In the Matter of the Petition by

ROBERT D. GRIGSBY
4515 Lakeway Drivev at
San Antonio, TX 78244-1713
P.S. Docket No.  DCA 03-397

APPEARANCE FOR PETITIONER:
Robert D. Grigsby
4515 Lakeway Drive
San Antonio, TX  78244-1713

APPEARANCE FOR RESPONDENT:
Mary Ann Longnecker
Labor Relations Specialist
United States Postal Service
1 Post Office Drive
San Antonio, TX  78284-9401

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
 

            Petitioner, Robert D. Grigsby, filed a timely Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets from his postmaster on December 5, 2003.  This Notice stated the Postal Service’s intention to withhold $1,422.20 from Petitioner’s salary to recover a salary overpayment.

            Action on this case was suspended for well over a year to await the resolution of related cases pending before the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC).  The parties agreed early on that an oral hearing would not be necessary.  Once the MSPB and EEOC cases were final, the parties were given time to file additional evidence and argument, beyond that filed with the Petition and the Answer.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  On May 9, 2003, Petitioner was issued a Notice of Proposed Adverse Action: Reduction in Grade from EAS-21 to EAS-17, based on allegations relating to his conduct and his job performance (Answer, Ex. 8).

            2.  On June 18, 2003, after reviewing evidence and meeting with Petitioner’s representative, the San Antonio Postmaster issued a Letter of Decision, announcing that Petitioner’s reduction in grade would be effective June 28, 2003 (Answer, Ex. 7).

            3.  On July 22, 2003, Petitioner appealed the reduction to the Merit Systems Protection Board (MSPB) (Answer, Ex. 3).

            4.  After the reduction in grade became effective on June 28, 2003, Petitioner continued to be paid at the EAS-21 grade until late August 2003.  This occurred in pay periods 15-19 of 2003.  On November 5, 2003, Petitioner was issued a Letter of Demand for $1,422.20, along with an invoice, alleging that he was incorrectly paid at the EAS-21 level in pay periods 15-19.  (Answer, Exs. 6, 9, 12, and 13).

            5.  On November 21, 2003, an MSPB Administrative Judge issued a decision affirming the agency action reducing Petitioner in grade (Answer, Ex. 3).

            6.  The Notice of Involuntary Administrative Salary Offsets asserting the same $1,422.20 debt was dated December 3, 2003, and was received by Petitioner on December 5, 2003.  (Petition; Answer, Ex. 2).

            7.  On December 23, 2003, Petitioner appealed the MSPB Administrative Judge’s decision to the full MSPB.  (Appeal attached to Respondent’s March 8, 2004 submission).

            8.  At some time during the pendency of the reduction in grade matter, Petitioner also brought a complaint against the Postal Service before the Equal Employment Opportunity Commission (EEOC), alleging that he had been subjected to a hostile work environment between September 2002 and September 2003.  A hearing was scheduled for January 6-7, 2004.  On January 6, 2004, the parties entered into a Settlement Agreement of the EEOC case.  (Answer, Ex. 1; Summary of Telephonic Prehearing Conference attached to Petition).

            9.  The Settlement Agreement, in paragraph 1, states that Complainant (Mr. Grigsby) waives “any and all claims arising from the matter known as Robert Grigsby v. U.S. Postal Service designated as [EEOC case #].”  The Agreement further states that the claims being waived “include, but are not limited to, those for front pay, back pay, compensatory damages, punitive damages, interest and claims for attorneys’ fees . . ..”

            10.  Paragraph 6 of the Agreement includes the following: “The parties enter into this agreement without any prejudice to their rights to raise any defense or argument in any other case not referenced or incorporated into this agreement.”

            11.  Paragraph 8 of the Agreement includes the following: “Complainant acknowledges and affirms that the only consideration for signing this Agreement is the terms stated herein; that no other promise or agreement of any kind has been made . . ..”

            12.  Paragraph 3 of the Agreement makes reference to, and incorporates, terms agreed to on the record before the EEOC Administrative Judge.  A transcript of those terms is attached to the Agreement, and includes the following:

1)  Effective January 7, 2004, Mr. Grigsby will take annual leave or sick leave until 2-6-2004.

2)  On February 7, 2004, through March 5, 2004, Mr. Grigsby will begin administrative leave at the EAS 21 level.

3)  Mr. Grigsby will retire effective March 6, 2004.

4)  The agency will expunge the record, and that is all personnel files, the official personnel file and any other informal personnel files will be expunged of all adverse action documents.

5)  The agency will pay Mr. Grigsby $7100 in a lump sum payment and, if it is available and acceptable, an advance will be tendered.

            13.  On August 8, 2004, the MSPB issued a Final Order, upholding the Administrative Judge’s decision on Petitioner’s reduction in grade.  (Attached to Petitioner’s August 31, 2004 submission).

            14.  On or about March 30, 2004, Petitioner filed an appeal with the EEOC, claiming that the Postal Service had breached the Agreement.  He complained that the Postal Service had failed to purge certain adverse action documents from his records, and also complained that the attempted debt collection action violated the terms of the Agreement.  On August 19, 2004, the EEOC issued a decision, finding that the Postal Service had complied with the terms of the Agreement regarding expunging records, and stating that the Postal Service had withdrawn its debt collection action.  (Attached to Petitioner’s August 31, 2004 submission).

            15.  Petitioner then filed a request for reconsideration with the EEOC, apparently arguing that the decision was based in part on the erroneous finding that the Postal Service had withdrawn the debt collection action when, in fact, the Postal Service had not withdrawn the debt collection action.[1]  The Postal Service replied, arguing that, although the cited finding was erroneous it was not material to the EEOC decision because the matter of the Postal Service’s claim for overpaid salary was not encompassed within the Settlement Agreement.  (Postal Service brief to EEOC attached to Respondent’s November 8, 2004 submission).

            16.  On March 30, 2005, the EEOC denied Mr. Grigsby’s request for reconsideration, simply stating that he had not demonstrated that the decision “involved a clearly erroneous interpretation of material fact or law.”  (EEOC Denial attached to Respondent’s April 12, 2005 submission).

DECISION

            Respondent’s position is that Petitioner’s reduction in grade has been upheld by the MSPB, and that Petitioner was not entitled to pay at the EAS-21 level after June 28, 2003, the effective date of the reduction.  Respondent also argues that the Debt Collection Act Petition raises a back pay issue and that, under the terms of EEOC Settlement Agreement, Petitioner waived any claim for back pay (see Finding #9). 

            Petitioner does not challenge the fact that his reduction in grade was upheld or that he was paid at the higher grade for the period alleged.  His contention is that the terms of the EEOC Settlement Agreement bar Respondent from asserting this debt collection claim.[2]

            I do not find support for either party’s argument in the language of the Settlement Agreement.  Respondent’s argument that this is a back pay claim that was waived by Petitioner in the Agreement is incorrect, inasmuch as this is claim by the Postal Service against Petitioner.  There is nothing in the Agreement that bars Petitioner from contesting a debt collection action.

            On the other hand, Petitioner’s only defense to the alleged debt is that collection is barred by the Settlement Agreement.  However, there is no mention in the Agreement of the overpayment issue that is the subject of this debt collection action.  The basis of Respondent’s claim is clearly Petitioner’s receipt of EAS-21 pay in five pay periods after the effective date of his reduction.  There is no language in the Settlement Agreement that can reasonably be read to cover this or to preclude Respondent from asserting this debt.[3]  It is important to note that it was before the MSPB that Petitioner challenged the reduction in grade, and the MSPB did not issue its Final Order until approximately seven months after the Settlement Agreement was entered into.  Moreover, as this Debt Collection Act proceeding was pending at the time the Agreement was entered into, it is likely that the alleged debt would have been addressed if the parties intended it to be resolved by the EEOC Agreement.  The Agreement covered numerous other matters.  It did not cover the debt that is the subject of this case.

            The evidence of record demonstrates that Petitioner was overpaid in pay periods 15-19 of 2003, and Petitioner has not challenged the calculation of the amount of overpayment.  Petitioner’s reduction in grade having been upheld by the MSPB, Respondent is entitled to recover the overpayment.  The Petition is denied.  Respondent may collect $1,422.20 from Petitioner.  Petitioner must be credited with any amount that has already been withheld.

                                                                                    Bruce R. Houston
                                                                                    Chief Administrative Law Judge

[1] Petitioner’s request for reconsideration is not part of the file in this case.

[2] In his Petition, which was filed before the Settlement Agreement was negotiated, Mr. Grigsby simply argued that there may be no debt because the matter might be decided in the then-pending EEOC hearing.

[3] In a telephone conference on December 17, 2003, in preparation for the EEOC hearing, the Administrative Judge summarized the several issues raised by Mr. Grigsby’s Complaint.  None of them touch on the pay issue that is the subject of this case.  (Summary of Telephonic Prehearing Conference attached to Petition and to Respondent’s November 8, 2004 submission).