039 that was executed in accordance with that agreement, I conclude that Petitioner was entitled to be paid for a total of 240 regular hours, 8 holiday hours, 37.18 overtime hours, and 8 penalty hours. Respondent shall calculate the net value of those hours, after making appropriate deductions for taxes, retirement, etc. The difference between the net amount and the $4,700.00 advance will then be Petitioner's indebtedness to the Postal Service and may be collected by deductions from Petitioner's salary.

Bruce R. Houston
Chief Administrative Law Judge

¹ Documents attached to Respondent's Answer are identified as "PS Ex. _."
² In an Order dated June 15, 1999, the MSPB Administrative Judge reiterated her opinion that she had no jurisdiction to enforce the settlement agreement. (Opinion attached to Petition, pp. 16-17).
³ The stub states that the total hours due were "200 Base, 37.18 OT, and 8 POP," but no hourly rates are stated.