ROBERT E. MALONEY

P.S. Docket No. AO 07-183

APPEARANCE FOR PETITIONER
Charles Scialla

APPEARANCE FOR RESPONDENT
Maureen O. Briody, Esq.

INITIAL DECISION

           Petitioner, Robert Maloney, filed a Petition for Hearing after receiving a letter from his postmaster denying a request for reconsideration of a notice that Petitioner owed the Postal Service $37,281.68. Following a telephone conference with the parties, Respondent, the United States Postal Service, filed a Motion to Dismiss, arguing that the doctrine of res judicata barred Petitioner from receiving a second hearing because the issues he raises have been previously litigated and adjudicated in another forum. Petitioner replied, but did not oppose the motion.

           The following findings of fact, necessary to rule on the motion, are based on all the material filed by the parties.

FINDINGS OF FACT

           1. During all the time pertinent to this case, Petitioner was a Supervisor of Customer Service at the Sussex, New Jersey Post Office. For part of that time, April 28, 2004 through March 30, 2005, he served as Office-in-Charge (OIC) of the Sussex Post Office. (Motion, Ex. A).

           2. On April 13, 2006, based on an investigation by the Postal Service Office of Inspector General, Petitioner was issued a Notice of Proposed Removal from Postal Service employment. The Notice listed two charges against Petitioner: (1) Unauthorized Use Of Another Employee’s TACS [Time and Attendance Collection System] Password To Input Payroll Adjustments For Yourself, and (2) Submission of Misleading Expense Reports. Specifically, the first charge alleged that Petitioner entered 842 unauthorized payroll adjustments to obtain 1,388 hours of additional straight-time pay from April 2004 through January 2006, and thereby was paid approximately $37,282.00 to which he was not entitled. (Motion, Ex. A).

           3. On September 6, 2006, after considering Petitioner’s written reply, the next level of authority issued a Letter of Decision. This letter found that the charges were supported by the evidence and concluded that they warranted removal, effective September 8, 2006. The letter also informed Petitioner of his right to appeal to the Merit Systems Protection Board (MSPB). (Motion, Ex. B).

           4. Petitioner appealed to the MSPB and a hearing before an Administrative Judge was held on November 21, 2006. Both parties were represented by counsel. Prior to the hearing, the charge alleging “misleading expense reports” was withdrawn. The Administrative Judge heard testimony from the postmaster who issued the Notice of Proposed Removal, the deciding official who issued the Letter of Decision, the IG officials who conducted the investigation, and Petitioner. (Motion, Ex. C).

           5. The Administrative Judge concluded that the Postal Service’s evidence was sufficient to prove that Petitioner had made the unauthorized TACS entries as alleged, that he wrongfully inputted the number of additional hours alleged, and that the payments he improperly authorized himself amounted to $37,281.68. The Judge noted that, other than quibbling about the number of times he entered the TACS, Petitioner did not dispute the Postal Service’s evidence. The Judge also stated that Petitioner, in his testimony, admitted that he had used another employee’s password to input payroll adjustments for himself, that he knew this was wrong, and that he adjusted his own time without permission from his supervisors. (Motion, Ex. C).

           6. In response to Petitioner’s argument that his actions, while wrong, were not serious enough to warrant removal because he actually did work the extra hours that he had improperly entered into the system, the Administrative Judge noted that Postal Service rules do not permit an OIC to receive extra pay for extra hours and that a supervisor may receive extra pay for extra hours only if the extra time is pre-approved by higher authority. Petitioner admitted that he never sought such approval. The Judge found Petitioner’s testimony on this issue to be “wholly disingenuous,” and that Petitioner’s actions were intentional and done for financial gain, “yielding him a substantial sum, $37,281.68.”

DECISION

           Respondent argues that the issues raised by Petitioner in this case are the same as those raised in the MSPB hearing, the facts were fully developed in that hearing and were resolved against Petitioner. Therefore, Respondent argues, the doctrine of res judicata prevents the same parties from re-litigating those same issues in a second proceeding.

           In fact, the only issue Petitioner raised in his Petition is that he is entitled to “a portion of the money for hours worked.” All the facts pertaining to this issue were presented in the MSPB hearing, and this is precisely one of the issues the Administrative Judge addressed in his decision (see Finding #6).

           Under the doctrine of res judicata (claim preclusion), a judgment on the merits in a prior suit bars a second suit involving the same parties on the same cause of action. The requirements for application of the doctrine of collateral estoppel (issue preclusion) are: (1) the issue in both proceedings must be identical; (2) the issue was raised and actually litigated and decided in the prior action; (3) determination of the issue was necessary to support the judgment; and (4) the party sought to be precluded from raising the issue had a full and fair opportunity to litigate the issue in the prior proceeding. Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991).

           Whether the principle involved here is more accurately described as res judicata or collateral estoppel is of no moment. The result is the same. Petitioner has had a full hearing on the facts and issues pertinent to the debt claim that is made in this case. He is not entitled to another. Montana v. United States, 440 U.S. 147, 153 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5 (1979); Alfred Araiza, P. S. Docket No. AO 00-429 and AO 01-24 (November 28, 2001).

           Respondent’s motion is granted and this Petition is dismissed. Respondent may collect $37,281.68 from Petitioner.

Bruce R. Houston
Chief Administrative Law Judge