In the Matter of the Petition by

SANDRA D. HINDMARSH

P.S. Docket No. DCA 08-339

APPEARANCE FOR PETITIONER:
Edward Thompson
APWU, AFL-CIO

APPEARANCE FOR RESPONDENT:
Kenneth Morelos
Labor Relations Specialist

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

            Petitioner, Sandra Hindmarsh, filed a Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets dated October 30, 2008, from her supervisor.  This Notice stated the Postal Service's intention to withhold $1,205.45 from Petitioner's salary to recover annual leave used by Petitioner that was later converted to leave without pay (LWOP).

            A hearing was held in Fort Worth, Texas on February 18, 2009.  [1] The Postal Service presented testimony from a Family Medical Leave Act (FMLA) coordinator, whose work deals with leave administration, and from an attendance control supervisor.  Petitioner testified in her own behalf, and also presented testimony from three supervisors and her sister.  Both parties relied on documents that had previously been filed, and Petitioner submitted one additional document at the hearing.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  The United States Postal Service has a program by which employees may donate annual leave to another employee when the other employee does not have sufficient accrued leave of his/her own to cover a need.  The Management Instruction that covers this program states:

To be eligible to receive donated leave, a career or transitional postal employee:

1. Must be incapacitated for available Postal Service duties due to a serious personal health condition, . . .. (PS Ex. 4). [2]

            2.  An employee in need of donated leave makes a request by completing PS Form 3970-R and submitting it to the employee’s supervisor.  By signing the form, the employee certifies, among other things, that: “(2) I am unable to perform available postal duties due to a serious personal health condition that is not job related.”

            3.  Petitioner signed and submitted a PS Form 3970-R on November 13, 2006.  Although her reason for doing so was to care for her teenage daughter, who was suffering serious medical difficulties, she did not indicate on the form that the request was based on the daughter’s situation.  An employee is not eligible to use donated leave based on a family member’s illness, to care for that family member.  (Tr. 12-13, 16-17, 21, 75-76, 97-99; 102; PS Ex. 2). [3]

            4.  Petitioner’s supervisor approved the request on November 16, 2006.  The Form 3970-R was then sent to the Postal Service Human Resources Shared Services Center in North Carolina, where the request was approved on December 5, 2006.  (Tr. 22, 39, 81; PS Ex. 3).

            5.  In pay periods 23 and 24 of 2006, Petitioner used seventy hours of annual leave, donated by her sister, and perhaps other co-workers.  (Tr. 94; PS Ex. 1).

           6.  In February and March 2007, Petitioner called the Shared Services Center on more than one occasion to inquire about whether she had been credited with leave donated to her by co-workers.  During one of these calls, on or about March 15, 2007, Petitioner told an SSC official that she used the leave to care for her daughter.  The SSC official told Petitioner that donated leave could only be used for a personal health condition and that she was not eligible to receive donated leave to care for a family member.  (Tr. 52-53, 106-07; HRSSC telephone log, included with Respondent’s January 23, 2009 submission).

            7.  During a telephone conversation with the SSC, Petitioner told the SSC official that she also had serious personal health issues, related to her daughter’s problems, but did not know that she could not receive donated leave to care for a family member.  The SSC official told Petitioner they could not change her leave retroactively, but recommended that Petitioner talk to her supervisor and resubmit the request.  SSC sent Petitioner a new copy of PS Form 3970-R.  Petitioner did not resubmit the form and did not present any supervisor with any documentation to show that her leave could be based on personal health issues.  (Tr. 36, 108, 122-23; HRSSC telephone log, included with Respondent’s January 23, 2009 submission).

           8.  On March 20, 2007, HRSSC sent Petitioner a letter informing her that her LSP (Leave Sharing Program) case had been closed because she requested donated leave to care for a family member.  The letter stated that any donated leave would be removed from her leave balance.  (Tr. 28, 65; PS Ex. 6).

            9.  On April 11, 2007, the Postal Service issued Petitioner a Letter of Demand for $1,205.45, to recover a salary overpayment in pay periods 23 and 24 of 2006, based on her use of donated leave being found to be invalid.  The Notice of Involuntary Administrative Salary Offsets for the same amount was issued on October 30, 2008.  (PS Ex. 1; Notice attached to Petition).

DECISION

            Petitioner argues that her supervisors knew that she was asking for leave to care for her daughter, that it is management’s responsibility to properly inform their employees about pertinent administrative rules, and that it is unfair for the Postal Service to come back several months later and demand that she pay for someone else’s error.  Petitioner’s argument is based, in part, on her claim that she used donated leave under similar circumstances in 2002 and, therefore, believed it was proper to do so.

            Respondent’s position is that the rules regarding use of donated leave are clear and undisputed, that Petitioner was not entitled to use donated leave to care for her daughter, and that, regardless of whose error it was, Petitioner must repay for leave she used that was not obtained in accordance with prescribed rules.

            It is not necessary to decide whether Petitioner intentionally deceived anyone as to the basis for her request.  Assuming she honestly believed that her request for donated leave was proper, based on the fact that she had done the same thing in 2002, it is easy to have sympathy for her now.  However, as we have often said in debt collection cases involving pay, the fact that an overpayment was caused by someone else’s error, and was not the employee’s “fault,” does not entitle an employee to keep money, or in this case leave, not credited to the employee within the rules.

            Petitioner also argues that, had she been correctly informed about the rules by management, she could have justified the donated leave by claiming her own personal health issues.  Perhaps in some circumstances this might constitute a defense to the Postal Service’s claim, but the facts do not support it here.  Having learned of the correct rules in March 2007, according to her testimony, she made no attempt to resubmit her request with appropriate supporting documentation (see Finding #7).  The record provides nothing to support a conclusion that her request for donated leave could have, or should have, been approved based on her personal health condition.

            The Petition is denied.  Respondent may collect $1,205.45 from Petitioner’s salary.

Bruce R. Houston
Chief Administrative Law Judge

[1] The hearing was conducted by the undersigned Administrative Law Judge via speaker telephone from Arlington, VA.  All other participants, including the court reporter, were present in a conference room at the hearing site.

[2] Management Instruction EL-510-2003-2, p. 2.

[3] References to the hearing transcript are “Tr. _.”  References to Postal Service exhibits are “PS Ex._.”  References to Petitioner’s exhibits will be “Pet. Ex._.”