In the Matter of the Petition by                        )       
                                                                        )
DAN H. FRYE                                                  )
4719 Colonel Darnell Place                             )
                                                                        )
            at                                                         )
                                                                        )
Upper Marlboro, MD 20772-2805                    )           P.S. Docket No.  AO 04-7

APPEARANCE FOR PETITIONER:          Dan H. Frye
                                                              4719 Colonel Darnell Place
                                                              Upper Marlboro, M  20772-2805

APPEARANCE FOR RESPONDENT:      Cheryl Keith
                                                              Labor Relations Specialist
                                                              United States Postal Service
                                                              900 Brentwood Road NE
                                                              Washington, DC  20066-7000

INITIAL DECISION

            Petitioner, Dan Frye, a former Postal Service employee, filed a Petition challenging the Postal Service's assertion that he owed the Postal Service a debt of $12,583.59.  The Petition was docketed under the procedures set forth in 39 C.F.R. Part 966, which allow a former employee to challenge collection of a debt alleged by Respondent.

            A hearing was held in Arlington, Virginia.  The Postal Service presented testimony from two of Petitioner’s former supervisors, Mr. Cordell and Mr. Payne.  Petitioner testified in his own behalf, and both parties relied on documents previously filed.  Respondent also submitted additional documents at the hearing.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  During the time pertinent to this case, Petitioner was employed by the Postal Service as a delivery supervisor at a location known as Chillum Place Annex in Washington, D.C. (Tr. 10, 29, 36, 61; PS Exs. 5 and 9).[1]

            2.  Sometime in June 2002, Petitioner was injured in an automobile accident.  This caused him to be absent from work for a period of time.  On July 30, 2002, Petitioner not having returned to work, his supervisor at the time, Mr. Dickens, sent Petitioner a letter stating that his absence from work since July 15, 2002 was unsubstantiated by any medical documentation.  The letter directed Petitioner to provide the required documentation within three days or he would be charged with absence without leave.  (Tr. 6, 12-13; PS Ex. 5).

            3.  Petitioner replied to Mr. Dickens by letter dated August 5, 2002, and also submitted two leave requests (PS Form 3971), the first requesting leave from August 1 through September 2, 2002, and the second requesting leave from September 2, 2002 through March 2, 2003.  Petitioner’s letter cited the need for him to care for his mother in North Carolina.  (Tr. 57-59; PS Exs. 6 and 8).

            4.  In a letter to Petitioner dated August 9, 2002, Mr. Dickens denied Petitioner’s leave requests, and stated that he “had no choice but to carry you on AWOL status from the lack of supporting documentation you submitted.”  (Tr. 59; PS Ex. 7).

            5.  The official time and attendance records for Petitioner show him in AWOL status from July 27 through September 26, 2002.  This equates to pay periods 17/1 through 21/1 of 2002.  (Tr. 29-33, 42-44; PS Ex. 4, pp. 27-41; PS Exs. 14 and 15).

            6.  These same time and attendance records show Petitioner in work status from September 30, 2002 through January 24, 2003.  Petitioner testified that he was at work from September 26, 2002 until December 14, 2002, and that December 14, 2002 was his last day of work for the Postal Service.  (Tr. 60; PS Ex. 4, pp. 42-74).

            7.  Petitioner’s pay record shows that he received no pay for pay periods 17, 18, 20, and part of pay period 21 of 2002 (see Finding #5 above).  The pay record shows that he was paid $1,383.71 in pay period 19 of 2002, despite being in AWOL status.  (Tr. 43-44; PS Ex. 2; PS Ex. 4, pp. 34-37).

            8.  From sometime in 2000 until sometime in late 2001 or early 2002, Mr. Payne was Petitioner’s supervisor.  When Mr. Payne left due to an accident, Mr. Dickens became Petitioner’s supervisor and remained so until approximately September/October 2002, when Mr. Payne returned.  Mr. Dickens retired in December 2002 or January 2003.[2]  Mr. Cordell was the next level higher supervisor during all the time pertinent to this case.  (Tr. 10, 28, 36-37, 47, 53). 

            9.  All three supervisors named in the above paragraph worked in the same building as Petitioner.  Approximately 200 employees, including six or seven supervisors, work in the building.  Neither Mr. Cordell nor Mr. Payne saw Petitioner at work at any time after June 2002, although their duties were such that had Petitioner been working in the facility while Cordell and Payne were on duty, they would have seen him.  (Tr. 11-13, 27-29, 37-38, 53-54).

            10.  On December 18, 2002, Mr. Payne issued Petitioner a Letter of Instruction, noting Petitioner’s long absence and stating that removal action was being initiated because of Petitioner’s failure to submit acceptable documentation to support his extended absence.  The letter stated that Petitioner was then in a non-pay status.  (Tr. 38-39, 49-50; PS Ex. 9).

11.  As a supervisor, Petitioner was in an automatic pay status, which is a flat salary rather than pay for actual hours worked.  As such, his time record would automatically show him at work each day unless someone took action to put him in a leave or non-pay status.  (Tr. 15, 39-40).

            12.  In a January 2003 meeting at which a report on employees in a non-pay status was discussed, Mr. Cordell noted that Petitioner’s name was not on the report and that Petitioner was therefore still being automatically paid each pay period.  Because he was aware that Petitioner had not been working for several months, he then took action to stop Petitioner’s automatic pay and initiated action to collect back any pay that Petitioner had erroneously received.  (Tr. 14-15).

            13.  On March 19, 2003, Mr. Payne issued Petitioner a Letter of Debt Determination, stating that Petitioner owed the Postal Service $10,425.35.  This figure was derived from a printout of net pay received by Petitioner each pay period.  The alleged $10,425.35 debt was calculated by adding the pay he received from pay period 16 of 2002 through pay period 3 of 2003.  (Tr. 40-41; PS Exs. 1 and 2).

            14.  In January 2004, Petitioner received a Notice of Intent to Collect Delinquent Debt from the Postal Service Accounting Service Center, stating that he owed $12,583.59.  (Notice and Invoice attached to Petition).

DECISION

            Petitioner does not dispute that he was in leave without pay status for four pay periods from July 27, 2002 through September 26, 2002, but contends that he returned to work on September 26^th or 27^th and continued to work until December 14, 2002.  He agrees that he did not return to work after that date and concedes that he owes the Postal Service for pay he received from December 14, 2002 through January 24, 2003.  In addition, he contends that the $1,383.71 he received in pay period 19 of 2002, while he was in AWOL status (see Finding #7), was not salary for that pay period but was back pay for a promotion and, therefore, is pay he is entitled to.   

            Petitioner’s assertion for the period September 26-December 14, 2002 is that he was working at the direction of Mr. Dickens during that time, but was working as a “floater,” rather than at a specific location for the whole period.

            Respondent contends that the testimony of Mr. Cordell and Mr. Payne, along with the documentary evidence, is more than sufficient evidence to prove that Petitioner was not at work during the period he claims, September 26-December 14, 2002.  Respondent’s argument in this regard is more persuasive.  Mr. Cordell and Mr. Payne were credible witnesses in testifying that they would have seen Petitioner at Chillum Place had he been at work during the disputed time.  Further, had Petitioner been at work during this period, it is likely that he would have taken some action to make this known to his supervisors when he received the December 18, 2002 letter from Mr. Payne threatening disciplinary action for his extended absence.  (see Finding #10).  Under Petitioner’s version of the events, he had been working regularly until December 14, 2002, just four days prior to the letter being issued.  Finally, there is no evidence that Petitioner made any effort to produce Mr. Dickens, who presumably could have corroborated Petitioner’s version of events, if true.  Also, although Petitioner testified that other supervisors and employees saw him at work during the disputed period, he was somewhat equivocal about who they were (Tr. 69-71), and did not request any to be present as witnesses.[3]  Respondent has demonstrated by a preponderance of evidence that Petitioner was not entitled to be paid for pay periods 02/16 through 03/03.

            Respondent has not, however, proved the full amount of the debt that it alleges.  The only evidence Respondent presented to show how the original alleged debt of $10,425.35 became $12,583.59 is a printout that Respondent’s representative received from the Accounting Service Center shortly before the hearing (PS Ex. 16).  The document is not self-explanatory and there was no testimony from anyone to explain why the figures on that document are different from those on PS Ex. 2, on which the original alleged debt was based.  Further, Petitioner’s claim for the $1,383.71 that he received in pay period 19 of 2002 has merit.  Respondent did not rebut his testimony that this represented a retroactive promotion payment, which is consistent with the fact that the pay record shows him to have been in a no-pay AWOL status in pay period 19.

            The Petition is denied in part and granted in part.  Respondent may collect $9,041.64 ($10,425.35 - $1,383.71) from Petitioner.     

                                                                                    Bruce R. Houston
                                                                                    Chief Administrative Law Judge

[1] References to the hearing transcript are “Tr._.”  Documents attached to Respondent’s Answer, and to Respondent’s supplemental filing and presented by Respondent at the hearing, are “PS Ex._.”

[2] Neither party attempted to call Mr. Dickens to testify in this case.

[3]  An Order dated March 24, 2004, which among other matters directed the parties to submit witness lists by April 2, 2004, advised that Respondent was to make available any current Postal Service employees listed by Petitioner.