In the Matter of the Petition by

STEWART RUBIN
24 Ring Lane

at

Levittown, NY 11756-2623

P.S. Docket No. DCA 03-125

APPEARANCE FOR PETITIONER:
Albert E. Lum
Scialla Associates, Inc.
52-40 72nd Place
Maspeth, NY 11378-1516

APPEARANCE FOR RESPONDENT:
Jeffrey Smith
Labor Relations Manager
United States Postal Service
P. O. Box 7401
Island, NY 11760-9401

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

            Petitioner, Stewart Rubin, filed a Petition under the Debt Collection Act of 1982 after receiving a notice from the Manager, Distribution Operations of the New York Priority Mail Processing Center, that the Postal Service would begin withholding approximately $80.00 per pay period from Petitioner’s pay in satisfaction of a debt alleged to total $301.49. A hearing was held in Bethpage, New York.^[1]

FINDINGS OF FACT

            1. Petitioner is a Supervisor, Distribution Operations (SDO) at the Priority Mail Processing Center in Bethpage, New York. Petitioner is supervised by a Manager, Distribution Operations (MDO). There are several MDOs at the facility, working different shifts. (Transcript pages (Tr.) 9, 73).

            2. On January 9, 2003, Petitioner reported for work in time to begin his normal shift at 3:15 p.m. At the time, Petitioner was suffering from flu-like symptoms. Shortly thereafter, Petitioner informed a fellow supervisor that he was not feeling well and was going home, and asked the supervisor to let the next MDO (who was scheduled to report at 6:00 p.m.) know he had left.^[2] Petitioner left the facility at about 5:30 p.m. He did not fill out a PS Form 3971, “Request or Notification of Absence,” before leaving. (Tr. 10, 65, 69, 75-80).

            3. At about 11:30 a.m. on January 10, 2003, Petitioner called in and spoke to a clerk. He informed the clerk that he was ill and would not be coming to work that day, and requested sick leave. The clerk asked him if he would like to speak to his supervisor, the MDO, but Petitioner responded that he did not. Ordinarily, an SDO who is calling in sick is supposed to speak either to the MDO on duty or to the plant manager. (Tr. 10-11, 59-60, 80-81).

            4. The clerk reported Petitioner’s absence to the MDO on duty, Robert Brown. Mr. Brown, after consulting with the plant manager, called Petitioner at home at about 2:30 p.m. on January 10, 2003, and left a message on Petitioner’s answering machine telling Petitioner that he would have to bring in medical documentation to support his absence that day, and asking Petitioner to call him or one of the other MDOs. Mr. Brown decided to ask for documentation because Petitioner had left the previous day without filling out a Form 3971, because Mr. Brown believed that Petitioner had left without informing any supervisor that he was leaving, and because Mr. Brown was aware that Petitioner was scheduled to be on vacation beginning on January 11, 2003. (Tr. 12-13, 47, 61, 83).

            5. Petitioner, who was home, asleep, at the time, did not learn of the message until his wife woke him shortly before 10:00 p.m. when she arrived home from work. Petitioner did not listen to the message until the next day, January 11, 2003. (Tr. 82).

            6. On January 24, 2003, after he had returned to work, Petitioner filled out a Form 3971, asking for 14 hours of sick leave for January 9 and 10. Petitioner submitted a certificate from a physician indicating that he had been seen on January 20, 2003, for sinusitis and that he was cleared to return to work on January 23, 2003. Petitioner did not submit any evidence that he had been seen by a physician for his flu-like illness on January 9 and 10. On January 27, 2003, Mr. Brown disapproved the sick leave request, stating that the medical documentation submitted was unacceptable. (Respondent’s Exhibits (RExh.) 4, 5; Tr. 14).

            7. By letter dated January 27, 2003, Mr. Brown wrote to Petitioner and advised him that because he had filed “insufficient documentation” for the absence on January 9 and 10, he was being charged as “AWOL” for that period. On or about February 12, 2003, Respondent’s Accounting Service Center issued an invoice indicating that Petitioner’s work hours for those dates (for which he had apparently been paid and charged sick leave) had been changed to Leave Without Pay (LWOP), and that Petitioner was indebted to the Postal Service in the amount of $301.49. By letter dated February 24, 2003, Mr. Brown informed Petitioner that he was indebted to the Postal Service in the amount of $301.49, proposed an offset repayment schedule of $80.00 per pay period for approximately 4 pay periods, and indicated that Petitioner could request reconsideration. (RExh. 1, 3, 6).

            8. In letters to Mr. Brown dated February 24 and March 2, 2003, Petitioner requested reconsideration of the debt and asked that the decision to charge him with AWOL be rescinded. In the second letter, Petitioner stated that he had come to work ill on January 9, 2003, had informed a fellow SDO that he was leaving, and had called in on January 10, 2003, and informed the clerk that he would not be coming to work that day due to his illness. (Petitioner’s Exhibits (PExh.) 4, 7).

            9. In a letter dated March 3, 2003, Mr. Brown rejected Petitioner’s request for reconsideration. Mr. Brown cited the Employee and Labor Relations Manual (ELM) and stated that because Petitioner had failed to provide documentation to substantiate his absence, his absence was correctly charged to Leave Without Pay. (PExh. 12).

            10. Section 513.36 of the ELM, “Sick Leave Documentation Requirements,” provides:

            “513.361 Three Days or Less

            For periods of absence of 3 days or less, supervisors may accept the employee’s statement explaining the absence. Medical documentation or other acceptable evidence of incapacity for work … is required only when the employee is on restricted sick leave … or when the supervisor deems documentation desirable for the protection of the interests of the Postal Service....

            513.362 Over Three Days

            For absences in excess of 3 days, employees are required to submit medical documentation or other acceptable evidence of incapacity for work ….”

DECISION

            Respondent contends that Petitioner was properly charged with being AWOL (or was properly charged Leave Without Pay^[3]) based solely on his failure to follow the directions of his supervisor to provide medical documentation of his illness. Respondent does not argue that Petitioner was not actually ill and incapable of working on the days in question.^[4] Rather, Respondent argues that, having been directed by his supervisor to provide medical documentation, Petitioner was not entitled to determine on his own whether the request was legitimate or not. Rather, Respondent argues, Petitioner was obligated to provide the documentation, and his failure to do so entitled his supervisor to change his sick leave to LWOP.

            Petitioner makes a number of technical arguments that need not be addressed in detail.^[5] Petitioner also argues that there was no cause for Respondent to have asked for documentation from Petitioner for this absence, inasmuch as there had been no similar, previous incidents involving his use of sick leave.

            The general scheme of the ELM with regard to sick leave documentation (Finding 10) is that employees are required to provide medical documentation for absences of more than three days, but that documentation is generally not required for absences of three days or less unless the employee is on restricted sick leave. The ELM does give a supervisor discretion to require medical documentation, even for short absences, if he or she deems documentation desirable for the protection of the interests of the Postal Service. Contrary to the position taken by Respondent, however, that discretion is not unlimited. Further, the supervisor may not exercise that discretion unreasonably.

            In this instance, Mr. Brown’s articulated basis for deciding to ask for medical documentation was that Petitioner had left on January 9 without first filling out a Form 3971, that Petitioner had left without informing any supervisor (a belief that turned out to be incorrect), and because Petitioner was scheduled to be on vacation beginning on January 11. Respondent has not demonstrated that the circumstances of this case are sufficiently different from any other short-duration sick leave situation to justify requiring medical documentation, given the language of the ELM that clearly provides that medical documentation is not ordinarily to be required for absences of three days or less. This is particularly true where, as here, there is no evidence or any allegation that Petitioner had abused the use of sick leave in the past. Respondent has not shown that requiring Petitioner to provide medical documentation was necessary to protect the interests of the Postal Service or that it was a reasonable exercise of the supervisor’s discretion.

            Accordingly, the Petition is granted. Respondent may not withhold the $301.49 from Petitioner’s pay.

David I. Brochstein
Administrative Judge

[1]  The hearing was conducted by the undersigned Administrative Judge via speakerphone from Arlington, Virginia. All other participants, including the court reporter, were present in the hearing room in Bethpage, New York.

[2]  The previous MDO had left the facility as scheduled at about 3:30 p.m. Therefore, when Petitioner left there was no MDO on duty. (Tr. 10, 79).

[3]  For the purposes of determining whether Petitioner was properly denied sick leave, there is no practical difference between AWOL and LWOP, and the terms are used interchangeably.

[4]  During the hearing, much was made of a conversation that Petitioner had with one of the staff persons in the plant manager’s office before he went home sick on January 9, during which conversation Petitioner apparently made reference to going on vacation. This could suggest that Petitioner had planned in advance to call in sick on January 10 – his last scheduled work day before going on vacation. However, Petitioner testified credibly and without contradiction that he was actually saying goodbye to the person he was speaking to, since she was going to begin her vacation the next day, January 10. There is also some question as to whether Petitioner’s supervisor, Mr. Brown, was even aware of the conversation before deciding to require Petitioner to provide medical documentation. Mr. Brown testified that he first learned from the plant manager on January 10 that Petitioner had gone home early on January 9. There was no mention of Petitioner’s conversation in that testimony. (See Tr. 13). The plant manager, however, testified that he first learned that Petitioner had gone home early on January 9 when Mr. Brown told him about it on January 10, and when Mr. Brown also told him that he (Mr. Brown) intended to ask Petitioner for medical documentation. (See Tr. 47). In neither case is there any indication that Petitioner’s conversation was a factor in deciding to ask for the documentation. Therefore, the January 9 conversation has been given no weight in deciding this case.

[5]  Petitioner notes, correctly, that there are a number of references to requests by Mr. Brown for medical documentation only for January 10 and not January 9. In addition, Petitioner argues that Respondent has not shown that it has suffered any loss, since there is some question as to whether Petitioner’s sick leave account was recredited when his sick leave request was denied. (See Petitioner’s closing argument, Tr. 105-106).