In the Matter of the Petition by

BARBAREE A.KHALEES;

P.S. Docket No. AO 07-430

APPEARANCE FOR PETITIONER:
William Brown

APPEARANCE FOR RESPONDENT:
Mark Dennett, Esq.
Tampa Law Department
United States Postal Service
And
Thomas Boyle Labor Relations Specialist United States Postal Service

INITIAL DECISION

            Petitioner, Barbaree Khalees, filed a Petition for Hearing after receiving two invoices from the Postal Service Accounting Service Center, and later a Notice of Debt Determination from the Acting Manager, Human Resources, dated December 28, 2007. This Notice stated an intention to collect $26,161.36, for overpayment of sick leave and annual leave.

            A hearing was held in Duluth, Georgia on April 3, 2008. The Postal Service presented testimony from a former Acting Manager of Human Resources, the current Acting Manager of Human Resources, and another Human Resources employee. Petitioner testified in her own behalf, and also presented testimony from another former Acting Manager of Human Resources, and a retired Postal Service employee who had previously represented Petitioner in a related matter. Both parties also relied on documents previously filed.; The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  Petitioner worked for the Postal Service for approximately thirty years and retired on December 3, 2007.  Nearly all of her career was in Human Resources. Immediately prior to retirement, her supervisor was the Manager of Human Resources for the Atlanta District.  (Tr. 70, 86; PS Ex. 1).[1]

            2.  On June 12, 2007, the Acting Manager of Human Resources signed two PS Forms 3971s, Request for or Notification of Absence, approving sick leave for Petitioner for July 3, 2007 through September 28, 2007, and for October 1, 2007 through December 31, 2007.  Petitioner had previously had some discussion with the Manager of Human Resources about some medical issues she wished to address before she retired and her desire to use her accumulated sick leave prior to retiring.  (Tr. 13-14, 16-17, 72-73; PS Ex. 36, pp. 7-8).

            3.  The Acting Manager did not require Petitioner to provide medical documentation to support the request for sick leave, nor did his successor as Acting Manager, who held the position from approximately mid-July through early October 2007.[2]  (Tr. 14, 18, 49, 55, 63-64, 77-78).

            4.  When the current Acting Manager of Human Resources took over on or about October 14, 2007 and learned that Petitioner was being carried in sick leave status since July, he inquired into her status.  He did not know Petitioner personally.  On November 7, 2007, he sent Petitioner a letter that stated, as the first paragraph:

                        “This is in reference to your continued absence from work which began on July 3, 2007.  This letter serves as a directive to submit relevant medical documentation for your absence since the above date and to provide medical documentation every 30 days.” (Tr. 28-30, 78; PS Exs. 24, 26).

            5.  On November 16, 2007, Petitioner replied by email to the November 7 letter.  She summarized various health concerns and her discussion with her former supervisor, the Manager of Human Resources, but said nothing about providing any medical documentation.  She stated that the Acting Manager who signed the leave slips was aware of the Manager’s prior approval and of some of the health issues.  She concluded by making reference to having been a “committed, dedicated employee” for 30 years, stated that she had never abused her sick leave, and asked that the Acting Manager approve her continued use of sick leave until her retirement on December 3, 2007.  (PS Ex. 26).

            6.  Also on November 16, 2007, the current Acting Manager replied to Petitioner’s email by stating that, because of the absence of any medical documentation, he must deny her request for sick leave and that she had the option of having the leave changed to annual leave or leave without pay.  (PS Ex. 27).

            7.  Petitioner replied again by email on November 19, 2007, asking that her annual leave account be charged.  (PS Ex. 29).

            8.  On November 29, 2007, Petitioner sent the Acting Manager a cover letter and a one-page form from Kaiser Permanente, titled “Verification of Treatment,” stating that Petitioner had been seen at their medical offices on November 29, 2007.  It was signed by an unnamed physician.  The form also stated, “Barbaree has been my patient for awhile,” and summarized various health matters.  It gave no dates for any particular treatment and said nothing about Petitioner being unable to work for any period, or periods, of time.  (PS Exs. 31 and 32).

            9.  On November 30, 2007, the Acting Manager replied to Petitioner by email, stating that the document Petitioner submitted was not sufficient to approve the sick leave because it did not indicate that Petitioner was unable to perform her work.  This email also made reference to information that Petitioner was working in real estate while she was on sick leave, and that this was a violation of rules.[3]  (PS Ex. 33).

            10.  Petitioner did not submit any additional medical documentation.  Therefore, the Acting Manager signed several PS Forms 2240, Pay, Leave, or Other Hours Adjustment Request, converting the sick leave to leave without pay for pay periods 14-23 of 2007.  (PS Ex. 38).

            11.  When Petitioner retired and this matter was being looked at, Petitioner had only a relatively small amount of accumulated annual leave.  That was used to cover some of the extended absence.  (Tr. 41-43, 79).

            12.  On December 12, 2007, the Accounting Service Center issued an invoice for $25,727.00 for 728 hours of sick leave and 24 hours of holiday leave that had been converted to leave without pay.  On December 26, 2007, the Accounting Service Center issued a second invoice for $434.36 for annual leave that had been overdrawn.  On December 28, 2007, the Acting Manager issued Petitioner a Notice of Debt Determination for the combined amount - $26,161.36.  (Tr. 41-43; PS Exs. 39, 40 and 43).

            13.  The following provisions of the Employee and Labor Relations Manual (ELM) pertaining to sick leave are applicable:

513.1  Purpose

513.11  Sick Leave for Employee Incapacitation.  Sick leave insures employees against loss of pay if they are incapacitated for the performance of duties because of illness, injury, pregnancy and confinement, and medical (including dental or optical) examination or treatment.

                                                * * *

513.342  Approval or Disapproval.  The supervisor is responsible for approving or disapproving applications for sick leave by signing Form 3971, a copy of which is given to the employee.   * * *

                                                * * *

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 or of need to care for a family member and, if requested, substantiation of the family relationship.

513.363  Extended Periods.   Employees who are on sick leave for extended periods are required to submit at appropriate intervals, but not more frequently than once every 30 days, satisfactory evidence of continued incapacity for work or need to care for a family member unless some responsible supervisor has knowledge of the employee’s continuing situation.

513.364  Medical Documentation or Other Acceptable Evidence.  When employees are required to submit medical documentation, such documentation should be furnished by the employee’s attending physician or other attending practitioner who is performing within the scope of his or her practice.  The documentation should provide an explanation of the nature of the employee’s illness or injury sufficient to indicate to management that the employee was (or will be) unable to perform his or her duties for the period of absence.  Normally, medical statements such as “under my care” or “received treatment” are not acceptable evidence of incapacitation to perform duties.

Supervisors may accept substantiation other than medical documentation if they believe it supports approval of the sick leave request.

513.365  Failure to Furnish Required Documentation.

If acceptable substantiation of incapacitation is not furnished, the absence may be charged to annual leave, LWOP, or AWOL.

DECISION

            Respondent’s position is that, under the rules quoted above, Petitioner’s sick leave was correctly converted to leave without pay because she failed to provide “medical documentation or other acceptable evidence of incapacity for work.”

            Petitioner argues that it is not “right” for a new supervisor to reexamine sick leave that had been approved months earlier by two previous supervisors.  She relies, in part, on the last phrase of §513.363, “unless some responsible supervisor has knowledge of the employee’s continuing situation.”  She contends that the previous supervisors knew that she was approaching retirement and that she had some health issues to deal with and, therefore, no medical documentation was required.  She also argues, in part, that some consideration should have been given to her thirty years of excellent service to the Postal Service and that others have been permitted under similar circumstances to use large amounts of sick leave immediately prior to retirement.

            Petitioner’s contentions are not consistent with the ELM rules quoted above.  There is no reason to doubt Petitioner’s assertion that she had a long career of excellent service, but the purpose of sick leave is clearly stated in the ELM.  It is not given as a reward for good service.  Petitioner’s reliance on the concluding phrase of §513.363 is misplaced, because that provision presupposes that there was documentation or other medical evidence to support the sick leave in the first place.  That Petitioner did have some health issues is not in doubt, and it may well be that some portion of her absence could have been medically supported, but Petitioner has never even claimed that she was “incapacitated for the performance of duties” for five months.  Her testimony that she that she could have produced medical documentation if asked earlier but could not do so in November, and that she did not understand from the Acting Manager’s November 7 letter (see Finding #4) that she was being directed to provide medical evidence for her entire absence, is not credible (Tr. 80-85).

            As for Petitioner’s assertion, and that of some witnesses, that other people have used extended sick leave leading up to retirement, no specifics were provided and all the witnesses in a position to know denied that there is any approved practice in the Atlanta District to grant such sick leave without medical justification.  Even assuming that her previous supervisors were willing to let Petitioner use up her sick leave without medical evidence to support it, that is not permitted under the ELM rules.  Contrary to the position espoused by one of Petitioner’s witnesses, a succeeding supervisor does have authority, under §513.365, to take corrective action on sick leave that either was improperly approved or not adequately documented later.  It is not only his right to do so, it is his obligation.  Thomas Mitchell, P. S. Docket No. DCA 99-280 (August 12, 1999).

            Respondent’s action in converting Petitioner’s sick leave to leave without pay was proper.  The Petition is denied.  Respondent may collect $26,161.36 from Petitioner.

Bruce R. Houston
Chief Administrative Law Judge

[1] References to the hearing transcript are “Tr._.”  References to the documents filed with Respondent’s Answer, will be “PS Ex._.”

[2] There is a factual dispute over whether the Acting Manager, when he signed the leave slips on June 12, told Petitioner she “might” have to provide some medical support at some time, or that she “probably” would have to, or whether he said nothing at all about it.  It is not necessary to resolve this dispute.

[3] Apparently, it was well known that Petitioner intended to sell real estate as a second career and that she had undergone necessary training to obtain a real estate license.  There is some attention devoted to that in this record but, as Petitioner has never claimed to have been physically unable to work for any particular period, it is not necessary to resolve any dispute over what, or how much, she was doing as a real estate agent.