In the Matter of the Petition by

JEROME L. SMITH
at
Laurel, MD

P.S. Docket No. AO 08-308

APPEARANCE FOR PETITIONER: Douglas E. Sapp
APPEARANCE FOR RESPONDENT: Celia Clinton
Labor Relations Specialist
United States Postal Service

INITIAL DECISION

Petitioner, Jerome L. Smith, filed a Petition for Hearing on September 24, 2008, pursuant to 39 C.F.R. Part 966.  Respondent, United States Postal Service, sought to collect from Petitioner $1,573.81 related to his use of annual leave during calendar year 2007, the same year in which Petitioner retired from the Postal Service.

A hearing was held over the course of two days and the evidentiary record in this matter closed on July 31, 2009. 

FINDINGS OF FACT

1. In 2007, Petitioner, then employed by Respondent, earned the maximum 8 hours of annual leave per pay period (Tr. Vol. I, p. 15).[1]
2. Petitioner was advanced 208 hours of annual leave in January 2007, representing the annual leave available to him if he remained employed throughout 2007 (Tr. Vol. I, p. 15).
3. In spring of 2007, Petitioner was granted six weeks of annual leave.  However, during that leave Petitioner’s spouse became ill (Tr. Vol. II, p. 34).
4. Petitioner requested that the remaining portion of his scheduled annual leave be converted to sick leave due to his wife’s illness (Tr. Vol. II, p. 35).
5. Petitioner was told by an unidentified person that sick leave was not available for his wife’s illness, and could be used only for his own illness (Id.).
6. On June 25, 2007, Petitioner called the Enterprise Resource Management System (ERMS) that was in place in 2007 to request “FMLA [Family and Medical Leave Act] leave” to care for his wife (Tr. Vol. II, p. 36; Petitioner’s Ex. 7).
7. In that telephone call, Petitioner requested 288 hours of “FMLA leave” for the period June 26, 2007, through July 31, 2007, to care for his wife during her illness (Tr. Vol. II, p. 37; Petitioner’s Ex. 7; Respondent’s Ex. 8).
8. An employee’s initial telephone call to the ERMS automated leave request system generates an electronic mail through the time and attendance office (TAC) to the employee’s supervisor.  The email will state the employee’s name, how many hours he is requesting, and what type of leave he is requesting.  The supervisor then places the leave into the system.  At the time of the initial call, the system does not indicate to the employee whether the requested leave is accepted or denied.  (Tr. Vol. II, pp. 13; 52).
9. Petitioner was subsequently credited with 40 hours of sick leave for dependent care during Pay Period 15/07 (Tr. Vol. II, pp. 15-16). 
10. Petitioner retired from the Postal Service on July 25, 2007 (Tr. Vol. I, p. 6).
11. By the time of Petitioner’s removal from the payroll records after his retirement, Petitioner had earned 96 hours of annual leave during 2007.  He had carried over annual leave of 147.95 hours earned prior to 2007.  During 2007, Petitioner used 343.46 hours of annual leave resulting in a negative annual leave balance of 99.51.  (Petitioner’s Ex. 7 (Pay Period 22/07)). 
12. The annual amount of paid leave an employee may take for dependent care is limited to 80 hours (Petitioner’s Ex. 6 and 7; Employee and Labor Relations Manual, §513.12).

DECISION

Respondent seeks to collect $1,573.81 from Petitioner which represents 99.51 hours of overdrawn annual leave paid to Petitioner during the period of time that he was not present at his job in order to care for his wife.  The evidence presented by Respondent establishes that Petitioner was paid for the time in dispute, and that the amount sought accurately reflects the debt figure cited by Respondent.  Nevertheless, Petitioner contends that Respondent may not collect the above debt because of Respondent’s failure to adhere to applicable Postal Service regulations, including application of sick leave for dependent care.[2]         

On June 25, 2007, Petitioner called into the ERMS automated leave request system to request what he erroneously termed “FMLA leave.”[3]  See Finding 6.  However, the automated system in place in 2007 that Petitioner was directed to use to request leave, and did in fact use on June 25, 2007, did not appear to function properly in this instance.  The record reflects that the system did receive Petitioner’s request on June 25, 2007, for an extended leave for dependent care from June 26, 2007, through July 31, 2007, for a total of 288 hours.  The record does not reflect how that request was processed, or why Petitioner’s request was either denied in part or not properly processed in the amount allowed by applicable regulations (80 hours of paid leave).  There is no evidence that Petitioner was ever notified of the partial denial of his request. 

Even if Petitioner’s request had been processed by Respondent as dependent care for the entire time requested, Petitioner could not have used more than 80 hours of his available sick leave for dependent care.  See Finding 12.  Given Petitioner’s telephone request for FMLA leave in excess of that amount, and given Respondent’s decision to process part of that request as dependant care sick leave, I see no basis to deny the balance of the allowable maximum total of 80 hours of dependent care sick leave to Petitioner under these facts.[4]  Accordingly, I credit Petitioner with 40 hours of additional sick leave to be used as dependent care leave as an offset against the debt.  See Finding 9.  Petitioner’s overdrawn leave balance of 99.51 hours, less 40 additional hours of sick leave for dependent care, reduces his overdrawn leave status to 59.51 hours. 

Likewise, because Petitioner would have been in a pay status by virtue of his use of available sick leave for dependent care, he would also have earned an additional 8 hours of annual leave for that period.  See Finding 1.  He is entitled to a credit for those 8 hours earned against his overdrawn annual leave balance.   That credit reduces his overdrawn annual leave balance to 51.51 hours.[5]

CONCLUSION

The Petition is allowed in part and denied in part.  Respondent may collect only the debt equal to 51.51 hours.  Respondent shall recalculate the net dollar amount of the debt based upon the reduced overdrawn leave balance set forth herein, and Petitioner’s salary at the time of his retirement, and may collect that reduced amount by offset from Petitioner. 

James G. Gilbert
Chief Administrative Law Judge

[1] Transcripts are cited by Vol. I (June 16, 2009) and Vol. II (June 19, 2009) and page number therein.

[2] Petitioner’s argument that no debt should be enforced because of alleged due process violations evidenced by Respondent’s collection of money from Petitioner in violation of regulatory procedure was rendered moot by Respondent’s return of the same moneys collected on or about November 25, 2008.  To the extent any further procedural due process was due Petitioner, it was satisfied by Petitioner’s filing of this Petition and the subsequent hearing conducted in this matter.  

[3] An excused absence from work under FMLA may be taken as annual leave, sick leave, or leave without pay.  FMLA is not a type of leave available to an employee; it is a reason why an otherwise impermissible extended absence from work is permitted under the law.  What type of leave, paid or unpaid, is to be applied for that time of absence from work under FMLA is a matter for the employee to decide.  Tr. Vol. I, p. 44.  Petitioner’s request for FMLA leave was more accurately characterized by Respondent as dependant care sick leave and is treated here accordingly.

[4] In fact, Respondent concedes this point in Respondent’s Closing Brief dated August 13, 2009, pp. 3-4. 

[5] Petitioner also argued that because he left a balance of 338.08 hours unused in his sick leave bank upon his retirement, this should be viewed as an asset to Respondent, and thus offset against the remaining balance of the debt.  I find no authority in support of this argument, either in the applicable rules, or in the case law, and Petitioner cited no such authority in this case.  Although Petitioner did present some evidence through testimony that unused sick leave balances do appear on Respondent’s balance sheets in some form, that fact does not establish it as a legal basis for an offset to the debt in this case.  Tr. Vol. I, pp. 46-47.  Accordingly, I reject Petitioner’s request to offset the debt by the unused sick leave balance left by Petitioner upon his retirement absent some specific regulation or legal authority in support of such an offset.